ACLU Asks Supreme Court To Hear Extraordinary Rendition Case

December 8, 2010 12:01 pm

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Government Has Abused “State Secrets” Privilege To Prevent Accountability For Torture, Says Group

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WASHINGTON – The American Civil Liberties Union late last night asked the U.S. Supreme Court to review a lower court decision dismissing its lawsuit against a Boeing subsidiary, Jeppesen DataPlan, Inc., for the company’s role in the Bush administration’s extraordinary rendition program. The ACLU and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. Although the federal government was not initially named in the lawsuit, it intervened for the sole purpose of arguing that the case should be dismissed based on the “state secrets” privilege.

“To date, not a single victim of the Bush administration’s torture program has had his day in a U.S. court,” said Ben Wizner, Litigation Director of the ACLU National Security Project. “The government has misused the ‘state secrets’ privilege to deny justice to torture victims and to shield their torturers from liability. The Supreme Court should reaffirm our nation’s historic commitment to human rights and the rule of law by allowing this case to go forward.”

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government could not invoke the state secrets privilege over the entire lawsuit, but, instead, could only invoke the privilege with respect to specific evidence. The Obama administration appealed that ruling, and in December the case was reargued in front of a panel of 11 Ninth Circuit judges. The appellate court upheld the dismissal of the case 6-5.

“The government’s continued assertion of ‘state secrets’ to avoid judicial scrutiny of torture threatens the fundamental principle of separation of powers,” said Steven Watt, staff attorney with the ACLU Human Rights Program. “No court has yet fulfilled its critical constitutional function of ruling on the legality of the Bush administration’s torture policies. The Supreme Court should take this case and affirm that victims of torture are entitled to a remedy.”

“The Supreme Court has not reviewed the government’s use of the ‘state secrets’ privilege in more than half a century. In recent years, we have seen the executive branch engage in grave human rights violations, declare those activities ‘state secrets,’ and thus avoid any judicial oversight or accountability,” said Steven R. Shapiro, Legal Director of the ACLU. “As the executive branch asserts the ‘state secrets’ privilege more and more often, for more and more reasons, it is critical that the Court examine its use. Under a system predicated on respect for the rule of law, the government has no privilege to violate fundamental human rights and evade judicial review.”

Attorneys on the case are Wizner, Watt, Shapiro and Jameel Jaffer of the national ACLU, Alan L. Schlosser and Julia Harumi Mass of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith of Reprieve represent plaintiffs in this case.

The ACLU’s cert petition to the Supreme Court is available online at:

More information about the case is available online at:

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