The Washington Independent
The Washington Independent

Ninth Circuit to Hear Government’s Appeal in Jeppesen Torture Case

October 28, 2009 | Last updated: July 31, 2020

The Obama administration just won a round in the lawsuit brought by five alleged torture victims against Jeppesen Dataplan, the Boeing subsidiary that allegedly helped the CIA transport detainees to countries where they’ were interrogated under torture, a practice known as “extraordinary rendition.”

The Ninth Circuit Court of Appeals ruled for the victims and reinstated the case last spring, after it was dismissed by the U.S. District Court in Northern California.  The lower court had accepted the government’s argument (then made by the Bush administration) that letting the lawsuit move forward would expose “state secrets” and endanger national security, even though the Obama administration says it no longer engages in extraordinary rendition. But the plaintiffs appealed, and a three-judge panel of the Ninth Circuit, historically a liberal-leaning court, reversed the district court and reinstated the case. The panel ruled that there were no grounds to claim that a lawsuit against a government contractor must be dismissed just because the contractor was working with the CIA. “Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery,” wrote the court.

The Obama administration, however, was not prepared to accept that ruling. So it asked the full court of appeals to reconsider the case — something it does only rarely. Yesterday, the court granted that request, handing the Justice Department another chance to argue that the case against the private Boeing subsidiary should be dismissed to protect “state secrets.”

Like its predecessor, the Obama administration has sought to dismiss several important cases involving torture and warrantless wiretapping under the so-called “state secrets privilege,” which seeks to protect genuine government secrets that, if disclosed, would endanger national security. The government’s actions have prompted anger from civil libertarians and proposed legislation in Congress to limit the president’s power to invoke the state secrets privilege to dismiss cases alleging government wrongdoing. President Obama’s new policy on his administration’s use of the state secrets privilege, announced in September, did not satisfy many critics.

In the Jeppesen case, the Obama Justice Department has been adamant that the details of the Bush administration’s rendition-to-torture program remain secret — hence it’s request to the full Ninth Circuit to re-hear the case en banc, meaning all 11 active judges, rather than just the three-judge panel that ordinarily hears cases.  Courts of appeals reserve en banc hearings for unusually controversial and important cases, usually when there’s significant disagreement among the judges in the circuit. The judges vote on whether the case should be re-heard, but the outcome of the vote is not made public.

Apparently there is significant disagreement in this case, because the judges voted to accept the request for rehearing, the court announced yesterday.

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