Five men who allege they were tortured after a Boeing subsidiary delivered them to secret CIA interrogation sites will have to persuade a full panel of the U.S. 9th Circuit Court of Appeals that their case should go to trial despite administration claims that it involves state secrets.
The court's decision Tuesday to rehear the case of Mohamed vs. Jeppesen DataPlan Inc. of San Jose was unusual in its naming of judges who didn't take part in the vote, including Jay S. Bybee, the former Bush administration lawyer who wrote so-called torture memos.
Bybee served as head of the Justice Department's Office of Legal Counsel before President George W. Bush appointed him to the 9th Circuit in 2003. In his former role, he advised the government on what constitutes torture, sanctioning such practices as the simulated-drowning technique known as water-boarding.
In a March 13, 2002, memo, Bybee said the president has the power to transfer captured foreign terror suspects to other countries, effectively authorizing the then-secret extraordinary rendition program that is the subject of the suit against logistics contractor Jeppesen.
For The Record
Los Angeles Times Tuesday, November 17, 2009 Home Edition Main News Part A Page 4 National Desk 2 inches; 88 words Type of Material: Correction
Torture suit: An Oct. 28 article in Section A about the U.S. 9th Circuit Court of Appeals voting to rehear en banc the extraordinary-rendition case of Mohamed vs. Jeppesen DataPlan Inc. said that the published order "was unusual in its naming of judges who didn't take part in the vote, including Jay S. Bybee, the former Bush administration lawyer who wrote so-called torture memos." In fact, though judges recuse themselves in only a small fraction of such votes, they are always identified, said David Madden, assistant circuit executive.
A three-judge panel of the 9th Circuit ruled April 28 that the case brought by British resident and then-Guantanamo detainee Binyam Mohamed and four other men could go to trial, rejecting assertions of both President Bush and President Obama that the lawsuit should be dismissed.
The Justice Department asked the appeals court in June to reconsider the case "en banc," with 11 judges. All three judges involved in the April ruling were appointed by Democratic presidents, while the 11-judge en banc panel probably will be more diverse.
Bush invoked the presidential privilege repeatedly to prevent post-Sept. 11 abuse allegations from going to trial. Civil rights advocates have been dismayed that the Obama administration has done the same.
"We think the panel decision was absolutely correct and we hope and expect the court sitting en banc will affirm that decision," said Ben Wizner, the American Civil Liberties Union lawyer who represents the foreign plaintiffs. "We are disappointed that the Obama administration is standing against, rather than behind, torture victims seeking to have their day in court."
Justice Department spokesman Charles S. Miller would say only that "the en banc petition speaks for itself."
The full-court rehearing is a step along a legal road expected to reach the U.S. Supreme Court because of the broad constitutional questions at issue.