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Bessent: Court gives White House a pass

Binyam Mohamed in London in 2000

Binyam Mohamed in London in 2000 Credit: AP Photo/

Alvin Bessent is a member of the Newsday editorial board.


Nobody is above the law. We're told as children that's one of the things that makes America special. The same rules apply to everybody, the powerful and the powerless alike.

Too bad it's not true.

It turns out, sometimes the president and the CIA are above the law. In combating terrorism, they can kidnap people, dump them in secret prisons, deliver them for torture abroad, and never answer for it or compensate their victims -- even those eventually released without charges or cleared of any link to terrorism.

That's what the U.S. Supreme Court allowed when it refused last week to hear a lawsuit by five foreign nationals who claim they suffered that kind of brutality.

The lead plaintiff was Binyam Mohamed, an Ethiopian citizen who was picked up in Pakistan in 2002. According to the suit, the CIA turned him over to Moroccan interrogators, who held him for 18 months and tortured him, including repeatedly cutting his genitals and pouring a stinging liquid into the wounds.

Mohamed and the other plaintiffs wanted the courts to examine President George W. Bush's "extraordinary rendition" program, which authorized handing them to interrogators in other countries infamous for torture. And they wanted compensation for their travails.

It's not going to happen. The magic get-out-of-court-free card is national security.

The Bush and Obama administrations each invoked the "state secrets privilege," claiming a trial would reveal sensitive information. The Supreme Court let stand an appeals court ruling dismissing the case -- even though Mohamed's lawyers were willing to use only evidence that is already public.

Mohamed and his co-plaintiffs aren't the only ones who've had lawsuits claiming rendition dismissed. In a 2005 suit against the CIA, German citizen Khaled el-Masri said he was kidnapped in Macedonia, drugged, and flown to a prison in Afghanistan where he was abused for months before being dumped, penniless and disoriented, on a dark road in Albania. He was apparently a victim of mistaken identity. The U.S. invoked the state secrets privilege, and his suit was tossed in 2007.

Ben Wizner, litigation director of the ACLU's National Security Project and lead counsel on the Mohamed case, said "to date every victim of the Bush administration's torture regime has been denied his day in court."

The United States no doubt has secrets that need to be kept, particularly when the nation is at war. Some mechanism to prevent having them cavalierly revealed in court is warranted. But in most cases it should be limited to excluding particularly sensitive pieces of information. It shouldn't be so broad that it allows the government to kill virtually any suit it wants, which seems to be the case with the twin abominations of rendition and torture.

When that happens, victims are denied a remedy, and the public is denied any definitive ruling on the government's conduct. "We need a court to say this is illegal," Wizner said.

While the United States stonewalled, other nations have compensated victims of U.S. rendition. Canada agreed in 2007 to pay $10 million to Maher Arar, a Canadian citizen born in Syria. Acting on a tip from Canadian officials, U.S. authorities grabbed him in 2002 during a layover at JFK Airport and sent him to Syria, where he was tortured for 10 months. Canada's House of Commons later concluded that he had no links to terrorists and apologized. U.S. courts wouldn't hear his case.

The United States has no legal obligation to compensate people like Mohamed and Arar. But it should -- if need be quietly, selectively and without admitting wrongdoing -- simply because it's the right thing to do.