(CN) – The 9th Circuit voted 6-5 on Wednesday to dismiss a lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in the Bush administration’s extraordinary rendition program.
The ruling stemmed from a lawsuit filed by five men who claimed they suffered extensive torture at the hands of U.S. officials who suspected they had terrorist ties.
The men claimed that Jeppesen helped the CIA transport them to various prisons and holding cells around the world, including Guantanamo Bay, where they were held and forced to endure “severe physical and psychological torture” including routine beatings, broken bones, cuts all over the body with a scalpel, little food, castration, extended periods alone in a dark cell, sleep deprivation and death threats.
In April 2009, a three-judge panel for the 9th Circuit ruled that the government must invoke the state secrets privilege with respect to certain evidence if it wanted the case dismissed. The Obama administration appealed that ruling, and the 9th Circuit agreed to rehear the case before a full 11-judge panel.
Both the Bush and Obama administrations ultimately asserted the state secrets privilege, arguing that the Supreme Court has concluded that even the most compelling need can’t trump the privilege when state secrets are at stake.
Six of the 11 judges agreed.
“After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed,” Judge Raymond Fisher wrote for the majority.
Five judges, including Mary Schroeder, William Canby, Michael Hawkins, Sidney Thomas, Raymond Fisher and Richard Paez, joined in a dissent from the majority’s decision.
“The state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret,” Judge Hawkins wrote.
The plaintiffs are Ahmed Agiza, an Egyptian national; Abou Elkassim Britel, a 40-year-old Italian citizen from Morocco; Binyam Mohamed, a 28-year-old Ethiopian citizen and legal resident of the United Kingdom; Bisher al-Rawi, a 39-year-old Iraqi citizen and legal resident of the United Kingdom; and Farag Ahmad Bashmilah, a 38-year-old Yemeni citizen.