Ninth Circuit rejects state secrets claim in rendition lawsuit against Boeing subsidiary

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Tuesday that the state secrets privilege [JURIST news archive] does not bar a lawsuit against a company that allegedly provided logistical support for CIA rendition [JURIST news archive] flights. Plaintiffs Binyam Mohamed [Reprieve profile; JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi allege that Jeppesen Dataplan [corporate website], a wholly owned subsidiary of Boeing [corporate website], knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. The US Department of Justice (DOJ) [official website] intervened [JURIST report] in 2007 before the defendant filed an answer, arguing that the lawsuit posed a risk to national security. In overturning the lower court's dismissal of the case [JURIST report], the Ninth Circuit ruled that the state secret privilege must be based on actual evidence in the case, not on what evidence might be involved in the case:

Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.
The American Civil Liberties Union (ACLU) [advocacy website], which filed the suit [JURIST report] on plaintiffs' behalf, welcomed [press release] Tuesday's ruling, saying, "[t]his historic decision marks the beginning, not the end, of this litigation."

In February, the Obama administration reasserted the state secret privilege [JURIST report] in the case, drawing criticism from advocacy groups including the ACLU. On the same day, Attorney General Eric Holder [official profile] ordered a review of all government claims invoking the state secrets privilege. The state secrets privilege was regularly invoked by the Bush administration to block lawsuits over controversial anti-terrorism programs, including warrantless surveillance [JURIST news archive]. In September, a secrecy "report card" [text, PDF; JURIST report] released by OpenTheGovernment.org [advocacy website] revealed that the Bush administration invoked the state secrets privilege "45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years."

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