British resident Binyam Mohamed is among five plaintiffs who claim CIA torture.

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

The appeal the justices shunned Monday, without comment, concerned 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 Circuit Court 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 state secrets privilege was 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 and its agents from court scrutiny. At the government’s request, judges generally toss lawsuits in which national-security information may be divulged.

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 subsidiary of Boeing, which they accused of providing aircraft and “logistical support” to the alleged rendition program.

First the George W. Bush administration, and then the Barack 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.

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