Appellate panel hears arguments over ‘rendition’ case

Lawyers for five foreign men who allege that a Boeing subsidiary conspired with the CIA in their kidnapping and torture urged a federal appeals court Tuesday to allow their lawsuit to go to trial and their abusers to be held accountable.

In the case against Jeppesen DataPlan Inc. of San Jose, the former terrorism suspects were denied their day in court two years ago when a U.S. District Court judge heeded the Bush administration’s claim that the case had to be dismissed because its entire subject matter was a state secret.

The men’s lawsuit was resurrected in April, however, when a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the case alleging Jeppesen’s complicity in their mistreatment could be tried using unclassified evidence that wouldn’t endanger national security.

Whatever the decision from Tuesday’s rehearing of the case before a full 11-judge session of the appeals court, the losing side is expected to turn to the U.S. Supreme Court to settle the legal question of how far the president’s power to assert his state-secrets privilege extends.

The five plaintiffs are led by former Guantanamo Bay detainee Binyam Mohamed, an Ethiopian-born British resident who says he was kidnapped by CIA operatives in Pakistan and flown to Morocco and Afghanistan, where he was tortured, by means including cuts to his genitals, into false confessing to crimes.

Lawyers for the men argued that the state-secrets claim was an attempt at masking violations of law by the government.

“The facts of this case are known throughout the world,” Ben Wizner, a staff attorney for the American Civil Liberties Union, told the judges. He noted that the Swedish government has already apologized and offered compensation to one of the plaintiffs, Egyptian Ahmed Agiza, who says he was seized from his place of asylum in Sweden and taken to Egypt, where he was tortured with electrical shocks.

Justice Department attorney Douglas Letter reiterated the government position taken since the suit was filed against Jeppesen in May 2007 that the government would neither confirm nor deny that it had any relationship with the Boeing subsidiary or that a program of so-called extraordinary rendition existed.

To address any of the plaintiffs’ allegations about the actions over which President George W. Bush asserted his state-secrets privilege -- President Obama and his Justice Department have decided to defend that assertion -- would involve disclosure of relationships, programs and activities that have been classified on national security grounds, Letter said.

Letter was allowed to discuss specifics of the state-secrets claim in closed session with the judges and other government attorneys after the hearing.

Some judges, including Chief Judge Alex Kozinski, seemed inclined to accept the government argument that remedies other than a trial -- such as congressional redress or criminal proceedings against Jeppesen -- were available to the alleged victims. But other judges made clear their concerns about recognizing a government right to invoke the state-secrets doctrine to evade responsibility for civil rights violations.

“This is absolutely our business,” Judge Michael Daly Hawkins said of the court’s responsibility to decide what cases can go to trial and what evidence can be admitted. Hawkins wrote the unanimous three-judge opinion in April that the suit could proceed, stating that to thwart a trial because classified evidence was involved would “perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of the judicial process.”

Assuming the men were tortured as alleged in gruesome detail in their complaint, Judge Raymond C. Fisher asked rhetorically whether “for reasons of national security, is that the end of the road for people who have been mistreated?”

The lawsuit alleges that Jeppesen was complicit in the government’s actions in pursuing the terror suspects, who were ultimately released from their clandestine detention and interrogation. Other similar actions brought against the government by purported torture victims were dismissed by the federal courts after the Bush administration said they involved state secrets.

The Justice Department intervened on behalf of Jeppesen after the men filed their lawsuit in May 2007, claiming that the company couldn’t defend itself without resorting to disclosure of classified information. Attorneys for Jeppesen have referred inquiries about the suit to government lawyers.

The Obama administration has renounced the use of torture and so-called enhanced interrogation techniques, Wizner pointed out, arguing that the government’s posture in counter-terrorism has changed dramatically since the plaintiffs first brought their case.

carol.williams@latimes.com