The US government has failed even to acknowledge that these crimes were committed in the CIA program, let alone to bring those responsible to justice and provide remedy to those subjected to these human rights violations. Yet only last month, the US administration told the United Nations High Commissioner for Human Rights that the USA “takes vigilant action… to hold those who commit acts of official cruelty accountable for their wrongful acts”. In this August 2010 report filed as part of the forthcoming scrutiny of the USA’s human rights record under the UN Universal Periodic Review (UPR) process, the US administration concluded that “delivering on human rights has never been easy, but it is work we will continue to undertake with determination, for human rights will always undergird our national identity and define our national aspirations”.2
Today the USA is widely seen as having systematically violated human rights in the name of national security after the attacks of 11 September 2001 and to have done so undergirded by measures to facilitate impunity. Despite the fact that under President Barack Obama it has acted to end some, although not all, of the unlawful policies developed and carried out during the previous administration, it has utterly failed to address the issue of accountability and remedy in any meaningful way.
It should pursue with determination its obligation to uphold “fundamental principles of justice” and to end the accountability and remedy gap.
Themohamed v. jeppesen lawsuit and the court of appeals ruling
The lawsuit in question was filed in US District Court in 2007 by UK resident Binyam Mohamed, Italian national Abou Elkassim Britel, Egyptian national Ahmed Agiza, Yemeni national Muhammad Faraj Ahmed Bashmilah, and Bisher al-Rawi an Iraqi national and UK permanent resident. Between them they allege that they were “rendered” to secret detention in Morocco, Egypt and Afghanistan and subjected to various forms of torture or other ill-treatment.
The lawsuit alleges that Jeppesen Dataplan, Inc. (Jeppesen), a subsidiary of the Boeing Company, had provided “direct and substantial services” to the CIA for the rendition program. In so doing, the lawsuit continued, “Jeppesen knew or reasonably should have known that Plaintiffs would be subjected to forced disappearance, detention, and torture in countries where such practices are routine”.
The administration of President George W. Bush moved to intervene in the case, to assert “state secrets privilege” on behalf of itself and Jeppesen, and to have the case dismissed on that basis. Under US law, the government may assert state secrets privilege when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interests of national security, should not be divulged”. Under US law, the invocation of the state secrets privilege has been found to be a categorical bar to a lawsuit in cases where the very subject matter of the lawsuit was considered a state secret. The Bush administration asserted that the subject matter of this lawsuit was. In support of this assertion, the then Director of the CIA, General Michael Hayden, filed declarations in the District Court asserting that proceeding with the case would cause “exponentially grave damage” to national security by revealing CIA methods and sources and “extremely grave damage” to the USA’s foreign relations and activities by revealing which governments the CIA had cooperated with.