The government cannot dispose of a civil suit accusing a Boeing subsidiary of helping the CIA transport prisoners for torture by claiming the whole program was a national secret, a federal appeals court ruled Tuesday.

The 9th U.S. Circuit Court of Appeals ruling chips away at the Obama and Bush administrations' reliance on the so-called "state secrets privilege" to dismiss inconvenient lawsuits that target secret and extra-judicial anti-terrorism programs started after 9/11.

The lawsuit alleges that flight support contractor Jeppesen Dataplan helped the CIA fly five non-U.S. citizens to foreign countries whose governments tortured and imprisoned the men, a legally dubious program known within the U.S. government as "extraordinary rendition".

A three-judge panel rejected the government's theory that its secret programs could never be challenged in court.

"According to the government's theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law," judge Michael Daly Hawkins wrote dismissively (.pdf). "The subject matter of this action ... is not a state secret, and the case should not have been dismissed at the outset."

The court held that the government couldn't tell a court to throw out the suit just because a secret program was at issue. Instead, the judges said, the government has to wait to invoke the state secrets privilege until the plaintiffs ask the government, or in this case, its alleged contractor, to turn over evidence.

"The question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial," Hawkins continued.

The decision reverses a district court's dismissal, sending the case, Mohamed v. Jeppesen Dataplan, back down to the lower court.

The Constitution Project, a D.C.-based thinktank that has been following the case closely, applauded the ruling.

"The Ninth Circuit's decision recognizes that the state secrets privilege is not an immunity doctrine that can enable the Executive Branch to shield its conduct from any judicial review," said Constitution Project Senior Counsel Sharon Bradford Franklin. "We are thrilled that the decision preserves the role of the courts as an independent check on the executive branch's conduct."

The court did not give the plaintiffs the right to see highly classified evidence held by the government or Jeppesen, but allows the individuals to prove their standing using facts that are already known, or uncovered outside of the tradtional legal process of discovery.

That squares with the appeals court's 2007 ruling in the Al Haramain case that allowed two U.S. lawyers to continue suing the government for allegedly spying on them without warrants. That ruling, relied on in this case, banned them from using a top secret document the government accidentally turned over to them as a way to prove they were spied on.

But the court's 2007 decision bucked the government's contention that the whole lawsuit had to be thrown out since it could expose information about its warrantless wiretapping program that could put the nation at risk. Instead the court ruled that the suit could continue if the two could prove – using only evidence that wasn't secret - that they were likely targets of such a program.

Justice Department spokesman Charles Miller says the government was reviewing Tuesday's court decision and had no comment on whether the government would appeal for a rehearing by a full set of appeals court judges or to the Supreme Court.

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