By CHARLIE SAVAGE
Published: April 28, 2009
WASHINGTON — A federal appeals court ruled Tuesday that a lawsuit brought by five men who say they had been tortured as part of the Central Intelligence Agency’s “extraordinary rendition” program could proceed, dealing a blow to efforts by both the Bush and Obama administrations to claim sweeping executive secrecy powers.
In a 26-page ruling, the court declared that Binyam Mohamed, a British resident of Ethiopian nationality, and four other former detainees could go forward with a civil lawsuit against Jeppesen Dataplan, a Boeing subsidiary.
The former detainees said Jeppesen provided flight support when the C.I.A. transferred them to secret overseas prisons — some run by the agency and others by foreign intelligence services — where, they said, interrogators tortured them.
The Bush administration intervened, asking a judge to throw out the case because its subject matter was a state secret. The judge dismissed the case, and the men appealed. In a February appeals court hearing, the Obama administration pressed forward with the Bush administration’s stance. But a three-judge panel on the United States Court of Appeals for the Ninth Circuit said Tuesday that the executive branch’s position went too far.
The court said the government could ask judges to conduct a case-by-case review of whether the disclosure of specific documents would jeopardize national security. But allowing the executive branch to shut down an entire lawsuit whenever an official says its subject is classified would be a “concentration of unchecked power” and lead to abuses, it said.
“According to the government’s theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the C.I.A. and its partners from the demands and limits of the law,” wrote Judge Michael Daly Hawkins.
Charles Miller, a Justice Department spokesman, said the Obama administration was reviewing the decision.