No. 10-778

IN THESUPREME COURT OF THE UNITED STATES

BINYAM MOHAMED, ABOU ELKASSIMBRITEL, AHMED AGIZA, MOHAMED FARAG

AHMAD BASHMILAH, BISHER AL-RAWIPetitioners,

V.

JEPPESEN DATAPLAN, INCRespondent

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Ninth

Circuit

BRIEF OF AMICI CURIAEINTERNATIONAL LAW SCHOLARS AND

HUMAN RIGHTS ORGANIZATIONSIN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

William J. AcevesCalifornia WesternSchool of Law

225 Cedar StreetSan Diego, CA 92101(619) 525-1413wja@cwsl.eduCounsel of Record

Deena R. HurwitzAlyssa Petroff (’09)University of Virginia

School of Law580 Massie RoadCharlottesville, VA 22903(434) 924-4776drh9z@virginia.edu

Counsel for Amici Curiae

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LIST OF PARTIES

Binyam Mohamed; Abou Elkassim Britel; AhmedAgiza; Mohamed Farag Ahmad Bashmilah; BisherAl-Rawi

Petitioners

Jeppesen Dataplan, Inc.Respondent

United States of AmericaIn tervenor

TABLE OF CONTENTSPage

LIST OF PARTIES .................................................i

TABLE OF CONTENTS ........................................ii

TABLE OF AUTHORITIES .................................iv

INTEREST OF AMICI CURIAE. ...........................1

SUMMARY OF ARGUMENT ................................1

ARGUMENT ...........................................................3

THE APPLICATION OF THE STATESECRETS DOCTRINE IN THIS CASEVIOLATES THE RIGHT TO ANEFFECTIVE REMEDY UNDERINTERNATIONAL LAW .............................3

to Victims of ExtraordinaryRendition Have a Right to anEffective Remedy ...............................4

Bo Any Procedural Rule ThatAffects the Right to a RemedyMust Pursue a LegitimateAim and Employ the LeastRestrictive Means ............................11

(I) Procedural RestrictionsMust Pursue a LegitimateAim ........................................11

ii

(2) Procedural RestrictionsMust be Proportionate andEmploy the Least RestrictiveMeans Possible ..................... 14

(3) Procedural Restrictions MustNot Extinguish the Right to anEffective Remedy .................. 17

II. U.S. LAW, INCLUDING THE STATESECRETS DOCTRINE, SHOULD BEINTERPRETED CONSISTENT WITHINTERNATIONAL LAW ...........................20

CONCLUSION ......................................................23

APPENDIX .........................................................A- 1

iii

TABLE OF AUTHORITIES

FEDERAL CASESPage(s)

Brown v. United States,12 U.S. 110 (1814) ..........................................21

F. Hoffmann-La Roche Ltd. v. EmpagranS.A., 542 U.S. 155 (2004) ..........................21, 22

Hartford Fire Ins. Co. v. California,509 U.S. 764 (1993) ........................................21

La uritzen v. Larsen,34,5 U.S. 571 (19,53) ........................................21

MaeLeod v. United Sta tea,229 U.S. 416 (1913) ........................................21

Mohamed v. Jeppesen Dataplan, Inc.,539 F. Supp. 2d 1128 (N.D. Cal. 2008) ............2

Mohamed v. Jeppesen Dataplan, Inc.,579 F.3d 943 (9th Cir. 2009) ............................2

Mohamed v. Jeppesen Dataplan, Inc.,614 F.3d 1070 (9th Cir. 2010) ..............2, 19, 20

Murray v. Schooner Charming Betsy,6 U.S. (2 Cranch) 64 (1804) ....................passim

Sale v. Haitian Ctrs. Council, Inc.,509 U.S. 155 (1993) ........................................21

iv

5 U.S. (1 Cranch) 1 (1801) ..............................20

United States v. Payne,264 U.S. 446 (1924) ........................................21

United States. v. Yunis,924 F.2d 1086 (D.C. Cir. 1991) ......................21

CONSTITUTIONAL PROVISIONS

U.S. Const. art. II, § 2 ..........................................22

FOREIGN AND INTERNATIONAL CASES

A1-Nashif v. Bulgaria,App. No. 50963/99, 36 Eur. Ct. H.R. Rep.655 (2002) .......................................................16

Barrios Altos Case (Chumbipuma Aguirre etaL v. Peru), Interpretation of theJudgment on the Merits, Inter-Am. Ct.H.R. (ser. C) No. 75 (Mar. 14, 2001) ..............18

Castil]o Pgez v. Peru,Merits, Judgment, Inter-Am. Ct. H.R.(ser. C) No. 34 (Nov. 3, 1997) .........................10

Chahal v. United Kingdom,App. No. 22414/93, 23 Eur. Ct. H.R. Rep.413 (1996) .......................................................15

V

Chorzdw Factory (Ger. v. Pol.),1928 P.C.I.J. (ser. A) No. 17 (Sept. 13) ............4

Conka v. Belgium,App. No. 51564/99, 34 Eur. Ct. H.R. Rep.1298 (2002) .....................................................10

Cordova v. Italy (No. 1),App. No. 40877/98, 40 Eur. Ct. H.R. Rep.974 (2003) .................................................10, 17

Cruz Veras v. Sweden,App No. 15576/89, 14 Eur. Ct. H.R. Rep. 1(1991) ..............................................................I0

Devenney v. United Kingdom,App. No. 24265/94, 35 Eur. H.R. Rep. 643(2002) ..............................................................16

Durand and Ugarte v. Peru,Merits, Judgment, Inter-Am. Ct. H.R.(ser. C) No. 89 (Dec. 2, 2001) ............................9

"Five Pensioners" v. Peru,Merits, Reparations, and Costs,Judgment, Inter-Am. Ct. H.R. (ser. C) No.98 (Feb. 28, 2003) ...........................................18

Garrido and Baigorria v. Argentina,Reparations, Judgment, Inter-Am. Ct.H.R. (ser. C) No. 39 (Aug. 27, 1998) .................9

Golder v. United Kingdom,App. No. 4451/70, 1 Eur. Ct. H.R. Rep.524(1975) .......................................................10

vi

Herrera v. Argentina,Case No. 10.147, Inter-Am. Comm’n. H.R.Report No. 28/92, OEA/Ser.L/V/II.83, doe.14 (1992) .........................................................18

~ludieial Guarantees in States of Emergency,Advisory Opinion OC-9/87, Inter-Am. Ct.H.R. (ser.A) No. 9 (Oct. 6, 1987) .................9, 10

Metropolitan Church of Bessarabia v.Moldova, App. No. 45701/99, 35 Eur. Ct.H.R. Rep. 306 (2001) .......................................10

Minister of Justice v. Khadr,2 $.C.R. 125 (2008) .........................................19

Myrna Mack Chang v. Guatemala,Merits, Reparations, and Costs,Judgment, Inter-Am. Ct. H.R. (ser. C) No.101 (Nov. 25, 2003) .........................................12

Prosecutor v. Blagkid,Case No. IT-95-14-A, Judgment on theRequest of the Republic of Croatia forReview of the Decision of Trial ChamberII of 18, July 1997 (Int’l Crim. Trib. Forthe Former Yugoslavia, Oct. 29, 1997) ....16, 17

R (Mohamed) v. Secretary ofSta te forForeign and Commonwealth Affairs,[2010] EWCA (Cir.) 65 .............................18, 19

Raquel Marti de Mejia v. Peru,Case 10.970, Inter-Am. Comm’n H.R.Report No. 5/96, OEA/Ser.L/V/II.91, doc. 7(1996) ................................................................9

vii

Tinnelly & Sons Ltd& Others and McElduff& Others v. United Kingdom,App. No. 20390/92, 27 Eur. Ct. H. R. Rep.249 (1998) ................................................. 15, 16

Veldsquez Rodrlguez v. Honduras,Merits, Judgment, Inter-Am. Ct. H.R.(set. C) No. 4 (July 29, 1988) ............................9

Veldsquez Rodriguez v. Honduras,Reparations, Judgment, Inter-Am. Ct.H.R. (ser. C) No. 7 (July 21, 1989) ...................9

Waite and Kennedy v. German.v,App. No. 26083/94, 30 Eur. H.R. Rep. 261(1999) ..............................................................17

OTHER AUTHORITIES

Basic Principles and Guidelines on the Rightto a Remedy and Reparation for Victimsof Gross Violations of InternationalHuman Rights Law and SeriousViolations of International HumanitarianLaw, G.A. Res. 60/147, U.N. Doc.A/RES/60/147 (Dec. 16, 2005) ......................7, 8

Committee against Torture, Conclusions andRecommendations of the Committeeagainst Torture: United States ofAmerica, U.N. Doc. CAT/C/USA/CO/2(July 25, 2006) ..................................................7

viii

Convention against Torture and Other Cruel,Inhuman or Degrading Treatment orPunishment, art. 13, Dec. 10, 1984, 1465U.N.T.S. 85 ......................................... 4, 5, 6, 22

House of Commons Constitutional AffairsCommittee, The Operation of the SpecialImmigration Appeals Commission (SIAC)and the Use of Special Advocates, 2004(U.K.) ...............................................................16

Human Rights Committee, GeneralComment No. 29, U.N. Doc.CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001) .......6

Human Rights Committee, GeneralComment No. 31, U.N. Doc.CCPR/C/21/Rev.1/Add.13 (Mar. 29, 2004) .......6

Human Rights Council, Report of the SpecialRapporteur on the Promotion andProtection of Human Rights WhileCountering Terrorism, U.N. Doc.A/HRC/10/3 (Feb. 4, 2009) ..............................13

International Commission of Jurists,Assessing Damage, Urging Action: Reportof the Eminent Jurists Panel onTerrorism, Counter-terrorism andHuman Rights (2009) ............................... 13, 14

International Covenant on Civil and PoliticalRights, art. 2(3), Dec. 16, 1966, 999U.N.T.S. 171 ..................................... 4, 5, 13, 22

ix

Jean-Marie Henckaerts and Louise Doswald-Beck, ICRC Study of CustomaryInternational Humanitarian Law (2005) ........7

Johannesburg Principles on NationalSecurity, Freedom of Expression andAccess to Information, at Principle 2(b),U.N. Dec. E/CN.4/1996/39 (1996) ...................12

M. Cherif Bassiouni, InternationalRecognition of Vietims’Rights, 6 HumanRights Law Review 203 (2006) .........................7

Report on Terrorism and Human Rights,Inter-Am. Comm’n H.R.,OEA/Ser.L/V/II.116, dec. 5 rev. 1 (2002) .......17

Ralph G. Steinhardt, The Role ofInternational Law as a Canon ofDomestic Statutory Construction, 43Vanderbilt Law Review 1103 (1990) ..............21

Ricardo Mazzeschi, Reparation Claims byIndividua]s for State Breaches ofHumanitarian Law and Human Rights."An Overview, 1 Journal of InternationalCriminal Justice 339 (2003) .............................7

U.N. Commission on Human Rights, TheSiracusa Principles on the Limitation andDerogation Provisions in theInternational Covenant on Civil andPolitical Rights, U.N. Dec E/CN.4/1985/4(Sept. 28, 1984) ...............................................12

X

U.N. Commission on Human Rights, Reportof the Independent Expert to Update theSet of Principles to Combat Impunity,Diane Orentlicher, Addendum: UpdatedSet of Principles for the Protection andPromotion of Human Rights throughAction to Combat Impunity, U.N. Doc.E/CN.4/2005/102/Add.1 (Feb. 8, 2005) .............8

William G. Weaver & Robert M. Pallitto,State Secrets and Executive Power, 120Political Science Quaterly 85 (2005) ..............14

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INTEREST OF AMICI CURIAE

This Brief of Amici Curiae is respectfullysubmitted pursuant to Supreme Court Rule 37 insupport of the petition for writ of certiorari.1 Amieiare international law scholars and human rightsorganizations.2 Although they pursue a widevariety of legal interests, they all share a deepcommitment to the rule of law and respect forhuman rights. Amici believe their professionalexpertise on these issues will assist the Court.

SUMMARY OF ARGUMENT

This case concerns the alleged extraordinaryrendition of the Petitioners by the U.S. CentralIntelligence Agency (CIA) with the support andassistance of Jeppesen Dataplan Inc. As a result oftheir rendition, the Petitioners asserted that theywere subjected to torture, other cruel, inhuman,and degrading treatment, and enforceddisappearance, each of which is firmly prohibitedby international law and constitute crimes under

1 Pursuant to Supreme Court Rule 37(2)(a), all parties

received timely notice of the intent to file this brief. Inaddition, all parties have consented to the filing of this brief.Pursuant to Rule 37(6), Amic] affirm that no counsel for aparty authored the brief in whole or in part and no personother than Amiei or their counsel made a monetarycontribution to this brief.

2 A complete list of A~]c] and their affiliations is set forth in

the Appendix.

international law. The U.S. Executive intervenedbefore the district court to assert the state secretsdoctrine, which precludes the judiciary fromhearing evidence that would be harmful to nationalsecurity if disclosed. The district court held thatthe invocation of the state secrets privilege is acategorical bar to a lawsuit "if the very subjectmatter of the action is a state secret." Mohamed y.Jeppesen 1)at~pl~n, Inc., 539 F. Supp. 2d 1128,1134 (N.D. Cal. 2008). In this case, it found that"covert U.S. military or CIA operations in foreigncountries against foreign nationals" were a statesecret and, therefore, the case as a whole could notproceed. Id. This decision was initially reversed bythe Ninth Circuit in Mohamed v. JeppesenDataplan, Inc., 579 F.3d 943, 953 (9th Cir. 2009),which held that the U.S. government had failed toestablish a basis for dismissal under the statesecrets doctrine. Following en banc review, theNinth Circuit "reluctantly" reversed this decisionand concluded that the Petitioners’ case must bedismissed. Mohamed v. Jeppesen Dataplan, Inc.,614 F.3d 1070, 1073 (9th Cir. 2010) (en banc).

The decisions of both the district court andNinth Circuit are contrary to the most fundamentalprinciples of international law. Victims of seriousviolations of human rights, such as torture, othercruel, inhuman or degrading treatment, andenforced disappearance, have the right to aneffective remedy under international law, includingaccess to justice and reparations. The applicationof the state secrets doctrine violates this right.While the protection of national security interestsmay reflect a legitimate concern in judicialproceedings, the application of the state secretsdoctrine cannot completely extinguish the right to a

2

remedy. Accordingly, procedural restrictions mustbe proportionate and employ the least restrictivemeans possible. International practicedemonstrates how other courts have accommodatedlegitimate national security concerns within theframework of international law and withoutextinguishing the right to a remedy.

In this case, the Ninth Circuit failed to considerways to accommodate national security concernswhile affording the Petitioners an effective remedy.Instead, it applied the state secrets doctrine as ablanket bar to judicial review and the Petitioners’right of access to justice. In so doing, the courtfailed to comply with the venerable U.S. lawdoctrine that U.S. law must not be interpreted in amanner that conflicts with international law if anyother construction is fairly possible. See Murray v.Schooner Charming Betsy, 6 U.S. (2 Cranch) 64(1804). While the Charming Betsy doctrine hasbeen applied in cases of statutory construction, itapplies with even greater rigor to judicially createddoctrines such as the state secrets doctrine.

Judicial review is essential to a constitutionaldemocracy and the integrity of the rule of law. Tosuggest that federal courts have no role to play inthis case is deeply troubling. Upholding a blanketassertion of the state secrets doctrine impinges onthe rights of victims and on the core principles of asociety founded on the rule of law.

ARGUMENT

THE APPLICATION OF THE STATESECRETS DOCTRINE IN THIS CASEVIOLATES THE RIGHT TO AN

EFFECTIVE REMEDYINTERNATIONAL LAW

UNDER

The Petitioners have alleged serious violationsof international law, including torture, other cruel,inhuman and degrading treatment, and enforceddisappearance. Victims of such abuses have theright to an effective remedy under internationallaw, which includes access to justice andreparations.

Victims of Extraordinary Rendition Have aRight to an Effective Remedy

The right to an effective remedy is one of thefundamental pillars of a democratic society.3 It isrecognized in every major human rights treaty,including treaties ratified by the United States.The International Covenant on Civil and PoliticalRights (ICCPR) and the Convention againstTorture and Other Cruel, Inhuman or DegradingTreatment or Punishment (Convention againstTorture), treaties signed and ratified by the UnitedStates, both provide for a right to an effectiveremedy in cases where a right is breached interritory under the effective control or custody of

3 The principle of ubi ius 1hi remedium- "where there is a

right, there is a remedy" - is a well-established principle ofinternational law. The leading international formulation ofthis principle comes from the Permanent Court ofInternational Justice in the ChorzSw fi’actory case: "[I]t is aprinciple of international law, and even a general conceptionof law, that any breach of an engagement involves anobligation to make reparation." Chorzdw Factory (Ger. v.Pol.), 1928 P.C.I.J. (ser. A) No. 17, at 29 (Sept. 13) (emphasisadded).

4

the state concerned. See International Covenant onCivil and Political Rights, art. 2(3), Dec. 16, 1966,999 U.N.T.S. 171; Convention against Torture andOther Cruel, Inhuman or Degrading Treatment orPunishment, art. 13, Dec. 10, 1984, 1465 U.N.T.S.85. The right to a remedy must be considered inlight of states’ obligations under international lawto investigate violations of human rights law.

The ICCPR requires States Parties to provideremedies for any violation of its provisions,including torture, cruel, inhuman or degradingtreatment, and enforced disappearance. Theseremedies include the right to bring a claim and tohave that claim heard. Article 2(3)(a) of the ICCPRrequires States Parties "[t]o ensure that any personwhose rights or freedoms as herein recognized areviolated shall have an effective remedy .... "Article 2(3)(b) adds that States Parties must"ensure that any person claiming such a remedyshall have his right thereto determined bycompetent judicial, administrative or legislativeauthorities, or by any other competent authorityprovided for by the legal system of the State .... "Finally, Article 2(3)(c) requires States Parties "[t]oensure that the competent authorities shall enforcesuch remedies when granted."

The Human Rights Committee is thesupervisory mechanism established under theICCPR to provide authoritative interpretationsregarding the scope and application of the treaty.The Committee has indicated that Article 2(3)requires States Parties to investigate andadjudicate cases of suspected violations and toprovide redress in cases of established violations.Thus, the Committee has explained "Article 2,paragraph 3, requires that States Parties make

5

reparation to individuals whose Covenant rightshave been violated. Without reparation toindividuals whose Covenant rights have beenviolated, the obligation to provide an effectiveremedy, which is central to the efficacy of article 2,paragraph 3, is not discharged." Human RightsCommittee, General Comment No. 31, at ¶ 16, U.N.Doc. CCPR/C/21/Rev.1/Add.13 (Mar. 29, 2004).The Human Rights Committee has further notedthat "[a] failure by a State Party to investigateallegations of violations could in and of itself giverise to a separate breach of the Covenant.Cessation of an ongoing violation is an essentialelement of the right to an effective remedy." Id. at ¶15. Significantly, the obligation to provide aremedy for a treaty violation is non-derogable, evenin times of national emergency. See Human RightsCommittee, General Comment No. 29, at ¶ 14, U.N.Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).

The Convention against Torture also requiresstates to provide an effective remedy for violatingthe prohibition against torture. Article 14 providesthat "[e]ach State Party shall ensure in its legalsystem that the victim of an act of torture obtainsredress and has an enforceable right to fair andadequate compensation including the means for asfull rehabilitation as possible."

The Committee against Torture is thesupervisory mechanism established under theConvention against Torture to provideauthoritative interpretations regarding the scopeand application of the treaty. In relation to cases ofextraordinary rendition, the Committee againstTorture has indicated that the United States"should adopt all necessary measures to prohibitand prevent enforced disappearance in any

6

territory under its jurisdiction, and prosecute andpunish perpetrators, as this practice constitutes,per se, a violation of the Convention." Committeeagainst Torture, Conclusions andRecommendations of the Committee againstTorture: United States of America, at ¶ 18, U.N.Doc. CAT/C/USA/CO/2 (July 25, 2006). Moreover,the Committee has indicated that the UnitedStates should ensure "that mechanisms to obtainfull redress, compensation and rehabilitation areaccessible to all victims of acts of torture or abuse,including sexual violence, perpetrated by itsofficials." Id. at ¶ 28.

The right to an effective remedy is also anestablished principle of customary internationallaw.4 This development was recognized by the U.N.General Assembly in 2005 when it adopted theBasic Principles and Guidelines on the Right to aRemedy and Reparation for Victims of GrossViolations of International Human Rights Law andSerious Violations of International HumanitarianLaw (Basic Principles). Significantly, this GeneralAssembly resolution was adopted by consensus,including by the United States. The BasicPrinciples acknowledge that the right to a remedyfor victims of human rights abuses is found innumerous international instruments and

4 Nee generally Ricardo Mazzeschi, Reparation Claims byIndividuals for State Breaches of Humanitarian Law andHuman Rights: An Overview, I Journal of InternationalCriminal dustice 339, 347 (2003); M. Cherif Bassiouni,International Recognition of Vietims’Rights, 6 Human RightsLaw Review 203, 218 (2006); and Jean-Marie Henekaerts andLouise Doswald-Beck, ICRC Study of CustomaryInternational Humanitarian La w 537-550 (2005).

customary international law. Principle 12 of theBasic Principles provides that:

A victim of a gross violation ofinternational human rights law or of aserious violation of internationalhumanitarian law shall have equalaccess to an effective judicial remedy asprovided for under international law.Other remedies available to the victiminclude access to administrative andother bodies, as well as mechanisms,modalities and proceedings conducted inaccordance with domestic law.Obligations arising under internationallaw to secure the right to access justiceand fair and impartial proceedings shallbe reflected in domestic laws.

G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16,2005) (emphasis added). Similarly, the U.N.Updated Set of Principles for the Protection andPromotion of Human Rights Through Action toCombat Impunity (Impunity Principles) alsoemphasize the importance of redress for humanrights abuses. U.N. Commission on Human Rights,Report of the Independent Expert to Update theSet of Principles to Combat Impunity, DianeOrentlicher, Addendum: Updated Set of Principlesfor the Protection and Promotion of Human Rightsthrough Action to Combat Impunity, Principles 10-30, U.N. Doc. E/CN.4/2005/102/Add.1 (Feb. 8,2005).

Regional tribunals have also recognized theright to an effective remedy under internationallaw. For example, the Inter-American Court of

8

Human Rights (IACHR) held in VelgsquezRodriguez v. Honduras "that every violation of aninternational obligation which results in harmcreates a duty to make adequate reparation."Velgsquez Rodriguez v. Honduras, Reparations,Judgment, Inter-Am. Ct. H.R. (ser. C) No. 7, 7 25(July 21, 1989). See also Durand and Ugarte v.Peru, Merits, Judgment, Inter-Am. Ct. H.R. (set. C)No. 89, 7 24 (Dec. 3, 2001) ("[A]ny violation of aninternational obligation carries with it theobligation to make adequate reparation."); Garridoand Baigorria v. Argentina, Reparations,Judgment, Inter-Am. Ct. H.R. (ser. C) No. 39, 7 40(Aug. 27, 1998). The Inter-American Court hasrepeatedly emphasized that the right to a remedymust be effective and not merely illusory ortheoretical and must be suitable to grantappropriate relief for the legal right that is allegedto have been infringed. See, e.g., VeldsquezRodriguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (set. C) No. 4, 77 64, 66 (July 29,1988). In fact, as the Inter-American Court hasfound, "the absence of an effective remedy toviolations of the rights recognized by theConvention is itself a violation of the Convention bythe State Party in which the remedy is lacking."5

~ See also RaquelM~rti de Meji~ v. Peru, Case 10.970, Inter-Am. Comm’n H.R., Report No. 5/96, OEA/Ser.L/V/II.91, doe. 7at 157 (1996) (The right to a remedy "must be understood asthe right of every individual to go to a tribunal when any ofhis rights have been violated (whether a right protected bythe Convention, the constitution or the domestic laws of theState concerned), to obtain a judicial investigation conductedby a competent, impartial and independent tribunal that willestablish whether or not a violation has taken place and willset, when appropriate, adequate compensation.").

9

Judicial Guarantees in States of Emergency,Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (set.A) No. 9, ¶ 24 (Oct. 6, 1987). See also Castillo Pffezv. Peru, Merits, 3udgment, Inter-Am. Ct. H.R. (set.C) No. 34, ¶ 82 (Nov. 3, 1997).

The European Court of Human Rights has alsorepeatedly emphasized that the right to a remedymust be effective and not merely illusory ortheoretical and must be suitable to grantappropriate relief of the legal right that is allegedto have been infringed. ~qee, e.g., Cordova v. Italy(No. 1), App. No. 40877/98, 40 Eur. Ct. H.R. Rep.974, 984 (2003); Cruz Veras v. Sweden, App No.15576/89, 14 Eur. Ct. H.R. Rep. 1, 42 (1991). Theright to a remedy must be effective in practice aswell as in law. See Metropolitan Church ofBessarabia v. Moldova, App. No. 45701/99, 35 Eur.Ct. H.R. Rep. 306, 342 (2001); Conka v. Belgium,App. No. 51564/99, 34 Eur. Ct. H.R. Rep. 1298,1302 (2002). Indeed, the capability to submit aclaim to a judge and the access to justice are"universally ’recognised’ fundamental principles oflaw." Golder v. United BS"ngdom, App. No. 4451/70,1 Eur. Ct. H.R. Rep. 524, 535-36 (1975).

In sum, the right to a remedy is a fundamentalprinciple of international law. States have anobligation to investigate and adjudicate cases ofsuspected human rights abuses and to provideredress for established violations. Indeed, the rightto a remedy is all the more significant when theunderlying violations involve non-derogable humanrights and constitute crimes under internationallaw.

10

Any Procedural Rule That Affects the Rightto a Remedy Must Pursue a Legitimate Aimand Employ the Least Restrictive Means

The Ninth Circuit focused on the nationalsecurity implications of this case and failed to offersufficient weight to the Petitioners’ right to aneffective remedy. It is respectfully submitted thatthe Ninth Circuit erred in its failure to consider thePetitioners’ right to a remedy under internationallaw. The proper starting point for the NinthCircuit should have been the acknowledgement ofthe Petitioners’ fundamental right to a remedy forserious violations of human rights law. 0nly thenshould any restrictions on this right, such as thestate secrets doctrine, have been considered.

In order to determine whether the state secretsdoctrine could procedurally restrict or regulate theright to an effective remedy, a two-part test mustbe conducted. First, the restriction must pursue alegitimate aim. Second, the effects of therestriction must be proportionate to the aimpursued and, in doing so, must employ the leastrestrictive means possible. Under nocircumstances, however, may the right to a remedybe extinguished by procedural restrictions.

(1) Procedural Restrictions Must Pursue aLegitimate Aim

Any effort to limit the right to a remedy must bebased on legitimate grounds. While nationalsecurity interests may constitute a legitimate aim,they will only be considered so when they aregenuinely tailored to protecting such interestsrather than protecting states from embarrassment

11

or preventing the exposure of illegal activity.~Preventing disclosure of serious human rightsviolations would not constitute a legitimate aim.Indeed, it would be inconsistent with a state’spositive obligations under international law toinvestigate human rights abuses and to providevictims with redress for their injuries. Accordingly,the assertion of national security concerns cannotautomatically constitute a legitimate aim.7Rather, such concerns must be analyzed in thecontext of the specific case at issue.

~ Nee The Johannesburg Principles on National Security,Freedom of Expression and Access to Information, atPrinciple 2(b), U.N. Doc. E/CN.4/1996/39 (1996) ("[A]restriction sought to be justified on the ground of nationalsecurity is not legitimate if its genuine purpose ordemonstrable effect is to protect interests unrelated tonational security, including, for example, to protect agovernment from embarrassment or exposure of wrongdoing,or to conceal information about the functioning of its publicinstitutions, or to entrench a particular ideology, or tosuppress industrial unrest."). Soe also U.N. Commission onHuman Rights, The Siracusa Principles on the Limitation andDerogation Provisions in the International Covenant on Civiland Political Rights, U.N. Doe E/CN.4/1985/4 (Sept. 28, 1984).

7 States cannot refuse to provide classified information for the

investigation of serious human rights violations solelybecause of national security considerations. See, e.g., MyrnaMack Chang v. Guatemala, Merits, Reparations, and Costs,Judgment, Inter-Am. Ct. H.R. (set. C) No. 101, ¶ 180 (Nov.25, 2003) ("The Court deems that in cases of human rightsviolations, the State authorities cannot resort to mechanismssuch as official secret or confidentiality of the information, orreasons of public interest or national security, to refuse tosupply the information required by the judicial oradministrative authorities in charge of the ongoinginvestigation or proceeding.").

12

In the present case, the mere assertion that theoverseas activities of the CIA constitutes a statesecret is insufficient,s Rather, the precise aspectsof the CIA’s overseas activities that have nationalsecurity implications must be identified. Persistentconcerns about the over-classification of evidenceby governments highlight the need for greaterjudicial scrutiny of the assertion that certaininformation is privileged.9

s The U.N. Special Rapporteur on the Promotion and

Protection of Human Rights While Countering Terrorism hasraised significant concerns about the state secrets privilege.In a 2009 report, the Special Rapporteur indicated that theinvocation of the state secrets doctrine renders the right to aremedy illusory and may amount to a violation of the ICCPR.Human Rights Council, Report of the Special Rapporteur onthe Promotion and Protection of Human Rights WhileCountering Terrorism, at ¶ 61, U.N. Doc. A/HRC/10/3 (Feb. 4,2009). See also/d, at ¶ 75 ("The Special Rapporteur urgesMember States to reduce to a minimum the restrictions oftransparency founded on concepts of State secrecy andnational security. Information and evidence concerning thecivil, criminal or political liability of State representatives,including intelligence agents, for violations of human rightsmust not be considered worthy of protection as State secrets.If it is not possible to separate such cases from true,legitimate State secrets, appropriate procedures must be putinto place ensuring that the culprits are held accountable fortheir actions while preserving State secrecy.").

9 See International Commission of Jurists, Assessing Damage,

Urging Action: Report of the Eminent Jurists Panel onTerrorism, Counter-terrorism and Human Rights 90 (2009)("States should seek to protect the secrecy required foreffective intelligence without encouraging an institutionalculture of secrecy. It is particular important that States takesteps to ensure that serious human rights violations cannever be justified in the name of national security and thatsuch crimes are never safe from sanction because of a culture

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The subject matter of the appeal in the currentcase - extraordinary rendition as part of the CIA’soverseas activities - formed the basis for the NinthCircuit’s dismissal of the case. The court did notassess which aspects of extraordinary renditionconstitute a state secret nor how they could bedealt with in a manner that would protect thenational security interests at stake while upholdingthe Petitioners’ right to a remedy. Rather, theright to a remedy was extinguished altogether.

(2) Procedural Restrictions Must BeProportionate and Employ the LeastRestrictive Means Possible

Even if certain restrictions on access to evidenceare deemed consistent with a legitimate aim, theserestrictions must be proportionate and strictlynecessary to achieve that aim in a democraticsociety. In making such an assessment, the courtshould have sufficient access to the evidence to testthe propriety and legitimacy of the state secrecyclaim, and must consider alternative ways in whichthe evidence can be admitted in order to protectboth the national security interests at stake andthe right to an effective remedy. The burden ofproof lies on the state asserting the national

of secrecy. Victims must not be deprived of effective remediesor reparation on grounds of national doctrines such as on’state secrecy."’). See ~]so William G. Weaver & Robert M.Pallitto, State Secrets ~nd Ezecut]ye Power, 120 PoliticalScience Quarterly 85, 87 (2005) (noting that, "[v]irtually allobservers acknowledge that over’classification is a significantproblem, and this has led to some embarrassing moments forthe executive branch.").

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security interests to demonstrate theproportionality of the restriction.

In Chahal v. United t~’ngdom, for example, theEuropean Court of Human Rights noted that courtshave the ability to fashion procedures that canaddress national security considerations.

[T]he use of confidential material maybe unavoidable where nationalsecurity is at stake. This does notmean, however, that the nationalauthorities can be free from effectivecontrol by the domestic courtswhenever they choose to assert thatnational security and terrorism areinvolved there are techniqueswhich can be employed which bothaccommodate legitimate securityconcerns about the nature and sourcesof intelligence and yet accord theindividual a substantial measure ofprocedural justice.

Chahal v. United I~’ngdom, App. No. 22414/93, 23Eur. Ct. H.R. Rep. 413, 469 (1996).

In Tinnelly & Sons Ltd& Others and McElduff& Others v. United Kingdom, the European Courtof Human Rights pointed out that alternative waysof receiving and hearing privileged informationmust be explored and used when available. Thecourt noted that it is possible "to safeguardnational security concerns about the nature andsources of intelligence information and yet accordthe individual a substantial degree of proceduraljustice." Tinnelly & Sons Ltd & Others andMeElduf£ & Others v. United I~’ngdom, App. No.

15

20390/92, 27 Eur. Ct. H. R. Rep. 249, 291 (1998).In this case, the European Court held that the useof security-cleared advocates was adequate toprotect the national security interests at stake.I0

See also Devenney v. United Kingdom, App. No.24265/94, 35 Eur. Ct. H.R. Rep. 643, 647-648(2002); A1-Nashif v. Bulgaria, App. No. 50963/99,36 Eur. Ct. H.R. Rep. 655 (2002).

A similar approach has been taken by otherinternational tribunals. In Prosecutor v. Blagki~for example, the International Criminal Tribunalfor the former Yugoslavia, which was establishedby the U.N. Security Council, rejected Croatia’sattempt to withhold evidence that it claimed wasprivileged due to national security concerns. TheChamber held that as Croatia had consented to thejurisdiction of the court, it could not withholdimportant evidence relating to the guilt orinnocence of a defendant, as this would defeat"[t]he very raison d’etre" of the proceeding.Prosecutor v. Blagkid, Case No. IT-95-14-A,3udgment on the Request of the Republic of Croatiafor Review of the Decision of Trial Chamber II of 183uly 1997, at ¶ 65 (Int’l Crim. Trib. for the FormerYugoslavia, Oct. 29, 1997). Rather than allow thewholesale suppression of sensitive evidence, theChamber adopted procedures designed to allowadmission of evidence while protecting itsprivileged nature. Id. at ¶ 68. For example, theAppeals Chamber recommended that the TrialChamber limit the number of judges who could

lo See also House of Commons Constitutional Affairs

Committee, The Operation of the Special ImmigrationAppeals Commission (SIAC) and the Use of SpecialAdvocates, 2004, ¶¶ 44-66 (U.K.).

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view the subpoenaed evidence; allow for theconsideration of the evidence at an ex parte, incamera hearing; allow the evidence to be redactedwhere necessary; and return all irrelevant evidenceto Croatia. Id.

(3) Procedural Restrictions Must NotExtinguish the Right to an EffectiveRemedy

Finally, it is well established that the failure toprovide any remedy in judicial proceedings isconsidered a disproportionate restriction and aviolation of the right to an effective remedy.

In Cordova v. Italy (No. 1), for example, theEuropean Court of Human Rights held that anylimitations on judicial review "must not restrict theaccess left to the individual in such a way or tosuch an extent that the very essence of the right isimpaired." Cordova v. Italy (No. 1), supra, at 984.To do so would violate the right to a remedy. Seealso Waite and Kennedy v. Germany, App. No.26083/94, 30 Eur. Ct. H.R. Rep. 261 (1999).

The Inter-American Court of Human Rights hasalso consistently stressed that procedural rulescannot be used to create a blanket ban on theexercise of the right to an effective remedy.11 In theFive Pensioners Case, the Inter-American Courtreiterated that the right to a remedy must beeffective.

11 See generally Report on Terrorism and Human Rights,

Inter-Am. Comm’n H.R., OEA/Ser.L/V/II.116, doe. 5 rev. 1corr. ¶ 261 (2002).

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Those recourses that are illusory,owing to the general conditions in thecountry or to the particularcircumstances of a specific case, shallnot be considered effective. Recoursesare illusory when it is shown that theyare ineffective in practice, when theJudiciary lacks the necessaryindependence to take an impartialdecision, or in the absence of ways ofexecuting the respective decisions thatare delivered. They are illusory whenjustice is denied, when there is anunjustified delay in the decision andwhen the alleged victim is impededfrom having access to a judicialrecourse.

"Five Pensioners"v. Peru, Merits, Reparations, andCosts, Judgment, Inter-Am. Ct. H.R. (set. C) No.98, ¶ 136 (Feb. 28, 2003). See also Barrios AltosCase (Chumbipuma Aguirre et al. v. Peru),Interpretation of the Judgment on the Merits,Inter-Am. Ct. H.R. (set. C) No. 75, ¶¶ 3, 41, 43(Mar. 14, 2001).12

Several national courts have followed a similarapproach for addressing national security concernsin judicial proceedings. In R (Mohamed) v.Secretary of State for Foreign and CommonwealthAffairs, [2010] EWCA (Civ) 65, for example, the

12 The Inter-American Commission on Human Rights has

made similar determinations. See, e.g., Herrera v. Argentina,Case No. 10.147, Inter-Am. Comm’n. H.R., Report No. 28/92,OEA/Ser.L/V/II.83, doc. 14 (1992).

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Court of Appeal of England and Wales consideredwhether information regarding interrogationpractices performed against suspected terroristsshould be redacted from a lower court judgment.According to the Secretary of State, publicationwould lead to a real risk of serious harm to thenational security of the United Kingdom. The Courtof Appeal, however, disagreed and allowed theinformation to be released. In its opinion, theCourt of Appeal recognized the importance ofdissemination for promoting "democraticaccountability, and, ultimately, the rule of lawitself." Id. at ¶ 57.

In Minister of Justice v. Khadr, 2 S.C.R. 125(2008), the Canadian Supreme Court consideredwhether a Guantanamo detainee could accessdocuments in the possession of the Canadiangovernment. The Canadian government refused toprovide unredacted copies of the documents. Whilea lower court initially upheld the refusal, theCanadian Supreme Court reversed. It found that"the principles of fundamental justice impose aduty on the prosecuting Crown to providedisclosure of relevant information in its possessionto the accused whose liberty is in jeopardy ...." ld.at ¶ 30.

In this case, the Ninth Circuit recognized that"[d]enial of a judicial forum based on the statesecrets doctrine poses concerns at both individualand structural levels." Mohamed v. JeppesenDatap]an, Inc., 614 F.3d at 1091 (emphasis added).However, the majority erred by concluding thathypothetical non-judicial remedies could alleviatethe harsh effect of its denial of Petitioners’ claims.As Judge Hawkins stated in his dissenting opinion,"[n]ot only are these remedies insufficient, but their

19

suggestion understates the severity of theconsequences to Plaintiffs from the denial of]udicia]relief." ]d. at 1101 (emphasis added). Notone of the alternative remedial avenues proposedby the majority actually exists, or is even in theprocess of being implemented by the legislative orexecutive branches at this time. Thus, the NinthCircuit’s analysis and application of the statesecrets doctrine in this case completelyextinguishes Petitioners’ right to an effectiveremedy without considering more proportionateand less restrictive alternatives.

II. U.S. LAW, INCLUDING THE STATESECRETS DOCTRINE, SHOULD BEINTERPRETED CONSISTENT WITHINTERNATIONAL LAW

Federal courts have long recognized the doctrineof statutory construction that federal statutes mustnot be interpreted in a manner that conflicts withinternational law if any other construction is fairlypossible. While this doctrine has been applied tostatutory construction, it applies with even greaterrigor to judicially created doctrines.

The Supreme Court’s decision in Talbot v.Seem~n, 5 U.S. (1 Cranch) 1 (1801), perhapsrepresents the first elaboration of this principle ofstatutory construction. In T~]bot, the Court, perChief Justice Marshall, held that "the laws of theUnited States ought not, if it be avoidable, so to beconstrued as to infract the common principles andusages of nations, or the general doctrines ofnational law." Id. at 43. The doctrine, however, is

20

more generally attributed to a case decided threeyears later, Murray v. Schooner Charming Betsy.

In Charming Betsy, the Supreme Courtconsidered whether an Act of Congress adopted tosuspend trade between the United States andFrance authorized the seizure of neutral vessels, anaction that would violate customary internationallaw. Murray v. Schooner Charming Betsy, 6 U.S. (2Cranch) 64 (1804). Writing for the Court, ChiefJustice Marshall stated that "an act of Congressought never to be construed to violate the law ofnations if any other possible constructionremains .... " Id. at 118. This does not mean thatinternational law supersedes or overrides domesticlaw. Rather, Charming Betsy stands for theproposition that "courts will not blind themselves topotential violations of international law wherelegislative intent is ambiguous." United States. v.Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991).

The Charming Betsy doctrine is a long-standingdoctrine of statutory construction that the SupremeCourt has affirmed in numerous decisions. See, e.g.,Hartford Fire Ins. Co. v. California, 509 U.S. 764(1993); Sale v. Haitian Ctrs. Council, Inc., 509 U.S.155, 178 n.35 (1993); Lauritzen v. Larsen, 345 U.S.571, 578 (1953); United States v. Payne, 264 U.S.446, 448-49 (1924); MaeLeod v. United States, 229U.S. 416, 434 (1913); Brown v. United States, 12U.S. 110, 125 (1814).

Under Charming Betsy, ambiguous statutes areto be interpreted consistent with both customaryinternational law and treaties. See Ralph G.Steinhardt, The Role o£ International Law as aCanon of Domestic Statutory Construction, 43Vanderbilt Law Review 1103, 1161 (1990).Accordingly, in F. Hoffmann-La Roche Ltd. v.

21

Empagran S.A., 542 U.S. 155, 164 (2004), theSupreme Court stated, "[t]his rule of constructionreflects principles of customary international law--law that (we must assume) Congress ordinarilyseeks to follow."

While the Charming Betsy doctrine has beenapplied by federal courts as a canon of statutoryconstruction, its reasoning applies with evengreater rigor to judicially created doctrines. TheUnited States has an international obligation toafford victims of human rights abuses the right toseek redress for their injuries. This obligation wasaccepted by the United States when it ratified boththe ICCPR and the Convention against Torture. Italso binds the United States as a principle ofcustomary international law. Courts should beparticularly cautious when using judicially createddoctrines that may affect U.S. compliance withinternational law. Indeed, courts should seek toremedy violations of international law and notcause them. Regrettably, the Ninth Circuit failedon both counts.

Another reason for applying the CharmingBetsy doctrine to judicially created doctrines is toavoid separation of powers concerns. The divisionof power among the three branches of governmentis best served by implementing judicial doctrinesconsistently with the actions of the coordinatebranches of government. Article II, Section 2 of theU.S. Constitution provides that the President "shallhave Power, by and with the Advice and Consent ofthe Senate, to make Treaties, provided two-thirdsof the Senators present concur." The application ofthe state secrets doctrine in this case is contrary tothe obligations set forth in both the ICCPR and theConvention against Torture, thereby placing the

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judiciary in conflict with the coordinate branches ofgovernment.

Interpreting the state secrets doctrine in amanner consistent with the fundamental right to aremedy embodied in international law allows theUnited States to live up to its promises, ideals, andvalues. It ensures that the right of all people to befree from torture, other cruel, inhuman ordegrading treatment, and enforced disappearancehas practical meaning.

CONCLUSION

The practice of extraordinary rendition hascreated a class of individuals, namely "terrorsuspects," who have been subjected to torture, othercruel, inhuman, or degrading treatment, andenforced disappearance, and who were providedwith no form of due process during their detention.The application of the state secrets doctrineexacerbates these violations of international law bydenying these individuals the opportunity to statetheir case and seek redress for their injuriesthrough judicial review.

~tm~’c~" respectfully submit that the Ninth Circuiterred in affirming the district court’s dismissalgranting the U.S. Government motion to dismiss onthe basis of the state secrets doctrine. In doing so,the court’s decision denies the Petitioners theirright to an effective remedy for serious violations ofinternational law. For the foregoing reasons, thisCourt should grant the petition for a writ ofcertiorari.

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Respectfully submitted January 12, 2011

William J. AcevesCounsel of Record

California Western School of Law225 Cedar StreetSan Diego, CA 92101(619) 525-1413wja@cwsl.edu

Deena R. HurwitzAlyssa Petroff (’09)University of Virginia School of Law580 Massie RoadCharlottesville, VA 22903(434) 924-4776drh9z@virginia.edu

Counsel for Amici Curiae

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