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State Secrets, Take 3

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December 10, 2009

Next week, a panel of 11 judges from the 9th Circuit federal appeals court will hear the government’s appeal of an earlier ruling that allowed our lawsuit against Boeing subsidiary, Jeppesen DataPlan, Inc. to proceed. 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 by the CIA and then tortured in U.S.-run secret overseas prisons or by foreign intelligence agents.

This ACLU video explains more about our case against Jeppesen.

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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’ claims of forced disappearance and torture. Although the lower court upheld the government’s assertions, in April , a three-judge panel reversed the lower court’s dismissal (PDF) of the lawsuit. The panel held, contrary to the pleas 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 an entire suit. In June , the Obama administration appealed the decision. An en banc panel of 11 judges will hear the appeal next week, on December 15 in San Francisco.

While we are disappointed by the court’s decision to re-hear the case, we hope and expect that the court’s earlier ruling permitting the lawsuit to go forward will stand. As one of our plaintiffs in the case, Bisher al-Rawi , points out in the video, the CIA’s rendition and torture program is not a state secret, and there is a significant and ever growing body of public information about the CIA’s extraordinary rendition program and Jeppesen’s role in that program.

The government’s overbroad claims of secrecy have so far denied all victims of U.S. sponsored torture, including Bisher, their day in court and shielded torturers from accountability. Victims of torture should have their day in court and perpetrators of torture should be held accountable. But don’t just take our word for it — one of our plaintiffs, Mohamed Farag Bashmilah , recently penned an opinion piece about his forced disappearance in the name of national security . As Mohamed states, “The American public deserves to know what was done to people like me — and I deserve to know why I lost nineteen months of my life — all in the name of protecting their security…Truth and justice are not in opposition; both are necessary, and both are the right of all Americans and the victims harmed in their name.”