Torture Flight Lawsuit Against Boeing Subsidiary Reinstated by U.S. Appeals Court

In a victory for the rule of law and for victims of state-sponsored torture, the U.S. Court of Appeals for the Ninth District in San Francisco, reinstated the ACLU’s landmark lawsuit against Boeing subsidiary, Jeppesen DataPlan.

The civil lawsuit, Mohamed et al. v. Jeppesen DataPlan, Inc., was filed in 2007 on behalf of five men who were kidnapped, forcibly disappeared and then secretly transferred to CIA “black sites” or into the clutches of allied intelligence services. The victims claim they were horribly tortured, subjects of what the Bush regime has termed “enhanced interrogation.”

The plaintiffs are Binyam Mohamed, an Ethiopian-born British resident arrested in Pakistan with the complicity of the CIA, Britain’s MI5 and Pakistan’s notoriously corrupt Inter Services Intelligence agency (ISI). For eighteen months, Mohamed was secretly detained and tortured in Morocco. In 2004, he was blindfolded, stripped, shackled and flown by CIA agents on a flight organized by Jeppesen DataPlan to the secret U.S. detention facility in Kabul, Afghanistan known as the “Dark Prison.” In Afghanistan, Mohamed was repeatedly tortured before his transfer to the Guantánamo Bay gulag. He was released earlier this year without charge.

Ahmed Agiza, an Egyptian citizen kidnapped in Sweden where he was applying for asylum. In December 2001, Agiza was chained, shackled and drugged by the CIA and flown to Egypt where he was severely abused and tortured; he remains imprisoned today.

Abu Britel, an Italian of Moroccan descent captured in Pakistan. In May 2002, Britel was handcuffed, blindfolded, stripped, dressed in a diaper and secretly flown by the CIA to Morocco on a Jeppesen DataPlan flight. Once in the hands of the Moroccan intelligence service he was severely tortured; Britel remains incarcerated in Morocco on unspecified charges.

Bisher al-Rawi, an Iraqi living in Britain with permanent resident status was kidnapped in November 2002 while visiting Gambia. After his detention in the African nation, he was secretly flown by the CIA to Afghanistan where he was imprisoned, interrogated and tortured at two separate CIA secret prisons before being transferred to Guantánamo Bay in February 2003. After four years of illegal detention, al-Rawi was released without charge and returned to Britain.

Ahmed Bashmilah, a Yemeni citizen disappeared while visiting his ailing mother in Jordan. In October 2003, Bashmilah was detained by Jordan’s notorious General Intelligence Department. He was interrogated and tortured for days. In late October 2003, he was turned over to U.S. agents who beat, kicked, hooded and handcuffed the prisoner and then secretly transported him to the U.S. Air Force Base in Bagram, Afghanistan. Freed in March 2006, Bashmilah was never charged with any crime relating to “terrorism.”

As a corporate entity directly profiting from the CIA’s torture program by planning and facilitating Agency ghost flights, Jeppesen bears equal responsibility for serious breeches of U.S. and international law. As a co-conspirator with the CIA, Jeppesen was complicitous in the Agency’s illegal kidnapping and disappearance of “terrorism” suspects into CIA black sites across Europe, Asia and the Middle East. As the Council of Europe reported:

The aviation services provider customarily used by the CIA, Jeppesen International Trip Planning, filed multiple “dummy” flight plans for many of these flights. The “dummy” plans filed by Jeppesen–specifically, for the N379P aircraft–often featured an airport of departure (ADEP) and/or an airport of destination (ADES) that the aircraft never actually intended to visit. If Poland was mentioned at all in these plans, it was usually only by mention of Warsaw as an alternate, or back-up airport, on a route involving Prague or Budapest, for example. Thus the eventual flight paths for N379P registered in Eurocontrol’s records were inaccurate and often incoherent, bearing little relation to the actual routes flown and almost never mentioning the name of the Polish airport where the aircraft actually landed–Szymany. (Council of Europe, “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report,” Rapporteur: Dick Marty, 11 June 2007, p. 36)

Marty documented that “the full extent of my proof, however, goes beyond merely the number of confirmed flights into Szymany and their concordance with suspected dates of HVD [high value detainee] transfers. Through our careful analysis of hundreds of pages of raw aeronautical ‘data strings,’ we can now demonstrate that in the majority of cases these CIA flights were deliberately disguised so that their actual movements would not be tracked or recorded–either ‘live’ or after the fact–by the supranational air safety agency Eurocontrol. The system of cover-up entailed several different steps involving both American and Polish collaborators.” (p. 36)

The Council further documented how Jeppesen coordinated fictitious flight plans and facilitated a “systematic cover-up in collaboration with the Polish Air Navigation Services Agency (PANSA) throughout the rendition process.” The Polish agency “navigated all of these flights through Polish airspace, exercising control over the aircraft through each of its flight phases.” Indeed, PANSA did so “in the majority of these cases without a legitimate and complete flight plan having been filed for the route flown.”

Bragging of the firm’s good fortune at landing a lucrative contract with the CIA, Bob Overby, the managing director of Jeppesen International Trip Planning, said during a breakfast for new employees in San Jose, Calif., “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.”

Sean Belcher, a technical writer hired by Jeppesen in 2006 blew the whistle on the firm to New Yorker investigative journalist Jane Mayer. Belcher recalled Overby also said, extemporaneously extolling the virtues of the corporatist bottom line to new hires: “It certainly pays well. They”–the CIA–”spare no expense. They have absolutely no worry about cost. What they have to get done, they get done.”

Belcher told the San Francisco Chronicle in 2007, he quit his job five days later.

As the CIA’s booking agent, Jeppesen worked with tiny charter airlines that were little more than CIA cut-outs. As investigative journalists Trevor Paglen and A. C. Thompson documented,

A curious quirk of the CIA’s fleet of aircraft is that they are civilian, rather than military, planes. Owing to U.S. law and the CIA’s status as a civilian agency, the planes are owned by front-companies and operated by a handful of aviation charter companies. One of the consequences of this is that each of these civilian companies leave a long and voluminous paper trail…

As we look more closely at the corporate documents and aviation filings we’ve gotten hold of, a landscape begins to emerge. This particular landscape isn’t “over there,” on the many battlefields of the “war on terror.” Rather, the landscape we see depicted in these documents is stealthily and subtly woven into the fabric of everyday life in the United States. (Torture Taxi: On the Trail of the CIA’s Rendition Flights, Hoboken, NJ: Melville House Publishing, 2006, pp. 45-46)

The case was sent back to San Jose U.S. District Court Judge James Ware for further proceedings. Ware, knuckling under to the specious arguments of the Bush and Obama administrations, had dismissed the suit last year alleging that litigation over CIA ghost flights could prompt the disclosure of “state secrets.”

As I reported in February, “as predictably as night follows day,” Obama’s purported “change” administration “defended the CIA’s practice of ‘extraordinary rendition’ (kidnapping) of suspected ‘terrorists’ to third countries where they are subject to ‘enhanced interrogation’ (torture) by allied security services.”

Echoing, indeed expanding, the former Bush regime’s odious invocation of the state secrets privilege, U.S. Attorney Douglas N. Letter had argued before the Ninth Circuit in a thinly-veiled threat to the Court that “judges shouldn’t play with fire,” the San Francisco Chronicle reported.

Warning that once the judges had privately examined the state’s evidence, Letter said “you will see that this case cannot be litigated.”

A unanimous three-judge panel vehemently begged to differ with the U.S. Attorney.

The San Jose Mercury News reported that Judge Michael Daly Hawkins wrote for the Court, “According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

If the Court had capitulated to the Obama administration’s fallacious arguments it would have represented a further retrenchment behind a cloak of secrecy and presidential prerogatives, based not on the lawful norms and procedures of a democracy but rather, on the thinnest of reeds designed to buttress an imperial Executive Branch.

Hawkins continued, were the government permitted to shield its conduct from judicial review simply because classified information is involved it “would … perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process.”

Ben Wizner, staff attorney with the ACLU’s National Security Project said in an April 28 press release by the civil liberties’ group:

“This historic decision marks the beginning, not the end, of this litigation. Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ‘secrets’ in a court of law.” (American Civil Liberties Union, “Federal court permits landmark ACLU rendition case to go forward,” Press Release, April 28, 2009)

While the Ninth Circuit did not specifically address the plaintiffs’ allegations they had been illegally detained, kidnapped and tortured, Hawkins, citing language from a 2004 Supreme Court decision, said: “As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a ‘gross and notorious … act of despotism.’”

Jeppesen declined to comment and the Justice Department said it was “reviewing the decision.” The company or the Obama administration could seek further review from a larger Appeal’s Court panel or from the U.S. Supreme Court itself.

If they seek a review from the full Appeal’s Court, one Judge will have to recuse himself: Judge Jay Bybee, co-author of the Bush regime’s infamous Torture Memorandums during his tenure as the head of the Office of Legal Counsel.

In 2002, Bybee signed-off on two memoranda that empowered the Bush administration’s push for “enhanced interrogation” (torture) techniques such as waterboarding, involuntary drugging, sleep deprivation, forced isolation as well as other horrific methods drawn from the CIA’s 1963 torture manual, KUBARK Counterintelligence Interrogation.

While prominent constitutional scholars and civil liberties’ advocates have called for Bybee’s impeachment and removal from the bench, The New York Times reported Bybee as saying, “The central question for lawyers was a narrow one; locate, under the statutory definition, the thin line between harsh treatment of a high-ranking Al Qaeda terrorist that is not torture and harsh treatment that is. I believed at the time, and continue to believe today, that the conclusions were legally correct.”

Tell that to the victims who underwent the CIA’s tender ministrations by being confined in a coffin in which insects were placed or those doled out by the Agency’s Moroccan counterparts who routinely tortured Binyam Mohamed by incising his body with a razor, including his penis. Undoubtedly, they would have another opinion on whether or not Judge Bybee and other Bushist miscreants such as John Yoo and David Addington gave “our our best, honest advice, based on our good-faith analysis of the law.”

Or for that matter, is that what Boeing means when it says on its website, “From Aachen to Zhengzhou, King Airs to 747s, Jeppesen has done it all”?

Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. His articles are published in many venues. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press. Read other articles by Tom, or visit Tom's website.

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  1. Bill Wallace said on April 30th, 2009 at 11:23am #

    I am a big supporter of Obama, but it bothers me that his administration fought the 9th Circuit in their recent decision to allow former detainees their day in court. This blog sort of sums up my thoughts. http://tinyurl.com/ddgps8 Here’s hoping that going forward, Obama will walk the walk of his very impressive talk when it comes to rendition and torture.

  2. john andrews said on April 30th, 2009 at 10:45pm #

    Bill,

    We all have to start somewhere. At some point we all (DV readers) have that moment of epiphany when we finally see that our leaders, ALL our leaders, are part of the problem and can never be part of the solution while the system remains unchanged. It is a painful moment, but you’re glad once it happens – a bit like visiting the dentist.

    Tom Paine’s moment of epiphany occurred more than two hundred years ago when he wrote:
    “Change of ministers amounts to nothing. One goes out another comes in and still the same measures, vices and extravagance are pursued. It signifies not who is minister. The defect lies in the system. The foundation and superstructure of the government is bad.”