(CN) – Five men who say the CIA ordered them tortured over suspected terrorist ties asked the Supreme Court to hear their appeal. The American Civil Liberties Union filed the petition on the men’s behalf.
In a September split-court decision, the 9th Circuit dismissed the men’s lawsuit against Boeing subsidiary Jeppesen DataPlan, which they say handled their transportation to prisons and detention centers around the world at the direction of the CIA under the extraordinary rendition program.
The United States had intervened as a defendant, and the Bush and Obama administrations argued for dismissal under the state secretes privilege.
“Jeppesen’s involvement in the rendition flights described above, as well as many others, is a matter of public record, traceable in flight plans and other documents filed with national and inter-governmental aviation authorities in the United States and across Europe,” according to the ACLU’s appeal.
The ACLU says the government is wrong to invoke privilege at the pleading stage, “before any evidentiary disputes have arisen.”
“The consequence of this transformation has been that a broad range of official misconduct has been shielded from judicial review after government officials have invoked the privilege to avoid adjudication,” the petition states.
The ACLU also claims that the Supreme Court has not weighed in on the government’s privilege claims since 1953, and there is a lot of confusion among the lower courts.
“Under a system predicated on respect for the rule of law, the government has no privilege to violate our most fundamental legal norms, and it should not be able to do so with impunity based on a state secrets privilege that was developed to achieve very different ends,” the ACLU writes.