By Bob Egelko
www.sfgate.com
June 13, 2009
The Obama administration increased its defense Friday of secrecy surrounding an alleged CIA program of torture flights, asking a federal appeals court to set aside its ruling allowing foreign captives to sue a Bay Area company that reportedly helped plan the flights. ...The plaintiffs say they were abducted in foreign countries, flown abroad and subjected to brutal interrogations in foreign or CIA prisons. They said their flights had been arranged by Jeppesen, which has denied wrongdoing.
A federal judge in San Jose dismissed the suit, saying it would expose state secrets, but a three-judge panel of the appeals court reinstated the case in April. The court said the nation's laws apply to all its programs, including those that involve state secrets.
In the 3-0 ruling, Judge Michael Hawkins said the suit should be dismissed only if secret information is essential for the plaintiffs to prove their case or for the company to defend itself. If specific evidence must be kept secret, Hawkins said, the government and Jeppesen can take steps to protect it.
In Friday's filing, the Justice Department said that to defend itself, Jeppesen would have to either admit or deny a relationship with the CIA - information that is a state secret.
Noting that every other suit challenging renditions has been dismissed on secrecy grounds, government lawyers said any inquiry into the legality of the program would "undermine the ability of the executive to prevent the release of highly sensitive information."
The so-called extraordinary rendition program, and a private contractor's alleged relationship with the CIA, are so sensitive that any legal proceedings "would pose an unacceptable risk to national security," Justice Department lawyers said in a filing to the Ninth U.S. Circuit Court of Appeals in San Francisco.
Government lawyers said the court's April 28 ruling reinstating the lawsuit was both legally flawed and dangerous. They asked the court to reconsider the decision or order a new hearing before an 11-judge panel.
The attorneys said their position has been reaffirmed by a review "at the highest levels of the Department of Justice" and was consistent with President Obama's pledge, in a speech last month, that his administration would not use secrecy to conceal "the violation of a law or embarrassment to the government."
A lawyer for the plaintiffs responded that Obama's words can't be reconciled with his Justice Department's actions.
"The Obama administration has now fully embraced the Bush administration's shameful effort to immunize torturers and their enablers from any legal consequences for their actions," said Ben Wizner, an American Civil Liberties Union attorney. "The CIA's rendition and torture program is not a 'state secret'; it's an international scandal."
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