Rendition challenge dismissed in US

A US court has dismissed a case challenging the US renditions programme [Gallo/Getty]

A sharply divided US federal appeals court has thrown out a case challenging a controversial CIA programme that flew terrorism suspects to secret prisons.

The complaint was filed by five terrorism suspects who were arrested shortly after September 11, 2001, and say they were flown by a Boeing subsidiary to prisons around the world where they were tortured. The 9th US Circuit Court of Appeals cited national security risks when it dismissed the men’s case in a 6-5 ruling on Wednesday.

The case could have broad repercussions on the national security debate as it makes its way towards the supreme court, and it casts a spotlight on the controversial “extraordinary rendition” programme the Bush administration used after 9/11.

Under the rendition programme, the CIA transfers suspects overseas for interrogation. Human-rights advocates said renditions were the agency’s way to outsource torture of prisoners to countries where it is permitted practise.

In 2007, one of the programme’s targets, Mohamed Farag Ahmad Bashmilah, told an American journalist, Amy Goodman, about his ordeal.

Blindfolded and beaten

Bashmilah, one of the former prisoners named in the complaint, told Goodman that he was picked up in Amman, Jordan, and was blindfolded and beaten until he signed what he says was a false confession.

“… they said that if I did not confess, they will bring my wife and rape her in front of me. And out of fear for what would happen to my family, I screamed and I fainted. After I came to, I told them that, ‘Please, don’t do anything to my family. I would co-operate with you in any way you want,’ ” Bashmila told Goodman. He was then stripped naked, bound and subjected to humiliating treatment.

He was transfered to his home country of Yemen about a year and a half later, and was released a year later after Amnesty International intervened.

The Obama administration said it would continue to send foreign detainees to other countries for questioning, but rarely – and only if US officials are confident the prisoners will not be tortured.

The appeals court reinforced the broad powers of the president to invoke the so-called state secrets privilege to stop lawsuits involving national security almost as soon as they are filed.

“The attorney-general adopted a new policy last year to ensure the state secrets privilege is only used in cases where it is essential to protect national security, and we are pleased that the court recognised that the policy was used appropriately in this case,” Matthew Miller, a justice department spokesman, said.

Bush legacy

George Bush, during his presidency, invoked the privilege at least 39 times – the most of any president in history, according to research by William Weaver, a political science professor at University of Texas, El Paso.

Critics of the practice had hoped Barack Obama, as president, would curtail its use and were disappointed when his administration continued defending the lawsuit after Bush left office.

The terror suspects sued Jeppesen Dataplan, a Boeing subsidiary, in 2007, alleging that the extraordinary rendition programme amounted to illegal “forced disappearances.” They alleged that the San Jose-based subsidiary conspired with the CIA to operate the program.

A trial court judge quickly dismissed the lawsuit after the Bush administration took over defence of the case from Boeing and invoked the state secrets privilege, demanding a halt to the litigation over concern that top secret intelligence would be divulged.

A three-judge panel of the appeals court reinstated the lawsuit in 2009, but the full court overturned that ruling Wednesday.

“We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets,” Judge Raymond Fisher wrote for the majority.

“The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests.”

Dissenting judges

Judge Michael Daly Hawkins wrote for the five dissenting judges, who said the lawsuit was dismissed too quickly and that the men should be allowed to use publicly disclosed evidence to prove their case.

“They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties,” Hawkins wrote.

Ben Wizner, the American Civil Liberties Union lawyer who represents the five men, said he will ask the US supreme court to take the case.

“If this decision stands,” Wizner said, “the United States will have closed its courts to torture victims while extending complete immunity to its torturers.”

Three of the five plaintiffs have been released from prison, Wizner said.

The Bush administration was widely criticised for its practise of extraordinary rendition, but continued to pushed for the dismissal of the lawsuit.