Divide and Litigate
The ACLU sues an American company for helping the war effort.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Tuesday, June 12, 2007 12:01 a.m. EDT
President Bush must envy Franklin Roosevelt. Although he faced a difficult two-front war in Asia and Europe, after Pearl Harbor Roosevelt led a united nation.
The popular wartime slogans--formulated as often as not by government information officers who would today be called propagandists--emphasized political, social and economic solidarity. "Together, We Win" emphasized a famous poster, showing the hands of labor and management brought together by Uncle Sam. Those days, unfortunately, are long gone.
From the very beginning of the war on terror, there has been strong and vocal opposition, both to the war itself and to the Bush administration's wartime policies. This opposition has been celebrated and encouraged by much of the media and, consistent with America's favorite pastime, has increasingly taken the form of litigation in the courts.
The government itself has, of course, been subject to a blizzard of lawsuits. Virtually every aspect of the administration's war on terror-related policies--from the USA Patriot Act, to the use of military commissions to try captured al Qaeda members for war crimes, to the National Security Agency's Terrorist Surveillance Program, so-called data mining, no-fly lists and related transportation security measures--has been challenged in court. On balance the courts have upheld the administration's actions, or required relatively modest changes--or additional congressional action in the case of military commissions. Significantly, the Supreme Court has accepted the legality of the president's adoption of a "laws of war paradigm."
It is, therefore, not surprising that the war's opponents have shifted tack. On May 30, 2007, the American Civil Liberties Union filed a lawsuit against Jeppesen Dataplan Inc., a Boeing subsidiary specializing in air flight planning services, in the federal district court in northern California. The suit alleges that Jeppesen provided air flight services to the CIA as part of the agency's "extraordinary rendition" program, through which the three plaintiffs--citizens of Ethiopia, Italy and Egypt--were supposedly transferred to Pakistani, Moroccan and Egyptian custody, where they were wrongfully imprisoned and abused, up to and including torture.
The ACLU case is based on the 1789 Alien Tort Statute, or ATS, which gives the federal courts authority to hear civil claims for certain narrowly drawn breaches of customary international law. It's a real stretch. As the Supreme Court stressed in its most recent ATS case, Sosa v. Alvarez-Machain (2004), that law permits suits only where the alleged offense is firmly established as a violation of international law for which individuals are entitled to be compensated. These are very few and far between. Indeed, in the Sosa case the court specifically rejected a claim for ATS relief based upon the forcible abduction of a Mexican physician--wanted for alleged complicity in the death of a DEA agent--and his transfer to authorities in the U.S. The defendant in that case was far more directly involved in the alleged misconduct than was Jeppesen.
Assuming that the case is not thrown out because of the well-recognized "state secrets" privilege--as was a similar claim brought by Maher Arar, a Canadian rendered by the U.S. authorities to Syria--the ACLU's complaint should quickly be dismissed for failing to state a legally cognizable claim. Jeppesen did not abuse the plaintiffs. It allegedly provided flight services, such as flight plans, ground service and weather reports, to the CIA agents who rendered the plaintiffs to foreign officials. There is nothing illegal about that, or about the practice of rendition itself. This is a longstanding practice whereby one country transfers a prisoner to another country regardless of whether they have a formal extradition treaty.
Extraordinary rendition in terror cases has, in fact, been a bipartisan practice, used both by Democratic and Republican presidents, beginning well before the 9/11 attacks. Although it has strained U.S.-European relations in recent years, extraordinary rendition does not violate international law; and this is true even when the detainee is rendered to a country with a poor human rights record.
In cases that pose a real risk that a particular detainee will be abused by the receiving state, it is incumbent upon the sending state to obtain sufficient assurances, as a condition of the transfer, that the individual will be treated lawfully and humanely.
Indeed, despite the general condemnation of U.S. renditions by the European media and EU institutions, a number of European states--as part of their own post-9/11 antiterrorism measures--have sought to transfer or deport individuals to countries with human-rights concerns based on exactly such assurances. However, transport companies like Jeppesen are neither in a position to know the particulars of these agreements nor to monitor their implementation, and are moreover entitled to assume that the government agencies they service are themselves acting lawfully.
Leaving aside the lack of legal merit, the ACLU's claims are part of a highly troubling new trend. They are of a piece with a number of other ATS lawsuits brought against government contractors, actions filed last year against telecommunications companies alleging that they violated federally protected privacy rights by cooperating with the NSA's data-collection efforts, and an action, filed last March in Minnesota, against several airline passengers who had reported what they believed to be suspicious activity by a group of Muslim imams. The government enjoys legal immunities and other advantages in litigation that private citizens do not have. Moreover, for a private individual, a lawsuit, however meritless, can mean personal financial ruin and, at a minimum, significant disruption in his life. Corporations are similarly subject to costly and distracting litigation.
These are real advantages from an antiwar activist's perspective, since the result is likely to be a marked aversion by the citizenry in general, and government contractors in particular, to engage in conduct, however lawful, supporting the war. This alteration in the corporate mind set, such that risk-averse companies, no matter how patriotic their management, would find it safer to say no to any war-related requests from the federal government is very likely the goal of at least some activists.
Divided nations can, of course, win wars. Throughout the Civil War, for example, President Lincoln faced a vocal and determined antiwar effort in the North, and both Lincoln and Roosevelt had to defend various of their policies in the courts. Even Lincoln, however, did not have to deal with antiwar efforts targeting private citizens who were themselves supporting the government's war effort. That is new, and it will make fighting and winning the war against terror all the more difficult.
Messrs. Rivkin & Casey served in the U.S. Justice Department.
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