Torn between claims of national security and pleas for redress for torture victims, a federal appeals court reluctantly dismissed a lawsuit Wednesday accusing a Bay Area aviation-planning company of arranging CIA flights of suspected terrorists to overseas dungeons.
Although much of the so-called extraordinary rendition program has been publicly disclosed, including the alleged role of Jeppesen Dataplan of San Jose, allowing the suit to proceed "would present an unacceptable risk of disclosing state secrets," the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 6-5 ruling.
The ruling is a victory for both President George W. Bush's administration, which directed the rendition program and acknowledged its existence, and the Obama administration, which promised to curb the program's excesses but argued that it was too sensitive to be litigated in court.
The American Civil Liberties Union said it would appeal to the Supreme Court. The high court has refused to review two rulings by other appeals courts dismissing suits against the government by men who said they were abducted by the CIA and flown to foreign torture chambers.
"Not a single victim of the Bush administration's torture program has had his day in court," ACLU lawyer Ben Wizner said.
The Justice Department emphasized that the Obama administration limited government invocations of secrecy in court last year by requiring a department committee to review all such claims, with Attorney General Eric Holder having the last word.
The policy is meant to "ensure that the state-secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognized that the policy was used appropriately in this case," said department spokesman Matthew Miller.
Extraordinary rendition is the practice of abducting suspected terrorists and taking them for interrogation to CIA prisons or foreign countries, including nations that the United States has condemned as human rights violators. The Bush administration said it always insisted on a guarantee that the prisoner would not be tortured.
Jeppesen, a Boeing Co. subsidiary, was described in a 2007 Council of Europe report as the CIA's aviation services provider. In a court declaration in the current suit, a company employee quoted a director as telling staff members in 2006 that Jeppesen handled the CIA's "torture flights."
The five plaintiffs accused the company of arranging their flights to foreign or CIA prisons, where they said they had been interrogated brutally. Two of the men are still being held in Egypt and Morocco, while the others have been released without U.S. charges.
Wednesday's ruling overturned an April 2009 decision by a three-judge appeals court panel that reinstated the suit. After a hearing that included a closed-door session with a government lawyer, and a private review of classified documents, the court majority said key elements of the case - such as Jeppesen's alleged relationship with the CIA - could not be examined without compromising U.S. security.
Judge Raymond Fisher wrote in the majority opinion that he could not publicly discuss the reasons for the court's conclusion, but was satisfied that the government was not invoking secrecy to "avoid embarrassment."
Fisher also said the plaintiffs could seek reparations from the administration or aid from Congress.
Dissenting Judge Michael Hawkins said the courts should decide legal disputes rather than "permitting the executive to police its own errors." He also said the court should have kept the case alive and required the government to show why specific evidence should remain secret.
The ruling can be read at sfgate.com/ZKGQ.