Ninth Circuit dismisses CIA rendition suit on state secrets grounds

The US Court of Appeals for the Ninth Circuit Sept. 8 affirmed a district court’s dismissal of a suit brought by the American Civil Liberties Union (ACLU) against a Boeing subsidiary in connection with its alleged role in the Central Intelligence Agency (CIA) “extraordinary rendition” program.

The plaintiffs, Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmaad Bashmilah and Bisher al-Rawi, alleged that San Diego-based 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 intervened 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 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. 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. This week’s 6-5 opinion reverses that position, holding that in some “rare” circumstances, it may be impossible for a suit to proceed at all without inevitably compromising national security.

From Jurist, Sept. 9. Used with permission.

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