Mohamed v. Jeppesen Dataplan, Inc.
In a historic decision on April 21, 2009, the U.S. Court of Appeals for the Ninth Circuit reinstated our landmark lawsuit against Boeing subsidiary Jeppesen DataPlan Inc. for its role in the Bush administration's unlawful extraordinary rendition program. The court ruled that cases like this one may not be dismissed on the grounds that "the very subject matter" of the lawsuit is a state secret. Rather, the government must invoke the state secrets privilege with respect to specific evidence, on an item-by-item basis. This ruling means that the courthouse doors may remain open for judicial review of claims of executive abuse of power.
The ACLU Foundation of Northern California and the national ACLU filed the suit in May 2007, charging that Jeppesen knowingly provided support for the CIA’s extraordinary rendition program. Our suit was 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 suit charges that Jeppesen knowingly provided logistical services to the CIA in connection with the clandestine flights that took our five clients to the overseas locations where they were subjected to torture and other forms of cruel, inhuman, and degrading treatment. Jeppesen’s actions violate the Alien Tort Statute, which permits non-U.S. nationals to sue in American courts for violations of the law of nations or a United States treaty.
The government moved to dismiss the case, arguing that litigation involving the program would harm national security by revealing "state secrets." In opposing the government's motion, we submitted a wealth of detailed information about the rendition program that is already in the public domain, including a sworn statement by a former Jeppesen employee that shows that Jeppesen knew that it was helping with "torture flights." Although the district court granted the motion, the Ninth Circuit reversed. The Government and Jeppesen have now asked the Ninth Circuit to have an 11-member panel of judges rehear the case en banc. We are awaiting the court's decision as to whether it will grant the request.