A federal appeals court in San Francisco agreed today to reconsider a ruling that allowed five men who claim they were tortured in overseas prisons to sue a San Jose aviation company.
The 9th U.S. Circuit Court of Appeals granted a request by the Obama Administration for a rehearing on the government’s claim that the lawsuit against Jeppesen DataPlan Inc. should be dismissed.
Jeppesen, a subsidiary of Boeing Co., is an aviation services company.
The five men, all foreign citizens, claim the company violated international human rights law by aiding the CIA in plane flights that took them in 2001, 2002 and 2003 to overseas sites where they were allegedly tortured while being interrogated.
The alleged CIA program to transport terrorism suspects to other countries for interrogation is known as extraordinary rendition. The lawsuit claims Jeppesen provided flight plans and other aviation support.
The Obama Administration has continued a Bush Administration claim that the lawsuit concerns so-called state secrets and allowing it to proceed “would pose an unacceptable risk to national security.”
A federal trial judge in San Jose agreed with that argument and dismissed the lawsuit last year.
But in April, a three-judge panel of the appeals court reinstated the lawsuit, saying that the government could seek secrecy for specific evidence but could not seek dismissal of the entire case.
In today’s action, the circuit court announced that the case will be reheard by an 11-judge panel. No date has been set for a hearing.
American Civil Liberties Union attorney Ben Wizner, a lawyer for the five men, said in a statement, “We are disappointed by the court’s decision to rehear this case, but we hope and expect that the court’s historic decision to allow the lawsuit to go forward will stand.”
Wizner alleged, “The CIA’s rendition and torture program simply is not a ‘state secret.””
“In fact,” Wizner said, “since the court’s decision in April, the government’s sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA’s detention and interrogation practices.”
The circuit court’s use of an 11-judge panel to review a decision of a three-judge panel is known as en banc review and is generally reserved for cases of great legal importance.
The court holds an average of about 20 en banc hearings per year, among the 13,000 appeals it receives annually from federal trial courts in nine western states.
The five plaintiffs are citizens of Ethiopia, Egypt, Italy, Iraq and Yemen. They say they were kidnapped in various locations including Pakistan and then sent on Jeppesen-supported CIA flights to Egypt, Morocco and Afghanistan, where they were allegedly tortured either by foreign security forces or in CIA-run prisons.