SECRECY PLEA TIES UP TORTURE FLIGHTS CASE
by Bob Egelko

The San Francisco Chronicle
Published on Wednesday, February 6, 2008

A lawsuit accusing a San Jose flight-planning company of helping the
CIA transport prisoners to overseas torture chambers must be dismissed
because it would risk exposing state secrets, a Bush administration
lawyer argued Tuesday to a federal judge, who seemed to reluctantly
agree.

The five plaintiffs can't prove that Jeppesen International Trip
Planning subjected them to wrongful imprisonment and torture without
first showing that the company aided the CIA, that foreign governments
collaborated, and that the so-called extraordinary rendition program
subjected them to brutal treatment, Justice Department attorney Michael
Abate said at a hearing in San Jose. Each one of those assertions
depends on classified information that can't be aired in court,
he said.

"Without the information in question, this case cannot be litigated,"
Abate told U.S. District Judge James Ware. The result of allowing the
government to keep its secrets out of court "can be harsh," he said,
but under the state-secrets doctrine recognized by the U.S. Supreme
Court since 1953, "private parties bear that burden on behalf of
society."

Ware did not issue a ruling after the 70-minute hearing, and made it
clear that he considered some aspects of the government's position
to be extreme. He questioned Abate's argument that the imprisonment
and interrogation of each plaintiff remained an official secret,
even though the men knew how they were treated.

"If they're in the program, the secret's disclosed, at least to them,"
the judge said. When Abate insisted that legal precedents require
official government confirmation to remove the veil of secrecy,
Ware said the doctrine known as the state-secrets privilege "should
be called a state privilege to do whatever it wants."

But Ware later questioned the plaintiffs' ability to prove Jeppesen's
alleged role without secret information. Ben Wizner, a lawyer for the
American Civil Liberties Union, which is representing five people who
say they were tortured or abused in overseas prisons, said statements
by a company official and records of foreign governments tie Jeppesen
to the CIA program, but Ware said he wasn't sure he could consider
them as long as the government claims its relationships with private
operators are confidential.

Even when individual liberties are at stake, Ware said, he has to
"walk the line" between those liberties and the government's need to
protect military secrets. He promised a prompt ruling.

Jeppesen, a subsidiary of a company owned by Boeing Co., provides
a variety of flight-planning services, including routing, weather
forecasting, fueling and arranging ground transportation. The suit
accused the company of arranging at least 70 flights since 2001,
including those of the plaintiffs, as part of the CIA's program of
extraordinary rendition - transporting terrorism suspects to countries
beyond the reach of U.S. law for interrogation and detention.

Three of the plaintiffs, still in prison, were tortured in Morocco
and Egypt, the suit said. The other two were allegedly abused at a
U.S. airbase in Afghanistan and later released.

The Bush administration has acknowledged the existence of the
rendition program, which began on a smaller scale under the Clinton
administration, but has denied taking prisoners to countries where they
were likely to be tortured and says it has been given assurances of
humane treatment. The lawsuit, filed last July, named only Jeppesen
as a defendant, but the government intervened, as it has done in
other cases, and moved for dismissal.

Wizner, the plaintiffs' lawyer, told Ware the case relies heavily
on information that has already been made public. He said President
Bush and other top officials have defended the rendition program,
CIA Director Michael Hayden has provided numerous details in public
appearances, and a Council of Europe report last June identified
Jeppesen as the CIA's aviation services provider.

Wizner also cited a court declaration by former Jeppesen employee Sean
Belcher, who said company director Bob Overby told new employees in
August 2006 that the company handled "all the extraordinary rendition
flights … the torture flights."

If the suit is dismissed, the ACLU attorney said, "no court will ever
be able to say whether the program is legal." He said the government
"has engaged in vigorous public debate" about the rendition program
and shouldn't be allowed to avoid judicial scrutiny of its role.

But Abate, the government's lawyer, said other courts have recognized
that any attempt to decide the legality of rendition - which he called
the "terrorist detention and interrogation program" - would require
probing the inner workings of the program and of the CIA itself,
both off-limits to the judiciary.

E-mail Bob Egelko at begelko@sfchronicle.com.