In Mohamed v. Jeppesen Data Plan the Ninth Circuit reversed a Northern District of California decision upholding the Bush/Obama administrations’ use of extraordinary rendition. Extraordinary rendition is the transportation of individuals from one country to another often for the purpose of torture or to avoid the requirements of extradition treaties.

In Jeppesen five people who were abducted and transported to foreign jails run either by the CIA or foreign governments are suing a CIA contractor for its part in arranging transportation for the five. They claim that they suffered injuries in the form of torture in the foreign jails.

Upon the government’s request the Ninth Circuit has agreed to rehear the matter en banc. A panel of eleven judges will rehear the matter. Six of the twenty-seven judges on the Circuit, including Jay Bybee who while working for the Bush administration wrote a memo supporting extraordinary rendition recused themselves from the vote. A majority of the remainder voted for the en banc hearing. The government claims that if the suit proceeds important government secrets will exposed. The original panel found that since the subject of the suit is not a state secret entered into between the parties the state secret privilege did not apply. But the matter will be reconsidered in the en banc proceedings.

In February I wrote a post, No Change Here about the oral argument in the Ninth Circuit case, Mohamed V. Jeppesen Data Plan, in which the Obama administration announced its intention to carry out the Bush administration’s plan to attempt to prevent Binyam Mohamed and several other individuals who had been subject to extraordinary rendition from suing the Boeing subsidiary, Jeppesen Data Plan for its part in aiding the government’s transport of Mohamed and others as part of the extraordinary rendition. The Bush and Obama administrations intervened in the action and convinced the trial judge to dismiss the case in that it involved government secrets under the states secrets privilege.

The Ninth Circuit reversed the trial court’s decision finding that since the subject of the suit is not a state secret entered into between the parties the privilege does not apply. There is a related evidentiary privilege but the government will have to bring that in the trial court. Furthermore the evidentiary privilege generally only affects the admissibility of a particular evidentiary matter. It is possible that a case can be so inundated with secret information that one side or the other will be prevented from making its case, but it is too early to rule on that matter since the defendant has yet to respond to the complaint.

Attorneys Clive Stafford Smith and Ahmad Ghappour face six months in prison for writing to President Obama according to an article in SF Gate,

They represent Mohamed Binyam Mohamed who was renditioned and tortured while under the control of the CIA. Eventually he ended up at Guantanamo. He was released after he sued Jeppson Dataplan, a subsidiary of Boeing, that was involved in his extraordinary rendition. (He turned down an earlier release which came with the condition that he not talk about his imprisonment.

Smith and Ghappour have represented many prisoners housed at Guantanamo including Mohamed. They drafted a letter to Obama attempting to discover the extent of Mohamed’s torture while Mohamed was at Guantanamo. The law requires attorneys who represent clients at Guantanamo to obtain the approval of the Privilege Review Team. The Privilege Review Team is a secret body whose job is to approve communications between Guantanamo prisoners and their lawyers. Smith and Ghappour submitted their letter to the Privilege Review Team. They did not expect to have any problems since Obama, of course, has a complete security clearance. But when they got the letter back the complete body of the letter was redacted.

They sent the redacted letter, along with a cover letter to Obama. The next thing they know there is a warrant out for their arrest for violating the rules of the Privilege Review Team. They could receive six months in jail.

It seems to me at a minimum the charges against Smith And Ghappour violate Mohamed’s Sixth Amendment right to competent counsel and the rights of Smith and Ghappour under to First Amendment to freedom of speech and freedom to petition.

The case reminds me of that of Lynne Stewart, the New York lawyer who represented Omar Abdel Rahman, a blind Egyptian sheik who was convicted of conspiracy to blow up the United Nations, an FBI building, two tunnels, and a bridge in New York City. She was convicted and sentenced to twenty-eight months for helping her incarcerated client convey a message to his followers. Like Smith and Ghappour her speech should be protected by the First and Sixth Amendments. It is currently up on appeal.

Both prosecutions are attempts to quiet lawyers who are raising serious issues which the government finds bothersome. The attack upon the right of counsel is an attack upon the Constitution for without the right of counsel to vigorously carry on the battle of their clients the constitutional rights are meaningless.