The American judicial system handed another victory to executive power today, as a federal court judge in San Jose threw out a lawsuit filed against Boeing subsidiary Jeppesen for its involvement in the CIA's extraordinary rendition program. The lawsuit concerned five individuals who claimed to have been kidnapped by the CIA and then transported by Jeppesen to third countries, where they were subjected to torture, far from the glare of the western media.
The suit was originally filed against Jeppesen alone, but the Cheney administration quickly intervened to assert the so-called state secrets privilege. The state secrets privilege is a common law doctrine that received the imprimatur of the Supreme Court in 1953, in a controversial tort case involving the widows of servicemen killed in an airplane accident. The court endorsed the doctrine in a case that decades later would be exposed as nothing more than a government cover-up.
The plaintiffs, represented by the American Civil Liberties Union (ACLU), argued that the privilege had for all intents and purposes been waived by the considerable public comment on the program by, among others, the President and the head of the CIA.
Public Jeppesen flight records and admissions by a Jeppesen director also verified the existence of the program. US District Court Judge James Ware disagreed, noting that other elements of the program - in particular CIA relations with foreign governments - would be exposed were the lawsuit allowed to proceed. The ACLU promised an appeal.
"At the core of plaintiffs' case against defendant Jeppesen are 'allegations' of covert US military or CIA operations in foreign countries against foreign nationals - clearly a subject matter which is a state secret," the judge observed.
The decision is yet another setback for civil libertarians in their struggle against rapidly eroding constitutional principles. Today's vote in the Senate to grant retroactive immunity to influential telecoms giants that colluded with the Cheney administration in illicit wiretapping - which some believe to be a smokescreen to provide cover for as yet undisclosed surveillance programs - is only more evidence that the tide continues to flow against advocates for maintaining the constitutional status quo.
The Jeppesen case - which involved the Dr Strangelove-worthy scene of a Jeppesen director bragging to confused new employees about how lucrative the torture flights were - is the third straight ruling by a federal judge that the government may invoke the state secrets doctrine to prevent lawsuits on behalf of alleged victims of the so-called extraordinary rendition program, whether against a private entity or not.
Three of the men were tortured in Morocco and Egypt, and are still in prison. The other two were subjected to American-style "harsh" interrogation at a US airbase in Afghanistan, and later released. Of course, the million dollar question is just how much power the American judiciary is ultimately willing to cede to a virtually unaccountable, although allegedly co-equal, branch of government. ®