The Supreme Court is being asked to review a lawsuit a lower court had dismissed against a Boeing subsidiary accused of helping the CIA transport detainees to secret foreign prisons where they allegedly were tortured.

The appeal to the high court concerns a September decision by the San Francisco-based 9th U.S. Circuit Court of Appeals, which cited the Obama administration’s evocation of the state secrets privilege as grounds for dismissing the case. The lawsuit was brought by five foreign nationals who claimed the CIA, working with other governments, operated a so-called “extraordinary rendition” program to gather intelligence.

Ruling 6-5, a panel of the 9th U.S. Circuit Court of Appeals had ruled it was bound by a 1953 Supreme Court precedent (.pdf) requiring judges to dismiss cases if litigating them might expose government secrets and imperil national security.

“The Supreme Court has not reviewed the government’s use of the ’state secrets’ privilege in more than half a century. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ’state secrets,’ and thus avoid any judicial oversight or accountability,” said Steven Shapiro, legal director of the American Civil Liberties Union, which urged the justices Tuesday to review the appellate decision.

The state secrets privilege is a defense first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, judges at the government’s request toss lawsuits in which national-security information may be divulged.

President Barack Obama has continued to invoke the privilege in cases left over from the George W. Bush administration, and has argued for it in newer cases as well.

The rendition program at issue, the appeals court said, called for apprehending foreign nationals suspected of terrorism and secretly transferring them to foreign countries “to employ interrogation methods that would otherwise have been prohibited under federal or international law.”

The plaintiffs sued Jeppesen Dataplan, a California-based subsidiary of Boeing, which they accused of providing aircraft and “logistical support” to the alleged rendition program.

First the Bush administration, and then the Obama administration, urged the courts to toss the case based on the state secrets privilege. Then-CIA Director Michael Hayden said the lawsuit threatened to impose “exceptionally grave” damage to U.S. national security, an assertion later backed by Attorney General Eric Holder.

See Also:

• Citing Obama’s State Secrets Privilege, Court Tosses Torture Case
• Obama Stands Behind ‘State Secrets’ in Spy Case
• In Spy Case, Obama’s Justice Department Holds Fast to State
• New Attorney General Orders Review of Bush-Era State Secrets
• Obama: State Secrets Privilege Is ‘Overbroad’
• Judge Questions “State Secrets” Claim in AT&T Spy Case
• Ninth Circuit Accepts Appeal of Anti-State Secrets Decision
• Feds Say ‘Dragnet’ Surveillance Lawsuit Threatens Security

Authors: David Kravets

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