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Feds Seek to Dismiss Rendition Claim:

The Washington Post reports on the Justice Department's effort to dimiss a lawsuit against private companies alleged to have assisted in the rendition of a detainee.

The American Civil Liberties Union sued Jeppesen Dataplan Inc. last year in San Jose federal court, accusing it of aiding the CIA in the "forced disappearance, torture and inhumane treatment" of five suspected terrorists in violation of national and international laws. The ACLU alleges that Jeppesen, based in San Jose, knowingly participated in the program by supplying aircraft, crews and logistical support to the CIA flights.

On Tuesday, Justice Department lawyers asked U.S. District Judge James Ware to toss the lawsuit without further litigation because of unspecified national security risks.

In an earlier court filing, CIA Director Michael Hayden invoked the "state secrets privilege," which would let him bar evidence sensitive to national security from being used in court.

The judge appeared sympathetic to Hayden's position Tuesday, but declined to rule immediately. Ware said he would issue a written opinion soon.

ACLU lawyers argued Tuesday that Hayden's security concerns are trumped because the rendition program is public knowledge.

David Schwartz (mail):
I don't think it's reasonable to hold private companies accountable for assisting the government in breaking the law unless a clear and specific statutory scheme sets out the parameters.

For example, FISA sets out just such a scheme. It clearly tells the telephone companies what they must do, what type of documentation they need to have, and what they are accountable for. Congress has already made the judgment that these companies are liable for assisting the government in illegal surveillance.

To my knowledge, no such comparable statutory scheme is involved in this case. It is simply unreasonable to expect private companies to police their government in this way. This is especially true when the law isn't even well-established.
2.6.2008 7:03am
Wondering Willy:
Congress needs to enact a statutory protection scheme for organizations that do business with the government protecting them from this sort of tort liability. Otherwise, companies will (and probably already do) price the potential for an ACLU lawsuit into their bids for government work, costing all of us money.

And no, I frankly don't care if a private company helps the government torture terrorists. Call me crazy.
2.6.2008 8:34am
davod (mail):
"For example, FISA sets out just such a scheme. It clearly tells the telephone companies what they must do, what type of documentation they need to have, and what they are accountable for. Congress has already made the judgment that these companies are liable for assisting the government in illegal surveillance."

Where does the law say this.
2.6.2008 8:38am
ruralcounsel (mail) (www):
The problem, of course, is what if the folks getting hammered by the government AREN'T terrorists. Like you, for instance, presuming you took a stance some administration didn't like.

It's easy to accept if you presume guilt,... but then why bother to have trials? Let's just have a presumption of guilt instead of innocence. And, unfortunately, it's easy to accept when it's some guy named Ali from the Middle East who holds some wacky religious ideas ... but pretend it's your spouse, or your kids. And today's war on terrorism is tomorrows domestic policy ... war on drugs, war on tax evasion, war on abortion (pro or anti), war on tobacco, ... Professional interrogators aren't likely to make the same distinctions we would.

And at what point does assistance become participation? Company X supplied the electrodes ... Company X delivered the electrodes, ... Company X attached the electrodes, ... Company X demonstrated the use of the electrodes, ... Company X furnished the employee to flip the switch, .... all under government supervision/cooperation. When do they become a subcontractor? Employee? Do we perform a "detour or frolic" analysis like for respondeat superior?

Companies need some protection in order to be able to say "NO". Some won't want to, and so they should be held liable, if they don't have a good faith belief that what they assisted in was legal (and exigent circumstances should provide some leeway ... but everything can't be exigent circumstances!)
2.6.2008 8:58am
NO no no:
I actually see a clever way to hit Boeing' subsidiary with another cause of action. Endangering public safety.

By denying that its pilots did no see criminal activity while assisting CIA, they imply they flew airplanes while retarded and blind (possibly dead drunk as well).
2.6.2008 9:38am
M. Gross (mail):
It's quite possible the pilots flew the planes with the cabin door closed and had no contact with the passengers, or that the prisoners themselves were not visible to the crew.

The prisoners could have been heavily drugged and appeared asleep, for all we know.
2.6.2008 9:47am
Houston Lawyer:
I'll bet that the agents used cell phones. Verizon should of course be responsible for providing them services which they used to break the law.
2.6.2008 10:04am
Two-Fisted Undergrad:
And at what point does assistance become participation? Company X supplied the electrodes ... Company X delivered the electrodes, ... Company X attached the electrodes, ... Company X demonstrated the use of the electrodes, ... Company X furnished the employee to flip the switch,

and some herded them in,
and some dropped the pellets,
and some spread the ashes,
and some hosed the walls,

and some planted the wheat,
and some poured the steel,
and some cleared the rails,
and some raised the cattle.
2.6.2008 10:09am
GV:
The prisoners could have been heavily drugged and appeared asleep, for all we know.

Sure, or Boeing could have been complicit in the whole thing and knew exactly what was going on. If only we had some sort of mechanism is to resolve these sort of fact disputes . . .
2.6.2008 10:36am
PersonFromPorlock:
The problem with the sovereign immunity argument is that it's We the People, not the government, which is the sovereign. Private contractors hired by the government, government employees and the government itself should be liable for crimes and torts which, as alleged here, are rather simple ones like kidnapping and aggravated assault.

That's not to say we should presume guilt but they should at least be required to present a defense; and if they choose not to because of 'governmental' concerns, that should be regarded as a nolo plea. The President can set aside any conviction of individuals subsequent to such a plea but let's make him take a stand.
2.6.2008 10:43am
J.Prufrock:
There's some very specious reasoning going on here... to whit:

>>It's easy to accept if you presume guilt,... but then why bother to have trials?

Sir, we're not talking about someone suspected of snatching a loaf of bread from the corner deli, nor a matter for the criminal courts intervention.

>>Let's just have a presumption of guilt instead of innocence.

This statement is simply mad in the context of terrorism and reasonably suspected terrorists.

>>And, unfortunately, it's easy to accept when it's some guy named Ali from the Middle East who holds some wacky religious ideas ... but pretend it's your spouse, or your kids.<<

Non sequiter. It doesn't matter whether your spouse or your children are suspected, though I assure you neither my spouse, nor offspring are manufacturing IEDs or explosive vests in our basement. Appeals to heartstrings in such situations can get people killed. Prudence in the face of the potential mayhem that can result requires erring on the side of caution, particularly given the involvement of non-citizens, captured outside of U.S.
2.6.2008 10:55am
New World Dan (www):
My concern is that "state secrets" seems to be used a lot to protect the state from civil damages. I guarantee, if the state secrets defense was taken as an admission of guilt with damages awarded, the state would be more than happy to turn over whatever evidence was requested.
2.6.2008 10:59am
Anderson (mail):
"State secrets" = "state embarrassments."

The foundational case for "state secrets" turned out to be a lie by the feds, who wanted to avoid looking bad.

Nothing's changed.
2.6.2008 11:18am
Tony Tutins (mail):
Jeppesen acted more like the AAA Travel Agency than anything more sinister. They apparently supplied neither planes nor crew; they made flight plans, and they arranged for fuel to be present at refueling stops.

From the first amended complaint, Jeppesen prepared pre-departure flight planning services, including itinerary, route, weather, and fuel plans for the aircraft involved in their renditions; procured necessary landing and overflight permits for all legs of the rendition flights; and, through local agents, arranged fuel and ground handling for the aircraft; filed flight plans with national and intergovernmental air traffic control authorities; paid passenger fees for the crew; and made arrangements to secure the safety of the aircraft and crew on the ground.
2.6.2008 11:26am
Dave Hardy (mail) (www):
Wonder how ACLU has standing? Have any of its members "been disappeared"? Even if they have, a suit for damages prob. flunks Hunt v. Wash. Apple Growers' standard for organizational standing. So the suit would have to involve plaintiffs who actually have been grabbed, and transported, by this firm.
2.6.2008 11:30am
Tony Tutins (mail):
The ACLU doesn't have standing, the rendered plaintiffs they represent have standing. The AP article in the Washington Post is very misleadingly written. Read about Mohamed v. Jeppesen Dataplan on the ACLU website.
2.6.2008 11:36am
Just Dropping By (mail):
Jeppesen acted more like the AAA Travel Agency than anything more sinister. They apparently supplied neither planes nor crew; they made flight plans, and they arranged for fuel to be present at refueling stops.

If they had knowledge of tortious or illegal activity, then the facts you seems to be accepting as undisputed would be more than sufficient to establish "aiding &abetting" liability in any jurisdiction I'm familiar with.
2.6.2008 11:37am
byomtov (mail):
>>Let's just have a presumption of guilt instead of innocence.

This statement is simply mad in the context of terrorism and reasonably suspected terrorists.


You mean the worse the alleged crime the less effort we should make to determine guilt?

Is the statement also "simply mad" in he case of "reasonably suspected" murderers?
2.6.2008 11:43am
Per Son:
This is insane. Some of you give so much credit to the government, and admit that violating the Constitution is ok!!

I refer to statements like: "And no, I frankly don't care if a private company helps the government torture terrorists. Call me crazy."

There are multiple cases of renditions leading to torture happening on innocent people - people who were at the wrong place/time or just mistaken identity (e.g. "gee, we meant to torture the other guy, my bad!").

Also, your smug statement admits that torture is okay! That is a lot more than even this Administration will publically admit! They claim torture is illegal, BECAUSE IT IS!!!

Lastly, I am not aware of a law that deputizes and therefore immunizes private companies with absolute immunity. I can even see an argument for qualified immunity, but absolute!

Another comment can be dealt with quicker:

"I'll bet that the agents used cell phones. Verizon should of course be responsible for providing them services which they used to break the law."

My guess is Verizon is off the hook because of something I once learned about - proximate cause.
2.6.2008 11:45am
Tony Tutins (mail):
JDB: That's a big if. First the ACLU would have to prove that our government was involved in tortious or illegal activity. Then they would have to prove that Jeppesen knew that that was the purpose of the flights.

I think proving this would be on the same level of difficulty as proving aiding and abetting liability for the people who sold McVeigh the fertilizer and diesel fuel he needed for his bomb, or for the flight schools who trained the al-Qaeda pilots.
2.6.2008 11:50am
Per Son:
Tony T:

I agree with you 100% - the suit must be proven. My only beef in my previous post is that some people seem to think that the company should be incapable of being sued.
2.6.2008 11:52am
Tony Tutins (mail):

that some people seem to think that the company should be incapable of being sued.

Suing Jeppesen creates the notion of travel agent liability -- don't be surprised if your travel agent starts quizzing you on the purpose of your trip, and why you selected the destinations you did.
2.6.2008 11:58am
PLR:
Off topic, isn't anyone interested in the fact that Risen has received a subpoena from Mukasey's DOJ?

I know the First Amendment isn't as noteworthy as the Second Amendment or the Takings Clause (unless we're talking about McCain-Feingold or hate speech, of course), but this Conspiracy is part of the press, is it not?
2.6.2008 12:00pm
Anderson (mail):
Suing Jeppesen creates the notion of travel agent liability -- don't be surprised if your travel agent starts quizzing you on the purpose of your trip, and why you selected the destinations you did.

Well, Tony, if I were traveling to Cuba, wouldn't my travel agent do just that?
2.6.2008 12:02pm
Adam J:
Houston Lawyer- I guess you don't know much about accomplice liabilty. A getaway driver in a bank robbery isn't off the hook because all he does is drive the robber somewhere.

Verizon obviously is in no danger of liability- it has no knowledge of how its phones are being used.
2.6.2008 12:08pm
Adam J:
Tony Tutins - Why would the travel agent do that? There's no affirmative duty for the agent to figure out what his services are being used for- he only has to withhold his services if he knows they will be used to further a crime.
2.6.2008 12:11pm
procrastinating clerk (mail):
It really ticks me off that the ACLU doesn't use serial commas.
2.6.2008 12:11pm
Tony Tutins (mail):

Verizon obviously is in no danger of liability- it has no knowledge of how its phones are being used.

Verizon knows the numbers you called, and makes it possible for you to talk to the people at the other end, routing your call through the network to reach them. Jeppesen knew the flights' destinations, and made it possible to refuel the planes at the other end, providing routes for their flights through the airways to reach their destinations.
2.6.2008 12:17pm
Jamesaust (mail):
davod asks: "Where does the law say this."

A: 18 U.S.C. 2511(2)(f) - the FISA court is the sole means of authorizing electronic surveillance of U.S. persons.
50 U.S.C. 1809(a) - criminal penalties for unauthorized electronic surveillance
50 U.S.C. 1809(b) - defense from criminal penalities: court ordered search warrant

The telephone companies - and their highly educated, highly paid lawyers - aren't fools. They knew exactly what the law says in this area. One, Qwest, followed the law and said, "Come back with your warrant." The government did not because of course (a) no warrant had been issued and (b) there is no basis under the law to issue a warrant for surveillance as broad and unfounded as has been done.

What's more, Qwest has alledged that they were punished subsequently by the government through denial of various business contracts. And, indeed, it is the telecom's desire for money over principle that is precisely why they are not exempt from criminal liability in a conspiracy with the government to subvert the law. (Indeed, its quite obvious that only money is the telecom's motivation given subsequent incidents of surveillance being terminated ... as a result of the government's non-payment of the telecom's bills!)

Sorry, but while I strongly support court deference to the elected branches of government on such national security matters, deference does not extend to direct contradictions between the Executive and Legislative branches. There is NO national security issue as to the merits of WHETHER a constitutional exception (for the Executive) from the law (passed and executed by both the Executive and Legislative) that in turn can be extended to non-government parties; no details of the program need be examined to determine whether the FISA warrant requirement is absolute and the existence of the program is already a matter of public record.
2.6.2008 12:19pm
Tony Tutins (mail):

There's no affirmative duty for the agent to figure out what his services are being used for- he only has to withhold his services if he knows they will be used to further a crime.

I seriously doubt that the CIA told JDP, "We want your services in order to further a crime," when they made their arrangements, yet JDP finds itself in federal court. Having a signed trip purpose form on file would have helped JDP escape liability. If JDP charged the CIA the going rate for their services, I don't see any other way to impute liability to them.
2.6.2008 12:22pm
yankev (mail):

I think proving this would be on the same level of difficulty as proving aiding and abetting liability for the people who sold McVeigh the fertilizer and diesel fuel he needed for his bomb, or for the flight schools who trained the al-Qaeda pilots.
Don't recall the name of the case (it was 1977 when I read it last) or whether it's still good law, but there is a case from either the SCOTUS or USCCA 8 Cir. holding that a merchant who sells a lawful unrestricted product (sugar) at his normal price, even though he sells it with actual knowledge that the buyer intends to use it for an unlawful purpose (making bootleg whiskey) cannot constitutionally be convicted for conspiracy. How is Jeppesen any different? Filing a flight plan is not like driving a getaway car; the driver of the getaway car is acting according to a common plan and purpose.
2.6.2008 12:29pm
anonymous_lurker (mail):
I'm always surprised at the supposed "libertarian" folks who have no problem saying that the gov't should be able to just whisk someone away with no due process and no accountability.

Also, the idea that there is no problem here because it's only terrorists whom the gov't is torturing is a total non sequiter. We have trials for a reason, and for people to so blithely say that it's okay to totally ignore legal protections is scary.

This is supposed to be a libertarian site... Well, why do so many commentators have such trust that the gov't isn't abusing its authority, or that only terrorists are the targets? I thought libertarians were supposed to be suspicious of the gov't.
2.6.2008 12:31pm
AnonLawStudent:
Wouldn't JDP also have a good defense under Boyle v. United Technologies? The government solicited a private party to perform services and specifically instructed the party how to perform those services. Absent a knowing violation of an on-point Federal statute, there doesn't seem to be any liability. The argument is even stronger if suits such as this raise the cost of federal contracts.
2.6.2008 12:34pm
AnonLawStudent:
anonymous_lurker,

The idea is that international affairs remain in a state of nature. Our government owes no specific legal duty, outside of those it has voluntarily contracted via treaty or adopted by statute, to non-citizens located outside of our borders. If a subject of rendition objects, he should look to HIS government to protect him, not the American judiciary. Of course, the sh*tty thing about being a terrorist is that, by deciding to operate outside of the system of Westphalian states, the terrorist is alone in the jungle.
2.6.2008 12:39pm
darelf:
Perhaps I'm unfamiliar, but "ACLU lawyers argued Tuesday that Hayden's security concerns are trumped because the rendition program is public knowledge." seems to assume facts not in evidence. ( from a layman's point of view, not being a lawyer )

Has the government been convicted of actual torture during these flights? Has a case been brought against them? Wouldn't that be a logical first step? Honestly, "reports" of this activity would be simply unsubstantiated rumors until the facts are tried in court. I am unaware of any convictions related to these flights... am I simply ignorant of them? ( this is entirely plausible )
2.6.2008 12:46pm
Don Miller (mail) (www):

Has the government been convicted of actual torture during these flights? Has a case been brought against them? Wouldn't that be a logical first step? Honestly, "reports" of this activity would be simply unsubstantiated rumors until the facts are tried in court. I am unaware of any convictions related to these flights... am I simply ignorant of them? ( this is entirely plausible )


I don't think you have missed anything. To date, the ACLU has been unable to prove that the CIA did anything against US Law. There are a lot of allegations, but no case has ever been taken to trial and proven. No one has been convicted.

I believe this case is the equivalent of a "Hail Mary" football play. The ACLU is trying to take a 3rd Party to trial in an attempt to get the evidence they want to prove the CIA did something illegal.

They could care less about JDP, their real target is the CIA. If they can scare companies into not doing business with the CIA in the future, all the better as far as they are concerned.
2.6.2008 1:06pm
Bruce Hayden (mail) (www):
I don't see how the ACLU is going to prove intent here. Is there case law that the government cannot ship people back where they came from? Happens all the time, esp. in immigration cases. And it even happens to naturalized citizens on occasion when they have seriously transgressed.

Did they even know that prisoners were being sent somewhere? And did they know that they weren't being sent back to countries that they didn't come from and weren't caught in?

The idea of accomplice liability was brought up. But even there, some scienter is required. Is someone guilty of aiding a bank robber escape if they didn't know that they had just robbed a bank, and had no real reason to believe it? If your friend asks you to pick drop him off at the bank, and wait for him. And then he calmly walks in and out of the bank, and then gets in the car and you drive away, is there accomplice liability?

Of course, we are talking tort here, and not criminal, as far as the contractor is concerned. But what type of tort? All of the cited claims for relief involve intentional torts.

Reading through the second amended complaint, it is fairly clear that the defendant was not actively involved in the rendition itself, but rather provided logistics to make such possible. Also of note is that in a number of cases, the plaintiffs were sent places that they had a connection with. For example, one P was caught in Pakistan, having escaped from Afghanistan after we invaded. And one of the places that he was sent was Afghanistan. Indeed, most, if not all, of the plaintiffs were sent to a country with which they had some previous connection (and, yes, they were sent other places as well). The point though is that it is highly unlikely that the defendant knew the specifics of the history of any specific transferee, or, likely, even the identities of the transferees. Their employees weren't in the planes, nor on the ground, but back in the U.S. And the CIA (or whatever agency involved) likely just chartered a plane from point A to point B through the defendant. There is no reason to believe that I could see from the complaint that the defendant knew whether someone was being transferred to a country where he could be sent because of former connections, or shouldn't have been due to no connections.

In short, there was nothing I saw in the complaint that would show the actual intent required for the intentional torts alleged, and plenty of reason there why the intention alleged is questionable.
2.6.2008 1:09pm
Bruce Hayden (mail) (www):
The idea is that international affairs remain in a state of nature. Our government owes no specific legal duty, outside of those it has voluntarily contracted via treaty or adopted by statute, to non-citizens located outside of our borders. If a subject of rendition objects, he should look to HIS government to protect him, not the American judiciary. Of course, the sh*tty thing about being a terrorist is that, by deciding to operate outside of the system of Westphalian states, the terrorist is alone in the jungle.
One notable feature of the allegations in the amended complaint is how often the subjects' country of citizenship was complicit in this. Oh, and the countries from which they came originally, and those in which they were caught.
2.6.2008 1:12pm
Bruce Hayden (mail) (www):
The idea is that international affairs remain in a state of nature. Our government owes no specific legal duty, outside of those it has voluntarily contracted via treaty or adopted by statute, to non-citizens located outside of our borders. If a subject of rendition objects, he should look to HIS government to protect him, not the American judiciary. Of course, the sh*tty thing about being a terrorist is that, by deciding to operate outside of the system of Westphalian states, the terrorist is alone in the jungle.
One notable feature of the allegations in the amended complaint is how often the subjects' country of citizenship were complicit in this. Oh, and the countries from which they came originally, and those in which they were caught.
2.6.2008 1:13pm
Bruce Hayden (mail) (www):
Sorry about the double posting. I saw a grammar problem, stopped the transfer to fix it, and found that it had posted already.
2.6.2008 1:14pm
PLR:
Did they even know that prisoners were being sent somewhere? And did they know that they weren't being sent back to countries that they didn't come from and weren't caught in?

Perhaps they routinely arrange international flights outside the United States for passengers who are shackled and have hoods over their heads.
2.6.2008 1:18pm
AnonLawStudent:

One notable feature of the allegations in the amended complaint is how often the subjects' country of citizenship were complicit in this. Oh, and the countries from which they came originally, and those in which they were caught.


Which weakens the ACLU's argument even more. Individuals operating outside of the Westphalian system, were captured and, rather than being treated as an independent actor, were reinjected into the system by returning them to (or receiving implicit consent to do otherwise from) nations which, in U.S. parlance, had in personam jurisdiction over them. The horror!
2.6.2008 1:20pm
Bruce Hayden (mail) (www):
I'm always surprised at the supposed "libertarian" folks who have no problem saying that the gov't should be able to just whisk someone away with no due process and no accountability.
One notable fact in the amended complaint is that the transferees were not being sent from the U.S., but rather were caught in one country with which we have sometimes somewhat friendly relations, were they often tortured (accepting the allegations of the complaint), and then they were sent somewhere else for awhile, and then maybe somewhere else. In the end, they were either released or sent to Gitmo, in either case, terminating the (claimed) torture. So, the suggestion that they were whisked away is somewhat debatable.

As for accountability, most, if not all, of the transferees were transferred to countries in which they had connections, and whose governments likely had interests in them. For example, one was caught in Pakistan fleeing Afghanistan after our invasion. No surprise that the Afghan government had an interest in him. That is the other side of accountability.
2.6.2008 1:26pm
AnonLawStudent:

Perhaps they routinely arrange international flights outside the United States for passengers who are shackled and have hoods over their heads.


Do you know how the aviation system works? Virtually everything is arranged via telephone or telex. That's the whole point of the "lack of knowledge" argument. In the domestic system, civilian IFR clearances are initiated by a telephone call or a radio communication; major operators, e.g. the military, have direct access to the telex system. It's highly unlikely Jeppesen had ANY in-person contact with the aircraft, aircrew, or their passengers. All they would have seen was a tail number or call sign, aircraft type, routing request, and list of services required.
2.6.2008 1:28pm
Bruce Hayden (mail) (www):
Perhaps they routinely arrange international flights outside the United States for passengers who are shackled and have hoods over their heads.
Let's clarify this a bit. The flights were from country A to country B, neither of which was the U.S. Also, there was no indication that the defendant's employees were along on the flights to see the passengers who were shackled and had hoods.
2.6.2008 1:29pm
Dilan Esper (mail) (www):
Is there case law that the government cannot ship people back where they came from?

google convention against torture refouler

I bet a lot of conservatives might be surprised what the law is in this area. Certainly a lot of conservative opinion leaders have not been honest about it.
2.6.2008 1:34pm
Wahoowa:
PLR:

Out-of-country flights for shackled prisoners is a common occurrence. For example, the ICE charters frequent deportation flights from Kansas City, Denver, St. Louis, and other locations to Mexico City, Veracruz, etc. (The theory is that dropping them off deeper in Mexico will make it more difficult for them to come back). These deportees are frequently shackled. Also, when fugitives are sent back to their own countries they are often shackled (assuming it's not a commercial flight, which they sometimes do fly on).

I don't really have a dog in this fight (I think both sides make pretty good arguments), but what you point out isn't as rare as you might think.
2.6.2008 1:38pm
byomtov (mail):
So we have lots of people arguing that the ACLU has no case, but on the off-chance that they really do have one it shouldn't be heard and we should just trust the govt.

Libertarians, I guess, are too busy being outraged about seat belt laws to worry about torture, baseless detentions, any sort of reasonable legal process, etc.
2.6.2008 1:57pm
Adam J:
Tony- If Jeppesen didn't know and wasn't willfully blind that the planes were being used for rendition, then the case should be dismissed- you can't be held liable for unknowingly aiding a crime. I don't dispute this.
2.6.2008 2:10pm
PLR:
I don't think you have missed anything. To date, the ACLU has been unable to prove that the CIA did anything against US Law. There are a lot of allegations, but no case has ever been taken to trial and proven. No one has been convicted.

I wonder why not.
It's highly unlikely Jeppesen had ANY in-person contact with the aircraft, aircrew, or their passengers. All they would have seen was a tail number or call sign, aircraft type, routing request, and list of services required.

Let's clarify this a bit. The flights were from country A to country B, neither of which was the U.S. Also, there was no indication that the defendant's employees were along on the flights to see the passengers who were shackled and had hoods.

I think ignorance will be a hard sell here. Jeppesen was quite proud of its work for the C.I.A. according to a Jane Mayer piece in The New Yorker:
A former Jeppesen employee, who asked not to be identified, said recently that he had been startled to learn, during an internal corporate meeting, about the company’s involvement with the rendition flights. At the meeting, he recalled, Bob Overby, the managing director of Jeppesen International Trip Planning, said, “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.” The former employee said that another executive told him, “We do the spook flights.” He was told that two of the company’s trip planners were specially designated to handle renditions. He was deeply troubled by the rendition program, he said, and eventually quit his job. He recalled Overby saying, “It certainly pays well. They”—the C.I.A.—“spare no expense. They have absolutely no worry about costs. What they have to get done, they get done.”

I should also clarify that my previous post should not be taken as a comment on the merits of the claim of the British detainee who was sent from Gambia to Afghanistan to Gitmo and released to Britain. But I think it is worth considering why it is that the C.I.A. had such a strong preference for Jeppesen's charter services, rather than using government or military aircraft (and in this case, I wouldn't suggest following the money).
2.6.2008 2:13pm
Dr. Scott (mail):
Instead of adding the chance of ACLU lawfare into their prices, CIA contractors are likely to insist on a Get Out Of Court Free card, in the form of indemnification against legal costs. Either way, it's not big money, and shouldn't have a big impact.

If the case cannot be heard without disclosing classified information, then I'd say the plaintiff doesn't have a court case. That happens sometimes. Perhaps the Congress would like to pass a bill granting compensation?
2.6.2008 2:25pm
Thomas_Holsinger:
Don't forget the liability of the City of San Jose for providing municipal services (water, sewer, etc.) to Jeppesen.
2.6.2008 2:29pm
louisvillelawyer (mail):
"And no, I frankly don't care if a private company helps the government torture terrorists. Call me crazy."

Wow. Do you have any sympathy for Maher Arar, a Canadian software engineer who also holds Syrian citizenship who was detained at JFK when changing flights, sent to Syria, tortured, and then relased because he was completely innocent? Is Arar's detention and torture just part of "the price of freedom"? The Second Circuit will decide whether his suit should have been dismissed.


http://www.nytimes.com/2007/11/10/world/americas/10arar.html
2.6.2008 3:03pm
AnonLawStudent:

I think ignorance will be a hard sell here. Jeppesen was quite proud of its work for the C.I.A.


Let's apply this logic domestically. Johnny - the filling station boy - knows that Guido is a drug dealer. Guido usually buys gas from the Texaco where Johnny works, because Johnny does a great job washing the windshield and checking the oil. Johnny, knowing that Guido is a drug dealer, can pretty well assume that there are drugs in Guido's car at least some of the time when he fills up. Accomplice / conspiracy / aiding and abetting liability for Johnny?


I think it is worth considering why it is that the C.I.A. had such a strong preference for Jeppesen's charter services, rather than using government or military aircraft.


The same New Yorker article that you cite notes that the aircraft did not belong to Jeppesen. It does claim that the C.I.A. used aircraft owned by private front companies. Why would it do so? Perhaps because a small business jet with tail N546DC doesn't garner quite as much attention as something with "United States of America" painted on the side when it lands in Peshawar?
2.6.2008 3:06pm
Tony Tutins (mail):

So we have lots of people arguing that the ACLU has no case, but on the off-chance that they really do have one it shouldn't be heard and we should just trust the govt.

Libertarians, I guess, are too busy being outraged about seat belt laws to worry about torture, baseless detentions, any sort of reasonable legal process, etc.


I'm arguing that the ACLU has no case -- or a case hanging from two tiny threads -- against JDP. They may have a solid case against the government, but instead of proceeding directly, they are using their slender/nonexistent JDP case to lever open the government case.

I'm no libertarian, but it offends me that this suit attempts to grossly penalize a company for contracting for its usual services with the "wrong" party, here, a government agency.
2.6.2008 3:27pm
Mark Field (mail):

Our government owes no specific legal duty, outside of those it has voluntarily contracted via treaty or adopted by statute, to non-citizens located outside of our borders.


That's an awkward argument to make in light of the specific text of the 5th A.
2.6.2008 3:28pm
Adam J:
AnonLawStudent- might want to go back to the drawing board on that analogy there. What you have there isn't knowledge for Johnny. The assumption that there are drugs sometimes does not equal knowledge that there is drugs.

How about we make a more apt analogy- A company charters flights from Mexico. During a company meeting, a managing director of the company claims said, “We do all of the flights [for a local cartel] —you know, the [drug] flights. Accomplice / conspiracy / aiding and abetting liability for the company?
2.6.2008 3:41pm
AnonLawStudent:


That's an awkward argument to make in light of the specific text of the 5th A


That's an interesting argument, although one that was consistently rejected until relatively recently (i.e. the distinction between "people" and "person"). See, e.g., Johnson v. Eisentrager, 339 U.S. 763 (1950) (rejecting extraterritorial application of the Fifth Amendment); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) (must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad). It's amazing how well the oft-refuted "history" contained in mid-20th century SCOTUS opinions continues to deserve stare decisis.
2.6.2008 3:47pm
Elliot123 (mail):
"Sure, or Boeing could have been complicit in the whole thing and knew exactly what was going on. If only we had some sort of mechanism is to resolve these sort of fact disputes . . "

Pee Wee Herman, Teddy Kennedy, and Harry Reid could have been complicit. If only we had some way...
2.6.2008 3:48pm
Adam J:
Tony Tutins- "it offends me that this suit attempts to grossly penalize a company for contracting for its usual services with the "wrong" party, here, a government agency."

You're very caught up in irrelevant issues. Who the primary actor is, and how JDP helped the government aren't pertinent. The issue isn't who the primary actor is, but whether they committed a crime. If the government did, then it isn't relevant what JDP did to assist the government, but whether they know they were assisting the commission of a crime. The fact is, we hold people and companies liable when they knowingly assist in crimes. I can't imagine what you find so offensive about this.
2.6.2008 3:53pm
PC:
Johnny - the filling station boy - knows that Guido is a drug dealer. Guido usually buys gas from the Texaco where Johnny works, because Johnny does a great job washing the windshield and checking the oil. Johnny, knowing that Guido is a drug dealer, can pretty well assume that there are drugs in Guido's car at least some of the time when he fills up. Accomplice / conspiracy / aiding and abetting liability for Johnny?


The Jihadi Travel Agency books trips for terrorists. It knows that the majority of its clients are international terrorists. It charges the market rate for trips, but it arranges trips so the terrorists will undergo the least amount of scrutiny as they travel. Accomplice / conspiracy / aiding and abetting liability for Jihadi Travel Agency?
2.6.2008 3:55pm
Elliot123 (mail):
"The fact is, we hold people and companies liable when they knowingly assist in crimes. I can't imagine what you find so offensive about this."

Given all the very smart legal minds on both sides of these issues, I don't know how anyone could know. The preferred mode of argument seems to be to dream up a straw man and say it is analogous. (Not saying you do this, Adam.)

I imagine the courts will determine that a company and every employee should have known what all the high priced legal geniuses couldn't figure out without years of legal wrangling.
2.6.2008 4:01pm
Thomas_Holsinger:
Most of you are missing the real issue of duty here. Plaintiffs must prove that the federal government breached a duty of care to them in their case in chief against Jeppesen. The federal government has sole possession of the secret information necessary for the plaintiffs to prove the existence of this duty.

That is what this case is about. Lawfare. The ACLU has filed this case against Jeppesen to obtain, indirectly via the civil discovery process, secret information which it cannot obtain directly from the government. That is why the Justice Department brought this motion.
2.6.2008 4:14pm
byomtov (mail):
The ACLU has filed this case against Jeppesen to obtain, indirectly via the civil discovery process, secret information which it cannot obtain directly from the government. That is why the Justice Department brought this motion.

Can't have people knowing what the govt's up to.
2.6.2008 4:36pm
Mark Field (mail):

It's amazing how well the oft-refuted "history" contained in mid-20th century SCOTUS opinions continues to deserve stare decisis.


I'm not sure of your point here. You didn't respond directly to the textual issue, so I don't know how you'd deal with it. You seem to be ridiculing stare decisis, yet at the same time relying on it (in part, anyway).

In any case, I'd expect a textualist to celebrate movement towards enforcement of the actual, you know, text.
2.6.2008 4:38pm
Tony Tutins (mail):
Who the primary actor is, and how JDP helped the government aren't pertinent. The issue isn't who the primary actor is, but whether they committed a crime.

Fine. Resolve this issue first, and then go after the secondary actors. As far as I know there's no legal principle to prosecute those least culpable first.

If the government did, then it isn't relevant what JDP did to assist the government, but whether they know they were assisting the commission of a crime.

1. Do they know what they were assisting?
2. Was it a crime?
3. Do they know it is a crime?

The fact is, we hold people and companies liable when they knowingly assist in crimes. I can't imagine what you find so offensive about this.

Were phone companies ever prosecuted for providing phone service to what turned out to be bookmakers? Does their liability attach when the government produces a wiretap warrant? Who would even open a hardware store? Rope for the strangler, knives for the stabber, kerosene for the arsonist.
2.6.2008 4:57pm
PLR:
"And no, I frankly don't care if a private company helps the government torture terrorists. Call me crazy."

Wow. Do you have any sympathy for Maher Arar, a Canadian software engineer who also holds Syrian citizenship who was detained at JFK when changing flights, sent to Syria, tortured, and then released because he was completely innocent? Is Arar's detention and torture just part of "the price of freedom"? The Second Circuit will decide whether his suit should have been dismissed.

Sympathy is unnecessary as long as one conflates terrorists with detainees. Sympathy might get in the way of a proper legal analysis of the tort claim.
Most of you are missing the real issue of duty here. Plaintiffs must prove that the federal government breached a duty of care to them in their case in chief against Jeppesen.

Ah, never mind.
2.6.2008 4:59pm
WHOI Jacket:
Yes, I trust the ACLU with state secrets. What could possibly go wrong.......
2.6.2008 5:03pm
Thomas_Holsinger:
If plaintiffs do not have to prove that the federal government's conduct towards them was wrongful, in their case in chief against Jeppesen, than liability without fault exists.

And, if liaiblity without fault exists, there is no scienter requirement, at which point the City of San Jose is liable to plaintiffs for providing sewer and water services to Jeppesen because those municipal services fostered Jeppesen's commercial activities, including those pertaining to rendition.

If plaintiffs do have to prove that the federal government breached a duty of care to them, then the plaintiffs' conduct giving rise to the rendition decision is at issue, and discoverable, whether or not that conduct of plaintffs was itself unlawful.
2.6.2008 5:27pm
Christopher Cooke (mail):
The way this case would work, but for the state secrets claim, is the plaintiffs would get discovery from the defendant to try to prove the intent element necessary to prove their accomplice liability claim. So, the complaint would survive a motion to dismiss (because state of mind can be pleaded generally, and does not require the pleading of specific facts to justify the inference of intent), but maybe not a motion for summary judgment.

Here, the government is trying to kill the case, without allowing any discovery at all, because of the potential state secrets issues being revealed through discovery. To my mind, I think we should be hesitant to allow the government to intervene to kill a case at the pleadings stage on this basis. That is not saying that the government has no right to assert state secrets--it does. Nor am I saying that the plaintiffs are entitled to discovery that would breach state secrets --they are not. But if they can prove their case in a manner that does not require them to learn state secrets from the government, what is the harm?
2.6.2008 5:32pm
Thomas_Holsinger:
Mr. Cooke,

I take it you are not a litigator. If you were, you'd know that Jeppesen's counsel would be demanding that discovery to prove their affirmative defense that the rendition was lawful due to the government, and thereby Jeppesen, having well-founded reasons for believing the plaintiffs to be terrorists.

The ACLU is trying to make Jeppesen an adversary of the federal government, and so help the ACLU achieve its real objective of giving aid and comfort to the enemy in a time of war.
2.6.2008 6:05pm
AnonLawStudent:

The Jihadi Travel Agency books trips for terrorists. It knows that the majority of its clients are international terrorists. It charges the market rate for trips, but it arranges trips so the terrorists will undergo the least amount of scrutiny as they travel. Accomplice / conspiracy / aiding and abetting liability for Jihadi Travel Agency?

Assumes facts not in evidence. In reality, your argument reveals only your personal biases by assuming that the majority of C.I.A. chartered flights are for illegal purposes. It's very naive to (i) think that everything the C.I.A. does is dastardly, or (ii) fail to acknowledge that dastardly deeds are sometimes required in the intelligence business. Not even the courts are that naive. We've seen what happens to humint when someone (Stansfield Turner) who isn't willing to deal with (ii) is put in charge.

I'm not sure of your point here. You didn't respond directly to the textual issue, so I don't know how you'd deal with it. You seem to be ridiculing stare decisis, yet at the same time relying on it (in part, anyway).

In any case, I'd expect a textualist to celebrate movement towards enforcement of the actual, you know, text.

My point was that you are batting down a straw-man parody of a textualist argument. A textualist reads provisions as they were originally understood, both as to specific definitions and level of abstraction. As I understand your post, you were making an argument that "any person" means any person, anywhere in the world, as distinguished from "the people" of the United States. Although not decisive, the 150 years of judicial rulings contrary to your position (i.e. that the 5th Amendment does not apply to extraterritorial actions) creates a substantial presumption as to the correct interpretation. I was ridiculing the sudden change in understanding during the latter half of the 20th century. I'm not well versed on how that particular change came about, but I am sufficiently familiar with other cases to question the historical basis of the revision. Let me ask you this: under your definition, how is it permissible for a bomber pilot to deprive an enemy of "life" or "property" without "due process of law"? Or, for a closer analogy, for the military to target a particular enemy officer?
2.6.2008 6:09pm
PersonFromPorlock:
Mark Field:

That's an awkward argument to make in light of the specific text of the 5th A.

The thing that seems to elude many posters here is that the Constitution defines what the government can do, as well as some things it can't. Unless there is specific or implicit constitutional authority to torture noncitizens, the government simply has no power to do so.
2.6.2008 6:11pm
Adam J:
Tony- Your examples are completely irrelevant, since in none of those occasions the person aiding the crime has any knowledge of the crime. In this case, there is evidence that Jeppesen knew their services were being used rendition. If you want to have a serious discussion, maybe you should avoid trying to make these disingenuous analogies. There may indeed be legimate flaws in the plaintiffs argument (its too bad you don't discuss them and instead make up false issues)- like whether or not rendition is indeed illegal, and whether they knew it was illegal (generally ignorance of the law is no excuse, but these are certainly unique circumstances here that may cut against this.) However, your continual attempts to draw false analogies seem to indicate you've already made a ideologically driven decision as to who is "right"- and have no real interest in the true legal merits of the case. Of course- if I look back at the ludicrous statements you made during our Stoneridge debate- I suppose this shouldn't surprise me.

Elliot123 - I wasn't trying to create a straw man argument, sorry if it came across that way. I agree with you, it seems rather unfair for Jeppesen to be held liable since the legality of rendition is in such dispute (although rendition's legality shouldn't be in dispute in my opinion).
2.6.2008 6:29pm
Elliot123 (mail):
"Can't have people knowing what the govt's up to."

Good point. The Germans' confusion and lack of information was incredibly useful for the troops landing at Normandy.
2.6.2008 6:33pm
Thomas_Holsinger:
PersonFrompPorlock said:

Unless there is specific or implicit constitutional authority to torture noncitizens, the government simply has no power to do so.

Napoleon XIV said:

Remember when you ran away
And I got on my knees
And begged you not to leave
Because I'd go beserk

Well you left me anyhow
And then the days got worse and worse
And now you see I've gone
Completely out of my mind

And they're coming to take me away ha-haaa
They're coming to take me away ho ho hee hee ha haaa
To the funny farm
Where life is beautiful all the time
And I'll be happy to see those nice young men
In their clean white coats
And they're coming to take me away ha haaa

You thought it was a joke
And so you laughed
You laughed when I said
That losing you would make me flip my lid

Right? You know you laughed
I heard you laugh. You laughed
You laughed and laughed and then you left
But now you know I'm utterly mad

And they're coming to take me away ha haaa
They're coming to take me away ho ho hee hee ha haaa
To the happy home with trees and flowers and chirping birds
And basket weavers who sit and smile and twiddle their thumbs and toes
And they're coming to take me away ha haaa

I cooked your food
I cleaned your house
And this is how you pay me back
For all my kind unselfish, loving deeds
Ha! Well you just wait
They'll find you yet and when they do
They'll put you in the A.S.P.C.A.
You mangy mutt

And they're coming to take me away ha haaa
They're coming to take me away ha haaa ho ho hee hee
To the funny farm where life is beautiful all the time
And I'll be happy to see those nice young men
In their clean white coats

And they're coming to take me away
To the happy home with trees and flowers and chirping birds
And basket weavers who sit and smile and twiddle their thumbs and toes
And they're coming to take me away ha haaa
2.6.2008 6:33pm
Adam J:
Thanks for clearing that up Thomas Holsinger, silly me, I thought that the American civil liberties union was trying to protect civil liberty. I mean, that did make sense, since taking someone to a foreign country to have them tortured did seem to interfere with liberty just a bit. But, now thanks to you I realize that they are a malevolent organization bent on giving aid and comfort to terrorists in an attempt to tear down the American Way of Life...
2.6.2008 6:48pm
AnonLawStudent:

The thing that seems to elude many posters here is that the Constitution defines what the government can do, as well as some things it can't. Unless there is specific or implicit constitutional authority to torture noncitizens, the government simply has no power to do so.


Ummm... power to conduct foreign affairs is fully and exclusively vested in the federal government. This was true, if unenforced, even under the Articles of Confederation. Only in the domestic arena are powers "reserved to the States . . . or to the people." If you're looking for something more specific, I'd suggest a careful review of Article II, which includes, inter alia, the full vesting of the Executive Power, various military powers, and an on-point Oath Clause. Shall we return to meaningful debate, already in progress?
2.6.2008 6:48pm
Thomas_Holsinger:
AdamJ,

Power and law are not the same. They are different.
2.6.2008 7:04pm
Logo:

It's quite possible the pilots flew the planes with the cabin door closed and had no contact with the passengers, or that the prisoners themselves were not visible to the crew.

The prisoners could have been heavily drugged and appeared asleep, for all we know.


One of the places in question is a small inactive airport at Szymany, near Szczytno, north central Poland. It is a few miles from Stare Kiejkuty not-so-secret-anymore-base outsourced by CIA. It is used once a while by small planes. It can accommodate larger jets, but that happened only once when president visited the area.

It received CIA jets enroute from Afghanistan to Romania and then Marocco, and then Gitmo.

It requires special arrangements with the central goverment to even open it. It stores no fuel on a regular basis, because none is needed. To get, one needs special arrangments beforehand. Planes would stop at the end of runway, with local employees locked up in office, and told not to look through windows.

Small busses with blinded windows came from Stare Kiejuty base, and shackled/hooded people handled in/out of the planes. And yes, the crew disembarked, violating passport rules.

It was used in the middle of the night, with localairport employees suspecting just that!

Any doubts why DOJ does not want ANY discovery here?
2.6.2008 7:25pm
ReaderY:
The anti-extra-territorial choice ACLU's use of loaded, emotionally-charged words like "torture" evidences the same kind of contempt for our constitutuon and constitutional values of liberty, autonomy, and choice for Americans as use of "murder" and similar language by prenatal antipchoicers.

I find it absolutely outrageous that theses can seek to impose a religious doctrine of personhood in defiance of our Supreme Court's rational, secular concept of persohood and with complete contempt for our nation's Establishment Clause. Our Establishment Clause protects us from religious fanatics who seek to establish their own doctrine of personhood based on who they think has souls or some such criteria.

Women do not lose the right to choose simply by joining the military. The ACLU's substitution of emotionally-charged religious doctrine for the rational, professional judgment of doctors and military professionals as to whether or not to terminate or render insults Americans and is a threat to American liberty and our freedom of choice.

The decision to render, like the decision to terminate, is a difficult decision not lightly made. The ACLU needs to understand that Americans can be trusted with a choice. It needs to understand that Americans have the right to make these decisions based on their own conceptions of morality, and their need to protect their autonomy and freedom of expression and development. Our government should be free to base its decisions on the advice of responsible, rational professionals applying strictly secular, professional criteria, free from being hijacked by moral-mongers like the ACLU bent on imposing their personal interpretation of the Bible on the rest of us.

A lump of cells simply is not a person, and the fact a photograph may make it appear to be one just doesn't matter. The Supreme Court has held that the term "person" used in the Bill of Rights lacks "extraterritorial application", just as it has ruled that it lacks "prenatal application." The ACLU simply needs to respect this. It needs to respect the Supreme Court's nonpersonhood decisions, and learn to appreciate and honor the freedom of choice for Americans that the extraterritorial's nonpersonhood brings. It needs to butt out of our choices, and take it and its brand of religious morality out of our lives.
2.6.2008 7:37pm
Anderson (mail):
Ummm... power to conduct foreign affairs is fully and exclusively vested in the federal government

Ah. So torture falls under "power to conduct foreign affairs"?

Exactly which one of the Founders do you suggest wouldn't have laughed out loud in disbelief at that suggestion?
2.6.2008 7:37pm
David Schwartz (mail):
I don't think it's reasonable to expect private citizens to police their government in this way. If I have actual knowledge and a good faith belief that my local police are violating the rights of local citizens, am I required to refuse to serve them in my restaurant?

Sorry, it just doesn't work.

In order for citizens to police the government, they need a specific statutory scheme. FISA does this. Nothing does in this case.

Under International law, there is no liability. Nothing Jeppesen did had any substantial effect on the government's ability to perform the renditions. I would also argue that nothing Jeppesen did was specifically directed to assist the specific violation, which is also required.
2.6.2008 7:42pm
ReaderY:
Once more, with typo corrections. As Jonathan Swift once put it, a modest proposal.

The anti-extraterritorial choice ACLU's use of loaded, emotionally-charged words like "torture" evidences the same kind of contempt for our constitution and constitutional values of liberty, autonomy, and choice for Americans as use of "murder" and similar language by prenatal anti-choicers.

I find it absolutely outrageous that Bible-thumpers like the ACLU can seek to impose a religious doctrine of personhood in defiance of our Supreme Court's rational, secular concept of persohood. It shows complete contempt for our nation's Establishment Clause. Our Establishment Clause protects us from religious fanatics who seek to establish their own doctrine of personhood based on who they think has souls (or whatever it is anti-choicers tell themselves).

Women do not lose the right to choose simply by joining the military. The ACLU's substitution of emotionally-charged religious doctrine for the rational, professional judgment of doctors and military professionals as to whether or not to terminate or render insults Americans and is a threat to American liberty and our freedom of choice.

The decision to render, like the decision to terminate, is a difficult decision not lightly made. The ACLU needs to understand that Americans can be trusted with a choice. It needs to understand that Americans have the right to make these decisions based on their own conceptions of morality, and their need to protect their autonomy and freedom of expression and development. Our government should be free to base its decisions on the advice of responsible, rational professionals applying strictly secular, professional criteria, free from being hijacked by moral-mongers like the ACLU bent on imposing their personal interpretation of the Bible on the rest of us.

A lump of cells simply is not a person, and the fact a photograph may make it appear to be one or a preacher may say it is one just doesn't matter. It doesn't matter what the Bible says. The Supreme Court has held that the term "person" used in the Bill of Rights lacks "extraterritorial application", just as it has ruled that it lacks "prenatal application." The ACLU simply needs to respect this. It needs to respect the Supreme Court's nonpersonhood decisions, and learn to appreciate and honor the freedom of choice for Americans that the extraterritorial's nonpersonhood brings. It needs to butt out of our choices, and take it and its brand of religious morality out of our lives.
2.6.2008 7:42pm
Bruce Hayden (mail) (www):
Tony- Your examples are completely irrelevant, since in none of those occasions the person aiding the crime has any knowledge of the crime. In this case, there is evidence that Jeppesen knew their services were being used rendition. ...There may indeed be legitimate flaws in the plaintiffs argument (its too bad you don't discuss them and instead make up false issues)- like whether or not rendition is indeed illegal, and whether they knew it was illegal (generally ignorance of the law is no excuse, but these are certainly unique circumstances here that may cut against this.)
Let me suggest that you appear to be attempting to jump over many of the proof and evidentiary issues. I am still waiting for a cite to any binding U.S. precedent that the CIA was doing anything illegal here. Indeed, this reminds me a bit of the FISA debate, where the TSP was assumed to be illegal, without any real case law to back that up.

Some renditions may be illegal. And, surely, if it were being done from U.S. soil, it would be more likely. But these are foreign nationals who typically have no real connection with the U.S., who are being shuttled between foreign countries by the CIA, and notably mostly without complaint by the countries those being shuttled around have citizenship in. Indeed, in several cases, the countries of their citizenship are complicit in the transfers.

I still don't see how putting together these trips without any physical participation provides sufficient knowledge that any specific trip is illegal in order to show the requisite intent. Indeed, there is no evidence in the amended complaint showing that the defendant did have any knowledge whatsoever that any single transfer was illegal, was believed to be illegal, or, indeed, wasn't totally a government to government transfer, merely expedited by the U.S. government.
2.6.2008 7:48pm
PersonFromPorlock:
Thomas_Holsinger:

Napoleon XIV said:

Remember when you ran away....


Actually, Tom Lehrer. But in any case, don't give up the day job.
2.6.2008 7:50pm
Thomas_Holsinger:
Anderson,

It's called "war". People like you will never, ever undestand the concept of "war" because you don't want to.

As for the Founders, you might check out an incident involving a young colonial militia officer which kicked off the French &Indian War plus the Seven Years' War. Your knowledge of this period is clearly lacking.
2.6.2008 7:54pm
MarkField (mail):

A textualist reads provisions as they were originally understood


I'm not going to quibble with this, though I think it's an abuse of the term. For the sake of argument, though, I'll grant your point.

Now, point me to the Founder who believed that the federal government was allowed to torture people. Show me the court decision in which "due process" included torture. Find me a dictionary of the time in which foreigners were not "persons".
2.6.2008 8:28pm
byomtov (mail):
The Germans' confusion and lack of information was incredibly useful for the troops landing at Normandy.

Oh right, Elliott. It's exactly the same. Jeez, is that a dumb argument.

We're not talking about a military operation. We're talking about how the government handles alleged terrorists in its custody. See?
2.6.2008 8:35pm
Oren:
Thomas, a state of war has no effect on the applicability of the laws passed by Congress. If the executive determines that a law duly passed will hamper the war effort, it is his duty to go to the Congress and ask them to repeal it. Until that point*, the executive remains as much bound to the law during the war as it was the day before. There is absolutely no authority, Constitutional or otherwise, that suggests any exception to this obvious truth.

*Congress has been in session multiple times since 9/11 so the contours of the executive's power to disregard the law in the case of a bona-fide emergency are not relevant here and I certainly don't want to get further off topic.*

Indeed, this reminds me a bit of the FISA debate, where the TSP was assumed to be illegal, without any real case law to back that up.
It's transparently illegal since FISA expressly states that FISA in the exclusive vehicle for obtaining such warrants. Now, perhaps Congress does not have the power to bind the executive thus but nobody seriously disputes that the TSP violates the terms of FISA.

At any rate, I'm sure we have some sort of system by which the relevant facts and laws can be determined . . .
2.6.2008 8:53pm
AnonLawStudent:
Anderson and MarkField,

(1) To answer both of your questions at one time: I'll answer with reference to the same Framer cited by Tom Holsinger: the one who had been willing to hang an innocent British prisoner, Capt. Charles Asgill, as a reprisal for the murder of a captive American prisoner. And not only that, but was authorized by the Continental Congress to do so? The same Framer who insisted on the "cruel and unusual" punishment of hanging another captive British officer, Major John Andre, rather than executing him by firing squad. Ah, yes, that would be our own George Washington.

(2) The only required "process" is that which is "due." In some cases, that process may consist solely of an Executive determination. We certainly know that the President has inherent authority to unilaterally deprive citizens of property in order to settle international claims. Dames &Moore v. Regan, 453 U.S. 654, 681-682 (1981).

(3) As to the definition of "person," even the revisionist Supreme Court justices of the 1960's and '70s conceded that "the people" was a term of art referring only to inhabitants of the United States. I don't currently have time to sift through Framing-era documents to ascertain the boundaries of the term "person" as used in legal documents; I'll defer to that consistent 150 years of SCOTUS rulings. As a superficial argument, however, I would note that "persons" as used in Art. I Sec. 2 clearly uses the term in reference to inhabitants of the several states.

(4) Oren @ 8:53PM: You'll find dicta in several cases which strongly suggests that Congress cannot interfere with the President's conduct of an authorized military campaign. The argument that Congress can't interfere isn't new or particular to President Bush - even Walter Dellinger wrote an OLC opinion stating that Congress can't by statute impinge on the President's powers. In the case of areas of shared power, SCOTUS even adopted a test for who wins. See Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
2.6.2008 9:03pm
Thomas_Holsinger:
Oren,

You assume that the legal system is the only means of resolving separation of powers disputes. This is a common fallacy, especially for lawyer. "If your only tool is a hammer, every problem looks like a nail."

The world is not bounded by law. It is bounded by power. Power and law are not the same. They are different.

Politics determines the outcome of major separation of powers disputes.

Presidents have a duty to resist encroachment on the powers reserved to the executive branch, i.e., to defy legislation which seriously infringes on the powers reserved for the executive branch. That was done by President Andrew Johnson concerning the Tenure Of Office Act, and the Supreme Court did not get around to upholding him until long after he was dead.
2.6.2008 9:04pm
Thomas_Holsinger:
Anderson, Mark Field &AnonLawStudent,

George Washington was the most effective spymaster in American history, and he did not do that by being Mr. Nice Guy. The reason Howe took his forces to sea for the opening of his 1777 campaign, rather than joining Burgoyne, was Howe's well-justified belief that his orders would be received by Washington before Howe's forces got them. So Howe stooged around at sea for weeks planning his campaign, while the horses of his train, artillery and cavalry deteriorated, to keep his plans a secret from Washington.

Only then did he land in New Jersey to advance on Philadelphia. Howe's failure to reinforce Burgoyne was decisive at Saratoga. And it was because George Washington was so effective at intelligence operations. I repeat, those are never, ever nice.

You should also check out the relative effectiveness of Rebel militias under George Washington's command vs. Loyalist milita. The British were very upset that 2-3 Rebel militia would routinely scare off 10-12 Loyalist militia.

The difference was that the Rebel militia were nasty. Thls is common for the winners in partisan wars, and Washington won his partisan war.

Furthermore his junior officers doing all this included the familiar roster of Founders - Hamilton, Madison, Monroe, etc.

So yes, the Founders knew of and approved of harsh interrogation in war. Because they did it themselves.
2.6.2008 9:16pm
Elliot123 (mail):
"Oh right, Elliott. It's exactly the same. Jeez, is that a dumb argument."

Don't like my argument? OK. What makes you think it is presented as an argument? I simply provided an example that supported your statement that, "Can't have people knowing what the govt's up to." Do you disagree about the Germans and Normandy?
2.6.2008 9:47pm
David Schwartz (mail):
FedEx knows that they ship a lot of child pornography. They may even know that they are the shipper of choice for child pornography because inspection rates might be higher with other services. This doesn't make them liable if they ship a package that happens to contain child pornography absent specific knowledge of what was in that particular package prior to carrying it.

Does anyone seriously believe that Jeppesen should have "cut off" the CIA? Can anyone cite a statutory obligation for them to do so?

Does anyone really think that companies have this kind of duty to police their government?
2.6.2008 9:48pm
MarkField (mail):

As to the definition of "person," even the revisionist Supreme Court justices of the 1960's and '70s conceded that "the people" was a term of art referring only to inhabitants of the United States. I don't currently have time to sift through Framing-era documents to ascertain the boundaries of the term "person" as used in legal documents; I'll defer to that consistent 150 years of SCOTUS rulings.


Shorter answer: you got nuthin.


I'll answer with reference to the same Framer cited by Tom Holsinger: the one who had been willing to hang an innocent British prisoner, Capt. Charles Asgill, as a reprisal for the murder of a captive American prisoner. And not only that, but was authorized by the Continental Congress to do so?


Perhaps he was willing to hang Asgill, perhaps it was a bluff. As it is, Asgill lived another 40 years.

There are numerous other problems with your example in any case. For one thing, Asgill wasn't tortured. For another, what is there about this case which indicates that Washington, or anyone else, considered Asgill not a "person"? While we're on that subject, perhaps you could point me to the "due process" clause in the Articles of Confederation.


The same Framer who insisted on the "cruel and unusual" punishment of hanging another captive British officer, Major John Andre, rather than executing him by firing squad. Ah, yes, that would be our own George Washington.


If you seriously believe that hanging was considered "cruel and unusual" in the 18th C, I have some swampland in FL I'd like to sell you. At 2006 prices.


The only required "process" is that which is "due." In some cases, that process may consist solely of an Executive determination.


I thought a good textualist relied on the original meaning. You're kinda result-oriented here, one minute citing irrelevant actions by George Washington, the next a case from 1981. Make up your mind.


Furthermore his junior officers doing all this included the familiar roster of Founders - Hamilton, Madison, Monroe, etc.


Madison was an officer in the Revolutionary War? Who knew!

You and ALS should do a better job of coordination. It won't do for him to cite the Andre case if you're going to mention Hamilton, who vehemently protested the sentence. Kinda undercuts the whole argument.
2.6.2008 10:19pm
Thomas_Holsinger:
MarkField,

My recollection is that either Madison or Monroe (I forget which) was wounded as a young cavalry lieutenant at either the battle of Trenton or the battle of Princeton.
2.6.2008 10:32pm
Fub:
Thomas_Holsinger wrote at 2.6.2008 10:32pm:
My recollection is that either Madison or Monroe (I forget which) was wounded as a young cavalry lieutenant at either the battle of Trenton or the battle of Princeton.
James Monroe was wounded at Trenton.
2.6.2008 11:58pm
EH (mail):
"I'll bet that the agents used cell phones. Verizon should of course be responsible for providing them services which they used to break the law."

My guess is Verizon is off the hook because of something I once learned about - proximate cause.


It's even more explicit than that: Verizon has common carrier status.
2.7.2008 12:03am
AnonLawStudent:
Mark Field:

Shorter answer: you got nuthin.

So 150 years of consistent judicial interpretation constitutes "nuthin"? I also note that you chopped off your quote of my post. Conveniently, you did so at the point where I referenced a provision of the constitution which uses the term "person" in a manner that can only be interpreted as restricted to the inhabitants of the several states. See Article I, Section 2. At least be honest with your snark.

If you seriously believe that hanging was considered "cruel and unusual" in the 18th C, I have some swampland in FL I'd like to sell you.

Hanging was reserved for common criminals; to execute a commissioned officer by that method certainly constituted a "cruel and unusual" punishment. Major Andre's execution received significant attention from very important people, as you noted, for that very reason. My point, and I think Mr. Holsinger's, is that the Framers did, indeed, involve themselves in the dirty business called war. Before asserting that the Framers didn't engage in activities that I'm certain you would consider torture, I would suggest you take a look at 1 Stat. 709 (1799), which authorizes flogging as a punishment. So that we're clear, an almost identical provision appeared in the 1775 Regulations.

I thought a good textualist relied on the original meaning. You're kinda result-oriented here, one minute citing irrelevant actions by George Washington, the next a case from 1981.

If you had actually read the portion of Dames &Moore to which I cited, you would have seen footnote 8, in which the Court cites events dating to 1799 as supporting the proposition that unilateral Executive action can satisfy the "due process" requirement of the 5th Amendment. To make life easy for you, I'll even give you the text: "At least since the case of the Wilmington Packet in 1799, Presidents have exercised the power to settle claims of United States nationals by executive agreement. In fact, during the period of 1817-1917, no fewer than eighty executive agreements were entered into by the United States looking toward the liquidation of claims of its citizens.” (internal citations omitted) Actions contemporaneous with ratification, especially if continued long after, are strong evidence of original understanding. That my source of historical information is an opinion issued in 1981 is irrelevant; the facts are the same, the opinion merely compiles them. On the other hand, it certainly is relevant that the Supreme Court applied those facts, in exactly the same manner, to support the same principle as underlies my argument.

If you have any legal or historical citations to back up your arguments, I would be interested to hear them.
2.7.2008 12:35am
Oren:
<blockquote> You assume that the legal system is the only means of resolving separation of powers disputes. This is a common fallacy, especially for lawyer. "If your only tool is a hammer, every problem looks like a nail." </blockquote> Actually, I'm a physicist, not a lawyer. One down . .

<blockquote> The world is not bounded by law. It is bounded by power. Power and law are not the same. They are different. </blockquote> The President of the United States, on the other hand, is a creature of the Constitution of the United States and is bounded by the same. Specifically, he is bound by the laws that Congress passes.

<blockquote> Politics determines the outcome of major separation of powers disputes. </blockquote> I believe the Justices in Marbury v Madison (not to mention Youngstown!) have spoken to the contrary. The Supreme Court is the only body empowered to make that interpretation.

<blockquote> Presidents have a duty to [...] defy legislation which seriously infringes on the powers reserved for the executive branch. That was done by President Andrew Johnson concerning the Tenure Of Office Act, and the Supreme Court did not get around to upholding him until long after he was dead. </blockquote> While I agree in principle, there are two important caveats I would add before I sign off on the whole thing:
(1) The executive must make its opposition to the legislation in question known to Congress, as Johnson did. This is especially true if the legislation predates the administration and even more pertinent if the President believes that the law no longer fits the situation we are facing. By keeping the dispute out in the open, we avoid the sort of stealth power-grab that the executive seems to turn to when its constitutional argument is weak or absent.

For instance, take FISA which, by its terms, unambiguously makes the TSP illegal. I would have much respect (if not much agreement) for an administration that came out and said that FISA impaired its ability to prosecute the GWoT and was incompatible with the Presidents Art I powers as CiC. First off, I think Congress would be amenable to compromise on the issue and would likely have given the TSP the green light in 02/03. Secondly, it would allow for the normal political back-and-forth that is the signature of a working separation of powers.

(2) Once the constitutionality of the law in question is established, the executive must bite its tongue and follow the law despite its misgivings. The President is simply not competent to make a finding of unconstitutionality in the face of a contrary ruling by the Supreme Court.
2.7.2008 12:56am
MarkField (mail):

So 150 years of consistent judicial interpretation constitutes "nuthin"?


Not for a textualist, no. Now, I'm not a textualist, so I don't much care. But those who are can't accept your argument.


I also note that you chopped off your quote of my post. Conveniently, you did so at the point where I referenced a provision of the constitution which uses the term "person" in a manner that can only be interpreted as restricted to the inhabitants of the several states. See Article I, Section 2. At least be honest with your snark.


I was being polite. Your argument wasn't very good, but I let it pass. If you insist...

Art. I, Sec. 2 reads in relevant part as follows: "No person shall be a Representative who shall not have attained the age of twenty-five years, and been seven years a Citizen of the United States...." Contrary to your claim, this language does NOT limit "personhood" to the inhabitants of the states. It does the opposite -- it distinguishes between "persons" (i.e., everybody) and "citizens" (a subset of "everybody"). Thus, it supports the reading I've advocated and contradicts yours.


Before asserting that the Framers didn't engage in activities that I'm certain you would consider torture, I would suggest you take a look at 1 Stat. 709 (1799), which authorizes flogging as a punishment. So that we're clear, an almost identical provision appeared in the 1775 Regulations.


This is true, but not very relevant. I agree that they didn't consider flogging to be torture. Thus, the fact that they flogged people is NOT an argument that they expected the government to torture people. Again, it's an argument that they did NOT have that expectation.


That my source of historical information is an opinion issued in 1981 is irrelevant; the facts are the same, the opinion merely compiles them.


Agreed, but you didn't cite the facts, you just cited the opinion. I can't read your mind; I had no idea what you were referring to.

Your example, however, is an awfully thin reed to place so much weight. Let's grant that the Executive can act in this one particular circumstance. That is very far from agreeing it can act in other circumstances. Finding one exception to a general rule isn't persuasive evidence that other exceptions necessarily exist.


If you have any legal or historical citations to back up your arguments, I would be interested to hear them.


Technically speaking, I don't need them. You're the one trying to prove executive authority, you have the burden of proof.

Since you ask, the abolition of torture was one of the great triumphs of the Enlightenment, specifically of Voltaire. He engaged in lengthy campaign to abolish it in France and was saluted all over Europe for it. Fortunately for us in America, we didn't need Voltaire's efforts, because torture was not allowed at common law.

Here's Blackstone: "I shall not here enter into any minute enquire concerning the local constitutions of other nations; the inhumanity and mistaken policy of which have been sufficiently pointed out by ingenious writers of their own. But even with us in England, where our crown-law is with justice supposed to be more nearly advanced to perfection; where crimes are more accurately defined, and penalties less uncertain and arbitrary; where all our accusations are public, and our trials in the face of the world; where torture is unknown ...." Emphasis added.

Blackstone again: "The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, a man may kill his enemy: he has only a right to kill him, in particular cases; in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners, but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over." Emphasis added.

The Supreme Court agrees: "There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.” Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944) (irony intended).

Need I go on?
2.7.2008 1:14am
ReaderY:
Two cases --
'
1. Johnson v. Eisentrager, 339 U.S. 763 (1950):


The doctrine that the term "any person" in the Fifth Amendment spreads its protection over alien enemies anywhere in the world engaged in hostilities against us, should be weighed in light of the full text of that Amendment
...

If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244 . [339 U.S. 763, 785] None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.

We hold that the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.




2. United States v. Verdigo-Urquidez, 494 U.S. 259 (1990):



Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U.S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; "[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society." Id., at 770. But our rejection of extraterritorial application of the Fifth Amendment was emphatic:


"Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U.S. 244 [(1901)]. None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it." Id., at 784.

If such is true of the Fifth Amendment, which speaks in the relatively universal term of "person," it would seem even more true with respect to the Fourth Amendment, which applies only to "the people."
2.7.2008 1:14am
Oren:
Sorry ReaderY, but Eisentrager says no such thing and, even if it did, it would be overruled by Rasul . In relevant part:

As explained above, Eisentrager itself erects no bar to the exercise of federal court jurisdiction over the petitioners' habeas corpus claims. It therefore certainly does not bar the exercise of federal-court jurisdiction over claims that merely implicate the "same category of laws listed in the habeas corpus statute." But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the " 'privilege of litigation' " in U. S. courts. 321 F. 3d, at 1139. The courts of the United States have traditionally been open to nonresident aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 578 (1908) ("Alien citizens, by the policy and practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and the protection of their rights"). And indeed, 28 U. S. C. §1350 explicitly confers the privilege of suing for an actionable "tort ... committed in violation of the law of nations or a treaty of the United States" on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court's jurisdiction over their nonhabeas statutory claims.
2.7.2008 1:27am
ReaderY:
It may not limit jurisdiction, particularly because Rasul held Guantanamo Bay was U.S. territory. No one doubts that U.S. courts have jurisdiction over fetuses. The issue is personhood, substantive rights. Roe v. Wade noted that in a number of states fetuses had a right to sue, and said it was utterly beside the point.
2.7.2008 3:34am
Oren:
Let's try this again.
But in any event, nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States from the " 'privilege of litigation' " in U. S. courts. 321 F. 3d, at 1139.


Also, I've never known anyone to ever claim that laws against abortions fail due to lack of jurisdiction on the part of the court/legislature/executive over fetuses.
2.7.2008 3:49am
byomtov (mail):
What makes you think it is presented as an argument?

Giving you the benefit of the doubt, I thought you were smart enough to recognize sarcasm and respond in kind, however weakly. My mistake.
2.7.2008 9:06am
byomtov (mail):
Does anyone seriously believe that Jeppesen should have "cut off" the CIA? Can anyone cite a statutory obligation for them to do so?

Yes. Can anyone cite a statutory obligation for them to contract with the CIA to begin with? Can anyone cite a reason why they couldn't have stopped if they realized the activity was criminal?

Can anyone cite a statutory obligation for them to do so?

Despite not being a lawyer, I'm pretty confident the law requires companies to avoid criminal behavior. And I note again, as so many others have done, that granting DOJ's motion prevents even the exploration of what Jeppeson did.

Does anyone really think that companies have this kind of duty to police their government?

Does anyone really think companies have no duty to police their own activities?
2.7.2008 9:18am
AnonLawStudent:
Once again, selectively quoting to support your argument; it's interesting how you choose the "relevant part," but manage to exclude:

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons"

If you want more in-depth discussion of the "person" "people" distinction that you are trying to make, may I suggest a review of Verdigo-Urquidez, 494 U.S. 259 (1990). While not exhaustive, it provides a good background.


So 150 years of consistent judicial interpretation constitutes "nuthin"?

Not for a textualist, no.


Your argument is that legal usages from the time of ratification, which were consistently applied thereafter, are "nuthin" to a textualist? This argument is "not very good," as you say. To the contrary, a textualist would find evidence of such usage to create a significant presumption; rebuttable, sure, but it certainly is indicative of how the term was understood at the time of ratification.

It's also quite interesting that you quote Blackstone. He does, indeed, argue, in 4 Commentaries 3 in that "torture is unknown" in England, but in 4 Commentaries 370, he includes as lawful punishments acts which I have no doubt you would consider torture, i.e. "terror, pain, or disgrace," "emboweling alive, beheading, and quartering," "public dissection" and being "burned alive." Once again, we return to the textualist argument that terms should be given the usage at the time they were written; be careful in running to Blackstone - his usages are far different than what they superficially appear to a modern reader. I'm glad that you broadly recognized that the Framer's had different ideas of meanings, e.g. torture. I've shown you, via Blackstone and the flogging statute, how very different those meanings can be. Now apply that realization to the current issue.
2.7.2008 10:02am
Mark Field (mail):

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons"


Once again, you shoot yourself in the foot. This provision counts EVERYONE in a state, citizen and alien alike, for purposes of representation. That's because aliens were and are "persons".

Consider Art. III as well. It provides, in relevant part, that "The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; ... to controversies ... between a state, or the Citizens thereof, and foreign states, Citizens or subjects."

Foreigners are expressly granted access to our courts, including the ability to enforce treaty rights (Geneva) and rights (if any) under the Constitution. Under your view, however, we let them use our courts to enforce their rights, but it's no problem at all if we deny them due process. We could, therefore, whimsically enter judgment against them just because they're foreign. Of course, law and practice of the time support no such interpretation.


If you want more in-depth discussion of the "person" "people" distinction that you are trying to make, may I suggest a review of Verdigo-Urquidez, 494 U.S. 259 (1990). While not exhaustive, it provides a good background.


I agree that V-U says this. The problem for you is that this is not a textualist argument. Once again, you're entirely result-oriented. Instead of sticking to a principle of interpretation, regardless of its consequences, you're merely trying to justify the result you favor politically. If that were not true, you'd freely admit that the decision in Ashcraft bans torture. You might even acknowledge that it's evidence that torture has NEVER been permitted under American law, just as you've tried to argue with respect to V-U and Eisentrager.


Your argument is that legal usages from the time of ratification, which were consistently applied thereafter, are "nuthin" to a textualist?


No, my argument is that you've utterly failed to provide evidence from the time of the founding which supports the assertion that foreigners were not considered "persons". In fact, as I've shown, you've provided textual evidence from the Constitution itself that they WERE so considered.


It's also quite interesting that you quote Blackstone. He does, indeed, argue, in 4 Commentaries 3 in that "torture is unknown" in England, but in 4 Commentaries 370, he includes as lawful punishments acts which I have no doubt you would consider torture, i.e. "terror, pain, or disgrace," "emboweling alive, beheading, and quartering," "public dissection" and being "burned alive." Once again, we return to the textualist argument that terms should be given the usage at the time they were written


Yes, indeed they should (for textualists, anyway). What you're missing is that the word "torture" meant the imposition of pain for purposes of interrogation. See the Encyclopedia Britannica (original edition). Thus, Blackstone is not being inconsistent; the penalties he mentions are penalties imposed after judgment and thus not torture. Since these were not "torture", he could consistently state that English law didn't permit torture.

Your attempt to use Blackstone in this context isn't helpful to you for another reason as well: the 8th A bans such punishments. Further evidence that the Founders had no use for barbaric practices.


I'm glad that you broadly recognized that the Framer's had different ideas of meanings, e.g. torture.


No, you've only shown that the Founders had different notions of acceptable punishments. You've provided no evidence whatsoever that they considered torture acceptable.


be careful in running to Blackstone


That's good advice.
2.7.2008 12:32pm
Dilan Esper (mail) (www):
I am still waiting for a cite to any binding U.S. precedent that the CIA was doing anything illegal here.

I am going to say it again because it didn't get any googling the first time.

google convention against torture refouler

Many conservatives are under a complete delusion as to what black letter law provides with respect to rendition.
2.7.2008 12:54pm
Tony Tutins (mail):
Dilan, I don't know if this applies, but the US signed with two reservations: 1, only those states which have signed, can complain to the US, and this one:


12. On 3 June 1994, the Secretary-General received a communication from the Government of the United States of America requesting, in compliance with a condition set forth by the Senate of the United States of America, in giving advice and consent to the ratification of the Convention, and in contemplation of the deposit of an instrument of ratification of the Convention by the Government of the United States of America, that a notification should be made to all present and prospective ratifying Parties to the Convention to the effect that:

"... nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States."


And whoever thinks companies supplying their typical and usual service to the government are obligated to have the purpose of their service vetted by experts in public international law, raise your hands.
2.7.2008 2:07pm
AnonLawStudent:

Foreigners are expressly granted access to our courts, including the ability to enforce treaty rights (Geneva) and rights (if any) under the Constitution.

Is it possible for you to provide the full context for anything? Art. III provides an outer limit to the judicial power; diversity jurisdiction is a creature of statutory grace. Sheldon v. Sill, 49 U.S. 441, 449 (1850)(listing cases in support of the proposition that "The Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised . . . . Such has been the doctrine held by this Court since its first establishment."). Merely because Congress has seen fit to provide foreigners with access to the Courts does not mean that such access implies the protection of constitutional rights accorded to citizens and resident aliens. Nor does custody of a non-resident alien by the U.S. government implicate such protection, absent additional circumstances. United States v. Verdugo-Urquidez, 494 U.S. 259, 271-72 (1990). Again, the argument that you are making was thoroughly discussed and rejected by the Verdugo-Urquidez Court, with numerous citations (both directly and indirectly through other cases) to early authority. In doing so, the Court undertook a textual analysis. One should not have to start with first principles when the argument has been clearly and effectively laid out elsewhere; that the justification for citation in a common-law legal system. Based on your response, I feel the need to question whether you have read Verdugo-Urquidez.

I didn't address your citation to Ashcraft v. Tennessee, 322 U.S. 153, 155 (1944) because I thought it was irrelevant. Both Ashcraft and Blackstone spoke of the prohibition on torture in terms of coercing confessions for judicial use. This is made clear in Ashcraft by the sentence which proceeds your quote: "The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession." Just as you have throughout this thread, you conveniently start and stop your citations so as to exclude negative consequences for your argument. I would also point out that our discussion of torture is relevant only to the degree that it evidences a willingness of the Framers to undertake nastiness in foreign affairs, not as judicial punishment. Cf. Johnson's Dictionary of the English Language (torture, definition 2: "pain, anguish, pang") The posts re: Major Andre, reprisals, conduct of the militias, and the degree of "process" which is "due" all evidence a willingness to do so.
2.7.2008 2:11pm
Tony Tutins (mail):
Adam, I had forgotten your eagerness to impute knowledge, and thus liability, to the commercial suppliers of alleged wrongdoers. Your continued insistence that somehow JDP is at fault, without having to prove that extraordinary rendition is a crime, that JDP knew ahead of time that the CIA would use their trip plans to perform extraordinary rendition, and that JDP knew that extraordinary rendition is a crime, when they made the trip plans and arranged for fuel to be present at refueling stops, thus does not surprise me.
2.7.2008 2:27pm
Mark Field (mail):

Is it possible for you to provide the full context for anything?


You're just blathering now. You keep reciting V-U like a mantra, completely ignoring that it has ZERO to do with any textualist argument. You have yet to supply a single iota of actual evidence from the founding era, you make arguments which contradict your own position, and you consistently mis-state my positions. You can keep pounding the table, or you can dance like Richard Gere. I'm out of here.
2.7.2008 3:36pm
Elliot123 (mail):
"Giving you the benefit of the doubt, I thought you were smart enough to recognize sarcasm and respond in kind, however weakly. My mistake."

Oh, dear. It was sarcasm when you said, "Can't have people knowing what the govt's up to?" Are you backing away from that statement? You really do think it was good to keep Germans from knowing the plans for D-Day?

So, what do you think of the way the Americans rounded up all those alleged Gestapo in Europe? Trundled them about shackled in the back of drafty trucks, and even tied them up in the back of planes on occasion without even a prayer rug to sit on. They even made some of them walk without the aid of legal interns. And all on the basis of mere allegations.
2.7.2008 4:21pm
AnonLawStudent:

You're just blathering now. You keep reciting V-U like a mantra, completely ignoring that it has ZERO to do with any textualist argument.


I keep citing Verdugo-Urquidez because it is a Supreme Court opinion that includes an explicit textual analysis of the people-person argument you are making. 494 U.S. at 265-66, 268-69. It backs that analysis with citations to numerous cases. Id. passim. It then applies that analysis to an analogous situation. Id. passim. I could spend 10 pages making the same argument. Why waste the time when it has already been done? You repeatedly argue that it is irrelevant. I've described its relevance, I've even provided pincites for the exclusively textual arguments that I consider relevant. Short of cutting and pasting several pages of the U.S. Reporter into the thread, I don't know what more I can do. Yet you never address the substance of the argument.

You can make snarky statements about "pounding the table" or "danc[ing] like Richard Gere." I've set forth my argument, backed it up with citations, and attempted to meet your criticisms. You response is wholly lacking in substance, replete with selective quotations, and expounds on an irrelevant citation to Ashcraft. I'll call your argument what it is: dishonest. I'll go one further: chopping citations so as to alter their meaning or exclude unfavorable portions earns sanctions if done before a court. You criticize textualism: On what do you base your argument - some random guy named "MarkField" says?
2.7.2008 4:24pm
Elliot123 (mail):
The notion that the US Constitution applies to everyone in the world reminds me of the Islamist notion that Sharia Law does the same.
2.7.2008 5:15pm
Dilan Esper (mail) (www):
Tony:

The two reservations you cite in no way detract from the Convention's binding status as international law. (Indeed, the Bush Administration concedes it is binding.) Rather, they just affect remedies-- i.e., whether an individual can seek a remedy under the convention directly. But it is quite clear that rendering a person to a place where torture is likely is illegal under a treaty which constitutes the Supreme Law of the Land.

Now, as for remedies, Congress DID implement the refouler provision, and the DOJ implemented regulations. So as it turns out, this provision of the Torture Convention IS enforceable in US courts.

The point is, conservatives are arguing about rendition without knowing the first thing about the law in this area.
2.7.2008 5:23pm
Smokey:
I noticed that judge James Ware is presiding. Just as a bit of information, I was on a federal jury about 7-8 years ago. Judge Ware presided. Since it was recent history at the time, this news item was a topic of discussion during our deliberations:
U.S. District Judge James Ware of San Jose, Calif., withdrew his nomination to a federal appeals court after it was revealed he had lied in claiming to be the brother of a black teenager lynched by whites in 1963 in Birmingham, Ala. Ware had repeatedly told the story in published interviews.
We pretty much agreed that Ware was given a pass for three main reasons: He was a personable and very likable guy [true]; he was a Democrat in a heavily Democratic area; and he was black.

Whoever loses this case is certain to recall that the decision was made by a serial liar who Affirmative Actioned his way out of being booted from the bench [which very nearly happened].

And thanks to Thomas_Holsinger for the American history reference. This jumped out at me:
Militia were formed from settlers who carried their own rifles into battle.
Seems that citizens can form their own militias when the need arises.
2.7.2008 9:16pm
Tony Tutins (mail):
Smokey: As I recall, the lynched teenager had the same name as Judge Ware's brother, which struck him deeply at the time. Likely, repeated stumbling over the phrasing during several retellings of the story over the years caused him to simplify it from "guy with the same name as my brother; could have happened to my brother," to "happened to my brother." I think he got a pass because the experience struck him and marked him for life, even if it wasn't his actual brother.

Further, it's not as big a fib as, say, claiming 35 years of experience when you sat on your butt in the White House for 8 of those years
2.8.2008 1:46am
PersonFromPorlock:
Note to Thomas Holsinger:

Actually, Tom Lehrer.


Whoops. Sometimes even Homer nods; and sometimes his head falls off. Apologies.
2.8.2008 9:47am
Thomas_Holsinger:
Smokey,

A humorous point is the complete befuddlement of many historians at Howe's conduct in putting most of his army at New York City on board ship, complete with his staff and him, and only then spending several weeks, at sea, working out the details of his 1777 campaign which he had sketched out in his head, alone, before embarking.

These historians failed to make any connection between that and Howe's repeated complaints about the lack of security in his New York headquarters leading to Washington receiving Howe's orders before Howe's own forces did.

If Howe had taken 7-10 days less at sea to finalize all the details, the horses of his force might not have needed so much time regaining their health and land legs, and so allowed his army to pounce on Washington's faster once Howe landed in New Jersey. As it was, Washington's army barely got away because Howe had achieved such a great degree of strategic surprise.

This is a fascinating example of intelligence operations posing such a threat to one side as to affect the outcome of a campaign.
2.8.2008 2:07pm
Elliot123 (mail):
"I think he got a pass because the experience struck him and marked him for life, even if it wasn't his actual brother."

Maybe it was seared into his memory?
2.10.2008 1:38am