By Peter Finn
Washington Post Staff Writer
Thursday, September 9, 2010; A2
A closely divided federal appeals court in San Francisco has dismissed a lawsuit seeking damages from a private company that worked with the CIA as part of its "extraordinary rendition" program.
The court ruled Wednesday that the government's decision to invoke the "state secrets" privilege means that the case cannot go forward.
Five foreign plaintiffs who were allegedly transported by the CIA to countries such as Egypt and Morocco for interrogation had sued Jeppesen Dataplan, a Boeing subsidiary, which provided flight planning and logistical support services. The five men said that they were tortured by foreign intelligence services working with the CIA and that Jeppesen was a critical player in the agency's rendition program.
After the suit was filed in 2007, the Bush administration invoked the state secrets privilege. Then-CIA Director Michael V. Hayden told a U.S. District Court in a declaration that "the information covered by this privilege assertion reasonably could be expected to cause serious - and in some instances exceptionally grave - damage to the national security of the United States and, therefore, the information should be excluded from any use in this case."
Attorney General Eric H. Holder Jr. reviewed and endorsed the Bush administration's decision to seek the lawsuit's dismissal on the grounds that the suit would divulge state secrets.
A U.S. District Court judge first dismissed the lawsuit. That decision was overturned by a unanimous panel of three appellate judges, who said the privilege could be applied only to selective pieces of evidence and not the entire case. On Wednesday, a full panel of 11 judges on the U.S. Court of Appeals for the 9th Circuit split 6 to 5 in favor of dismissing the lawsuit.
"This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security," wrote Judge Raymond C. Fisher, adding that the court must "reluctantly conclude" that the claim of privilege cannot be overcome "if the court is ultimately satisfied that [state] secrets are at stake."
The lawsuit was brought by the American Civil Liberties Union, which vowed to appeal to the Supreme Court but acknowledged in a statement that the ruling "all but shuts the door on accountability."
"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," said Ben Wizner, staff attorney with the ACLU, who argued the case before the 9th Circuit.
In recent years, the government has invoked the state secrets privilege in a number of cases, including various suits concerning the National Security Agency's wiretapping program.
A Justice Department spokesman said the government would not comment on the ruling.
Previously, the Justice Department said it will invoke the state secrets privilege "only in legally appropriate situations" and that the department "will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know."