Appeals Court Rejects 'State Secrets' Claim, Revives Detainee Suit

Sen. Russell Feingold (D-Wis.) says judges should weigh executive privilege.
Sen. Russell Feingold (D-Wis.) says judges should weigh executive privilege. (By Melina Mara -- The Washington Post)
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By Carrie Johnson
Washington Post Staff Writer
Wednesday, April 29, 2009

A federal appeals court yesterday reinstated a lawsuit by five former detainees who sued a Boeing subsidiary over its alleged role in transporting them to foreign countries, where they say they suffered brutal interrogation under the CIA's "black site" prison system.

Three judges on the U.S. Court of Appeals for the 9th Circuit batted aside claims by the Obama administration that the suit would reveal "state secrets" at the heart of the agency's covert operations and so should be dismissed.

The former detainees claim that logistics company Jeppesen Dataplan should pay monetary damages for its role in conspiring with officials in the United States and other countries to fly the men overseas, where they allegedly experienced electric shocks, beatings and sleep deprivation, among other things.

But the lawsuit foundered after the Bush White House, and later the Obama administration, invoked the state-secrets privilege and asked a trial judge to throw out the claim, which stems from the CIA's disbanded program of "extraordinary rendition" for suspected terrorists. Then-CIA Director Michael V. Hayden told the court that disclosure of some of the information could cause "serious and in some instances exceptionally grave damage to the national security of the United States."

Yesterday, the appeals court panel allowed the case to proceed, at least for now, without making a prediction about the detainees' ability to win. The unanimous panel, Judges Michael Daly Hawkins, Mary M. Schroeder and William C. Canby Jr., rejected administration arguments that the very nature of the dispute was secret and said a judge should weigh, on a case-by-case basis, what kinds of evidence the detainees could receive and use in court.

The judges asserted that the plaintiffs did not necessarily need to delve deeply into the CIA's clandestine rendition program. Rather, the ruling said that detainees needed to prove only that Jeppesen provided support for the flights on which the five men were transported to foreign prisons while knowing the passengers would be subjected to torture there.

The appeals court panel noted in a footnote that the executive branch in the past had misused the state-secrets argument to cloak revelations that would embarrass federal agencies, rather than to protect sensitive operations from the eyes of enemies.

To side with the government, the court ruling said, would mean that judges "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."

The appeals court decision opens the door on a chapter of recent history that Obama has said he would prefer would remain in the past.

"This historic decision marks the beginning, not the end, of this litigation," ACLU staff attorney Ben Wizner, who argued the case, said in a statement. "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." Three of the plaintiffs have been released, and two remain in prison in other countries.

CIA spokesman George Little declined to comment yesterday, and Charles Miller, a spokesman for the Justice Department, said that officials there were reviewing the court's order. Authorities have the option of seeking a review from the full 9th Circuit appellate court or asking the U.S. Supreme Court to intervene.

The court ruling came on the same day that Sen. Russell Feingold (D-Wis.) criticized the Obama administration for invoking the state-secrets privilege three times this year. Civil liberties groups have said the new White House is reflexively using the argument, which they assert is at odds with Obama's campaign promises of transparency.

Feingold and two other Senate Democrats have sponsored a bill that would urge judges to play a greater role in evaluating executive branch assertions of executive privilege.

Staff researcher Julie Tate contributed to this report.

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