I Don’t Like a Policy. So Whom Should I Sue? (!)

by Eugene Gholz | May 31st, 2007 | |Subscribe

The Partnership for a Secure America formed to confront (and hopefully counteract) problems in the American foreign policy debate. We don’t have enough civil discussion of important foreign policy issues. Sometimes we have partisan shouting matches; sometimes the name-calling actually masks bipartisan consensus on the underlying issue, preventing Americans from thinking through alternative policies that might better serve the national interest.

Normally, blog-writers here complain about shrill politicians — for good reason. But this morning on NPR, I heard a new facet of the nasty, “gotcha” style of foreign policy debate in the U.S. The ACLU is upset (justifiably, IMHO) that the U.S. might facilitate torture of suspects in the War on Terror through the practice of “extraordinary rendition,” where suspects are transferred between countries, without judicial process, often to countries with poor human rights practices (i.e., to places where interrogation may involve torture). This practice may or may not have benefits in preventing terror, but it’s hard to have a reasoned policy debate about extraordinary rendition in an environment of secrecy and name-calling. So the ACLU is looking around for some way to impose accountability.

Again, I’m all in favor of accountability for bad policies in the War on Terror. The ACLU has a good history of asking questions, lobbying, suing, and otherwise injecting important issues into American policy debates. Today, the ACLU perhaps has a beef with the CIA or perhaps with the Bush Administration policy-makers who authorize and support the CIA’s actions. There may be aspects of rendition that make sense — aspects that do not lead to torture. If the U.S. wants to defend this policy, leaders need to make that clear and to take steps to give the public (including the international public) confidence that the policy is not and will not be abused. The ACLU should ask questions.

But this morning, the ACLU asked questions of someone else. Of Boeing (actually, one of its subsidiaries). The ACLU previously participated in a law suit against the CIA, one that is currently under appeal. Temporarily stymied on that avenue, though, they grabbed for another possible villain. Big corporations are rarely popular, so why not go after Boeing? At least it keeps the issue in the public eye.

I don’t know anything about the details of Jeppesen Dataplan’s business (that’s the Boeing subsidiary) or its relationship to the CIA. But the story seems to be that Jeppesen provides support to people who fly — helps them calculate airway routes, file itineraries, arrange for refueling, etc. They do this for commercial aircraft, business aircraft, and others, including some government flights. Their business does not include anything in particular about the purpose of the flights (a vacation or a rendition?) or the contents of the aircraft (an executive’s family or a suspect being rendered?). They don’t even fly the airplane. They just provide some charts, digital data, interface to aviation authorities, etc.

But somehow, the ACLU wants them to be responsible for torture. The soundbite is really inflammatory: “profit from torture.”

Why not also sue the hotels in which the pilots stayed? The fuel companies? The airport managers? The caterers? It’s hard to think of all of the possible service providers or even manufacturers who might have some indirect role here.

This is nuts. A reasonable debate about appropriate policy needs to target the right people. The debate should be about the policy. Even if Jeppesen Dataplan employees knew that these flights were rendition flights (as the ACLU alleges), all they provided were legal flight services; the alleged bad behavior was the rendition itself, which was a government policy decision, not a company decision.

The ACLU should not be in the business of shaking down companies doing their normal, day-to-day business — unless that business happens to be the direct provision of “torture services” or something else outlandish.

5 Comments »

  1. Keith wrote,

    The lawsuit can easily be crushed. All the airline has to say is that the agents said “we commnadeer this plane” and Pilot or Airline is no longer responsible.

    Comment on May 31, 2007 @ 12:01 pm

  2. david a wrote,

    Maybe the ACLU’s actions are outlandish, but it has certainly brought attention to the whole extraordinary rendition issue and to those who may be involved in it, however peripherally.

    Comment on June 1, 2007 @ 5:47 am

  3. mack wrote,

    I don’t think this lawsuit has legs, but it will bring to light some of the tactics being used in the ‘war against terror’. If the US doesn’t follow the rules outlined in the Geneva Convention, we can’t expect anyone else to either.

    Comment on June 1, 2007 @ 7:00 am

  4. Michael Lieberman wrote,

    I agree with Mr. Golz that rendition is a policy that might have its uses, and that the debate over it ought to be conducted in a civil and searching manner that fully explores its benefits and demerits. And I can understand why Gholz decries the ACLU’s lawsuit against Jeppesen, on the view that the ACLU’s beef shouldn’t be with private companies just doing their business, and that the courtrooms, in any event, do not provide a proper forum for airing the organization’s grievances. “The debate should be about the policy,” he rightly notes. The sociologist Todd Gitlin’s work, however, instructs us that there may be more to the story.

    Gitlin has discussed the dilemma facing reformers when attempting to promote their message: there is an inexorable tradeoff between the integrity of the message sought to be conveyed and the capacity to disseminate it widely. Activist groups, even meanstream ones such as the ACLU, thus have great difficulty in maintaining recruitment, visibility and momentum without engaging in tactics that might not meet the highest standards of rational, civilized debate. The ACLU’s choice to sue Jeppesen in making its point against rendition here reflects its judgment on where precisely to break the tension and act in this context. What is more, it ought not be derided.

    For the ACLU’s decision to employ the Alien Tort Statute against Jeppesen, far-fetched as it may be from a legal perspective, is not an altogether unreasonable battle to wage. It is most certainly not “nuts.” Jeppesen, as it happens, does not appear as clean as Gholz lets on. Indeed, the ACLU cites a Jeppesen employee in The New Yorker magazine as saying that, “We do all of the extraordinary rendition flights – you know, the torture flights. Let’s face it, some of these flights end up that way.” This may not be sufficient for legal liability, but it is entirely sufficient for due public indictment.

    Some would argue that our courtrooms should not serve as soapboxes. But that is a matter for the courts to decide. If the ACLU’s claims are frivolous, they can face legal and professional sanctions, not to mention reputational damage before the one group they can least afford to alienate: judges. Surely those are sufficient checks on the ACLU. Further, as far as fora for public debate go, courtrooms are not always the worst. They are a focal point for public conversation and bring to light (and life) factual details and policy considerations via the law that focus public attention and can enrich, not undermine, discussion and policy formulation. Think of Inherit the Wind.

    So I think the ACLU’s move here needs to be analyzed less in terms of whether Jeppesen in the end deserves to pay the plaintiffs money, and more on its merits as a method to reconcile the conflicting imperatives of publicity and substance in drawing attention to a debate that America must undertake. From that perspective, the ACLU’s suit, in its own way, is a laudable contribution.

    Comment on June 9, 2007 @ 9:16 pm

  5. Nokia wrote,

    Some would argue that our courtrooms should not serve as soapboxes. But that is a matter for the courts to decide. If the ACLU’s claims are frivolous, they can face legal and professional sanctions, not to mention reputational damage before the one group they can least afford to alienate: judges. Surely those are sufficient checks on the ACLU. Further, as far as fora for public debate go, courtrooms are not always the worst. They are a focal point for public conversation and bring to light (and life) factual details and policy considerations via the law that focus public attention and can enrich, not undermine, discussion and policy formulation. Think of Inherit the Wind.

    Comment on March 3, 2009 @ 1:27 am

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