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SAN FRANCISCO – A federal appeals court on Tuesday ruled that a subsidiary of Chicago-based Boeing Co. can be sued for allegedly flying terrorism suspects to secret prisons around the world to be tortured as part of the CIA‘s “extraordinary rendition” program.
A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said that a lower court judge wrongly tossed out the lawsuit after the government asserted the case was a “state secret” that would harm national security if allowed to go forward.
The trial court judge dismissed the case before the prisoners could present evidence allegedly showing that the company’s participation in the program was illegal. The Bush administration and then the Obama administration argued that the lawsuit should be thrown out before the government turns over any evidence because the nature of the legal action is itself a classified matter.
The federal government inserted itself into the lawsuit on the company’s side because it said feared top-secret information would be disclosed.
The appeals court, however, said the five prisoners suing San Jose-based Jeppesen Dataplan Inc. can try to prove their case without using top-secret information that legitimately needs protection from disclosure.
“Only if privileged evidence is indispensable to either party should it dismiss the complaint,” Judge Michael Hawkins wrote for the appeals court.
The prisoners’ attorney, Ben Wizner of the American Civil Liberties Union, said the ruling will give his clients a chance to prove their case, which was filed in 2007 and alleged torture in the months after the Sept. 11 attacks.
“It is now 2009 and no torture victim has achieved justice or compensation,” Wizner said. “This finally puts us at the starting line.”
The government or the company could appeal the decision to a bigger panel of the 9th Circuit or ask the Supreme Court to review the ruling.
The Bush administration was widely criticized for its practice of extraordinary rendition — whereby the CIA transfers suspects overseas for interrogation. Human rights advocates said renditions were the agency’s way to outsource torture of prisoners to countries where it is permitted practice. Some of the prisoners allege they were tortured.
The Bush White House had said the U.S. does not engage in torture.
The Obama administration says it will continue to send foreign detainees to other countries for questioning but only if U.S. officials are confident the prisoners will not be tortured. The White House is reviewing the entire detention and rendition program.
When Boeing chose Chicago over Seattle, Dallas and Denver as its corporate headquarters, there was rejoicing in the city. The Boeing symbol on our West Loop Skyline is one sign that we have made it as a global city.
We regret Boeing losing key defense contracts as we do losses by the Cubs and Sox.
Boeing pretends to be a good corporate citizen supporting Chicago arts groups and community organizations with grants. The company is listed prominently in playbills and annual reports.
But Boeing also abets torture. It is, after all, a defense contractor as well as a provider of civilian passenger jets. It is locked at the hip and the bottom line with the U.S. government.
Despite our pride in Boeing as a global corporation, it is as amoral as the German corporations that aided Hitler. Only money and contracts count with Boeing.
Boeing’s subsidiary, Jeppesen Dataplan, since 2001 has provided flight and logistical support for at least 15 aircraft making 70 clandestine flights for the CIA. Jeppesen allows the CIA to transport prisoners such as ACLU plaintiffs Binyam Mohamed, Abou Elkassim Britel, and Ahmed Agiza to secret locations where they were tortured as part of our government’s “war on terror.”
The fact that kidnapping and torture is given the more benign name of “rendition” changes nothing. The CIA uses civilian planes and Boeing’s and Jeppesen’s planning and collaboration to avoid legal procedures in other countries. It is illegal to use European facilities such as airports to spirit prisoners away to be tortured without due process. U.S. taxpayer money is being paid to Jeppesen and Boeing for “travel services” to transport prisoners, some kidnapped and others turned over for bounty payments. All of the CIA prisoners were tortured in countries such as Jordan, Egypt, Afghanistan and Morocco.
Other American companies, such as phone companies, help the government monitor our “private” phone calls. These companies and Boeing, like German companies 70 years ago, help our government undermine human and civil rights.
On April 28, Boeing stockholders met at the Field Museum. They were greeted by a small band of protesters, including Chicago author Sara Paretsky. She wrote about the protest in her blog, “At the end of [a good] novel, justice somehow triumphs. At the end of the morning [protest] in Chicago, money won.”
For now, Boeing continues to aid in rendition and torture. And the stockholders, mostly unknowingly, go along.
A few days before the stockholder meeting, an American Civil Liberties Union lawsuit against Boeing was dismissed in federal court. The CIA claimed the need to protect “state secrets.” But the basic facts are disputed by neither Boeing nor the CIA. As ACLU attorney Ben Wizner argued in court, “No interrogation method . . . is secret. Every one of those has been disclosed and confirmed and in the public record.” And the record implicates Boeing. As Meg Satterwaite, an attorney for one of the tortured prisoners has said, “Corporate complicity is actually a crucial part of the CIA program.”
While management won the stockholder meeting and first court confrontations, the Coalition to Ground Boeing Torture Flights was born. The next steps in the anti-Boeing campaign will be teach-ins on college campuses and demands for the sale of Boeing stock by pension funds and universities. The coalition is calling on Congress investigate Boeing’s role and on the Chicago City Council to pass a resolution condemning Boeing.
Boeing is a giant global corporation, a Goliath. It is opposed by a handful of protesting Davids. I, for one, want to be counted among the Davids.
Like any other citizen, our Chicago corporate citizens should oppose, not abet, torture.
View a segment from Bill Moyers Journal on the new film “Taxi to the Dark Side.”
CIA director Michael Hayden, defending the practice of sending terrorism suspects to countries that interrogate by torture via secret “renditions,” told USA Today last month that this program is “lawful, in keeping with Western values.
“I’ve never managed a more sensitive, law-abiding workforce [than the CIA] in my life,” added the former head of the National Security Agency, which has long engaged in lawless spying on American phone calls and e-mails.
In its story, USA Today failed to note that a 1998 U.S. law, the Foreign Affairs and Restructuring Act, explicitly states: “It shall be the policy of the United States not to expel, extradite or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.”
The ACLU, in its lawsuit against Boeing’s subsidiary, Jeppesen DataPlan (which, among other things, operates an elite travel agency), is representing three victims of the CIA’s renditions—an Ethiopian, Italian, and Egyptian. In court papers, the ACLU reveals how this branch of the world’s largest aerospace company collaborates with Hayden’s “men in black” to ignore both our laws and international treaties:
“In providing its services to the CIA, Jeppesen knew or reasonably should have known that plaintiffs would be subjected to forced disappearances, detention, and torture in countries where such practices are routine. Indeed, according to published reports, Jeppesen had actual knowledge of its activities [violating the Alien Tort Statute of 1789].”
The ACLU then goes to the smoking gun in this case, as first reported by The New Yorker‘s Jane Mayer in “The CIA’s Travel Agent” (October 30, 2006):
“A former Jeppesen employee, who asked not to be identified, said recently that he had been startled to learn, during an internal corporate meeting, about the company’s involvement with the rendition flights. At the meeting, he recalled, Bob Overby, the managing director of Jeppesen International Trip Planning, said, ‘We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way.'”
Mayer also reported that Overby was heard to say that the CIA flights paid well because the agency had no worries about how it spent the taxpayers’ money.
After I saw Mayer’s story last October, I called Jeppesen’s San Jose, California, headquarters for a reaction. Nobody would talk to me. So I called Boeing’s Chicago headquarters. All I got was a round of “no comments.”
Once the ACLU lawsuit was filed in federal court in San Jose on May 30, 2007, Mike Pound, a spokesman for Jeppesen, told the Associated Press the next day:
“We don’t know the purpose of the trip for which we do a flight plan. We don’t need to know specific details. It’s the customer’s business, and we do the business that we are contracted for. It’s not our practice to ever inquire about the purpose of a trip.”
How interesting it would be to contrast that corporate alibi with what Overby might say in a courtroom, under oath, about Jeppesen’s frequent spare-no-expenses customer.
But before this case can get before a judge and jury, I predict—and I’ll be delighted to be wrong—that the Bush administration will intervene and argue that the case cannot be heard on national-security grounds, because the CIA’s “sources and methods” could be revealed to the enemy. This is the “state secrets” privilege that the Bush Justice Department has invoked more than any previous administration—with the result that an open-society judge in another important case said, “Democracy dies behind closed doors.”
That judge was the Sixth Circuit Court of Appeals’ Damon Keith in 2002, when then–Attorney General John Ashcroft, tearing up the First Amendment, closed deportation hearings for alleged terrorism suspects to the press. Ruling against Ashcroft, Judge Keith emphasized: “The only safeguard against this extraordinary government power is the public.”
And that’s why the current ACLU lawsuit against Boeing’s Jeppesen travel agency is so vital. Neither the Congress nor the courts have yet directly probed the so-called legal basis on which George W. Bush gave the CIA “special powers” to conduct these renditions (the text of which order he will not release).
But at least in this case, the public may be able to hold up to scrutiny the practice of CIA agents, all in black, dragging their hooded, shackled prisoners onto Boeing 737s for journeys meticulously planned by the Jeppesen travel agency, on their way to other countries’ torture chambers.
Michael Hayden may then finally be called before a Congressional committee. There, he would be confronted and ordered to provide the specific laws that have permitted him to orchestrate this spider’s web of rendition flights.
Also, if there are indeed such laws that legitimize torture—the practice of which everyone in this administration indignantly denies—then why does the Justice Department need to invoke “state secrets” in these cases?
What will become clear to the public, if there is a trial, is that this administration’s pervasive “national security” secrecy and lawlessness have actually created a far-ranging conspiracy to obstruct justice. And in these “torture flight” cases, such private corporations as Boeing and its Jeppesen travel agency criminally become part of this conspiracy, which has twisted the rule of law out of any recognizable shape.
The ACLU distills the significance of this lawsuit in a key passage: “Jeppesen’s role as coordinator with virtually all public and private third parties [in these international kidnappings] permitted the CIA to conduct its illegal activities below the radar of public scrutiny—and beyond the reach of the rule of law.
“In short, without the assistance of Jeppesen and other corporations, the US . . . rendition program could not have gotten off the ground.”
With the Fourth of July coming up, I’d like to remind Michael Hayden why we had a revolution: to be free of arbitrary rulers and their secret prisons. But now, just in time for Independence Day, Amnesty International, the Center for Constitutional Rights, and Washington Square legal services have filed a lawsuit in the U.S. District Court of New York against the CIA and the Justice, Defense, and State departments to get all the secrets of these CIA “renditions.” I’ll keep you posted.