U
Ubiquitous
Guest
The ACLU sues an American company for helping the war effort.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Tuesday, June 12, 2007 12:01 a.m. EDT
President Bush must envy Franklin Roosevelt. Although he faced a difficult
two-front war in Asia and Europe, after Pearl Harbor Roosevelt led a united
nation.
The popular wartime slogans--formulated as often as not by government
information officers who would today be called propagandists--emphasized
political, social and economic solidarity. "Together, We Win" emphasized a
famous poster, showing the hands of labor and management brought together by
Uncle Sam. Those days, unfortunately, are long gone.
From the very beginning of the war on terror, there has been strong and vocal
opposition, both to the war itself and to the Bush administration's wartime
policies. This opposition has been celebrated and encouraged by much of the
media and, consistent with America's favorite pastime, has increasingly taken
the form of litigation in the courts.
The government itself has, of course, been subject to a blizzard of lawsuits.
Virtually every aspect of the administration's war on terror-related
policies--from the USA Patriot Act, to the use of military commissions to try
captured al Qaeda members for war crimes, to the National Security Agency's
Terrorist Surveillance Program, so-called data mining, no-fly lists and
related transportation security measures--has been challenged in court. On
balance the courts have upheld the administration's actions, or required
relatively modest changes--or additional congressional action in the case of
military commissions. Significantly, the Supreme Court has accepted the
legality of the president's adoption of a "laws of war paradigm."
It is, therefore, not surprising that the war's opponents have shifted tack.
On May 30, 2007, the American Civil Liberties Union filed a lawsuit against
Jeppesen Dataplan Inc., a Boeing subsidiary specializing in air flight
planning services, in the federal district court in northern California. The
suit alleges that Jeppesen provided air flight services to the CIA as part of
the agency's "extraordinary rendition" program, through which the three
plaintiffs--citizens of Ethiopia, Italy and Egypt--were supposedly transferred
to Pakistani, Moroccan and Egyptian custody, where they were wrongfully
imprisoned and abused, up to and including torture.
The ACLU case is based on the 1789 Alien Tort Statute, or ATS, which gives the
federal courts authority to hear civil claims for certain narrowly drawn
breaches of customary international law. It's a real stretch. As the Supreme
Court stressed in its most recent ATS case, Sosa v. Alvarez-Machain (2004),
that law permits suits only where the alleged offense is firmly established as
a violation of international law for which individuals are entitled to be
compensated. These are very few and far between. Indeed, in the Sosa case the
court specifically rejected a claim for ATS relief based upon the forcible
abduction of a Mexican physician--wanted for alleged complicity in the death
of a DEA agent--and his transfer to authorities in the U.S. The defendant in
that case was far more directly involved in the alleged misconduct than was
Jeppesen.
Assuming that the case is not thrown out because of the well-recognized "state
secrets" privilege--as was a similar claim brought by Maher Arar, a Canadian
rendered by the U.S. authorities to Syria--the ACLU's complaint should quickly
be dismissed for failing to state a legally cognizable claim. Jeppesen did not
abuse the plaintiffs. It allegedly provided flight services, such as flight
plans, ground service and weather reports, to the CIA agents who rendered the
plaintiffs to foreign officials. There is nothing illegal about that, or about
the practice of rendition itself. This is a longstanding practice whereby one
country transfers a prisoner to another country regardless of whether they
have a formal extradition treaty.
Extraordinary rendition in terror cases has, in fact, been a bipartisan
practice, used both by Democratic and Republican presidents, beginning well
before the 9/11 attacks. Although it has strained U.S.-European relations in
recent years, extraordinary rendition does not violate international law; and
this is true even when the detainee is rendered to a country with a poor human
rights record.
In cases that pose a real risk that a particular detainee will be abused by
the receiving state, it is incumbent upon the sending state to obtain
sufficient assurances, as a condition of the transfer, that the individual
will be treated lawfully and humanely.
Indeed, despite the general condemnation of U.S. renditions by the European
media and EU institutions, a number of European states--as part of their own
post-9/11 antiterrorism measures--have sought to transfer or deport
individuals to countries with human-rights concerns based on exactly such
assurances. However, transport companies like Jeppesen are neither in a
position to know the particulars of these agreements nor to monitor their
implementation, and are moreover entitled to assume that the government
agencies they service are themselves acting lawfully.
Leaving aside the lack of legal merit, the ACLU's claims are part of a highly
troubling new trend. They are of a piece with a number of other ATS lawsuits
brought against government contractors, actions filed last year against
telecommunications companies alleging that they violated federally protected
privacy rights by cooperating with the NSA's data-collection efforts, and an
action, filed last March in Minnesota, against several airline passengers who
had reported what they believed to be suspicious activity by a group of Muslim
imams. The government enjoys legal immunities and other advantages in
litigation that private citizens do not have. Moreover, for a private
individual, a lawsuit, however meritless, can mean personal financial ruin
and, at a minimum, significant disruption in his life. Corporations are
similarly subject to costly and distracting litigation.
These are real advantages from an antiwar activist's perspective, since the
result is likely to be a marked aversion by the citizenry in general, and
government contractors in particular, to engage in conduct, however lawful,
supporting the war. This alteration in the corporate mind set, such that
risk-averse companies, no matter how patriotic their management, would find it
safer to say no to any war-related requests from the federal government is
very likely the goal of at least some activists.
Divided nations can, of course, win wars. Throughout the Civil War, for
example, President Lincoln faced a vocal and determined antiwar effort in the
North, and both Lincoln and Roosevelt had to defend various of their policies
in the courts. Even Lincoln, however, did not have to deal with antiwar
efforts targeting private citizens who were themselves supporting the
government's war effort. That is new, and it will make fighting and winning
the war against terror all the more difficult.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Tuesday, June 12, 2007 12:01 a.m. EDT
President Bush must envy Franklin Roosevelt. Although he faced a difficult
two-front war in Asia and Europe, after Pearl Harbor Roosevelt led a united
nation.
The popular wartime slogans--formulated as often as not by government
information officers who would today be called propagandists--emphasized
political, social and economic solidarity. "Together, We Win" emphasized a
famous poster, showing the hands of labor and management brought together by
Uncle Sam. Those days, unfortunately, are long gone.
From the very beginning of the war on terror, there has been strong and vocal
opposition, both to the war itself and to the Bush administration's wartime
policies. This opposition has been celebrated and encouraged by much of the
media and, consistent with America's favorite pastime, has increasingly taken
the form of litigation in the courts.
The government itself has, of course, been subject to a blizzard of lawsuits.
Virtually every aspect of the administration's war on terror-related
policies--from the USA Patriot Act, to the use of military commissions to try
captured al Qaeda members for war crimes, to the National Security Agency's
Terrorist Surveillance Program, so-called data mining, no-fly lists and
related transportation security measures--has been challenged in court. On
balance the courts have upheld the administration's actions, or required
relatively modest changes--or additional congressional action in the case of
military commissions. Significantly, the Supreme Court has accepted the
legality of the president's adoption of a "laws of war paradigm."
It is, therefore, not surprising that the war's opponents have shifted tack.
On May 30, 2007, the American Civil Liberties Union filed a lawsuit against
Jeppesen Dataplan Inc., a Boeing subsidiary specializing in air flight
planning services, in the federal district court in northern California. The
suit alleges that Jeppesen provided air flight services to the CIA as part of
the agency's "extraordinary rendition" program, through which the three
plaintiffs--citizens of Ethiopia, Italy and Egypt--were supposedly transferred
to Pakistani, Moroccan and Egyptian custody, where they were wrongfully
imprisoned and abused, up to and including torture.
The ACLU case is based on the 1789 Alien Tort Statute, or ATS, which gives the
federal courts authority to hear civil claims for certain narrowly drawn
breaches of customary international law. It's a real stretch. As the Supreme
Court stressed in its most recent ATS case, Sosa v. Alvarez-Machain (2004),
that law permits suits only where the alleged offense is firmly established as
a violation of international law for which individuals are entitled to be
compensated. These are very few and far between. Indeed, in the Sosa case the
court specifically rejected a claim for ATS relief based upon the forcible
abduction of a Mexican physician--wanted for alleged complicity in the death
of a DEA agent--and his transfer to authorities in the U.S. The defendant in
that case was far more directly involved in the alleged misconduct than was
Jeppesen.
Assuming that the case is not thrown out because of the well-recognized "state
secrets" privilege--as was a similar claim brought by Maher Arar, a Canadian
rendered by the U.S. authorities to Syria--the ACLU's complaint should quickly
be dismissed for failing to state a legally cognizable claim. Jeppesen did not
abuse the plaintiffs. It allegedly provided flight services, such as flight
plans, ground service and weather reports, to the CIA agents who rendered the
plaintiffs to foreign officials. There is nothing illegal about that, or about
the practice of rendition itself. This is a longstanding practice whereby one
country transfers a prisoner to another country regardless of whether they
have a formal extradition treaty.
Extraordinary rendition in terror cases has, in fact, been a bipartisan
practice, used both by Democratic and Republican presidents, beginning well
before the 9/11 attacks. Although it has strained U.S.-European relations in
recent years, extraordinary rendition does not violate international law; and
this is true even when the detainee is rendered to a country with a poor human
rights record.
In cases that pose a real risk that a particular detainee will be abused by
the receiving state, it is incumbent upon the sending state to obtain
sufficient assurances, as a condition of the transfer, that the individual
will be treated lawfully and humanely.
Indeed, despite the general condemnation of U.S. renditions by the European
media and EU institutions, a number of European states--as part of their own
post-9/11 antiterrorism measures--have sought to transfer or deport
individuals to countries with human-rights concerns based on exactly such
assurances. However, transport companies like Jeppesen are neither in a
position to know the particulars of these agreements nor to monitor their
implementation, and are moreover entitled to assume that the government
agencies they service are themselves acting lawfully.
Leaving aside the lack of legal merit, the ACLU's claims are part of a highly
troubling new trend. They are of a piece with a number of other ATS lawsuits
brought against government contractors, actions filed last year against
telecommunications companies alleging that they violated federally protected
privacy rights by cooperating with the NSA's data-collection efforts, and an
action, filed last March in Minnesota, against several airline passengers who
had reported what they believed to be suspicious activity by a group of Muslim
imams. The government enjoys legal immunities and other advantages in
litigation that private citizens do not have. Moreover, for a private
individual, a lawsuit, however meritless, can mean personal financial ruin
and, at a minimum, significant disruption in his life. Corporations are
similarly subject to costly and distracting litigation.
These are real advantages from an antiwar activist's perspective, since the
result is likely to be a marked aversion by the citizenry in general, and
government contractors in particular, to engage in conduct, however lawful,
supporting the war. This alteration in the corporate mind set, such that
risk-averse companies, no matter how patriotic their management, would find it
safer to say no to any war-related requests from the federal government is
very likely the goal of at least some activists.
Divided nations can, of course, win wars. Throughout the Civil War, for
example, President Lincoln faced a vocal and determined antiwar effort in the
North, and both Lincoln and Roosevelt had to defend various of their policies
in the courts. Even Lincoln, however, did not have to deal with antiwar
efforts targeting private citizens who were themselves supporting the
government's war effort. That is new, and it will make fighting and winning
the war against terror all the more difficult.