President Obama's pledge to turn the CIA's involvement in secret detention and torture into a thing of the past was sharply tested today, and critics say he failed miserably.
"This is not change," said the American Civil Liberties Union. "This is definitely more of the same."
In a federal court hearing in San Francisco this morning, a representative of the Justice Department said it would continue the Bush policy of invoking the 'state secrets' defense, which has been used in cases of rendition and torture.
The ACLU is arguing that its lawsuit against Boeing subsidiary Jeppesen Dataplan, Inc. should go forward. The suit is based on the company's alleged participation in the CIA's rendition program, and the Bush administration had previously intervened by saying that the case undermined national security interests, according to the ACLU, which is appealing the dismissal of the suit in Feb. 2008.
"Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issues," the ACLU said in a statement. "If this is a harbinger of things to come, it will be a long and arduous road to gives us back an America we can be proud of again."
A spokesman for the DOJ said Attorney General Eric Holder has begun reviewing all state secret privilege matters, and that "It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases."
Today's hearing before the Ninth U.S. Court of Appeals in San Francisco had been highly anticipated because it was seen as the first test of the Obama's administration stance on the controversial issue of rendition - in which terrorist suspects are secretly flown to countries or secret CIA camps, in which torture has been alleged.
"Under the Bush administration, the U.S. government used false claims of national security to dodge judicial scrutiny of extraordinary rendition," said ACLU staff attorney Ben Wizner, who is arguing the case for the plaintiffs. "This case presents the first test of the Obama administration's dedication to transparency and willingness to act on its condemnation of torture and rendition."
It was not known whether Obama's team would choose to delay the issue, and seek to adjourn the case, or whether the issue would be immediately addressed.
Though the new White House might wish simply to go beyond the past and move on, the trouble is that uncovering the truth of what happened is judged by many as essential – not least towards weighing up the claims of many prisoners still held at Guantanamo and elsewhere that their "confessions" to plotting acts of terrorism were obtained under torture.
Take the case of Binyam Mohamed, an Ethiopian brought up in Washington, DC and London, now in his 2,249th day of detention. After his arrest in Pakistan in 2002, he followed a grim odyssey that, by his account, took him through the CIA's rendition program, through a CIA 'black site' in Afghanistan, through extreme torture in Pakistan and Morocco, and finallly into military hands at Guantanamo Bay.
Mohamed is one of the plaintiffs in the San Francisco Case. All are current or former prisoners who allege that aviation contractor Jeppersen Dataplan, Inc. helped run the CIA's torture" target="external">secret fleet of planes that ferried them on a rendition to torture. The Justice Department has tried to strike out the case, without a hearing of the facts, on the grounds of state secrets. (Jeppesen has previously declined to comment in detail on the case although it made clear that, though it provides aviation support services, it is not directly responsible for the flights it handles.)
The White House is already in the spotlight over Mohamed's case. In London, UK, last week, the British High Court invoked the lofty principles "law, free speech and democratic accountability" to appeal to the U.S. Government to allow the release of a summary of 42 documents that originated from U.S. intelligence and which might provide, they said, "powerful evidence" of a long kept secret that might help prove that Mohamed's astonishing claims of mistreatment are true.
Binyam's case is urgent, especially because he is on hunger strike. According to Lt. Col Yvonne Bradley, his military lawyer, Mohamed he has lost more than 50 pounds in weight. When Bradley last saw him a couple of weeks ago, his arms, she said, stuck out of his 6 foot body "like little thin twigs."
Although previously accused by U.S. authorities of plotting a terror attack on American soil, including an allegation now withdrawn that he conspired to explode a radioactive so-called 'dirty bomb', Mohamed is currently not charged with any crime. His former military prosecutor declared a month ago he presented no threat to either America or the UK.
Mohamed's case, in its detail, seems to not only trace all the controversial parts of the post-9/11 detention system, but also to sum up the dilemma of how justice and the on-going terrorist threat should be dealt with:
It was about 10 p.m. local time on July 21, 2002, when the men in black ski masks arrived to collect him from where he sat at Islamabad Airport. They began by stripping him naked. They put him in a nappy and a tracksuit, blindfold him and tape a mask across his mouth, he later told his lawyer.
They were a CIA para-military team; which came to scoop him up and place him on one executive jet used by the American spy agency to "render" terrorist suspects to and from jail cells across the world. In Mohamed's case, his destination where he arrived at 3:43 a.m. the following morning was the Moroccan capital of Rabat, Mohamed says.
Though never confirmed officially by the U.S., evidence that verified this "rendition" to Morocco came from the flight logs of the now notorious Gulfstream jet involved and which matched the exact details of Mohamed's testimony of being spirited away. But it has always been much harder to assess the truth of his account of appalling torture that he said occurred both in Pakistan before his transfer and in Morocco soon after.
After he was first arrested at Karachi Airport three months earlier, Mohamed said that soon after the first questions from Americans, Pakistani interrogators followed up by hanging him by a leather strap round his wrist, beating him, and then threatening him with a pistol to the head. Then, when this stopped, an agent from British intelligence came to hint to him that he should cooperate or face being sent to be tortured by Arabs.
When he was flown to Morocco, he said, it got worse. He was beaten with savagery and at one stage cut over his genitals with razor blades. Again there was a British connection, he alleged. A book of photographs of people at a London mosque had been shown to him, as well as questions posed about his life back in Notting Hill. The agents called their paperwork the "British file."
In Jan. 2004, Mohamed said he was rendered onwards by the Americans to Kabul, Afghanistan (again confirmed by CIA flight records). This time he was held in a covert CIA "black site" known as the Dark Prison. Inmates here were held day and night without light while being bombarded with constant loud music, he claims.
Only after a journey of over two years between secret prisons did Mohamed, by his account, emerge from clandestine detention to the more open but still harsh world of U.S. military detention. And in Guantanamo, he finally got to tell his story to British lawyer Clive Stafford Smith.
Born in 1978, the son of an Ethiopian airlines worker, Mohamed's family had moved to Washington, DC when he was young, and then he and his father had moved on to London, where he lived from the age of 16 to 22.
Some time in the spring of 2001, Mohamed travelled to Afghanistan. According to later claims by the U.S. Government (and it is not clear which, if any, charges U.S. prosecutors still aim to pursue), he attended training at al Qaeda camps, went on the run after 9/11 and became a companion of a former street gangster from Chicago named Jose Padilla, or the so-called 'dirty bomber.' The pair were said to have associated with al Qaeda leaders like Abu Zubaydah and Khalid Sheikh Mohamed and to have hatched plots to explode a devastating bomb in the U.S. Mohamed has vehemently denied knowing these men – or having any connection with terrorism.
While Padilla was arrested in May 2002 - he returned to the U.S. and was later convicted of lesser charges - Mohamed was arrested a month earlier in Karachi when he tried to board a flight to Europe using a false passport. With American intelligence alerted, his journey through the detention system began here.
During his detention, Mohamed made several confessions. He argued later these were all forced by torture. But, with the U.S. refusing to to confirm, even in court, any aspect of its secret program of rendition and secret detention, he, like most other subjects of rendition, have struggled to find positive proof to document that physical abuse.
The twist in his story came from lawsuits filed in London that effectively forced the British government, against its earlier wishes, to take up the cases of Guantanamo detainees like Mohamed who, while legally resident in Britain, were not UK citizens. This development forced the Government in Mohamed's case to reveal what evidence was held in secret British intelligence files that might be useful to proving his innocence.
After previous judgements last year effectively exposed the UK holding some secret evidence useful to Mohamed's defence – mainly information shared with Britain by U.S. intelligence – the American government did let Mohamed's defence team see those documents, provided they remained secret.
Last week, however, Lord Justice Thomas and Mr Justice Lloyd Jones of the British High Court, took matters further – arguing that while it was not for them to order public disclosure of U.S. secret material, particularly in the face of clear and dire "threats" by the U.S. government to reduce intelligence-sharing with Britain if they did, there was a pressing case for the information to be publicly revealed.
In striking comments, they suggested surprise that a democracy like the U.S., "governed by the rule of law," would want to suppress evidence "relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be."
In the House of Commons, the British foreign secretary, David Miliband, denied there were ever such explicit threats. But he did confirm that releasing the documents despite strong U.S. protests would result in "real and significant damage to the national security and international relations of this country."
One way or another, it was a court judgement that put President Obama's White House perfectly on the spot. Despite all of Obama's condemnations of the Bush administration and its promise to break with the past on issues of rendition and torture: what is it going to do with the all trail of evidence?
The 42 secret documents obtained by the High Court – summarised in just seven paragraphs censored from the public judgement – were said to refer only to one part of Mohamed's treatment, his alleged torture in Pakistan. But establishing the principal of exposing such things, some U.S. officials suggest, could open the floodgates to exposing the secrets of rendition and secret detention.
Even just this limited material, said the judges, gave rise to an "arguable case of torture or cruel, inhuman or degrading treatment" in law. As "admissions" by U.S. Government officials about how Mohamed was treated, they could possibly used as evidence in a criminal court.
Last Thursday, Leon Panetta, Obama's new nominee for CIA director, while condemning practices of rendition and torture, told senators at his nomination hearing that he opposed any move to prosecute those obeying orders to use harsh methods.
But if everything that happened inside the world of rendition and secret detention after 9/11 is made public, some form of criminal investigation into the conduct of those officers may, for legal reasons, be unavoidable, regardless of whether Obama wants it or not.
Stephen Grey, an ABC News consultant, is the author of "Ghost Plane: The True Story of the CIA's Rendition and Torture Program" (St. Martin's Press). He is an award-winning investigative reporter who has contributed to the New York Times, BBC, PBS and ABC News among others.