When it comes to the crimes committed by the US government in the brutal “war on terror” declared after the terrorist attacks of September 11, 2001, the wheels of justice move so slowly that their motion is almost imperceptible.
A case in point involves four survivors of the CIA’s rendition and torture program — British residents Binyam Mohamed and Bisher al-Rawi, Abou Elkassim Britel, an Italian citizen, and Mohamed Farag Ahmad Bashmilah, a Yemeni. Also see my extensive archive about Binyam Mohamed’s case, which I covered in great detail in 2008 and 2009.
Last month, on July 8, in what the ACLU accurately described as a “historic decision,” the Inter-American Commission on Human Rights — an international human rights tribunal based in Washington, D.C., which reviews cases throughout the Americas, and whose judgments are meant to be binding on the states involved — determined that the four men, “survivors of the US secret detention and torture program,” have “the right to present their case before the regional tribunal.”
And those wheels of justice? Well, here goes. The case was only submitted to the IACHR — in November 2011 — after a long quest for justice in the US had been exhausted. The ACLU had first filed a lawsuit in May 2007 on behalf of three of the men — against Jeppesen Dataplan, Inc., a subsidiary of Boeing whose role as “The CIA’s Travel Agent” was first exposed, through statements made by a former Jeppesen employee, in an article by Jane Mayer for the New Yorker in October 2006.
As I explained in an article ten years ago:
In statements that were later submitted to the court, Sean Belcher, a former employee, said that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “We do all the extraordinary rendition flights,” which he also referred to as “the torture flights” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “some of these flights end up” with the passengers being tortured, but added that Overby had explained, “that’s just the way it is, we’re doing them” because “the rendition flights paid very well.”
In its press release last month, the ACLU explained how, “During rendition flights, victims were often stripped naked, sexually assaulted, diapered, chained, and strapped down to the floor of an airplane as part of a brutal procedure known as ‘capture shock’ treatment.”
As the ACLU explained in its page relating to the case, in February 2008 the District Court “dismisse[d] the ACLU’s case against Jeppesen after the government intervened, inappropriately invoking the ‘states secrets privilege’ to avoid legal scrutiny of an unlawful program.” The ACLU appealed, and in February 2009 a three-judge panel of the 9th Circuit Court of Appeals heard the case. Barack Obama was now president, but the Department of Justice “once again assert[ed] that the entire subject matter of the case [was] a state secret.”
In April 2009, a three-judge panel of the 9th Circuit Court of Appeals — led by Judge Michael Daly Hawkins, and also including Judges Mary M. Schroeder and William C. Canby, Jr. — reversed the District Court’s dismissal of the case, “ruling that the government cannot invoke the state secrets privilege to dismiss the entire suit, rather, the privilege can only be invoked with respect to specific evidence,” as the ACLU described it.
I wrote about it at the time, 100 days into Obama’s presidency, citing pertinent passages from the ruling, including the following:
At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations” about [secret] conduct by the CIA. This sweeping characterization of the “very subject matter” bar has no logical limit — it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.
Following the April 2009 ruling, the case was remanded back to the District Court, but before that could happen the government asked the full appeals court — an 11-judge panel — to hear the case. That happened in December 2009, and in September 2010 the court reversed the April 2009 decision, as I explained in my article at the time, By One Vote, US Court OKs Torture and “Extraordinary Rendition”.
As I explained in my article, “when asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to ‘extraordinary rendition’ and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.”
In December 2010, the ACLU “file[d] a cert petition, asking the US Supreme Court to review the lower court’s decision dismissing the lawsuit,” but in May 2011 the Supreme Court turned down the request, exhausting the legal options in the US, and leading the ACLU — with the NYU Global Justice Clinic — to approach the IACHR instead.
Meanwhile, in the US, the truth of the men’s claims was further highlighted with the publication, in December 2014, of the executive summary of the Senate Intelligence Committee’s report into the CIA torture program, which took five years to complete, and which, damningly for the CIA and the Bush administration, condemned the program for being brutal and counter-productive. 119 victims of rendition and torture were named in the report, including Binyam Mohamed, Bisher al-Rawi and Mohamed Farag Ahmad Bashmilah, although, like an untold number of other prisoners who were not held in specific CIA “black sites,” but in facilities in, for example, Morocco, Jordan, Syria or Egypt, Abou Elkassim Britel (held in Morocco) was not. Mohamed and al-Rawi were also the only two of the four to also be held at Guantánamo.
Following the recent IACHR ruling, the ACLU explained that, “In ordering the case to move forward, the Inter-American Commission found that ‘insurmountable obstacles within the US legal system’ prevent victims of US counterterrorism operations from obtaining remedies before US courts.”
Steven Watt, senior staff attorney with the ACLU’s Human Rights Program, said, “Unlike US courts, the Commission found that victims of US extraordinary rendition and torture can have their claims heard. Our clients’ decades-long pursuit of justice has finally paid off.”
The ACLU noted that the IACHR “found that the US is responsible under the American Declaration on the Rights and Duties of Man to respect the rights of everyone under US control, even when such persons are located outside the country.” Following its decision to proceed, the IACHR “will now consider the merits of the survivors’ legal claims, including any US violations of the rights enshrined in the American Declaration.”
Professor Margaret Satterthwaite, Director of the NYU Global Justice Clinic, and counsel for Mr. Bashmilah, said, “At a time when the Trump administration is doing everything in its power to thwart accountability for US torture, this decision demonstrates that the US is not above the law. President Trump has relentlessly attacked international justice institutions, most recently with an executive order authorizing sanctions against the International Criminal Court for even investigating US war crimes. The Inter-American Commission’s decision to accept this case shows that the quest for accountability will not be quashed.”
The above article was written for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.