U.S. Government Stands Alone In Maintaining False "State Secrets" Claim

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SAN FRANCISCO - The American Civil Liberties Union today asked a federal appeals court to reinstate a lawsuit against Boeing subsidiary Jeppesen Dataplan for its role in the CIA's extraordinary rendition program. The U.S. government continues to misuse the "state secrets" privilege to avoid legal scrutiny of the unlawful program. It has become increasingly clear in recent months that other governments do not share the Bush administration's conviction that the program must remain shrouded in false claims of state secrets.

"The U.S. government continues to use false claims of national security to dodge judicial scrutiny of extraordinary rendition, even as other countries are openly examining the unlawful program," said Ben Wizner, staff attorney with the ACLU National Security Project. "The threat to our nation isn't from the ACLU's lawsuit; the threat is from the government's continued insistence on covering up an illegal and secret program that involves flying innocent people to countries where they will probably be tortured."

Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. On August 21, Britain's High Court of Justice ruled that one of the men, Binyam Mohamed, is entitled to receive documents from the British government relating to his rendition, detention and interrogation, including documents confirming the cooperation between the U.S. and U.K. governments in those events. Last week another of the men, Ahmed Agiza, received a $450,000 settlement from the Swedish government for its role in his rendition to Egypt.

"Governments around the world are coming clean about their participation in the rendition program by handing over relevant documents and even paying restitution to the victims. The U.S. government truly stands alone when insisting on hiding behind false claims of state secrets," said Steven Watt, staff attorney with the ACLU Human Rights Program. "The extraordinary rendition program is well known throughout the world. The only place it's not being discussed is where it most cries out for examination – in a U.S. court of law."

In a friend-of-the-court brief filed in support of the ACLU, several former U.S. diplomats charge that the extraordinary rendition program has already harmed the United States' standing in the world. According to the brief, immunizing illegal government conduct from judicial scrutiny "would send a message that the courts of the United States cannot be relied upon to provide even a possibility of redress for those who allege flagrant abuses of both domestic and international law in the course of counter-terrorism operations," and "would signal that the United States does not respect the rule of law in relation to such operations, and reinforce the concerns that already impede international cooperation."

The ACLU's lawsuit charges that Jeppesen knowingly aided the extraordinary rendition program by providing flight planning and logistical support services for aircraft and crews used by the CIA. The case was dismissed in February after the government intervened, inappropriately invoking the "state secrets" privilege to have it thrown out. However, the lawsuit cites abundant evidence that is already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming the company's involvement.

The ACLU is appealing the dismissal of the case to the U.S. Court of Appeals for the Ninth Circuit.

In addition to Wizner and Watt, attorneys in the lawsuit are Steven Shapiro and Jameel Jaffer of the national ACLU, Ann Brick of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.

The ACLU's brief is available online at: www.aclu.org/safefree/torture/36933lgl20080925.html

Other documents related to the lawsuit, including press releases, legal documents and background information, are at: www.aclu.org/safefree/torture/rendition.html