On Jeppesen, Part 2: Other Remedies

When Prime Minister David Cameron went before the House of Commons in July to announce an official investigation into allegations that British intelligence agents had been complicit in the U.S.-orchestrated rendition and torture of Binyam Mohamed and other U.K. residents, he answered the question I posed at the end of the last diary entry this way:

For the past few years, the reputation of our security services has been overshadowed by allegations about their involvement in the treatment of detainees held by other countries.

Some of these detainees allege they were mistreated by those countries.

Other allegations have also been made about the U.K.’s involvement in the rendition of detainees in the aftermath of 9/11.

These allegations are not proven.

But today, we do face a totally unsatisfactory situation.

Our services are paralysed by paperwork as they try to defend themselves in lengthy court cases with uncertain rules.

Our reputation as a country that believes in human rights, justice, fairness and the rule of law — indeed for much of what the Services exist to protect — risks being tarnished.

Public confidence is being eroded with people doubting the ability of our Services to protect us and questioning the rules under which they operate. And terrorists and extremists are able to exploit these allegations for their own propaganda.

Mr. Speaker, myself, the Deputy Prime Minister, the coalition government — we all believe it is time to clear this matter up once and for all.

When he made this announcement, Cameron also told reporters he expected his government would be settling the civil lawsuit Mohamed and others have filed in the U.K., thereby settling the Convention Against Torture’s requirement that governments responsible for or complicit in torture compensate the victims of abuse.

In other words, the British Prime Minister decided that his office has both the power and responsibility to investigate and right the wrongs of the recent past — and that doing so is essential for Britain’s national security.

I’ve been thinking about this a lot in light of the U.S. 9th Circuit Court of Appeals ruling that Mohamed and his four coplaintiffs can’t press their claims against Jeppesen in American courts without endangering state secrets.

There is no state secrets privilege in the U.S. Constitution. There is, however, a detailed diagram of three coequal branches of government, each with responsibilities — and abilities — to check the conduct of the others. Under the scheme, the branch we instinctively look to for justice when government agents violate the law and trample individual rights is the courts. But the Jeppesen decision, coupled with the Supreme Court’s refusal this year to hear the case of Mahar Arar, the Canadian citizen who was mistakenly rendered to Syria to be tortured, should make us all pause and re-examine the assumption that our courts stand between us and unchecked presidential lawlessness.

Declaring that it was denying Mohamed and his coplaintiffs their day in court “reluctantly,” the court’s narrow majority tried to mitigate the damage of its own actions by insisting that the men could look to the other two branches of government for justice. In an unusual section of the opinion titled “Other Remedies,” Judge Raymond C. Fisher acknowledges that the court’s decision “deprives [the plaintiffs] of the opportunity to prove their alleged mistreatment and obtain damage,” and that terminating the case eliminates an “important check on alleged abuse by government officials and putative contractors”; however, he insists, “Our holding today is not intended to foreclose — or to prejudge — possible non-judicial relief, should it be warranted for any of the plaintiffs.”

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II.

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch….

Third, Congress also has the power to enact private bills….When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for…violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001

Judge Michael Daly Hawkins, in his dissenting opinion, scoffed at this suggestion that the plaintiffs could expect justice from the White House and Congress — the very branches of government, after all, that had run, and tacitly supported, the Rendition, Detention, and Interrogation program:

The majority concludes its opinion with a recommendation of alternative remedies. Not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief. Suggesting, for example, that the Executive could “honor[] the fundamental principles of justice” by determining “whether plaintiffs’ claims have merit” disregards the concept of checks and balances. Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of a payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered, elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enactment of “remedial legislation” leaves to the legislative branch claims which the federal courts are better equipped to handle.

Judge Hawkins punctuates his point by citing Justice Scalia’s dissenting opinion in Hamdi v. Rumsfeld, in which the Supreme Court recognized the right of Guantánamo detainees to challenge their detention in U.S. courts; he quotes a passage in which Scalia, arguing the court’s decision did not go far enough to check potential presidential lawlessness, quotes British jurist Sir William Blackstone:

Arbitrary imprisonment and torture under any circumstance is a “‘gross and notorious…act of despotism.’” But “‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’”

Sir Blackstone wrote this in 1765, before the creation of the United States. Interestingly, in the country where those words were written — a country where civil suits brought by Binyam Mohamed and other U.K. residents mistreated at the behest of the U.S. are still very much alive — the government appears poised to honor its obligations under the Convention Against Torture and its own national principles. Here in the U.S., meanwhile, the courts have repeatedly punted, and Congress and the White House have yet to stir.