The three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the executive privilege claim was excessive and the case could go to trial. The lawsuit by the five alleged torture victims is against Jeppesen Dataplan, a Boeing Co. subcontractor accused of complicity in the men’s mistreatment for having flown them to secret CIA interrogation sites after they were nabbed abroad by federal agents.
Previous lawsuits alleging abuse were brought against the U.S. government and dismissed by the courts presented with presidential claims of state secrets privilege.
"By excising secret evidence on an item-by-item basis, rather than foreclosing litigation altogether at the outset, the evidentiary privilege recognizes that the executive’s national security prerogatives are not the only weighty constitutional values at stake," said the unanimous opinion written by Circuit Judge Michael Daly Hawkins, an appointee of President Clinton.
Human rights advocates hailed the ruling as the first opportunity for torture victims to bring the U.S. government to account for its "extraordinary rendition" actions in which dozens of foreign terrorism suspects were snatched abroad and transported to secret interrogation sites by CIA and other agents and subjected to harsh techniques now recognized by U.S. officials as torture.
Mohamed, the lead plaintiff, was released from the U.S. prison in Guantanamo Bay, Cuba, in late February after having spent more than six years in U.S. custody, the first two years in the hands of Moroccan interrogators under CIA guidance and later at the intelligence agency’s "black site" in Bagram, Afghanistan.
Rights lawyers hailed the ruling as a breach in the wall of secrecy erected by the Bush administration and thus far maintained by President Obama.
"To date, no torture victim has achieved any measure of justice or compensation in the U.S. courts, in large part because the courts have allowed the executive to invoke overbroad secrecy claims," said Ben Wizner, a lawyer for the American Civil Liberties Union who argued the case before the 9th Circuit panel in February.
A Justice Department spokeswoman, Tracy Schmaler, said government lawyers were "reviewing the judges’ order."
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