Bob Egelko, San Francisco Chronicle Staff Writer 2/6/08

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.

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