'TORTURE FLIGHTS' INVOKE STATE SECRETS PRIVILEGE

[Neil D]

ACLU suit against S.J. firm gives judge pause

'TORTURE FLIGHTS' INVOKE STATE SECRETS PRIVILEGE

By Howard Mintz

Mercury News

Article Launched: 02/06/2008 01:43:18 AM PST

Faced with the Bush administration's argument that a lawsuit over alleged CIA torture flights could expose state secrets, a federal judge Tuesday appeared reluctant to allow the case to proceed against a San Jose-linked company accused of carrying out the trips on the government's behalf.

Decision soon

U.S. District Judge James Ware said he would rule soon on the government's attempt to block the lawsuit on national security grounds, but indicated that the state secret privilege could derail the American Civil Liberties Union's lawsuit against Jeppesen International Trip Planning, a San Jose-based subsidiary of Boeing.

The ACLU brought the case last year on behalf of five alleged victims of the CIA's so-called "extraordinary rendition" program, which civil rights lawyers say involves kidnapping terrorism suspects and secretly flying them to U.S.-run or foreign prisons for interrogation and torture.

The lawsuit alleges that Jeppesen knowingly participated in the CIA program for profit, and provided the flight planning and crew support for the flights. A former Jeppesen employee has submitted a declaration in the case saying that top Jeppesen officials openly discussed "torture flights" and their profitability.

The Bush administration intervened in the case several months ago, asserting that allowing the suit to proceed would reveal information that could jeopardize national security. The government has raised similar arguments in lawsuits against telecommunication companies accused of participating in domestic spying programs.

ACLU attorney Ben Wizner said after the hearing that it is crucial for the courts to address the legality of the CIA flight program.

"This is another attempt by the CIA to ensure that no judge, no place, at no time has a chance to rule on the legality of its interrogation and torture program," he said.

Justice Department lawyers left the hearing without comment. But in court papers and in arguments before Ware, they warned the case "attempts to probe the most sensitive details of intelligence operations."

Hard to interfere

The Bush administration has invoked the state secrets privilege with more regularity than past administrations, and it is difficult for federal judges to interfere when it is asserted. Ware, while conceding the privilege is strong, did express concern about preventing a case to proceed that involves civil liberties.

"It does seem to me that the duty I have is to walk the line between those interests," the judge said during the hearing.

Ware's ruling is expected to be appealed to the 9th U.S. Circuit Court of Appeals, which already is considering a similar issue in a lawsuit pending against AT&T over the government's domestic surveillance program.