Terror suspects who claim they were tortured abroad at the hands of the U.S. government lost their latest attempt Wednesday to sue the private American company they say was involved in their abduction as part of an "extraordinary rendition" program under the Bush administration.
The 9th U.S. Circuit Court of Appeals in a 6-5 opinion that delves into the scope and application of the state secrets doctrine issued an en banc opinion finding that such litigation could reveal state secrets and tossed the case.
"If this decision stands, it may close the door to all torture victims while providing blanket immunity to their torturers," said Ben Wizner, an attorney for the ACLU in New York City who argued Mohamed v. Jeppesen Dataplan, 08-15693 before the 9th Circuit. "So we obviously plan to seek Supreme Court review."
Writing for the majority, Judge Raymond Fisher said "every judge who has reviewed the government's formal, classified claim of privilege in this case agrees that in this sense the claim of privilege is proper, although we have different views as to the scope of privilege and its impact on plaintiffs' case."
Fisher noted the plaintiffs may still be able to seek other nonjudicial relief, such as through Congress or the executive branch. And he gently chided San Jose's U.S. District Judge James Ware, who originally tossed the case under state secrets privilege, for doing so without first doing his own extensive analysis, which the 9th Circuit ultimately took on.
Fisher was joined by Chief Judge Alex Kozinski and Judges Carlos Bea, Johnnie Rawlinson, Consuelo Callahan and Richard Tallman.
The suit on behalf of five named foreign-born plaintiffs was filed in District Court in San Jose in 2007 under the Alien Tort Statute. Before defendant Jeppesen Dataplan, a Boeing subsidiary, filed a response to the complaint, Ware allowed the government to intervene and promptly dismissed the case with prejudice.
In 2009, a three-judge panel of the 9th Circuit reversed Ware.
Among its findings, Wednesday's majority said the government can assert the state secret privilege claim even at the pleading stage, drawing a dissenting opinion by Judge Michael Daly Hawkins, a Clinton appointee who was on the three-judge panel that previously reversed Ware. Hawkins said the plaintiffs should be given an opportunity to try to make the case in a way that wouldn't compromise state secrets. Joining Hawkins were Judges Richard Paez, Mary Schroeder, Sidney Thomas and Richard Canby.