SAN FRANCISCO -
A federal appeals court granted the Obama administration's request
Tuesday to rehear a case over a Bay Area company's alleged
participation in CIA torture flights, setting the stage for a critical
test of government claims of secrecy and national security.
The Ninth U.S. Circuit Court of Appeals in San Francisco had
reinstated a suit in April by five men who accused the company,
Jeppesen Dataplan of San Jose, of taking part in the CIA's
extraordinary rendition program that led to their imprisonment and
torture. The 3-0 ruling rejected arguments by the Bush and Obama
administrations that the case concerned secrets too sensitive to
disclose in court.
The full appeals court set aside that ruling Tuesday and said a
majority of its judges had voted to refer the case to an 11-judge panel
for a new hearing, on a date not yet scheduled.
The court said six of its 27 judges had disqualified themselves from
the case, for reasons that were not disclosed. The six included Judge
Jay Bybee, who as a Justice Department lawyer in the Bush
administration wrote a March 2002 memo saying the president could
legally transfer captives to foreign custody.
Judge Stephen Reinhardt, whose wife, Ramona Ripston, is the American
Civil Liberties Union's executive director in Southern California, also
disqualified himself. The ACLU represents the plaintiffs in the case.
Extraordinary rendition is the practice of abducting suspected
terrorists and criminals from foreign soil without any extradition or
legal proceedings, and taking them to other countries or CIA prisons
President George W. Bush's administration used rendition extensively
but said it always received assurances from foreign countries that they
would not torture prisoners. President Obama criticized the practice
but refused to disavow it, promising only that no prisoners would be
The Jeppesen case became an early test of Obama's policies after
U.S. District Judge James Ware dismissed the lawsuit in February 2008,
saying it could expose state secrets. The Obama administration's
Justice Department backed Ware's ruling before the appeals court panel
that ultimately reinstated the suit.
The rendition program, and a private contractor's alleged
relationship with the CIA, are so sensitive that any legal proceedings
"would pose an unacceptable risk to national security," government
lawyers told the court.
Ben Wizner, an ACLU attorney, said Tuesday that he was "disappointed
that the Obama administration continues to stand in the way of torture
victims having their day in court."
"This case is not about secrecy. It's about immunity from accountability," Wizner said.
Of the five plaintiffs, two are still imprisoned in Egypt and
Morocco, and the other three were released without U.S. charges. They
said they had been snatched from foreign countries, flown abroad and
subjected to brutal interrogation in foreign or CIA prisons. The suit
accuses Jeppesen, a Boeing Co. subsidiary, of arranging the flights.
A Council of Europe report in 2007 described Jeppesen as the CIA's
aviation services provider. In a court declaration, a former employee
quoted a company official as telling staff members in 2006 that
Jeppesen handled the CIA's "torture flights."
In the April ruling reinstating the lawsuit, the three-judge appeals
court panel said the government and Jeppesen could take steps to
protect national secrets as the case proceeded.
The panel said the administration's argument, if accepted, would
"cordon off all secret government actions from judicial scrutiny,
immunizing the CIA and its contractors from the demands and limits of