CIA 'Torture Flights' Case to Go Before Full 9th Circuit

All the judges on the 9th U.S. Circuit Court of Appeals will sit for a rehearing to decide whether five suspected terrorists can proceed with a lawsuit alleging that Boeing subsidiary Jeppesen Dataplan Inc. helped the CIA torture them by handling flights for the agency.

Chief Judge Alex Kozinski granted the government's petition for rehearing en banc and said oral argument will take place in San Francisco during the week of Dec. 14.

The federal government asked for a full court rehearing after a three-judge panel of the appeals court ruled that the suit was not barred under the state-secrets privilege.

The American Civil Liberties Union sued Jeppesen in 2007 in the U.S. District Court for the Northern District of California on behalf of five men who claim the CIA flew them to other countries to be tortured.

The ACLU alleges Jeppesen assisted the CIA by providing flight services for the spy agency's "extraordinary rendition" program.

The program involves the clandestine, forcible transportation of terror suspects to secret jails in countries where torture is practiced, according to the complaint.

In addition to operating the planes, Jeppesen provided flight planning services, obtained landing permits, arranged for fueling, booked lodging for plane crews, paid airport landing costs and filed flight plans with foreign governments, the complaint says.

The ACLU alleges that while providing these services, Jeppesen knew or should have known that the plaintiffs had been forcibly apprehended and would be subject to detention and torture in foreign nations.

The civil rights organization contends that Jeppesen is liable under the Alien Tort Claims Act, which allows foreign citizens to sue in the United States.

The suit raises claims under the statute for forced disappearance and torture and other cruel, inhumane or degrading treatment.

Although the United States was not named as a defendant, the District Court allowed it to intervene in the suit to assert the state-secrets privilege on behalf of itself and its contractor, Jeppesen.

The government said the suit should be dismissed because it involves state secrets concerning the CIA's operations.

U.S. District Judge James Ware agreed in a February 2008 opinion, holding that the plaintiffs' allegations concern covert U.S. military and CIA overseas operations against foreign nationals.

The state-secrets privilege, which can only be raised by the government, applies when there is a danger that evidence in a case potentially would compromise national security interests, the judge said.

The ACLU appealed to the 9th Circuit.

The three-judge panel reversed and remanded the case to the District Court April 28.

Writing for the panel, Judge Michael Hawkins said that when determining that the privilege applied, Judge Ware relied on Totten v. United States, 92 U.S. 105 (1875).

He said Totten provides that a suit based on the existence and content of a secret agreement between a plaintiff and the government must be dismissed because the case's subject matter also is secret.

Judge Hawkins said it was the government's position that Totten requires dismissal of the instant suit because it is based on the existence of an alleged secret agreement with the government.

He rejected this assertion and ruled that Totten did not apply because it requires that the plaintiffs, and not Jeppesen, have a contract or an agreement with the United States.

Judge Hawkins said Totten bars only suits that would reveal a plaintiff's secret relationship with the government.

He said Totten does not apply when third-party plaintiffs seek compensation from government contractors for the contractor's alleged involvement in tortuous activities.

The judge said the subject matter of the plaintiffs' suit was not a state secret and therefore the matter should not have been dismissed.

After the government asked for the rehearing en banc, the three-judge panel issued an amended opinion Aug. 31 in which it arrived at the same conclusion to reverse Judge Ware's dismissal. However, the amended opinion alters some of the text and footnotes in Judge Hawkins' ruling.

Chief Judge Kozinski granted the government's rehearing request after a majority of the 9th Circuit judges agreed that the full court should review the case.

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