Suit by 5 ex-captives of CIA can proceed, appeals panel rules

Five men who claim to have been kidnapped and tortured at the direction of CIA agents are entitled to their day in court to expose alleged U.S. government abuse of terrorism suspects, a federal appeals panel ruled Tuesday.

Both former President George W. Bush and President Obama had invoked the state secrets privilege in urging courts to dismiss a lawsuit in which the prisoners described interrogations involving beatings, electric shocks and laceration by scalpel.

While acknowledging that some evidence might be classified and properly shielded from public scrutiny, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the president’s powers to protect against intelligence disclosures “are not the only weighty constitutional values at stake.”

The ruling sends back for trial the case of Mohamed vs. Jeppesen Dataplan Inc. -- a suit brought by five men subjected to “extraordinary rendition,” in which terrorism suspects were snatched by U.S. and foreign agents and flown to secret CIA interrogation sites.


The U.S. government had intervened to halt the case on state secrets grounds. A Boeing Co. subsidiary, Jeppesen is accused of complicity for having arranged the men’s clandestine transport.

Tuesday’s ruling was the first to reject a presidential assertion of the state secrets privilege seeking to prevent post-Sept. 11 abuse allegations from going to trial.

“According to the government’s theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law,” the unanimous opinion by the appeals panel reads.

Lawyers for the detainees hailed the panel’s decision.

“Today’s ruling demolishes once and for all the legal fiction, advanced by the Bush administration and continued by the Obama administration, that facts known throughout the world could be deemed ‘secrets’ in a court of law,” said Ben Wizner, a lawyer for the American Civil Liberties Union who argued the men’s case.

Citing recent Supreme Court rulings on the rights of detained terrorism suspects, the appeals panel said national security depended not just on protecting intelligence but also “freedom from arbitrary and unlawful restraint” and from the “gross and notorious act of despotism” that is torture.

Allowing the government to thwart a trial because classified information is involved would “perversely encourage the president to classify politically embarrassing information simply to place it beyond the reach of judicial process,” Judge Michael Daly Hawkins wrote.

The prisoners’ lawyers had argued before the appeals court that the state secrets privilege was being invoked to cover up embarrassing abuses committed by the Bush administration.

“The 9th Circuit’s decision recognizes that the state secrets privilege is not an immunity doctrine that can enable the executive branch to shield its conduct from any judicial review,” said Sharon Bradford Franklin, senior counsel for the Constitution Project, an independent think tank that defends constitutional safeguards.

Justice Department lawyers were “reviewing the judges’ order,” said spokeswoman Tracy Schmaler.

Binyam Mohamed, the lead plaintiff and a resident of Britain, was released from Guantanamo in late February after having spent more than six years in U.S. custody, first in the hands of Moroccan interrogators under CIA guidance and later at the intelligence agency’s “black site” in Bagram, Afghanistan. In his “torture diary” compiled for the case, Mohamed alleges that agents cut his genitals with a scalpel in efforts to extract information he didn’t have.

Bush administration lawyers successfully argued before a U.S. District Court judge in San Francisco that “the very subject matter” of the rendition victims’ allegations was a state secret. In a move that surprised many human rights groups, the lawyers now under the Obama administration said they were taking exactly the same position when they appeared before the three-judge panel in February.

Unless Atty. Gen. Eric H. Holder Jr. appeals the ruling, the case will go back to the district court for trial, with the government free to argue that specific evidence, but not the entire case, is secret.

Carl Tobias, a University of Richmond law professor, said the panel’s decision could prompt the Obama administration to rethink its position.

“I think there’s a good chance they could reconsider their position and tailor it more toward what the plaintiffs have been saying” -- namely, that the Bush administration applied the state secrets privilege excessively, Tobias said.

Peter Margulies, a law professor at Roger Williams University, said he thought the 9th Circuit ruling was a case of “the pendulum swinging too far,” but that it could be corrected through the appeals court’s internal review mechanism, known as an en banc rehearing.