Interrogation Memos Provide Further Reason To Give Torture Victims Day In Court, Says ACLU

Group Submits Letter In Extraordinary Rendition Case Against Boeing Subsidiary

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK - The American Civil Liberties Union today alerted a California federal appellate court that the government's assertion of the "state secrets" privilege in an extraordinary rendition case has even less merit given last week's Justice Department release of four "torture memos."

In a letter sent to the U.S. Court of Appeals for the Ninth Circuit today, the ACLU asserted that the recently released memos graphically describe several illegal interrogation techniques that were used by the CIA against some of the plaintiffs in its lawsuit against Boeing subsidiary Jeppesen DataPlan, Inc. for its role in the CIA's extraordinary rendition program. The government intervened and halted that case asserting "state secrets," relying upon former CIA Director Michael Hayden's declaration that disclosing specific interrogation techniques "would degrade the effectiveness of the United States' intelligence gathering activities by … providing terrorists information about interrogation methods."

"That rationale no longer exists, because the methods are now public, and because they have been expressly prohibited," said Ben Wizner, ACLU National Security Project attorney, in today's letter. "A program that does not exist cannot be 'degraded' by disclosures of information that is already public."

The case, Mohamed et al. v. Jeppesen, is now on appeal. Because of the government's overbroad and improper use of the state secrets privilege, no CIA torture victim yet has had his day in court.

"The CIA and its contractors have used false claims of secrecy to avoid any judicial scrutiny for grave human rights violations," said Wizner. "The notion that the extraordinary rendition program could be discussed everywhere in the world except in a U.S. courtroom has always been absurd. Now that the CIA's detention and torture program has been publicly confirmed and officially terminated, there is no basis whatsoever for denying its victims their day in court."

In addition to Wizner, attorneys in the lawsuit are Steven R. Shapiro, Steven Watt and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.

A full copy of the letter is shown below and available online at: www.aclu.org/safefree/torture/39407res20090421.html

More information on the ACLU's extraordinary rendition case against Jeppesen DataPlan is available online at: www.aclu.org/safefree/torture/29921res20070530.html

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April 21, 2009

Molly Dwyer, Clerk of Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939

Re: Mohamed et al v. Jeppesen Dataplan, Inc., No. 08-15693 (argued February 9, 2009)

Dear Ms. Dwyer:

Plaintiffs-Appellants submit this letter pursuant to Federal Rule of Appellate Procedure 28(j), to advise the Court of supplemental authority that bears directly on the issues on appeal.

On April 16, 2009, President Obama declassified four legal memoranda prepared by the Department of Justice's Office of Legal Counsel that purported to authorize the CIA's use of abusive interrogation techniques. (The four memos are available at www.aclu.org/olcmemos.) The memos confirm the CIA's use of a range of coercive techniques, including prolonged sleep deprivation, forced nudity, dietary manipulation, and stress positions, as well as specific techniques used to set the "initial conditions" for interrogation through preparation and flight to CIA facilities. These techniques were employed by U.S. personnel against some of the plaintiffs in this litigation.

The government's invocation of the state secrets privilege in this case is predicated on an October 18, 2007 declaration by former CIA Director Michael Hayden. General Hayden's declaration asserts that, "[w]hile the President [Bush] acknowledged the existence of the CIA terrorist detention and interrogation program, the details of the program remain highly classified." Hayden Decl. ¶ 9 n.4, ER 738. General Hayden insisted that disclosing specific interrogation techniques "would degrade the effectiveness of the United States' intelligence gathering activities by, for example, providing terrorists information about interrogation methods that would assist their interrogation resistance programs." Id. at ¶ 24, ER 748.

That rationale no longer exists, because the methods are now public, and because they have been expressly prohibited. As President Obama explained upon declassification of the memos:

First, the interrogation techniques described in these memos have already been widely reported. Second, the previous Administration publicly acknowledged portions of the program – and some of the practices – associated with these memos. Third, I have already ended the techniques described in the memos through an Executive Order. Therefore, withholding these memos would only serve to deny facts that have been in the public domain for some time.

Statement of President Barack Obama on Release of OLC Memos, April 16, 2009, available at http://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Release-of-OLC-Memos/. Indeed, the Executive Order issued by President Obama not only prohibited abusive interrogation techniques; it also directed that the "CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future." Exec. Ord. 13,491, 74 Fed. Reg. 4893 (Jan 22, 2009). A program that does not exist cannot be "degraded" by disclosures of information that is already public.

Respectfully submitted,

Ben Wizner
Counsel for Plaintiffs-Appellants

cc: Douglas Letter
Michael P. Abate
U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Ave., NW, Room 7318
Washington, DC 20530

Daniel P. Collins
Munger, Tolles & Olson LLP
355 South Grand Ave., 35th Floor
Los Angeles, CA 90071-1560