[JURIST] The US Court of Appeals for the Ninth Circuit [official website] agreed Tuesday to an en banc rehearing [order, PDF] of a Department of Justice (DOJ) [official website] request to dismiss a suit against a company that allegedly provided logistical support for CIA rendition [JURIST news archive] flights. At issue is whether the state secrets privilege [JURIST news archive] can prevent the suit from going forward. A three-judge panel for the Ninth Circuit previously ruled [opinion, PDF; JURIST report] that the state secrets privilege does not bar a lawsuit against the company. In June, the DOJ requested [DOJ brief, PDF; JURIST report] that the full court reconsider the ruling. The suit was brought by plaintiffs Binyam Mohamed [Reprieve profile; JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi, who alleged that Boeing subsidiary Jeppesen Dataplan [corporate website] knowingly supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. In 2007, the DOJ intervened before the defendant filed an answer, maintaining that the lawsuit posed a risk to national security. The appellate court overturned the lower court's dismissal of the case, ruling that the state secret privilege must be based on actual evidence in the case, not on what evidence might be involved. A staff attorney for the American Civil Liberties Union (ACLU) [advocacy website], which represents the plaintiffs decried [press release] Tuesday's order for a rehearing:
We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a "state secret." In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law.The state secrets privilege, which allows the exclusion of evidence based on a government affidavit that such evidence may endanger national security, has been highly criticized by rights groups and others. Julian Sanchez [Cato profile] of the Cato Institute [advocacy website] argued [JURIST comment] this month that Congress should implement state secrets reforms, rather than relying on the DOJ to increase oversight. Last month Attorney General Eric Holder [official profile] announced [JURIST report] a number of new state secrets policies seeking to increase government accountability and oversight. Also last month, OpenTheGovernment.org [advocacy website] released a report [text, PDF] examining the privilege and other transparency issues, concluding that the current administration has improved transparency [JURIST report], but more should be done.