Appeals court tosses lawsuit claiming Boeing supported CIA’s ‘extraordinary rendition’ program

Appeals court dismisses Boeing-CIA lawsuit

SAN FRANCISCO — A sharply divided federal appeals court on Wednesday dismissed a lawsuit challenging Boeing Co.’s role flying terrorism suspects to secret prisons around the world as part of the CIA’s “extraordinary rendition” program.

The 9th U.S. Circuit Court of Appeals cited national security risks in its 6-5 ruling.

The lawsuit was filed by five men suspected of terrorism who were arrested shortly after the Sept. 11 attacks and say they were flown to secret prisons where they were tortured.

The men sued Boeing subsidiary Jeppesen Dataplan in 2007, alleging that the program — called “torture flights” by critics — amounted to illegal “forced disappearances.” They allege that the San Jose-based subsidiary conspired with the CIA to operate the program.

A trial court judge quickly dismissed the lawsuit after the Bush administration took over defense of the case from Chicago-based Boeing an invoked the “state secrets privilege,” demanding a halt to the litigation over concern that top secret intelligence would be divulged.

A three-judge panel of the appeals court reinstated the lawsuit in 2009, a ruling the Obama administration successfully had overturned Wednesday by the full court.

“We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets,” Judge Raymond Fisher wrote for the majority. “The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests.”

Judge Michael Daly Hawkins wrote for the five dissenting judges, who said the lawsuit was dismissed too quickly and that the men should be allowed to use publicly disclosed evidence to prove their case.

“They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties,” Hawkins wrote.

Ben Wizner, the American Civil Liberties Union lawyer who represents the five men, said he will ask the U.S. Supreme Court to take the case.

“If this decision stands,” Wizner said, “the United States will have closed its courts to torture victims while extending complete immunity to its torturers.”

The Bush administration was widely criticized for its practice of extraordinary rendition — whereby the CIA transfers suspects overseas for interrogation. Human rights advocates said renditions were the agency’s way to outsource torture of prisoners to countries where it is permitted practice.

Three of the five plaintiffs have been released from prison, Wizner said.