Court rebuffs state secrets claim in rendition case

The U.S. Court of Appeals in San Francisco (9th Cir.) yesterday reinstated a lawsuit brought by former detainees who claim they were tortured as part of the Central Intelligence Agency’s “extraordinary rendition" program.

The case, Binyam Mohamed et al. v. Jeppesen Dataplan, Inc., was brought by five former detainees who claimed that a Boeing subsidiary helped transport them to foreign countries where they were tortured. The Bush administration first asked to dismiss the case on the ground that it would reveal state secrets; the new administration said in February that it intended to continue asserting the state secrets privilege in the case.

According to the appellate court, the government argued that state secrets "form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official.” But the court rejected that broad state secrets claim “not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty to say what the law is . . . and the Executive’s constitutional duty to preserve the national security.”

The court of appeals sent the case back to the trial court, telling it to determine what evidence must be withheld under the privilege and dismiss the case “[o]nly if privileged evidence is indispensable to either party.”