An 11-judge federal appeals court panel will hear arguments in San Francisco Tuesday on whether five men who claim they were tortured in overseas prisons can sue a San Jose aviation company for allegedly aiding the CIA in so-called “rendition” flights.
The five men, all foreign citizens, claim Jeppesen DataPlan Inc. violated international human rights law by providing the CIA with plans and logistical support for flights that took them to secret prisons in Egypt, Morocco and Afghanistan in 2001, 2002 and 2003.
Jeppesen, a subsidiary of Boeing Co., is an aviation services company. The alleged CIA program to transport terrorism suspects to other countries for interrogation is known as extraordinary rendition.
The plaintiffs claim they were tortured while being interrogated in the prisons and that Jeppesen knew or reasonably should have known they would be subjected to alleged “forced disappearance, detention and torture” by CIA and foreign government officials.
The U.S. Justice Department has asked the panel of the 9th U.S. Circuit Court of Appeals to dismiss the case on the ground that allowing it to proceed would “pose an unacceptable risk to national security” by revealing state secrets.
Government lawyers wrote in a brief to the court, “In order to answer the complaint, Jeppesen would be required either to admit or deny the existence of a secret relationship with the CIA.”
That information and other alleged details of the case are national security secrets, the attorneys wrote.
The Justice Department attorneys successfully sought a hearing before a rarely convened 11-judge panel of the appeals court to reconsider a ruling issued by a three-judge panel of the same court in April.
In the earlier decision, the smaller panel unanimously said the government could seek secrecy for specific evidence, but could not seek dismissal of the entire case.
The plaintiffs are citizens of Ethiopia, Egypt, Italy, Iraq and Yemen. They say they were kidnapped in various locations in Pakistan, Gambia, Jordan and Sweden before being sent to the secret prisons.
They allege the torture included being beaten, given electric shocks, cut with a scalpel and deprived of sleep and food. Two claim they were kept in near-permanent darkness and exposed to loud noise 24 hours a day in an alleged CIA “dark prison” in Afghanistan.
The five men’s lawyers have argued that the government still has “ample tools to protect any legitimate secrecy interests.”
The attorneys said in a court filing that what is at stake is whether there is “any possibility of redress not only for these plaintiffs, but for any victims of the government’s unlawful torture policies.”
American Civil Liberties Union attorney Ben Wizner wrote, “Indeed, the sum and substance of the United States’ position in this litigation is that the government may engage in kidnapping and torture, declare those activities ‘state secrets,’ and by virtue of that designation alone avoid any judicial inquiry into conduct that even the government purports to condemn as unlawful in all circumstances.”
The panel is expected to take the case under consideration after hearing arguments at its courthouse at Seventh and Mission streets Tuesday morning and to issue a written ruling at a later date.
The lawsuit was filed in federal court in San Jose in 2007. The case came to the 9th Circuit after U.S. District Judge James Ware last year agreed with the state secrets argument and dismissed the lawsuit.
