On Wednesday, the 9th Circuit dismissed a case brought against a Boeing subsidiary for its alleged role in the CIA’s extraordinary rendition program. Five individuals arrested shortly after 9/11 brought the case against Jeppesen Dataplan Inc., alleging that the Boeing subsidiary conspired with the CIA to render them to foreign countries where they were tortured. Shortly after the suit was filed, the federal government stepped in asserting that the case must be dismissed to prevent the disclosure of state secrets. The sharply divided court of appeals issued a 6-5 en banc decision upholding the government’s assertion of the state secrets privilege. The court dismissed the case in its entirety, preventing the plaintiffs from proceeding with evidence that would not encroach upon state secrets. Ben Wizner, the ACLU attorney who represents the five men, plans to appeal to the Supreme Court.
“If this decision stands, the United States will have closed its courts to torture victims while extending complete immunity to its torturers,” Wizner said.
If the Supreme Court takes the case, all eyes will be on Justice Kennedy. Since Justice O’Connor retired in 2006, Justice Kennedy has been the primary swing vote on the Court. I will not try to predict how the Court might decide this issue, but there is a strong likelihood that the decision will come down to Justice Kennedy’s vote. I would not be surprised to see the Court take a middle position, allowing the plaintiffs’ suit to proceed but excluding all evidence that can be fairly characterized as a state secret.