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Profile: Jeppesen Dataplan
Jeppesen Dataplan was a participant or observer in the following events:
A Justice Department official says that the Obama administration will continue to assert the so-called “state secrets privilege” (see March 9, 1953) in a lawsuit filed by Guantanamo detainee Binyam Mohamed (see February 8, 2009). In the case Mohamed et al v Jeppesen Dataplan, Inc, Mohamed and four former detainees are suing a Boeing subsidiary, Jeppesen Dataplan, for cooperating with the CIA in subjecting them to “extraordinary rendition,” flying them to foreign countries and secret overseas CIA prisons where, they say, they were tortured. The case was thrown out a year ago, but the American Civil Liberties Union (ACLU) has appealed it. According to a source inside the Ninth US District Court, a Justice Department lawyer tells the presiding judge that its position has not changed, that the new administration stands behind arguments that the previous administration made, with no ambiguity at all. The lawyer says the entire subject matter remains a state secret. According to Justice Department spokesman Matt Miller, “It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court’s decision in Reynolds that the privilege not ‘be lightly invoked.’” Miller adds that Attorney General Eric Holder is conducting a review of all state secret privilege matters. “The Attorney General has directed that senior Justice Department officials review all assertions of the State Secrets privilege to ensure that the privilege is being invoked only in legally appropriate situations,” Miller says. “It is vital that we protect information that, if released, could jeopardize national security. The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government’s actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations.” The ACLU’s Anthony Romero says that the Obama administration is doing little besides offering “more of the same.” He continues: “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition, and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. 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 issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again.” ACLU attorney Ben Wizner, who argued the case for Mohamed and the other plaintiffs, adds: “We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration’s practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government’s false claims of state secrets and allowing the victims of torture and rendition their day in court.” [ABC News, 2/9/2009]
The US Court of Appeals for the Ninth Circuit reinstates the case of Mohamed v. Jeppesen Dataplan, overruling strong objections from the Obama administration (see February 9, 2009), which argued that the case risked revealing “state secrets.” The New York Times writes that the verdict “deal[s] a blow to efforts by both the Bush and Obama administrations to claim sweeping executive secrecy powers.” Five victims of the CIA’s “extraordinary rendition” program are suing Jeppesen, a subsidiary of Boeing, for assisting the CIA with its transfer flights to and from secret overseas detention sites. The former detainees are joined in their suit by the American Civil Liberties Union (ACLU). A lower court had previously ruled in the government’s favor while President Bush was in office; the Obama administration supported the Bush administration’s position. The logic of the state secrets privilege, the appeals court panel writes, “simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities. Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery.” The ACLU had argued that there was no compelling reason to prevent the victims from bringing suit against a government contractor who allegedly assisted in their torture. The pursuit of those claims would not necessarily endanger state secrets. [Washington Independent, 4/28/2009; New York Times, 4/28/2009]
Government Asked for Immunity from Oversight, Court Finds - Repudiating the state secrets claim in the case, the appeals court adds: “The [government’s position] 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 activities from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.” [Salon, 4/28/2009]
Civil Liberties Advocates Celebrate Verdict - Civil liberties correspondent Daphne Eviatar calls the decision “a huge victory, not only for the five victims themselves, but also for many civil liberties advocates.” Former civil litigator and columnist Glenn Greenwald calls the government’s position a “radical secrecy theory” that should have been repudiated in its entirety. “Today’s decision is a major defeat for the Obama [Justice Department]‘s efforts to preserve for itself the radically expanded secrecy powers invented by the Bush [Justice Department] to shield itself from all judicial scrutiny,” he writes.
Further Actions Possible - The Obama administration has the option to ask for another appeals court hearing, ask that the Supreme Court review the decision, or accept the ruling. Greenwald is certain it will ask for another appeal. [Washington Independent, 4/28/2009; Salon, 4/28/2009]
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