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Published on Tuesday, April 28, 2009 by the San Francisco Chronicle

Court Rebuffs Feds, Reinstates Torture Suit

by Bob Egelko

SAN FRANCISCO - A federal appeals court rebuffed the Obama administration's assertion of secrecy today 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.

A lawyer from President Obama's Justice Department argued to the court in February that the issues surrounding the "extraordinary rendition," program, including government-sanctioned interrogation methods and the company's alleged connection to the CIA, were so sensitive that the very existence of the suit threatened national security.

The Bush administration had taken the same position and persuaded a federal judge in San Jose to dismiss the suit.

In today's ruling, however, the Ninth U.S. Circuit Court of Appeals in San Francisco said the government and the company could take steps to protect national secrets as the case proceeded. The suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the Bay Area company to defend itself, the court said.

"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.

The court did not address the plaintiffs' claims that they were 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.

Either the administration or the company, Jeppesen Dataplan, a San Jose subsidiary of Boeing, 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.

"This decision begins the lawsuit. It doesn't end it," said Ben Wizner, an American Civil Liberties Union attorney representing the plaintiffs. But he said the ruling was potentially historic.

"These will be the first torture victims to really have their day in court," he said.

Extraordinary rendition refers to the practice of abducting suspected criminals and terrorists without any extradition or legal proceedings, and taking them to foreign countries or CIA prisons for detention and interrogation.

The Bush administration, which used the practice extensively, maintained it never took a prisoner to a foreign country without first obtaining assurances that no torture would be used.

Two of the five plaintiffs in the lawsuit against Jeppesen Dataplan are still imprisoned, one on Morocco and one in Egypt, and the others have been released without charges from the U.S. naval base at Guantanamo Bay, Cuba. All say they were subjected to brutal interrogations in overseas prisons run by foreign governments or the CIA, and all accuse Jeppesen of arranging their flights.

A Council of Europe report in 2007 identified the company as the CIA's aviation services provider. A company employee, in a court declaration, quoted a Jeppesen director as telling staff members in 2006 that the company handled torture flights for the CIA.

© 2009 Hearst Communications Inc.
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