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Letter to Attorney General Holder on the Justice Department’s State Secrets Policy

The Brennan Center for Justice sent the following letter to the Department of Justice asking it to implement the state secrets policy it announced on September 23, 2009. The Brennan Center initially sent a letter on December 15, 2010, but after five months the DOJ has neither responded to nor acknowledged receipt of the letter.

Published: May 16, 2011

View Decem­ber 15, 2010 Letter (pdf)
View May 16, 2011 Letter (pdf)

The Bren­nan Center for Justice sent the follow­ing letter to the Depart­ment of Justice asking it to imple­ment the state secrets policy it announced on Septem­ber 23, 2009. The Bren­nan Center initially sent a letter on Decem­ber 15, 2010, but after five months the DOJ has neither respon­ded to nor acknow­ledged receipt of the letter. Below is the letter sent on May 16, 2011.

Eric Holder
Attor­ney General
US Depart­ment of Justice
950 Pennsylvania Avenue, NW
Wash­ing­ton, DC 20530–0001

Thomas J. Perrelli
Asso­ci­ate Attor­ney General
US Depart­ment of Justice
950 Pennsylvania Avenue, NW
Wash­ing­ton, DC 20530–0001

Tony West
Assist­ant Attor­ney General, Civil Divi­sion
US Depart­ment of Justice
950 Pennsylvania Avenue, NW
Wash­ing­ton, DC 20530–0001

Re: Call for Inspector General Invest­ig­a­tion Pursu­ant to the Depart­ment of Justice’s State Secrets Policy

Dear Attor­ney General Holder, Asso­ci­ate Attor­ney General Perrelli, and Assist­ant Attor­ney General West,

Today, the Supreme Court refused to consider whether a lower court’s dismissal of Mohammed v. Jeppesen—a case alleging that a private company helped the CIA trans­fer the five plaintiffs to other coun­tries for deten­tion, inter­rog­a­tion, and torture—on state secrets grounds was proper.  The Court’s refusal to hear this case, along with its refusal to hear similar cases in the past few years, scuttles any hope that the courts will provide either justice for victims of rendi­tion and torture or account­ab­il­ity for the govern­ment offi­cials who designed and carried out these programs.   

In Decem­ber of last year, the under­signed groups and indi­vidu­als wrote to inquire whether the Depart­ment of Justice had referred to the Inspect­ors General (IG) of the Defense Depart­ment, the Cent­ral Intel­li­gence Agency, the Depart­ment of Justice, or any other depart­ment or agency alleg­a­tions arising out of the govern­ment’s extraordin­ary rendi­tion program detailed in several recently dismissed civil complaint­s—a refer­ral required by the Depart­ment of Justice’s policy on the use of the state secrets priv­ilege issued on Septem­ber 23, 2009 (here­in­after “the Septem­ber 23 policy”).  As we have received no response to that letter, and today’s Supreme Court decision makes it highly unlikely that any exam­in­a­tion of the issue will take place in the courts, we submit this open letter posing the same ques­tion. 

If the required refer­rals have not yet been made, we respect­fully request that you now ask the relev­ant IGs to under­take a joint invest­ig­a­tion into the Exec­ut­ive’s use of extraordin­ary rendi­tion and to issue a public report—with as little redac­tion as possible—of their find­ings.  Should the IG invest­ig­a­tion uncover govern­ment wrong­do­ing, we also urge that plaintiffs’ legit­im­ate claims be acknow­ledged and redressed—that the govern­ment vindic­ate their claims by recog­niz­ing the ordeals they endured and denoun­cing any wrong­do­ing; by issu­ing a public apology; by provid­ing monet­ary compens­a­tion; and through any other means that justice requires. 

The Septem­ber 23 policy provides that, in a case where the state secrets priv­ilege is prop­erly invoked but the complaint raises cred­ible alleg­a­tions of govern­ment wrong­do­ing, “the Depart­ment [of Justice] will refer those alleg­a­tions to the Inspector General of the appro­pri­ate depart­ment or agency for further invest­ig­a­tion, and will provide prompt notice of the refer­ral to the head of the appro­pri­ate depart­ment or agency.”[1]

Several cases chal­len­ging aspects of the govern­ment’s extraordin­ary rendi­tion program raise cred­ible alleg­a­tions of wrong­do­ing appro­pri­ate for refer­ral: 

  • In Arar v. Ashcroft,[2] the plaintiff, Cana­dian citizen Mr. Maher Arar, chal­lenged U.S. offi­cials for abus­ing the immig­ra­tion laws, block­ing his access to court to oppose his removal order, and render­ing him to Syria, where he was tortured and detained for a year and never charged with a crime.  The Supreme Court denied the peti­tion for certi­or­ari seek­ing review of the Second Circuit’s en banc decision affirm­ing dismissal of his complaint.[3]  The Cana­dian govern­ment exon­er­ated Mr. Arar, acknow­ledged its role in what happened to him, and compensated him.[4]
  • In El-Masri v. Tenet,[5] the plaintiff alleged that former CIA Director George Tenet viol­ated U.S. law when he author­ized agents to abduct Mr. El-Masri.  Accord­ing to the complaint, Mr. El-Masri was beaten; drugged; trans­por­ted to a secret CIA prison in Afgh­anistan; held incom­mu­nic­ado in an Afgh­ani prison long after his inno­cence was known; and then, five months after his abduc­tion, depos­ited at night, without explan­a­tion, on a hill in Albania.  The case came to an end when the United States Supreme Court refused to review the Court of Appeals for the Fourth Circuit’s decision uphold­ing the dismissal of Mr. El-Masri’s complaint on state secrets grounds.[6]
  • In Mohammed v. Jeppesen Data­plan Inc,[7] five men allege that they were subjec­ted to extraordin­ary rendi­tion and charged that Jeppesen Data­Plan, Inc., a subsi­di­ary of the Boeing Company, know­ingly parti­cip­ated in the govern­ment’s rendi­tion program by provid­ing flight plan­ning and logist­ical support to airplanes and crews that the CIA used to trans­fer these five men to places where they were subjec­ted to torture, deten­tion, and inter­rog­a­tion.  Today the Supreme Court denied a peti­tion for certi­or­ari asking it to review the Ninth Circuit’s en banc decision dismiss­ing the complaint on state secrets grounds.

Each of these cases satis­fies the Septem­ber 23 poli­cy’s require­ment of “cred­ible alleg­a­tions of govern­ment wrong­do­ing.” Alleg­a­tions should at the very least be treated as “cred­ible” in the absence of facial implaus­ib­il­ity or object­ive evid­ence of the plaintiffs’ untruth­ful­ness in making the alleg­a­tions.  Many of the alleg­a­tions at issue in these cases have in fact been confirmed by some of the United States’ allies.[8]  Accord­ingly, under the Septem­ber 23 policy, the Justice Depart­ment has a respons­ib­il­ity to ensure that these alleg­a­tions are invest­ig­ated, and that any wrong­do­ing uncovered is exposed, and condemned.

Indeed, the Ninth Circuit sitting en banc recog­nized, when it upheld the dismissal of the complaint against Jeppesen Data­plan Inc., that the plaintiffs may be entitled to non-judi­cial relief.   Accord­ing to the court,

[d]enial of a judi­cial forum based on the state secrets doctrine poses concerns at both indi­vidual and struc­tural levels. For the indi­vidual plaintiffs in this action, our decision fore­closes at least one set of judi­cial remed­ies, and deprives them of the oppor­tun­ity to prove their alleged mistreat­ment and obtain damages. At a struc­tural level, termin­at­ing the case elim­in­ates further judi­cial review in this civil litig­a­tion, one import­ant check on alleged abuse by govern­ment offi­cials and putat­ive contract­ors. Other remed­ies may partially mitig­ate these concerns.[9]

To be sure, an IG report cannot serve as a legit­im­ate substi­tute for civil litig­a­tion of valid claims, or for the United States’ treaty oblig­a­tions to conduct impar­tial invest­ig­a­tions and provide enforce­able remed­ies for, inter alia, acts of torture[10] or other cruel, inhu­man or degrad­ing treat­ment or punish­ment and unlaw­ful arrest or deten­tion.[11]  But in these cases, where the court­house door has been shut on the plaintiffs, a thor­ough account­ing by the relev­ant Inspect­ors General would at least partially address the court’s struc­tural concern.  The Inspect­ors General will be able to docu­ment and expose any govern­ment wrong­do­ing, and proscribe correct­ive action to prevent similar actions in the future.  

We recog­nize that, at Repres­ent­at­ive John Conyers’ request, the IG of the Depart­ment of Home­land Secur­ity conduc­ted an invest­ig­a­tion into aspects of Mr. Arar’s case.  It found, among other things, that U.S. offi­cials trans­ferred Mr. Arar to Syria even after the Immig­ra­tion and Natur­al­iz­a­tion Service determ­ined that it was more likely than not that he would be tortured there—a viol­a­tion of both U.S. and inter­na­tional law.  In fact, the Inspector General test­i­fied before Congress that he could not rule out the possib­il­ity that Mr. Arar was sent to Syria in order to have him inter­rog­ated under condi­tions that our law would not permit.  This report, while inform­at­ive, is incom­plete.  It assessed only the processes and proced­ures used by U.S. immig­ra­tion offi­cials.  But IGs also must exam­ine the roles of the Depart­ment of Justice, the Depart­ment of State, and the CIA, as well as the extent to which United States offi­cials were compli­cit in Mr. Arar’s treat­ment in Syria, and anything that took place beyond the borders of the U.S.  In short, this report exam­ines only one strand of a much larger web of govern­ment activ­ity alleged in Mr. Arar’s now-dismissed complaint.  Moreover, several poten­tial witnesses declined to be inter­viewed due to litig­a­tion that was ongo­ing at the time.  That litig­a­tion having come to an end, those witnesses now should be avail­able.

Nor does the CIA IG’s invest­ig­a­tion into the case of el-Masri and other “erro­neous rendi­tions,” repor­ted by the media to have been under­taken several years ago,[12] fill the void.  This report, if it exists, remains entirely clas­si­fied.  It there­fore does noth­ing to over­come one of the primary prob­lems posed by the state secrets priv­ilege—the system­atic shield­ing from public scru­tiny of inform­a­tion regard­ing govern­ment wrong­do­ing.

Consequently, we believe that a thor­ough invest­ig­a­tion—­con­duc­ted by all relev­ant Inspect­ors General with full access to all relev­ant witnesses, docu­ments, tapes, photo­graphs, and other mater­ial, and culmin­at­ing in a public report—­would serve the interests of justice, and would accord with the Septem­ber 23 poli­cy’s aspir­a­tion to “provide greater account­ab­il­ity and reli­ab­il­ity in the invoc­a­tion of the state secrets priv­ilege.”[13]  Moreover, where govern­ment wrong­do­ing is uncovered, provid­ing plaintiffs appro­pri­ate redress could at least grant some small meas­ure of recom­pense for the denial of these plaintiffs’ day in court. 

We would be happy to discuss this matter further with you or other offi­cials from your depart­ment.  If you have any ques­tions, please do not hesit­ate to contact Emily Berman, Coun­sel, Liberty & National Secur­ity Project, Bren­nan Center for Justice, at emily.berman@nyu.edu or 646–292–8335. We look forward to further discus­sions.

Best Regards,

ACLU of North Caro­lina

Alli­ance for Justice

Amnesty Inter­na­tional USA

Bill of Rights Defense Commit­tee

Bren­nan Center for Justice at NYU School of Law

Center for Consti­tu­tional Rights

Center for Justice & Account­ab­il­ity

Center for Media and Demo­cracy

The Consti­tu­tion Project

Defend­ing Dissent Found­a­tion

Essen­tial Inform­a­tion

Govern­ment Account­ab­il­ity Project

Human Rights First

The James Madison Project

No More Guantanamos

North Caro­lina Stop Torture Now

Open­TheGov­ern­ment.org

PEN Amer­ican Center

Phys­i­cians for Human Rights

Progress­ive Librar­i­ans Guild

Project On Govern­ment Over­sight

 

Matthew Alex­an­der, Former Senior Milit­ary Inter­rog­ator

Caro­lyn Patty Blum, Clin­ical Professor of Law Emer­itus, Berke­ley Law, Univer­sity of Cali­for­nia and Senior Legal Adviser, Center for Justice and Account­ab­il­ity

Barbara Frey, Director, Human Rights Program, Univer­sity of Minnesota

Almer­indo Ojeda, Director, U.C. Davis Center for the Study of Human Rights in the Amer­icas

Chip Pitts, Lecturer in Law, Stan­ford Law School

Naur­een Shah, Human Rights Insti­tute, Columbia Law School

 


[1] The Septem­ber 23 Policy § 4C.

[2] 585 F.3d 559 (2d Cir. 2009) (en banc); 414 F. Supp. 2d 250 (E.D.N.Y. 2006).

[3] 130 S. Ct. 3409 (2010).

[4] We recog­nize that the Second Circuit Court of Appeals did not dismiss Arar on state secrets grounds, but the govern­ment did invoke the priv­ilege in that case, and the purpose of the policy would not be served by allow­ing the courts’ reli­ance on altern­at­ive grounds for their decision to insu­late cred­ible alleg­a­tions of wrong­do­ing from invest­ig­a­tion.

[5] 479 F.3d 296 (4th Cir. 2007); 437 F. Supp. 2d 530 (E.D. Va. 2006).

[6] 552 U.S. 947 (2007).  While the asser­tion of the states secrets priv­ilege that brought this case to an end was made prior to the issu­ance of the Septem­ber 23 policy, it still should be referred to the relev­ant IGs for invest­ig­a­tion.  It raises cred­ible alleg­a­tions of seri­ous govern­ment wrong­do­ing, which were never subjec­ted to judi­cial review.  In the spirit of the Septem­ber 23 policy, these alleg­a­tions should not go unin­vestig­ated.

[7] 614 F.3d 1070 (9th Cir. 2010) (en banc); 539 F. Supp. 2d 1128 (N.D. Ca. 2008).

[8] Among the many sources that corrob­or­ate elements of the U.S. Govern­ment’s extraordin­ary rendi­tion program are the Cana­dian “Commis­sion of Inquiry into the Actions of Cana­dian Offi­cials in Rela­tion to Maher Arar” confirmed many of the alleg­a­tions in his case; the Coun­cil of Europe, in a report confirm­ing many of the details of both el-Masri’s and Arar’s cases, concluded that the United States had created secret deten­tion centers in Europe and orches­trated unlaw­ful inter-state trans­fers; the Parlia­ment­ary Assembly of the Coun­cil of Europe accused the United States of oper­at­ing a “clandes­tine spider­web of disap­pear­ances, secret deten­tions and unlaw­ful inter-state trans­fers”; and the European Parlia­ment concluded that “the CIA had oper­ated 1,245 flights, many of them to destin­a­tions where suspects could face torture.”

[9] Jeppesen, 614 F.3d at 1091.

[10] Conven­tion Against Torture and Other Cruel, Inhu­man and Degrad­ing Treat­ment arts. 13, 14, 16 and Commit­tee against Torture, General Comment no. 2, UN Doc CAT/C/GC/2 (24 Janu­ary 2008), paras 3 and 6.

[11] Inter­na­tional Coven­ant on Civil and Polit­ical Rights art. 2, 7, 9; see also gener­ally Basic Prin­ciples and Guidelines on the Right to a Remedy and Repar­a­tion for Victims of Gross Viol­a­tions of Inter­na­tional Human Rights Law and Seri­ous Viol­a­tions of Inter­na­tional Human­it­arian Law, adop­ted and proclaimed by UN General Assembly resol­u­tion 60/147 of 16 Decem­ber 2005.

[12] Dana Priest, Wrong­ful Impris­on­ment: Anatomy of a CIA Mistake, Wash. Post, Dec. 4, 2005.

[13] Septem­ber 23 Policy.