State secrets are a privilege, not a right: can foreign victims of extraordinary rendition and torture overcome the state secrets privilege using the alien tort statute?

• Author: Kingman, Andrew

1. INTRODUCTION

   Torture: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

   United Nations Convention Against Torture, Article 1.1

   I continue to believe that brutal methods of interrogation are inconsistent with our values, undermine the rule of law, and are not effective means of obtaining information. They alienate the United States from the world, and serve as a recruitment and propaganda tool for terrorists. They increase the will of our enemies to fight against us, and endanger our troops when they are captured. The United States will not use or support these methods.

   President Barack Obama on the International Day in Support of Victims of Torture, June 26, 2010

   At the time of his abduction, Binyam Mohamed was a twenty-eight-year-old Ethiopian citizen and legal resident of the United Kingdom. (1) United States officials arrested him in Pakistan on immigration charges and transported him to Morocco, shackled and blindfolded, while wearing a diaper and overalls. (2) After placing him in Moroccan custody, agents routinely beat him to the point of breaking his bones. (3) While blindfolded, he was forced to listen to loud music for hours at a time. (4) Most disturbingly, Mohamed was cut with a scalpel all over his body, including his penis, while authorities poured a "hot, stinging liquid" into his open wounds. (5) He was subsequently transferred back to American authorities and transported to Afghanistan, where he was forced to listen to the screams of women and children for twenty-four hours per day. (6) Officials eventually transferred him to Guantanamo Bay, Cuba, and held him for nearly five years. (7)

   While the policy of rendition has existed as a counterterrorism tool since the Clinton administration, President Bush expanded the program to its current state. (8) The legality of the program, as well as legal violations in its pursuit, have thus far been insulated by the executive branch's use of the state secrets privilege. (9) The privilege is an evidentiary privilege that existed in common law and has evolved into a formalized judicial inquiry. (10)

   Mohamed's abduction is merely one story among countless others who have suffered similar treatment since September 11, 2001. (11) That day's events not only fundamentally changed the global paradigm in which the United States functioned, the events also provoked the Bush administration and Congress to "take the gloves off" when it came to interrogating terrorist suspects. (12) Since President Barack Obama's election in November 2008, the United States aggressively continues to assert the state secrets privilege despite its stated policies to the contrary. (13) These alterations in domestic and foreign policy, however, have radical and far-reaching legal implications that still have yet to be fully realized. (14) The executive branch and the national security infrastructure, firmly opposed to public scrutiny of its counter-terrorism operations, have repeatedly asserted the state secrets privilege not to safeguard information vital to national security, but to prevent plaintiffs from seeking any legal recourse. (15)

   This Note explores whether individuals who have been abducted under the U.S. extraordinary rendition policy, and subjected to severe interrogation methods by both U.S. and foreign officials, have a remedy under the Alien Tort Statute ("ATS"). (16) Part II explores the factual and procedural history of Mohamed's suit, and Part III examines whether the ATS still provides a meaningful enforcement mechanism after lying dormant for nearly 180 years. (17) Part III also examines the context in which the state secrets privilege arose, and compares it with factual situations such as the one presented in Mohamed I. (18) Finally, Part IV argues for a narrow application of the state secrets privilege to counter its frequent use by the executive branch in cases where either foreign nationals or U.S. citizens are taken by extraordinary rendition and tortured. (19) The recent ruling by the Supreme Court of the United States denying certiorari in Arar v. Ashcroft (20) in addition to the Ninth Circuit's decision en banc in Mohamed v. Jeppesen Dataplan, Inc. (21) have, as of this moment, denied an entire class harmed by the U.S. government from pursuing a judicial remedy. (22)

2. MOHAMED V. JEPPESEN DATAPLAN, INC.: A SHELL GAME OF RESPONSIBILITY

   This Note explores the confluence of international law, federal statute, and national security. (23) The plaintiffs' allegations in the Mohamed cases, excruciating though they may be in their catalogue of human rights abuses, offer a guide to navigating the complexities inherent in such an expansive study. (24) In the Mohamed cases, the five plaintiffs allegedly suffered disparate--but schematically similar--treatment at the hands of both the U.S. and foreign governments. (25) The plaintiffs sought a remedy under the ATS for harms suffered during their rendition and subsequent interrogations. (26) After filing a complaint against Jeppesen, a corporation the plaintiffs asserted transported them during the rendition process, the U.S. government intervened as a defendant and obtained a dismissal from the federal district court. (27) The government asserted the state secrets privilege, and without the protected information, the plaintiffs had no justiciable action. (28) However, on appeal, a three-judge panel of the Ninth Circuit reversed and remanded the district court's decision for further examination. (29)

   Before further examination in the district court occurred, the entire Ninth Circuit granted an en banc rehearing to determine whether the plaintiffs' action could be dismissed. (30) Though the Mohamed II court voted unanimously to reverse and remand the case, the decision in Mohamed III was a 6-5 decision voting to dismiss the plaintiffs' claims. (31) All three judges who presided over Mohamed II dissented in Mohamed III. (32) The ruling was both substantively and strategically significant. (33) The decision in Mohamed III eliminated the split between the Fourth and Ninth Circuit on whether the privilege can be used at the outset of a case to achieve dismissal under the Reynolds doctrine. (34) However, the lack of a circuit split decreases the likelihood that the United States Supreme Court will grant certiorari to determine the proper interpretation. (35)

3. STRANGE BEDFELLOWS: INTERNATIONAL LAW, U.S. FEDERAL COURTS, AND THE EXECUTIVE BRANCH

   1. Contemporary International Legal Norms

      In a global environment where information technology, economies of scale, and a decreased emphasis on sovereignty have created a more connected and more mobile human experience, international law remains an enigma--difficult both to define and to enforce. (36) Since the end of World War II, a hierarchy of norms have emerged so that various human rights infractions can at least be categorized, if not prosecuted. (37)

      The most fundamental of international law norms is Customary International Law ("CIL"). (38) To be classified as part of the CIL, the norm must arise "from a general and consistent practice of states followed by them from a sense of legal obligation." (39) It is, then, those norms of human behavior by which all nations must feel constrained and bound in their treatment of citizens. (40) However, even at this fundamental level, there is yet a more restrictive subset termed jus cogens (41) Although CIL requires only general acceptance by the international community, jus cogens is held to a higher standard. (42) While a CIL norm requires many states to accept it as such, jus cogens encompasses those norms from which no nation can deviate without violating them. (43) In Filartiga v. Pena-Irala, (44) the first modern American case in which international law is discussed, the court determined that for a suit to be brought under the ATS, the violation must be one of CIL. (45) Since then, however, there has been a trend among federal courts requiring a violation of jus cogens to state a cause of action under the ATS. (46) While this trend is more restrictive than proponents of international law would like, it has allowed the courts time to fully conceptualize the ramifications of incorporating international law into domestic law. (47) Though there may be some debate as to what tortious actions constitute violations of CIL but not jus cogens, torture, as defined in the United Nations Convention Against Torture ("CAT"), is undoubtedly a jus cogens offense. (48)

   2. Alien Tort Statute

      The Alien Tort Statute (also known as the "Alien Tort Claims Act") grants original jurisdiction to federal district courts when a foreign national files a complaint against a person or entity for committing a tort in violation of the Law of Nations. (49) Enacted as part of the 1789 Judiciary Act, this one-sentence statute likely carries with it a far different meaning today than its drafters intended. (50) Eighteenth century legal thinkers regarded the "Law of Nations" as those laws which all civilized people were bound to uphold. (51) In essence, the Law of Nations is no more than the doctrinal common law. (52) United States v. Smith (53) was the first and only time in 165 years that the Supreme Court grappled with the Law of Nations. (54) While American jurisprudence avoided confrontation with the Alien Tort Statute, international law...