, WASHINGTON, Sep 9 – A US court dismissed a lawsuit against a Boeing subsidiary for allegedly flying terror suspects to secret CIA sites for interrogation, saying the case could have exposed state secrets.
The Ninth Circuit Court of Appeals in San Francisco agreed with President Barack Obama\’s administration that state secrets would be revealed if it allowed the case against Jeppesen Dataplan to go ahead.
The Boeing unit was accused of facilitating flights for the CIA\’s "extraordinary rendition" program, used by the administration of president George W. Bush after the September 11, 2001 attacks that killed nearly 3,000 people.
The program involved the transfer of "war on terror" suspects by the CIA to countries known to practice torture.
The American Civil Liberties Union (ACLU) filed the case in 2007 on behalf of five former detainees who said they were kidnapped, transported to foreign countries and tortured in the custody of foreign governments or the US Central Intelligence Agency.
Judge Raymond Fisher said the case presents a "painful conflict between human rights and national security," but added that the court "reluctantly" came to the conclusion that the need to protect state secrets here superseded that of the plaintiff to present his case.
"Jeppesen\’s alleged role and its attendant liability cannot be isolated from aspects that are secret and protected," he added.
Ben Wizner, an ACLU staff attorney who argued the case before the appeals court, said the group was disappointed in the ruling.
"This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation\’s reputation in the world," he said in a statement.
"To date, not a single victim of the Bush administration\’s torture program has had his day in court. If today\’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers."
The ACLU said it would appeal the ruling to the Supreme Court, which has not issued a major ruling on the doctrine of the government\’s privilege to state secrets in over 50 years.
In April 2009, the same appeals court — in a smaller panel of three judges — had backed the plaintiffs and ordered the case to go forward in a major victory for those seeking court sanctions against the Bush administration\’s counterterrorism policies.
But the Obama team — which has pursued a reform of major counterterrorism policies, including a more restricted CIA rendition program — after taking power from the Bush administration, appealed that ruling to the full appeals court.
Two of the five plaintiffs are still in custody — one in Morocco and the other in Egypt. The other three were freed by the US government without charge.
Binyam Mohammed, an Ethiopian citizen who was released from the Guantanamo Bay prison camp to Britain in February 2009, is the lead plaintiff in the case.
He claims he was secretly flown in 2002 to Morocco, where he was tortured before being taken in 2004 to Kabul, where he says he was also subjected to torture before being sent to Guantanamo.
Fisher, the appeals court judge, urged the federal government and Congress to consider granting the plaintiffs reparations if their allegations are found to be true in secret documents — even if they can no longer seek judicial relief.
He cited as an example of precedent reparations made to Japanese Americans abducted from Latin America during World War II to be interned in the United States.
"The government, having access to the secret information, can determine whether plaintiffs\’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs\’ human rights," Fisher added, also demanding the government pay the plaintiffs\’ litigation costs.
"Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands."
But Judge Michael Hawkins, writing for the dissenting minority, criticized such a move.
"Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive plaintiffs of a fair assessment of their claims by a neutral arbiter," he wrote.