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Supreme Court refuses terror suspects' case alleging CIA torture

US Supreme Court on Monday declined to hear the case of five foreigners seeking to pursue a lawsuit alleging CIA-directed torture abroad. With that, appeals court ruling stands, disallowing the suit to protect 'state secrets.'

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The government appealed to the full Ninth US Circuit Court of Appeals in San Francisco. That court voted 6 to 5 to uphold the district judge’s decision to throw the case out under the state secrets privilege.

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In his brief urging the US Supreme Court to take up the case, Mr. Wizner said the government was increasingly relying on the state secrets privilege to block any judicial inquiry into “serious allegations of intentional and grave executive misconduct.”

Acting Solicitor General Neal Katyal filed a brief urging the high court not to take up the case. He said in certain “rare cases” judges have the authority to dismiss a case at the earliest stages of the litigation to prevent disclosure of state secrets.

He said the full appeals court had reached its own, independent conclusion that “the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies.” Rather, the appeals court concluded that the government was motivated by a desire to protect “legitimate national security interests.”

The Ninth Circuit decision in the case begins with an apology of sorts. The majority judges said the case forced them to confront the difficult balance between protecting state secrets and upholding transparency and accountability in the judicial system.

“Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them,” wrote Judge Raymond Fisher in the majority opinion. “After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed.”

In his brief to the high court, Wizner said there was no reason to dismiss the lawsuit at the initial stage of the litigation. The parties should be permitted to prove their case through nonclassified information. If, or when, that became impossible without jeopardizing national security secrets, that’s when the privilege should be invoked, Wizner argued.

Daniel Collins, a lawyer for Jeppesen, said Wizner’s approach would force judges to “play with fire and chance further disclosure” of US secrets.

He said allowing the litigation to proceed would create a “one-sided farce in which [the ACLU] would get to present their side of the story, while Jeppesen would be stripped of any practical ability to contest petitionters’ claims.”

Wizner said enough information about the rendition program is public to support a trial. He noted that under the Classified Information Procedures Act, Congress has created a mechanism for lawyers to obtain security clearances and for sensitive documents to be replaced with declassified summaries for use in litigation.

The state secrets privilege is not an immunity doctrine, he said, but rather it is a judge-made rule dealing with the presentation of evidence at a trial.

“As the court of appeals acknowledged, the CIA’s extraordinary rendition program is not a state secret. Moreover, Jeppesen’s involvement in that program … is a matter of public record, confirmed through sworn testimony, public flight records, and other documentary evidence,” Wizner wrote.

“As a matter of law and common sense, the government cannot legitimately keep secret what is already widely known,” he said.

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