(CN) – The 9th Circuit reinstated the claims of five former detainees who sued a Boeing subsidiary over its role in transporting them to foreign countries, where they were allegedy interrogated and tortured under the CIA’s “extraordinary rendition” program. The court rejected the government’s claim that the case must be dismissed to protect state secrets.
The men, all foreigners, said they were beaten, shocked, deprived of sleep and food, cut with a scalpel, blindfolded and handcuffed, kept in squalid conditions, forced to endure 24-hour light and loud noise, and threatened with sexual torture, among other forms of torture.
Three men were eventually released; two are serving prison terms in their native countries of Morocco and Egypt.
They filed suit against Boeing subsidiary Jeppesen Dataplan, claiming it participated in their forced abductions and torture by providing logistical support to the planes and flight crews that transported the men to their detention sites. At minimum, the men claimed, Jeppesen acted with reckless disregard for whether the passengers it helped transport would be tortured by agents of the United States, Morocco, Egypt and Jordan.
Before Jeppesen answered the claims, the United States intervened, asserting the state-secrets privilege. Former CIA Director Michael Hayden issued a public statement warning that further disclosure would gravely threaten national security.
The district judge granted the government’s motions to intervene and to dismiss on the basis that some of the government’s contracts, such as with a federal spy, were made on the condition of secrecy.
But the federal appeals court in San Francisco reversed, saying the plaintiffs advanced a few theories of liability that don’t require proof of a secret relationship between Jeppesen and the government. These claims “do not necessarily require establishing that the United States operated an extraordinary rendition program, much less that Jeppesen entered into a secret agreement with the government to assist in such a program,” Judge Hawkins wrote.
The three-judge panel also rejected the government’s argument that because the case hinges on state secrets, it must be dismissed.
“According to the government’s theory,” Hawkins wrote, “the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”
The court reversed and remanded, saying it needed more information to determine if the state-secrets privilege applies. It asked the district court to determine what evidence is privileged, and whether any of that evidence is crucial for either party.
“Only if privileged evidence is indispensable to either party should it dismiss the complaint,” Hawkins concluded.