Appeals court agrees with government, says ‘extraordinary rendition’ suit would reveal secrets

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Appeals court lets government halt torture lawsuit

SAN FRANCISCO — A sharply divided federal appeals court on Wednesday threw out a lawsuit challenging a controversial post-Sept. 11 CIA program that flew terrorism suspects to secret prisons.

The complaint was filed by five terrorism suspects who were arrested shortly after 9/11 and say they were flown by a Boeing Co. subsidiary to prisons around the world where they were tortured. The 9th U.S. Circuit Court of Appeals cited national security risks when it dismissed the men’s case in a 6-5 ruling Wednesday.

The case could have broad repercussions on the national security debate as it makes its way toward the Supreme Court, and it casts a spotlight on the controversial “extraordinary rendition” program the Bush administration used after 9/11.

The Obama administration subsequently said it would continue to send foreign detainees to other countries for questioning, but rarely - and only if U.S. officials are confident the prisoners will not be tortured.

The appeals court reinforced the broad powers of the president to invoke the so-called “state secrets privilege” to stop lawsuits involving national security almost as soon as they are filed.

“The attorney general adopted a new policy last year to ensure the state secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case,” Justice Department spokesman Matthew Miller said.

President George W. Bush invoked the privilege at least 39 times during his administration, the most of any president in history, according to according to research by University of Texas, El Paso, political science professor William Weaver. Critics of the practice had hoped President Barack Obama would curtail its use and were disappointed when his administration continued defending the lawsuit after Bush left office.

The terror suspects sued Boeing subsidiary Jeppesen Dataplan in 2007, alleging that the extraordinary rendition program amounted to illegal “forced disappearances.” They alleged that the San Jose-based subsidiary conspired with the CIA to operate the program.

A trial court judge quickly dismissed the lawsuit after the Bush administration took over defense of the case from Chicago-based Boeing and invoked the state secrets privilege, demanding a halt to the litigation over concern that top secret intelligence would be divulged.

A three-judge panel of the appeals court reinstated the lawsuit in 2009, but the full court overturned that ruling Wednesday.

“We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets,” Judge Raymond Fisher wrote for the majority. “The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests.”

Judge Michael Daly Hawkins wrote for the five dissenting judges, who said the lawsuit was dismissed too quickly and that the men should be allowed to use publicly disclosed evidence to prove their case.

“They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties,” Hawkins wrote.

Ben Wizner, the American Civil Liberties Union lawyer who represents the five men, said he will ask the U.S. Supreme Court to take the case.

“If this decision stands,” Wizner said, “the United States will have closed its courts to torture victims while extending complete immunity to its torturers.”

The Bush administration was widely criticized for its practice of extraordinary rendition - whereby the CIA transfers suspects overseas for interrogation. Human rights advocates said renditions were the agency’s way to outsource torture of prisoners to countries where it is permitted practice.

Three of the five plaintiffs have been released from prison, Wizner said.