Metropolitan News-Enterprise


Wednesday, April 29, 2009


Page 1


Ninth Circuit Revives Lawsuit Over ‘Extraordinary Rendition’


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals ruled yesterday that five former terrorism suspects can sue a Boeing Co. subsidiary for allegedly flying them to secret prisons around the world to be tortured as part of the CIA’s “extraordinary rendition” program.

A unanimous three-judge panel held a district judge wrongly tossed out the men’s lawsuit against San Jose-based Jeppesen DataPlan Inc. after the government asserted the case involved a “state secret” and would harm national security if allowed to go forward.

U.S. District Judge James Ware of the Northern District of California dismissed the case before the men could present evidence allegedly showing the company’s participation in the program was illegal.

The Bush administration, and then the Obama administration, argued the lawsuit should be thrown out before the government turned over any evidence because the nature of the legal action was itself a classified matter.

The federal government intervened on the company’s side because it said it feared top-secret information would be disclosed.

The appeals court, however, said the five men can try to prove their case without using top-secret information that legitimately needs protection from disclosure.

Judge Michael Daly Hawkins wrote:

“Only if privileged evidence is indispensable to either party should [the court] dismiss the complaint.”

Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi brought suit under the Alien Tort Statute, which allows U.S. courts to hear human rights cases brought by foreign citizens, including cases against American officials and corporations.

State Secrets Privilege

The men alleged Jeppesen conspired with the CIA and other governments to torture them, or should have known it was delivering the men to be tortured, but Ware granted the government’s motion to dismiss after concluding the information at the core of the case involved a state secret.

On appeal, Hawkins noted that two strands of jurisprudence have emerged with respect to the state secrets doctrine.

In the 1875 case Totten v. United States 92 U.S. 105, the Supreme Court rejected an attempt to recover compensation from the government for services rendered as a spy during the Civil War, reasoning that the subject matter of a suit could only be a “state secret” if predicated on the existence of a secret agreement between the plaintiffs and the Executive.

More than 75 years later, the court in United States v. Reynolds 345 U.S. 1 recognized the existence of an evidentiary privilege preventing discovery of secret evidence when disclosure would threaten national security.

Lack of Agreement

Applying Totten, Hawkins said the case should not have been dismissed at the outset because there was no agreement between the plaintiffs and the government, and he wrote that the government’s position would “effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and the limits of the law.”

Turning to Reynolds, Hawkins then wrote that “the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.”

He explained:

“[D]ismissal is justified if and only if specified privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant.”

Hawkins also wrote that while classification of information may be a strong indication of secrecy, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether the contents are secret within the meaning of the privilege.

“The government could not seriously argue, for example, that the Pentagon Papers remained ‘secret’ and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise ‘officially disclose’ the content of the papers,” he commented.

Joined by Judge Mary M. Schroeder and Senior Judge William C. Canby Jr., Hawkins similarly declined to evaluate hypothetical claims of privilege by the government until the district court could first consider them.

The plaintiffs’ attorney, Ben Wizner of the American Civil Liberties Union, said the decision marked “the beginning, not the end” of the litigation.

“It is now 2009 and no torture victim has achieved justice or compensation,” he said. “This finally puts us at the starting line.”

The case will return to the district court unless the government or the company seek en banc review before a larger panel of the Ninth Circuit, or ask the Supreme Court for review.

Wizner also commented that the 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.”

His client, Al-Rawi—who was released from the U.S. prison at Guantanamo Bay last year without having been charged with a crime, and who has returned to the United Kingdom—called the news “a huge step forward in our quest for justice.”

The company referred comment to the government, while Department of Justice spokesman Charles Miller said “the United States is reviewing the court’s decision.”

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. Some of the prisoners allege they were tortured.

The Bush White House had said the U.S. does not engage in torture.

The Obama administration says it will continue to send foreign detainees to other countries for questioning but only if U.S. officials are confident the prisoners will not be tortured. The White House is reviewing the entire detention and rendition program.

The case is Mohamed v. Jeppesen DataPlan, Inc., 08-15693.


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