Justice denied for victims of US policy of extraordinary rendition

In yet another example of the ‘state secrets’ doctrine overriding the right to a remedy, victims of extraordinary rendition have been denied the opportunity to seek justice after the United States Supreme Court refused to review the dismissal of their case.

The claimants – Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah and Bisher Al-Rawi – say that they were seized by the US Central Intelligence Agency (CIA) in various parts of the world and flown to third countries where they were tortured.

They filed a suit against Jeppesen Dataplan, a Boeing subsidiary, alleging that it had knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA.

The case was originally dismissed at a very early stage after the US Executive intervened on the grounds that continuing with the case would inevitably risk national security. The decision was initially reversed on appeal, but was later upheld by the US Court of Appeals of the Ninth Circuit, based on the doctrine of ‘state secrets’ last examined by the Supreme Court in 1953.

In the Court’s view there was no feasible way of litigating the case without creating an unjustifiable risk of divulging ‘state secrets’. The US Supreme Court only accepts a small number of cases to examine fully each year. Its ruling this week not to hear the appeal in this case means that the lower court decision stands and the men’s claims will never be tested in Court.

REDRESS, with other organizations, participated as amicus curiae in both the certiorari petition before the US Supreme Court and at lower levels of appeal, arguing that the decision to stop the claim before it even started is contrary to the most fundamental principles of international law.

Victims of gross violations of human rights – including torture and enforced disappearance – have the right to an effective remedy under international law. Allowing the Executive to rely on a blanket assertion of ‘state secrets’ – without finding ways in which national security concerns could be accommodated while allowing the claim to proceed – violates this right and leaves victims with no realistic prospect of redress in precisely the types of cases where the most egregious violations may have occurred.

The Court’s refusal to allow claims to continue in cases such as these also permits the government to prevent disclosure of gross violations of international law, and for those who have committed it to have done so with impunity. This is manifestly wrong – particularly where states have a clear positive duty to investigate such violations with the aim of bringing those responsible to justice.

To date, no victim of the extraordinary rendition programme has had the truth of what happened to them examined in the US courts. The US Supreme Court did hear a case in January this year – General Dynamics Corp. v. United States (09-1298); Boeing Company v. United States (09-1302) – which raises the state secrets privilege in the context of long-running contractual disputes between the United States and General Dynamics and the United States and (ironically) Boeing Corporation.

The judgment has not yet been delivered, but many commentators hope that this will give the Court the opportunity in what are seen as less controversial circumstances to ‘rethink’ the doctrine for the current era.

Without such a rethink from the US’s highest judicial body, and sensitivity to the implications that it has for fundamental human rights, it is likely that in cases such as Jeppesen Dataplan (precisely where the government is most heavily implicated) officials will continue to be shielded from scrutiny, and victims will face insurmountable hurdles to achieving justice and reparation.

The consequences of this – not only for the victims involved, but for the rule of law and the reputation of the United States – should not be underestimated. See Redress’s amicus curiae submission to the Supreme Court (with Interights, the International Commission of Jurists, the World Organisation Against Torture and international law scholars) in Binyam Mohamed et al. v. Jeppesen Dataplan Inc. here: