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The ACLU’s Supreme Court challenge to the lower court decision dismissing a lawsuit against Boeing subsidiary Jeppesen Data Plan Inc. (about Jeppesen’s complicity in extraordinary rendition) provides a welcome opportunity for several branches of the U.S. government to build a culture of responsibility, alongside private company Jeppesen, for actions undertaken in the “War on Terror”. The federal government could start to move towards accountability by refusing to intervene in the Supreme Court, as it did in the lower court, to argue that the case should be dismissed on “state secrets” grounds. The “state secrets” doctrine violates the separation of powers, preventing the judicial branches from properly reviewing actions of the executive and legislature. The judiciary could also affirm the need for accountability, by rejecting the “state secrets” privilege if it is raised, and holding Jeppesen liable for its complicity in unlawful government practice. (Some background to the case is outlined at http://www.aclu.org/national-security/aclu-asks-supreme-court-hear-extraordinary-rendition-case.) After all, if there is to be a culture of responsibility, and not a culture of impunity, many parties – not just the U.S. Government, but also private individuals and companies that facilitated illegal Government action – will have to accept their share of responsibility.
Unfortunately the story of accountability so far is a sorry tale of the U.S. Government shirking its responsibility for practices committed under the “War on Terror” banner. In the El-Masri v Tenet case, the ACLU challenged U.S. involvement with the extraordinary rendition and torture of Khaled el-Masri. But the government intervened, pleading “state secrets”, and the judge dismissed the case in May 2006. In November 2006 the U.S. Court of Appeals for the Fourth Circuit upheld the lower court’s decision, and in October 2007, the Supreme Court bowed to the government’s demands that the “state secrets” doctrine apply, refusing to review the case. (For more information, see: http://www.aclu.org/national-security/el-masri-v-tenet.) This is but one example of a string of cases and announcements where the U.S. has evaded a full legal stock-take of its actions.
The story of accountability has taken a further turn for the worse in recent days, with WikiLeaks cables revealing that U.S. diplomats abroad didn’t just twist and turn to avoid legal accountability. They also were careful and calculated in attempting to delay, suspend, or block efforts made by foreign countries to achieve justice for victims of rendition, detention, and torture. U.S. embassy actions in Spain, which has been the subject of numerous WikiLeaks cables, are illustrative of this broader pattern.
Spain is the site of some of the boldest challenges to “War on Terror” practice, with prosecuting judges like Baltasar Garzon (famous for helping to orchestrate the arrest of Augusto Pinochet for war crimes in 1998) using Spain’s universal jurisdiction laws to try to indict overseas U.S. officials. Yet U.S. diplomats have responded with maneuvering and subterfuge, according to the Wikileaks cables, that have sought to subvert Spanish legal challenges. When the U.S. learned that a case was being taken against three Iraqi servicemen for allegedly murdering a Spanish cameraman during a firefight in Iraq, the U.S. embassy met with Spanish Chief Prosecutor Javier Zaragoza to “sensitize him to the USG's concerns”: this according to a cable from January 18, 2007. (See Spain/Couso Case: Meeting with Chief Prosecutor, Embassy Madrid (January 18, 2007), available at WikiLeaks: http://wikileaks.ch/cable/2007/01/07MADRID101.html.) Around the same time, on February 1, 2007, the U.S. embassy expressed unease that German and Spanish coordination on investigations into Khaled el-Masri’s rendition would hamper U.S. “efforts to manage this case at a discreet government-to-government level”, indicating that the U.S. was also seeking to deal with the el-Masri case in a backroom way: see Spain/CIA flights: Judge Orders Declassification of Info Related to Flights, Embassy Madrid(February 1, 2007), available at WikiLeaks: http://184.108.40.206/cable/2007/02/07MADRID173.html.
These attitudes began to be translated into action on the part of U.S. diplomatic officials. On April 17, 2009 it was noted that the Spanish attorney-general spoke out against a possible prosecution being taken against the “Bush six” (the U.S. Government lawyers who justified torture), after “intensive USG outreach”: see Spain: Attorney General Recommends Court Not Pursue Gtmo Criminal Case vs. Former USG Officials, Embassy Madrid (April 17, 2009), available at WikiLeaks: http://220.127.116.11/cable/2009/04/09MADRID392.html. U.S. Senator Mel Martinez (a Republican from Florida) had apparently stressed the “enormous impact on the bilateral relationship” that a prosecution might have. That prosecution has now been effectively halted.
Such actions, brought to light by the WikiLeaks cables, show beyond dispute that the U.S. has been heavily involved in staving off efforts to create a culture of responsibility around what has happened in the War on Terror. The accounts are troubling because they document interference not just with Spanish sovereignty, but also with the principle of judicial independence — the principle (highly regarded in this country) that says prosecutors should be independent in deciding what charges to bring, and judges must be distanced from political decision-making. The cables are all the more odious because they record the U.S.’s efforts to deaden litigation when the U.S. itself is a potential defendant in the litigation. Having a criminal defendant trying to sway the prosecution (and the judge) over bringing a charge against him or her is unthinkable in a domestic context. Imagine that happening with an especially powerful defendant, who wields political and economic power over the other parties — and that is what has happened with U.S. intimidation in Spain, and possibly elsewhere.
The story of accountability is not yet finished. The U.S. cannot rewrite the past, particularly as the history is getting clearer and clearer, partly through the release of WikiLeaks cables. But the U.S. Government can choose to start a fresh chapter in this story, in the present. It still has the power to decide what the overall narrative about U.S. practice in the “War on Terror” will look like, when all is said and done. Will the narrative be characterized by repeated use of legal loopholes and the evasion of accountability? Or will it be remembered as a horrific string of events under one presidency, that was followed by a change of mindset, justice for victims, and a move towards a culture of responsibility? I’d prefer to read the second story. For the U.S. Government to make that narrative a reality, it must begin by changing its approach to the Jeppesen litigation, and reversing its attempts to block accountability abroad. It’s time, in sum, for the U.S. Government to turn a new page in the story of accountability if it truly wants to build a culture of responsibility.
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