Of all the excesses of the post-9/11 war on terror, none was as outrageous as the practice of “extraordinary rendition” — transferring suspects abroad for interrogation and, it’s alleged, torture. Compounding the injustice, five victims of rendition were denied the opportunity to challenge their treatment in court this week when the U.S. 9th Circuit Court of Appeals blocked their lawsuit against a San Jose airline-services company accused of assisting in their transportation to foreign countries.
Overruling a three-judge panel of the same court, the 9th Circuit held 6 to 5 that allowing the suit to proceed, even on the basis of publicly revealed information, would risk the release of state secrets. Judge Raymond C. Fisher’s majority opinion agonized about the tension between national security and “justice, transparency [and] accountability.” But, in the end, the court ratified extravagant claims by the George W. Bush and Obama administrations that a trial would violate the “state secrets privilege.”
The court could have taken a narrower approach, allowing a trial to go forward and letting the judge consider on a case-by-case basis whether particular pieces of evidence needed to be kept secret. Instead, it preempted that process by citing another court’s observation that sometimes “seemingly innocuous information is part of a … mosaic,” so that even the use of unprivileged information creates a risk of inadvertent disclosure of state secrets.
The decision to short-circuit the trial process is more than a misreading of the law; it’s an egregious miscarriage of justice. That’s obvious from a perusal of the plaintiffs’ complaint. One said that while he was imprisoned in Egypt, electrodes were attached to his earlobes, nipples and genitals. A second, held in Morocco, said he was beaten, denied food and threatened with sexual torture and castration. A third claimed that his Moroccan captors broke his bones and cut him with a scalpel all over his body, and poured hot, stinging liquid into his open wounds.
Perhaps embarrassed by its refusal to give these plaintiffs their day in court, the majority suggested other ways in which they might be compensated, such as payments from the government comparable to the reparations provided to Latin Americans of Japanese descent who were interned in this country during World War II. (A dissenting judge noted that it took 50 years for that offense to be redressed.)
No, the proper remedy for the injustices the plaintiffs allege lies in the courtroom. The Supreme Court should reopen the door that the 9th Circuit slammed shut.