Court Rebuffs Feds, Reinstates Torture Suit

Court rebuffs feds, reinstates torture suit

http://www.sfgate.com/cgi-bin/articl...AH7A.DTL&tsp=1

Bob Egelko, Chronicle Staff Writer
Wednesday, April 29, 2009

(04-28) 11:58 PDT SAN FRANCISCO -- A federal appeals court rebuffed the Obama administration's assertion of secrecy Tuesday and reinstated a lawsuit by five men who say a Bay Area subsidiary of Boeing Co. helped the CIA fly them to foreign countries to be tortured.

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco is the first major setback for the new administration's attempt to use secrecy doctrines to fend off challenges to clandestine activities authorized by President George W. Bush. President Obama's Justice Department is also defending a Bush wiretapping program in lawsuits pending in San Francisco.

Tuesday's ruling involved extraordinary rendition, the practice of abducting suspected terrorists and criminals without any extradition or legal proceedings, and taking them to foreign countries or CIA prisons for interrogation. The defendant, Jeppesen Dataplan of San Jose, was described in a 2007 Council of Europe report as the CIA's aviation services provider.

The Bush administration used rendition extensively but maintained it never took a prisoner to another country without obtaining assurances that no torture would be used.

Its legal argument, endorsed by an Obama administration lawyer at a hearing in February, was that any lawsuit by the alleged torture victims could reveal national security secrets, such as government-sanctioned interrogation methods and the CIA's relationships with contractors.

But the court said the nation's laws apply to all its programs, including those that involve state secrets.

"According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," Judge Michael Hawkins said in the 3-0 ruling.

Allowing the government to shield its conduct from court review simply because classified information is involved "would ... perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process," Hawkins said.

He said the government and Jeppesen can take steps to protect national secrets as the case proceeds. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the company to defend itself, the court said.

The court did not address the plaintiffs' claims that they had been kidnapped and tortured, but said judges have an important role to play in reviewing allegations of secret government conduct that violates individual liberties.

"As the founders of this nation knew well, arbitrary imprisonment and torture under any circumstances is a 'gross and notorious ... act of despotism,' " Hawkins said, citing language from a 2004 Supreme Court decision.

Jeppesen declined to comment, and Justice Department spokeswoman Tracy Schmaler said only that the department was reviewing the ruling. The company or the government could seek further review from a larger panel of the appeals court or from the U.S. Supreme Court.

If those efforts fail, the case will return to U.S. District Judge James Ware in San Jose to consider whether it should go to trial. Ware dismissed the case in February 2008.

An attorney representing the plaintiffs, Ben Wizner of the American Civil Liberties Union, said they will become "the first torture victims to really have their day in court."

He said the ruling should demolish "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."

The plaintiffs are Binyam Mohamed, an Ethiopian-born British resident who was arrested in Pakistan; Ahmed Agiza, an Egyptian taken prisoner in Sweden, where he was applying for asylum; Abu Britel, an Italian of Moroccan descent captured in Pakistan; Bisher al-Rawi, an Iraqi living in Britain who was arrested in Gambia; and Ahmed Bashmilah, a Yemeni detained during a visit to his ailing mother in Jordan.

All say they were turned over to U.S. authorities, flown to other countries and subjected to brutal interrogations in foreign or CIA prisons.

They say their flights were arranged by Jeppesen, which has denied wrongdoing. In a court declaration, a company employee quoted a Jeppesen director as telling staff members in 2006 that the company handled the CIA's "torture flights."

Agiza is still being held in Egypt and Britel in Morocco. The others have been released without U.S. charges.