While the United States does everything in its power to prevent civil suits against those involved in extraordinary renditions, the practice of the CIA of kidnapping alleged terrorists abroad and shipping them to third countries, Italy is criminally prosecuting CIA agents involved in the renditions.

Twenty-three Americans were convicted of kidnapping a Muslim cleric, Osama Moustafa Hassan Nasr, off the streets of Milan and transporting him to Egypt where he was allegedly tortured. Robert Seldon Lady, the former CIA base chief in Milan was sentenced to eight years and 22 other CIA employees were sentence to five years each. Lady is quoted as saying, “I’m not guilty. I’m only responsible for carrying out orders that I received from my superiors,” Since they were prosecuted in absentia it is unlikely that any of the agents will serve their time.

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.

Ahmed Khalfan Ghailani who is accused of participating in the 1998 bombing of the United States embassies in Dar Es Salaam, Tanzania and Nairobi, Kenya in which 224 people were killed was transferred from Guantanamo to New York City where he will stand trial. He is the first person held in Guantanamo to be transported to the United States for trial. Immediately upon his arrival he was taken to the U. S. District Court where he entered a not guilty plea.

He was arrested five years ago in Pakistan and he has been held in Guantanamo for three years. Between the time of his arrest and his placement in Guantanamo Ghailani was kept in secret foreign CIA prisons.

He is accused of buying a truck used in the Dar Es Salaam bombing. It is also alleged that he bought and loaded explosives onto the vehicle. From 2001 to 2004 it is alleged that he worked as a forger, forging documents for Al Qaeda,

Wadih el-Hage, an American citizen was convicted in 1998 of conspiring with Al Qaeda to kill Americans. He is serving his sentence at a super secure prison in Florence, Alabama. In the same trial Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, and Mohammed Saddiq Odeh were convicted of murder in connection with the bombing of the embassies. they are also serving life terms.

Whatever happens Ghailani’s prosecution and trial must be carried out with the greatest transparency. In order to validate the trial in the eyes of the international community and in compliance with President Obama’s opening to the Muslim world the government should invite international observer including representatives from Muslim countries and representatives of Al Qaeda to observe the trial. The observers must be given the greatest latitude to view American jurisprudence. Furthermore Ghailani’s attorneys must be provided with all of the documents and discovery necessary for a vigorous and zealous defense. Not only will such efforts justify the trial in the eyes of the world community but it will prevent revengeful terrorist attacks on this nation if there is a conviction.

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.

U. S. District Judge John Bates of the United States District Court for the District of Columbia ruled that three prisoners who were arrested outside of Afghanistan and who are not Afghani citizens can have their writs of habeas corpus heard in Federal Court. The decision further challenges the Bush/Obama policy of indefinitely holding enemy combatants without court scrutiny. It involve interpretation of the suspension clause of the Constitution which prohibits suspension of the writ of habeas corpus except in cases of rebellion or invasion and it has generally been assumed to be limited to acts of Congress. The case involved writs of habeas corpus filed by Fadi al Maqaleh, Haji Wazir, Amil al Bakri and Redha Al-Najar. The Judge found little difference between the petitioners, with the exception of Wazir who is an Afghani citizen, and the Guantanamo petitioners in Boumediene who were granted the right of habeas corpus by the Supreme Court. Both the Bagram petitioners and the Guantanamo petitioners were seized in different countries and renditioned to either Guantanamo or Bagram. Both were labeled enemy combatants, though the government has now changed the label for the Guantanamo prisoners. Both groups are in prisons over which the United States has complete control. Finally both groups are in locations chosen by the United States.

As in Bourmediene the Court considered six factors:

(1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner’s entitlement to the writ.

With the exception of Wazir who is an Afghani citizen the court found that the petitioners were no different than the Guantanamo petitioners and must be granted the right of habeas corpus. The court ruled that

Under Boumediene, Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time — here, over six years — without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus.

Of course, Judge Bates’ decision is subject to appeal to the D.C. Circuit Court of Appeal and the Supreme Court.

The Obama administration continued the Bush policy of supporting the extraordinary rendition program before the Ninth Circuit, Monday. Extraordinary rendition is the extralegal transportation of individuals from one country to another often for the purpose of torture or to avoid the requirements of extradition treaties.

In Mohamed v, Jeppesen Dataplan, Inc five plaintiffs are suing Jeppesen, a subsidiary of Boeing which is commonly known as a CIA tool for transporting them to foreign countries where they could be tortured under Bush’s extraordinary rendition program, despite Condoleezza Rice’s statement that the United States defendants for the purpose of torture. Likewise, Obama’s CIA director designate, Leon Panetta has stated that the United States will not transport anyone to a country unless the country promises not to torture the person.

The five plaintiffs are Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmed Bashmilah, and Bisher Al-Rawi. Mohamed was a Ethiopian student who lived in London and was seized in Pakistan. He was renditioned to Afghanistan and Morocco where he was tortured. href=”http://en.wikipedia.org/wiki/Extraordinary_rendition#Muhammad_Bashmila/wiki/Extraordinary_rendition#Muhammad_Bashmila_case”>Britel was born in Morocco but he became an American citizen. He was also seized in Pakistan and tortured in Morocco. Agiza was an Egytian citizen seeking asylum in Sweden. He was seized, tortured and taken back to Egypt for more torturing. Bashmilah
a Yemini citizen disappeared in 2003 according to Amnesty International. Al-Rawi was a British citizen, seized in Gambia and transported to Afghanistan and Guantanamo where he was tortured.

They sued Jeppesen for its part in transporting them to places where they would be tortured. United States District Judge James Ware of the Northern District of California threw out the suit after the government claimed that in order to defend the suit Jeppesen would have to disclose national security secrets. The plaintiffs appealed to the Ninth Circuit. With the new administration and a hope for increased transparency it was hoped that the Federal government would change the position that the Bush administration took and allow the suit to proceed. However the government’s attorney during oral argument before the Ninth Circuit Monday continued to take the position that the suit should be thrown out since to let it proceed would necessarily require the disclosure of governmental security secrets about the extraordinary rendition program.