Extraordinary Rendition on Trial

ACLU tries to ground the Boeing subsidiary that trafficked in torture

Christopher Moraff February 4, 2008

At the end of the day, the case is about sending a clear message to U.S. companies that they will be held accountable for profiting from human rights violations.

On Nov. 1, 2002, Bish­er Al-Rawi, a cit­i­zen of Iraq, was prepar­ing to board a plane at Gatwick Air­port in Lon­don, en route to Gam­bia, when screen­ers found some­thing sus­pi­cious in his luggage.

Al-Rawi – a per­ma­nent res­i­dent of the Unit­ed King­dom who worked spo­rad­i­cal­ly as an inter­preter for MI5, the U.K. coun­ter­in­tel­li­gence agency – was trav­el­ing to Africa to set up a nut-oil pro­cess­ing ven­ture there, hav­ing spent the pre­vi­ous months obtain­ing the nec­es­sary per­mits and licens­es from Gam­bian authorities. 

It took four days for British author­i­ties to con­clude the object he was car­ry­ing was noth­ing more than a com­mon store-bought bat­tery charg­er. On Nov. 4, Al-Rawi was released from cus­tody, but by then, a course of events had been set in motion that would launch Al-Rawi on a five-year Kafkaesque odyssey end­ing with his March 2007 release from U.S. deten­tion at Guan­tá­namo Bay. Unbe­knownst to him, Al-Rawi was about to become the sub­ject of a then-secret CIA pro­gram known as extra­or­di­nary rendition.”

In August 2007, Al-Rawi and a sec­ond man, Mohamed Farag Ahmad Bash­mi­lah – a 38-year-old Yemeni cit­i­zen who under­went a sim­i­lar ordeal in 2003 – joined in an ACLU law­suit against Boe­ing sub­sidiary Jeppe­sen Dat­a­plan, alleg­ing the com­pa­ny played a crit­i­cal role in their ren­di­tions. A total of five plain­tiffs are named in the suit, each of whom, it is alleged, was ren­dered with plan­ning and logis­ti­cal sup­port from Jeppe­sen. The oth­er three plain­tiffs, Ahmed Agiza, Abou Elka­s­sim Bri­tel and Binyam Mohamed, remain in cus­tody in Egypt, Moroc­co and Guan­tá­namo Bay, Cuba, respec­tive­ly. All five say they were sub­ject­ed to an array of phys­i­cal and men­tal abuse – rang­ing from sleep depri­va­tion to elec­tric shock tor­ture – at the hands of their captors.

This is the sec­ond time the ACLU has chal­lenged extra­or­di­nary ren­di­tion in open court. The first case was that of Khalid El-Mas­ri, a Ger­man cit­i­zen who, in 2003, the CIA ren­dered to Afghanistan while El-Mas­ri was vaca­tion­ing in Macedonia. 

The ACLU, on El-Masri’s behalf, sued for­mer CIA head George Tenet and sev­er­al shell com­pa­nies oper­at­ed by the agency. In 2006, El-Masri’s claim was dis­missed after the U.S. gov­ern­ment argued that a pub­lic tri­al would present a grave risk of injury to nation­al secu­ri­ty.” Last Octo­ber, the U.S. Supreme Court refused to hear the case on appeal.

But the Jeppe­sen case is the first time a U.S. pub­lic com­pa­ny has been tak­en to task for its com­plic­i­ty in the ren­di­tion program.

Accord­ing to the company’s web­site, Jeppe­sen Dat­a­plan is an inter­na­tion­al flight oper­a­tions ser­vice provider that coor­di­nates every­thing from land­ing fees to hotel reser­va­tions for com­mer­cial and mil­i­tary clients. 

Evi­dence shows that a unit of the com­pa­ny – Jeppe­sen Inter­na­tion­al Trip Plan­ning Ser­vice (JITPS) – pro­vid­ed logis­ti­cal sup­port to the CIA for the ren­di­tions of at least sev­en peo­ple: aid that the ACLU calls crit­i­cal” to the program’s oper­a­tional success.

What’s more, the com­plaint alleges that Jeppe­sen inten­tion­al­ly sub­mit­ted dum­my flights” to var­i­ous avi­a­tion author­i­ties in order to con­ceal the true flight paths of the ren­di­tion planes. 

Among the wit­ness­es for the plain­tiffs is a for­mer Jeppe­sen employ­ee, Sean Belch­er, who says that dur­ing his ori­en­ta­tion as a tech­ni­cal writer at the company’s San Jose facil­i­ty, he was told by the man­ag­ing direc­tor of JITPS that the com­pa­ny pro­vid­ed sup­port ser­vices for so-called CIA tor­ture flights.” 

Belch­er worked for Jeppe­sen for a lit­tle more than a month before resign­ing, five days after he learned of the company’s CIA link, he says.

Jeppe­sen declined to com­ment in depth on the case, say­ing it is against com­pa­ny pol­i­cy to dis­cuss pend­ing lit­i­ga­tion. But in an e‑mail, com­pa­ny spokesper­son Mike Pound dis­missed Belcher’s state­ment as hearsay,” adding that Jeppe­sen man­ages flight logis­tics and plan­ning for thou­sands of orga­ni­za­tions and peo­ple, and it is not nec­es­sary to know the spe­cif­ic nature of a customer’s flight.

In the event that we learn some­thing about the pur­pose of a flight, our cus­tomers have the rea­son­able expec­ta­tion that it will be held in con­fi­dence,” Pound said. We do not com­ment on any work done for any cus­tomer with­out their consent.” 

To lit­i­gate the case, the ACLU is rely­ing on the Alien Tort Claims Act, a fed­er­al law dat­ing from 1789 that gives U.S. courts juris­dic­tion over civ­il actions filed by for­eign­ers who allege vio­la­tions of the law of nations or a treaty of the Unit­ed States. The same law recent­ly enabled three Chi­nese dis­si­dents to file suit against Yahoo! for shar­ing infor­ma­tion with the Chi­nese gov­ern­ment that led to their arrests. Yahoo! set­tled that case in Decem­ber 2007 for an undis­closed sum.

If the Bush admin­is­tra­tion has its way, the Jeppe­sen case will nev­er get that far. The gov­ern­ment has filed a motion to dis­miss the law­suit, once again evok­ing the state secrets” privilege. 

Echo­ing its argu­ment in the El-Mas­ri case, the Unit­ed States asserts in its fil­ing that dis­clo­sure of details of the ren­di­tion pro­gram – or even admit­ting that the plain­tiffs were ren­dered – could be expect­ed to cause seri­ous and, in some cas­es, excep­tion­al­ly grave dam­age to nation­al security.” 

But the suc­cess of the motion rests large­ly on the government’s claim that the ren­di­tion pro­gram con­sti­tutes a state secret, an asser­tion that is becom­ing increas­ing­ly dif­fi­cult to maintain.

In its response to the motion to dis­miss, the ACLU has pre­sent­ed rough­ly 1,000 pages of doc­u­ments that sug­gest the CIA’s ren­di­tion pro­gram was any­thing but a secret. Includ­ed are every­thing from actu­al flight plans to peti­tions for the release of spe­cif­ic detainees and reports on the ren­di­tion pro­gram from the Euro­pean Par­lia­ment, the Unit­ed Nations and the gov­ern­ments of Swe­den and the Unit­ed Kingdom. 

Since El-Mas­ri there is more infor­ma­tion in the pub­lic domain about the ren­di­tion pro­gram,” says Ben Wiz­n­er, one of the ACLU’s lead attor­neys on the case. Every month that goes by, it gets hard­er and hard­er for the Unit­ed States to make a straight-faced argu­ment that the ren­di­tion pro­gram is a black-box clan­des­tine operation.”

In addi­tion, says Wiz­n­er, increas­ing­ly more of that infor­ma­tion is com­ing from the fed­er­al gov­ern­ment itself. 

You have the pres­i­dent pub­licly reveal­ing, con­firm­ing and defend­ing the ren­di­tion and deten­tion pro­gram. You have [CIA Direc­tor] Mike Hay­den giv­ing speech­es at the Coun­cil on For­eign Rela­tions and going on Char­lie Rose to talk about the ren­di­tion program. 

It is inter­est­ing to see the length the U.S. gov­ern­ment is going to try and pre­vent any account­abil­i­ty for its con­trac­tors,” Wiz­n­er says.

Requests for com­ment from the U.S. attor­ney that filed the government’s motion to dis­miss, Michael Abate, were direct­ed to the Jus­tice Department’s pub­lic affairs office. Depart­ment spokesper­son Charles Miller sub­se­quent­ly declined comment.

The Dark Prison

Days after his run-in with air­port author­i­ties at Gatwick, Al-Rawi flew with­out inci­dent to Ban­jul, Gam­bia, where – on a tip from the British – he was prompt­ly detained by local intel­li­gence offi­cials. With­in a month, he found him­self strapped to a stretch­er in a CIA-oper­at­ed Gulf­stream V jet air­craft with no idea where he was being tak­en or by whom. 

Flight records show that Bish­er Al-Rawi was flown to Kab­ul, Afghanistan, where intel­li­gence reports con­firm that the Unit­ed States detained him at a secret CIA facil­i­ty known as the Dark Prison,” and lat­er at Bagram Air Base. 

In a sworn affi­davit, Al-Rawi describes what hap­pened to him upon his arrival:

From the out­set I was held in com­plete dark­ness and iso­la­tion and kept in leg shack­les 24 hours a day. I was giv­en very lit­tle water and fed only once every one or two days. Despite the extreme cold, I was not pro­vid­ed with ade­quate cloth­ing or blan­kets. Strange music and loud man-made sounds were played around the clock, which in addi­tion to the screams of oth­er pris­on­ers around me, made sleep­ing extreme­ly difficult.

He says things got worse after U.S. offi­cials trans­ferred him to Bagram. I was kicked and dragged along the floor … held in a squalid cell [for two months] and forced to under­go pro­longed peri­ods of iso­la­tion and sleep depra­va­tion,” he tes­ti­fied. I was threat­ened with death or trans­fer to anoth­er coun­try to be tortured.”

Al-Rawi was final­ly trans­ferred to the U.S. Naval Base at Guan­tá­namo on Feb. 7, 2003, where he would spend the next four years with­out being charged. He was released on March 30, 2007, and was flown on a lux­u­ry Lear Jet back to the Unit­ed King­dom, where he cur­rent­ly resides. He has received nei­ther an apol­o­gy nor an expla­na­tion for his ordeal.

Break­ing the Code

Con­nect­ing Jeppe­sen Dat­a­plan to the ren­di­tion flights was noth­ing short of a jour­nal­is­tic grand slam. 

In 2005, Ital­ian inves­tiga­tive reporter Clau­dio Gat­ti broke the Jeppe­sen code” when he man­aged to trace the company’s unique orig­i­na­tor iden­ti­fi­ca­tion num­ber to spe­cif­ic ren­di­tion planes using pub­lic flight databases. 

Then in 2006, jour­nal­ist Stephen Grey fur­ther exposed the nuts and bolts of the pro­gram with his book Ghost Plane: The True Sto­ry of the CIA Tor­ture Pro­gram, in which he doc­u­ments the cas­es of near­ly 90 peo­ple who were ren­dered by the CIA.

Between the work of the two jour­nal­ists and that of the U.N. Com­mit­tee on Tor­ture and gov­ern­men­tal agen­cies through­out Europe, there’s lit­tle about extra­or­di­nary ren­di­tion that hasn’t been exposed. 

What is clear is that the activ­i­ties that con­sti­tute the pro­gram are ille­gal under uni­ver­sal­ly accept­ed inter­na­tion­al stan­dards and conventions. 

Among them, U.N. Gen­er­al Assem­bly Res­o­lu­tion 47133, rat­i­fied in 1992, express­ly pro­hibits enforced dis­ap­pear­ances,” and spells out that such oper­a­tions ren­der their per­pe­tra­tors and the state or state author­i­ties which orga­nize, acqui­esce in or tol­er­ate such dis­ap­pear­ances liable under civ­il law.”

The Jeppe­sen plain­tiffs are seek­ing com­pen­sa­tion of no less than $75,000 each and unspec­i­fied puni­tive damages. 

But the ACLU’s Wiz­n­er says at the end of the day, the case is about send­ing a clear mes­sage to U.S. com­pa­nies that they will be held account­able for prof­it­ing from human rights violations.

More and more of our mil­i­tary and secu­ri­ty ser­vices are turn­ing to pri­vate con­trac­tors and it might very well be dif­fi­cult for them to car­ry out these oper­a­tions with­out these con­trac­tors,” Wiz­n­er says. If some of those pri­vate con­trac­tors look at the Jeppe­sen case and think twice before tak­ing the CIA’s mon­ey to par­tic­i­pate in these ille­gal and immoral oper­a­tions, then we will have succeeded.”

Christo­pher Moraff writes about nation­al pol­i­tics, social jus­tice and cul­ture for a num­ber of pub­li­ca­tions, includ­ing The Amer­i­can Prospect online, Design Bureau and The Philadel­phia Tri­bune. His columns appear week­ly on Philadel­phia mag­a­zine’s blog The Philly Post. Moraff, who lives in Philadel­phia, is a mem­ber of the In These Times Board of Editors.
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