9th Circuit Nixes Suit re CIA Transfer of Terrorism Suspects Abroad, Cites State Secrets Privilege

By a 6-5 vote, a sharply divided federal appeals court issued an opinion (PDF) today that has put the brakes on a lawsuit concerning a controversial CIA program in which terrorism suspects reportedly were transferred overseas, where at least some were allegedly tortured.

Upholding the Obama administration's assertion of the state secrets privilege, a majority of the 9th U.S. Circuit Court of Appeals agreed that the suit would present an unacceptable national security risk if it continued, reports the New York Times.

Dissenters said the case should have been allowed to proceed to see if evidence could have been introduced to prove the plaintiffs' claims without violating the privilege.

Saying that the case presented a painful choice concerning “the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Raymond Fisher found that national security trumped the individual rights at issue.

“Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them,” he wrote.

The American Civil Liberties Union, which brought the litigation on behalf of five prisoners, is vowing to appeal the 9th Circuit ruling to the U.S. Supreme Court.

“This [is] a sad day not only for the torture survivors who are seeking justice in this case, but for all Americans who care about the rule of law and our nation’s reputation in the world," said senior attorney Ben Wizner, of the ACLU, who argued the appeal.."If this decision stands, the United States will have closed it courts to torture victims while providing complete immunity to their torturers.”

Defendant Jeppesen Dataplan Inc., a subsidiary of Boeing accused of helping to arrange the flights, and the CIA referred requests for comment to the Department of Justice. The DOJ declined to comment.

Related coverage:

ABAJournal.com: "UK Court-Ordered Release of CIA Docs Summary Supports Torture Claim"

ABAJournal.com (2007): "Red Cross: U.S. Tortured Prisoners"