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Originally published Wednesday, September 8, 2010 at 10:05 PM

9th Circuit rules against alleged torture victims
Five foreign men who say they were kidnapped and tortured by the CIA cannot sue the Boeing subsidiary that helped spirit them away for interrogations because of the risk of secret intelligence matters being exposed at trial, a divided federal appeals court ruled Wednesday.
By Carol J. Williams
Los Angeles Times

LOS ANGELES — Five foreign men who say they were kidnapped and tortured by the CIA cannot sue the Boeing subsidiary that helped spirit them away for interrogations because of the risk of secret intelligence matters being exposed at trial, a divided federal appeals court ruled Wednesday.

The decision is a significant victory for the Obama administration because it recognized a president's power to protect wartime actions from judicial scrutiny by invoking the state-secrets doctrine.

The civil-rights lawyer who represented the alleged victims of the Bush administration's "extraordinary rendition" program said the ruling, if allowed to stand, means the United States has "closed its courtroom doors to torture victims."

The majority in the 6-5 ruling of the 9th U.S. Circuit Court of Appeals in San Francisco "reluctantly" concluded that national-security interests in the case were paramount to "even the most compelling necessity" to protect fundamental principles of liberty and justice.

The lawsuit brought by former Guantánamo Bay, Cuba, prisoner Binyam Mohamed and four others sought to hold Jeppesen Dataplan, of San Jose, Calif., responsible for the alleged violations committed against them because of the company's logistical support to the CIA.

Jeppesen reportedly supplied the flight services and other assistance to CIA agents who whisked the men from Sweden, Pakistan, Jordan and Gambia to secret interrogation sites elsewhere overseas. The five were arrested as terrorism suspects shortly after 9/11 attacks.

In detail, the court majority described the men's accounts of having been snatched off the streets in their resident countries or on business trips abroad, blindfolded, shackled, stripped and transported to CIA "black sites." They said they were beaten, starved, subjected to electrical shocks to the genitals and held in darkness and isolation for months.

"This case requires us to address the difficult balance the state-secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security," began the majority opinion written by Judge Raymond Fisher, appointed to the San Francisco-based appeals court by President Clinton. "Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them."

The majority said the case couldn't go forward even on the basis of unclassified evidence already disclosed because those facts were part of a "mosaic" and the court cannot order the government to "disentangle" innocuous information from what is secret.

A federal district-court judge in San Francisco in 2008 granted the U.S. government's motion to dismiss the lawsuit after President George W. Bush asserted his state-secrets privilege.

A three-judge panel of the 9th Circuit last year reversed the district court, saying the men should be allowed to prove their case on the unclassified evidence they claimed would be sufficient for a trial court to reach a judgment on their behalf.

The five judges who dissented in Wednesday's ruling deemed arbitrary imprisonment and torture "a gross and notorious act of despotism." They called the majority decision to dismiss the lawsuit "premature."

"To date, not a single victim of the Bush administration torture programs has had a day in court," said Ben Wizner, a staff attorney with the American Civil Liberties Union (ACLU) representing Mohamed and the other four men. The ACLU vowed to appeal to the Supreme Court.

In an unusual move, the court ordered the U.S. government to pay all parties' costs. "Maybe that's their way of doing rough justice," Allen Weiner, a Stanford University national-security law professor, said of the award of attorney fees to a losing party.

Material from The Associated Press and The Washington Post