NEW YORK – A federal appeals court today ruled that a landmark American Civil Liberties Union lawsuit against Boeing subsidiary Jeppesen DataPlan Inc. for its role in the Bush administration's unlawful extraordinary rendition program can go forward. The U.S. Court of Appeals for the Ninth Circuit reversed a lower court dismissal of the lawsuit, brought on behalf of five men who were kidnapped, forcibly disappeared and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The government had intervened, improperly asserting the "state secrets" privilege to have the case thrown out. Today, the U.S. Court of Appeals for the Ninth Circuit ruled, as the ACLU has argued, that the government must invoke the state secrets privilege with respect to specific evidence, not to dismiss the entire suit.
"This historic decision marks the beginning, not the end, of this litigation," said Ben Wizner, staff attorney with the ACLU National Security Project, who argued the case for the plaintiffs. "Our clients, who are among the hundreds of victims of torture under the Bush administration, have waited for years just to get a foot in the courthouse door. Now, at long last, they will have their day in court. 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."
In its ruling, the court wrote that "the Executive's national security prerogatives are not the only weighty constitutional values at stake," and quoted the Supreme Court's decision in Boumediene v. Bush that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adhering to the separation of powers."
"The extraordinary rendition program is well known throughout the world," said Steven Watt, a staff attorney with the ACLU Human Rights Program. "The only place it hasn't been discussed is where it most cries out for examination – in a U.S. court of law. Allowing this case to go forward is an important step toward reaffirming our commitment to domestic and international human rights law and restoring an America we can be proud of. Victims of extraordinary rendition deserve their day in court."
"I am happy to hear this news," said Bisher Al-Rawi, a plaintiff in this case who was released from Guantánamo last year without ever having been charged with a crime. "We have made a huge step forward in our quest for justice."
In recent years, the government has asserted the state secrets claim with increasing regularity in an attempt to throw out lawsuits and justify withholding information from the public not only about the rendition program, but also about illegal wiretapping, torture and other breaches of U.S. and international law.
Mohamed et al. v. Jeppesen was brought on behalf of Al-Rawi, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza and Mohamed Farag Ahmad Bashmilah.
In addition to Wizner and Watt, attorneys in the lawsuit are Steven R. Shapiro and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.
US Court of Appeals Ruling (April 28, 2009)