The American Civil Liberties Union (ACLU) [advocacy website] on Tuesday filed an appeal [cert. petition, PDF; press release] with the US Supreme Court [official website] to overturn a ruling dismissing its suit over the CIA's extraordinary rendition program [JURIST news archive]. In a September en banc rehearing, the full US Court of Appeals for the Ninth Circuit [official website] affirmed the district court's decision to dismiss the suit [JURIST reports] against Boeing subsidiary Jeppesen Dataplan [corporate website] on the basis of the state secrets privilege [JURIST news archive]. In its petition for certiorari, the ACLU argued that changes in the way the state secrets privilege has been applied warrant a Supreme Court review.
The plaintiffs, Binyam Mohamed [JURIST news archive], Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmaad Bashmilah and Bisher al-Rawi, alleged that Jeppesen Dataplan knowingly aided in the rendition and subsequent torture of terror suspects by the CIA. Before Jeppesen could file an answer to the original complaint, the Department of Justice (DOJ) intervened [JURIST report] and asserted the state secrets privilege, arguing that fact-finding in the case could jeopardize national security. The district court dismissed the case and a three-judge panel of the Ninth Circuit overturned [JURIST report] the ruling on appeal. The DOJ then asked the Ninth Circuit to reconsider the case with a full panel, and was granted an en banc rehearing [JURIST reports]. The original Ninth Circuit panel ruled that the state secrets privilege can only be invoked in relation to established evidence in the case, not just at the possibility that such evidence may be uncovered should the case proceed.