The San Francisco Chronicle is reporting that six of its 27 judges have disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee who, as a Justice Department lawyer in the Bush administration, wrote a March 2002 memo saying the president could legally transfer captives to foreign custody.
Judge Stephen Reinhardt, whose wife, Ramona Ripston, is the American Civil Liberties Union's executive director in Southern California, also disqualified himself. The ACLU represents the plaintiffs in the case.
Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without U.S. charges.
Binyam Mohammed, the best-known of the five, was flown back to Britain from Guantanamo in February. He had been on a hunger strike there for several weeks and British Government officials had visited him to determine that he was physically fit to return to the U.K. He claims that up until the time of his release, he was being asked to agree to a no-disclosure agreement in return for charges not being brought against him.
The position taken by the new administration of President Obama took ACLU lawyers by surprise. In their presentation to the Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same "state secrets privilege" used by the administration of President George W. Bush to argue that the lawsuit brought on behalf of Mohamed and four other alleged victims of the CIA's "extraordinary rendition" program should not go forward because revealing the evidence would harm national security.
The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, then only recently confirmed as President Obama's new Attorney General, said at his confirmation hearing, "I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations."
But that appeared to be at odds with testimony by Obama's nominee for Director of the Central Intelligence Agency, Leon Panetta, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that "extraordinary rendition" - sending terror suspects to countries where they are likely to be tortured - would end.
In the past, the U.S. has received "diplomatic assurances" from countries on the receiving end of the extraordinary rendition trips that their new "guests" would not be tortured. These assurances have proved to be demonstrably worthless.
The Jeppesen case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain's High Court refused torelease seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.
The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K. But, in a highly unusual criticism, the High Court expressed dismay that a democracy "governed by the rule of law" would seek to suppress evidence "relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be."
The court said the Bush administration had made the threat in a letter tothe Foreign Office last September. It called on the Obama administration toreverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.
But the U.S State Department said that the United States "thanks the U.K. government for its continued commitment to protect sensitive national security information" and that "the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed."
In the latest ruling from the U.K., the British High Court found that while Mohamed, a British resident, was in American custody, the CIA told British intelligence agents how he was being treated. British agents then wrote memos to record what they were told. Last year, the High Court ruled that Mohamed -- who was then at Guantanamo -- had the right to obtain those documents from the British intelligence service in order to prove that statements he made to the CIA were the by-product of coercion.
The High Court's original ruling in Mohamed's favor contained seven paragraphs which described the torture to which Mohamed was subjected.
The ACLU has written to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.
After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a "dirtybomb" in the United States. Padilla was never charged with this plot, butwas convicted on other terrorism-related charges by a federal court in2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.
It has been 50 years since the United States Supreme Court last reviewedthe use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the "state secrets" privilege more often thanany prior administration to stop cases from proceeding.
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