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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, December 15, 2009

Interview with Ben Wizner of ACLU

Glenn Greenwald: My guest today on Salon Radio is Ben Wizner of the ACLU, who represents the plaintiffs in the case of Mohamed vs. Jeppesen , which is the case brought by five individuals who were the victims of the Bush torture and rendition program, and it's brought against the Boeing subsidiary that helped ship them to various places to be tortured. This is the case where the Obama Justice Department has repeatedly argued that the case must be dismissed on the grounds of the states secrets privilege.

Ben, you're in California right now in preparation for a hearing on Tuesday, a very significant hearing before the Ninth Circuit Court of Appeals in this case; describe just briefly what has happened in this case thus far, and what's happening tomorrow.

Ben Wizner: I will, and thanks, Glenn; this is a case that your listeners will know that you and I have talked about several times before. As you mentioned, this case back in February was the first test of the Obama administration's commitment to the rule of law on issues of civil liberties and national security, and it's a test that the Obama administration failed. Remember, the plaintiff in this lawsuit are foreign nationals who were abducted by the CIA, and transported either to CIA black site prisons, or to foreign intelligence agencies where there were brutally tortured.

This lawsuit as you mentioned targets a Boeing subsidiary called Jeppesen Dataplan, but before that company even had to file a response in the lawsuit, the Bush CIA intervened in the case, asserted the so-called states secrets privilege, with which we're all now too familiar, and had the case thrown out. We appealed to the Court of Appeals for the Ninth Circuit, heard argument in February as we both said, the Obama administration essentially repeated the same state secrets argument that his predecessor had, but, in April of this year, the three judges before whom we argued the case, issued a very, very strong ruling against that overbroad and premature assertion of the states secrets privilege.

They said, a case must go forward, that the government could protect its legitimate secrecy interests by invoking them with respect to specific evidence that would come up in the case, but they couldn't use this evidentiary privilege to have an entire lawsuit alleging grave human rights violations, thrown out before it even began.

Now, that would have been a opportunity for the Obama administration, with some cover, to say, we just need to do what the courts have told us to do, but they did the opposite. They asked the full Ninth Circuit to reheard that case, which they said was an error, and so here we are again, in the same city in the same court, but will be re-arguing the case tomorrow before 11 judges, not 3, in a panel called an en banc panel.

GG: Now the first line of one of the briefs you filed - there are five briefs - that says much is at stake in this appeal, and I want you to talk a little bit about why that is, and how this can affect not just this specific litigation, but litigations generally alleging executive law-breaking, and general transparency issues with respect to the government and what it does.

BW: That's exactly what is being decided in this appeal. We are now in the final months of 2009, eight years really to the week since the first of our five plaintiffs was snatched off the street in Sweden, stripped of his clothes, put in a diaper, chained to the floor of a plane, and flown off to Egypt where he was strapped to a wet mattress and tortured with electricity. Now obviously in the eight years since then there's been an extraordinary national debate about the legality, the efficacy, the morality of torture.

But one voice that has been conspicuously absent from that debate is that of the judiciary. We still have not had a single torture victim have his day in court; we still have not had a single court rule on the legality of the Bush administration's torture regime. And that is critically important, because somewhere down the line, some unscrupulous lawyer, named John Yoo or something else, is going to serve some unscrupulous president and he's going to say, you know, there is no legal authority out there. There's no definitive ruling that what happened was illegal; this is really just a difference of opinion that reasonable lawyers might have. The reason why you need accountability is not about the money the victims will get; it's not about the punishment that the perpetrators will get; it's about the vindication of the rule of law.

The country needs this ruling. We need it to settle a debate that if it ends up on Hardball, rather than the Supreme Court and the federal courts where it belongs.

GG: One of the claims that's often made, and I think the ACLU pretty much everybody agrees, is that there is a legitimate privilege called the states secrets privilege, that the government has for decades been able to assert in litigation, and the problem with the Bush administration wasn't that they used, but that they radicalized it, and distorted it beyond recognition, and turned it into something it never intended to be, something that the Obama administration is now doing as well and in exactly the same way.

Talk about the difference between the legitimate use of the states secrets privilege versus the
way the Bush and now the Obama justice departments are exploiting and misusing it.

BW: First, the purpose of this evidentiary privilege is the prevent the disclosure in litigation of genuinely secret evidence. You can imagine what that evidence might be - I shouldn't be able to use a lawsuit of out the identity of covert CIA spies. I shouldn't be able to use a lawsuit to reveal the weapons design of classified weapons. That's the way traditionally the states secrets privilege was used, and what we've seen it mutate into is a really a broad rule of immunity to shield executive law-breaking, so it's being asserted not in response to a request for evidence by the plaintiffs, but, as soon as the case is filed, in an effort to have the entire case thrown out. And I think that that is the tactical way in which the Obama and Bush administrations have the used the privilege.

But the other enormous difference is really the conduct at issue. The seminal state secrets case in the United States is a case called Reynolds, that involved the tragic crash of an Air Force plane, but again Reynolds was tort case. These are torture cases. This rule was designed to regulate evidence in ordinary cases of negligence.

When the claims go to the very heart of who we are as a country, I think the courts have to use more care, not less, to do everything possible to ensure both the victims can receive some measure of justice, but also that the rule of law can be vindicated with a ruling from the judiciary. Right now, the way the privilege operates, is that the CIA director has the first, the last and the only word on whether the renditions are lawful. He submits the declarations to the court explaining why he thinks his agency's awful conduct was a state secret, and that in itself is held in some courts to be enough to get an entire case thrown out. Talk about the fox guarding the hen house.

GG: I think in your brief you said that if the Obama position were to prevail, it would mean that all torture would be denied a day in court solely on the basis of an affidavit submitted by their
torturers. And I think that's the heart of the case, that this provides full-scale immunity for the government as long as they claim that what they did was in a climate of secrecy.

Now, just a couple other questions: one of the principal arguments by the Obama administration, by the Bush administration first and now by the Obama administration, is that there is no such thing as trying to pick and choose certain evidence in this case that is secret, and allowing the rest of it to go forward, because the entire case itself involves something that is highly sensitive and highly secret, which is the relationships that our intelligence agencies have with the intelligence agencies of other countries, and that to allow this case to go forward no matter what you do, will be to jeopardize those important state secrets. What's your view of that argument?

BW: The argument is rational; unfortunately it's false in this case. We are at a point in the development of international law where the United States truly stands alone. Almost every other country that was involved in the rendition in these cases - Sweden, Yemen, the United Kingdom, Egypt - they have come forward and absolutely conceded their role in all of this. It's only the United States that stands by the tradition that it can neither confirm nor deny anything involving foreign intelligence agencies.

The other reason why the argument is false is the we don't need to prove which other countries participated in these events in order to hold Jeppesen liable for its role. So I think it's a big red herring, and I also think that if you accept that argument, that CIA categorically can decline to admit or deny anything involving its collaboration with foreign countries or with corporations like
Jeppesen, then you're essentially saying that all the CIA would have to do is act in concert with someone else, and it gets a blank check to violate the law in the most egregious ways. And that simply cannot be the law.

GG: The last question that substantively have for you is, early on when the Obama administration began asserting the states secrets privilege, I encountered a number of arguments in various places along the lines that Obama by asserting these positions, was
actually doing all of us a favor, because the plan that he had was he was hoping to lose, so that good precedent would be set and courts would forever reject these positions as being unrecognizable under the law, and yet here's a case in your case where you actually won an
important appellate ruling, and rather than let the precedent stand, the Obama administration asked the full court to vacate it, and rule that it had been decided incorrectly.

So how would you say the Obama DOJ's conduct in this case throughout the year can be reconciled, if it can be, with that theory that Obama was simply doing this to provide the gift of good precedent?

BW: Well, you just demolished that theory. The answer is that it can't be reconciled. But I would also say that it's not just the Department of Justice that is involved here. I do believe that there
intention within the administration about some of these extreme positions that the intelligence agencies are insisting upon, and I absolutely agree that Obama's position on this is political, I just
think it's political in a different direction. I think that he must have been persuaded by political and national security advisors, that he simply has nothing to gain taking on the CIA in a case like this, standing behind, as opposed to in the way of torture victims having their day in court, and it's just a political cost that he thinks that he will bear and that they're unwilling to bear.

And I say that because knowing this case the way I do, I'm quite certain that it could be
litigated to completion without divulging anything that the entire world doesn't already know. We're in the very awkward legal fiction, where facts that are discussed freely really throughout the globe, can be mysteriously transformed into state secrets when they are spoken in
the US courtrooms, which is where they belong above all else.

GG: Now, Ben, what time is the oral argument tomorrow, and is that something that people who are interested in doing so are able to listen to online?

BW: The arguments are scheduled for 10 AM Pacific time; I would say the west coast listeners, the US Court of Appeals is open; it will be quite, quite crowded. I'm told there will be spillover. If
people want to come and see it in person, I think at least they'll at least be able to get into a room and watch it on a monitor. In my experience, the Ninth Circuit very quickly puts audio of the entire recording on its website, maybe even by the end of the day, and if they do that, Glenn, I'll make sure that you have it.

GG: Ben, thanks very much for taking the time to talk; I know you're interested and eager to get into court and I know a lot of people are rooting for you to win. It's a very important case and the work they're doing is really appreciated. So thanks very much.

BW: Thank you, Glenn.

[ Transcript courtesy of Thames Valley Transcribe ]