A divided federal appeals court in San Francisco dismissed a lawsuit by a 6-5 vote in which five men who claim they were tortured in overseas prisons sought to sue a San Jose aviation company for allegedly aiding the CIA in transporting them to the prisons.
The 9th U.S. Circuit Court of Appeals said that allowing the lawsuit against Jeppesen DataPlan Inc., a subsidiary of Boeing Co., to proceed would endanger national security secrets.
Circuit Judge Raymond Fisher wrote that the case “presents a painful conflict between human rights and national security.”
But Fisher, writing for the majority, said, “There is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.”
The five men, all foreign citizens, claim the company violated international human rights law by providing the CIA with plans and logistical support for so-called rendition flights that took them to secret prisons in Egypt, Morocco and Afghanistan in 2001, 2002 and 2003.
The appeals panel overruled a decision in which a three-judge panel of the same court last year refused to dismiss the entire lawsuit, although the smaller panel said the government could seek secrecy for specific evidence.
The lawsuit was filed in federal court in San Jose on behalf of the five men by lawyers from the American Civil Liberties Union.
ACLU attorney Ben Wizner said the group will appeal to the U.S. Supreme Court.
“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,” Wizner said.
The five 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 argument that the lawsuit should be dismissed under the state secrets doctrine was begun by the administration of President George W. Bush and continued by President Obama’s administration.
Justice Department spokesman Matthew Miller said, “The attorney general adopted a new policy last year to ensure the state secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case.”
