US court allows rendition lawsuit against CIA contractor

The government says state secrets are at risk, but the 9th Circuit is allowing the case to proceed against a Boeing subsidiary that reportedly flew suspects to secret prisons.

By Liam Stack

• A daily summary of global reports on security issues.

A federal court in San Francisco on Tuesday ruled that five men who say they were detained and tortured as part of the Bush administration’s "extraordinary rendition" program can proceed with a lawsuit against a Boeing subsidiary they say was involved in their ill-treatment.

The ruling was a setback to efforts by the Bush and Obama administrations, which both supported throwing out the lawsuit on the grounds that it risked revealing state secrets.The case is shaping up to be a landmark, as it is the first lawsuit filed by former detainees in the rendition program against a private company allegedly implicated in torture and illegal detention.

That firm is Boeing subsidiary Jeppesen Dataplan, of San Jose, Calif., which the San Francisco Chronicle reports was identified as the CIA’s "aviation services provider" in a 2007 Council of Europe report.

The controversial program centered on the practice of detaining suspected terrorists without warrants or legal proceedings and taking them to secret CIA-run prisons, or foreign countries such as Egypt or Syria, for often violent interrogations. The Chronicle reports that the Bush administration always argued it did not transfer suspects to foreign countries unless it had received assurances that torture would not be used.

But critics, like Jane Mayer at The New Yorker, argued that the practice was primarily a way of "outsourcing torture" to countries without legal safeguards against abuse.

The Bush administration strongly opposed lawsuits brought by former detainees, saying they reveal state secrets such as interrogation methods or government involvement with subcontractors. In February, the Obama administration supported that view, reported ABC News.

But on Tuesday, San Francisco’s Ninth US Circuit Court of Appeals ruled unanimously, in a 3-0 decision, against their argument, reports the Chronicle.

The court said the nation’s laws apply to all its programs, including those that involve state secrets.

"According to the government’s theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said in the 3-0 ruling.

Allowing the government to shield its conduct from court review simply because classified information is involved "would … perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.

However, the Associated Press (AP) reports that the Court did agree that classified information needed to be protected, but objected to the position that such a concern necessitated automatically throwing out the case.

In what is sure to be a painstaking process, the Court advised judges to weigh the national security value of each individual piece of evidence before deciding on its admissibility, reports The New York Times.

The court said the government could ask judges to conduct a case-by-case review of whether the disclosure of specific documents would jeopardize national security. But allowing the executive branch to shut down an entire lawsuit whenever an official says its subject is classified would be a "concentration of unchecked power" and lead to abuses, it said.

Judge Hawkins said that if it turns out "privileged evidence is indispensable to either party," then the case may eventually be dismissed, reports the AP. The news service also reports that the Justice Department is "reviewing the court’s decision."

According to the Chronicle, the government has several options at its disposal now. It can appeal to a larger panel of the Ninth Circuit Court or take the case to the Supreme Court. If it is defeated in both those venues, the case goes back to US District Judge James Ware in San Jose. He dismissed the case in the first place in February 2008.

The American Civil Liberties Union, which represents the five plaintiffs in the case, reacted triumphantly to the ruling, calling it a "historic decision" in a statement released to the media.

"This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs. "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ‘secrets’ in a court of law."

The Chronicle identifies the five plaintiffs as Binyam Mohamed, an Ethiopian-born British resident arrested in Pakistan; Bisher al-Rawi, an Iraqi-born British resident arrested in Gambia; Ahmed Bashmilah, a Yemeni arrested while visiting his sick mother in Jordan; Ahmid Agiza, an Egyptian arrested in Sweden; and Abu Britel, an Italian citizen of Moroccan descent arrested in Pakistan. Of the five, two are still being detained at their rendition sites, says the Chronicle. Agiza is believed to be in Egypt and Britel in Morocco, while the rest have all been released without charges.