This Boeing 737, seen in Glasgow, Scotland in September 2003, was identified by European investigators as taking part in CIA rendition flights.
Citing the primacy of the state-secrets act, a deeply split federal-appeals court dismissed a lawsuit against a Boeing unit filed by terrorist suspects who wanted the company found liable for the role it played in ferrying them to secret CIA sites as part of the spy agency's rendition program.
In a six-to-five vote, the judges of the Ninth Circuit Court of Appeals ruled for the Boeing subsidiary named Jeppesen Dataplan Inc. in dismissing the case on secrecy grounds.
The decision was obviously a loss for the several terrorism suspects as well as the American Civil Liberties Union which filed the suit on their behalf.
The ACLU had hoped the lawsuit would help reveal details of the Bush Administration's practice of flying terror suspects to third countries for interrogations, some of which used torture, according to some of the suspects.
One notable aspect of the court's decision to dismiss the case was the almost apologetic explanation the court gave for its decision.
Writing for the majority, Judge Raymond Fisher said:
This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation,we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.
Reacting to the court's decision, the ACLU issued a statement which it attributed to Ben Wizner, an ACLU lawyer who argued the case before the appeals court:
"This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history."
The ACLU web site provides good background on the lawsuit.
Meanwhile, Wednesday's decision provides the opportunity to direct readers to a segment of the public radio program, This American Life on the genesis of the U.S. state-secrets act.
It turns out there actually were no state secrets involved in the 1953 landmark U.S. v. Reynolds precedent the federal government uses to get national-security court cases dismissed.
Instead, the Air Force at the time apparently invoked secrecy as a way to avoid liability lawsuits.