Yesterday, a federal appeals court announced that it will hear the government’s appeal of an earlier ruling that allowed the ACLU’s lawsuit against Boeing subsidiary, Jeppesen DataPlan Inc., to go forward. In 2007, we sued Jeppesen for its role in the Bush administration’s unlawful “extraordinary rendition” program. Our lawsuit was filed on behalf of five men who were forcibly disappeared and then tortured in U.S.-run secret overseas prisons or by foreign intelligence agents.

Shortly after the lawsuit was filed, the Bush administration intervened, improperly asserting the “state secrets” privilege and asking the judge to have the case thrown out without considering any evidence in support of the mens’ case. Although the lower court upheld the government’s claims, in April, a three-judge panel reversed the lower court’s dismissal (PDF) of the lawsuit. The panel held, contrary to the assertions of Obama administration lawyers, and as we had argued, that the “state secrets” privilege can only be invoked with respect to specific evidence, and not to dismiss the entire suit. In June, the Obama administration appealed the decision, and asked an “en banc” panel of 11 judges to rehear the case, which the court announced yesterday that it will hear.

Ben Wizner, staff attorney with the ACLU’s National Security Project, and counsel in the case, stated:

“We are disappointed by the court’s decision to re-hear this case, but we hope and expect that the court’s historic decision to allow the lawsuit to go forward will stand. The CIA’s rendition and torture program simply is not a ‘state secret.’ In fact, since the court’s decision in April, the government’s sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA’s detention and interrogation practices. The Obama administration’s embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law.”

The San Francisco Chronicle’s coverage of the rehearing points out that, “Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without U.S. charges.” To date, no torture victim from the Bush-administration’s “War on Terror” has had his day in court.

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