An ACLU lawsuit takes the fight against the CIA's “extraordinary rendition” program to the private sector for the first time, but the defendant may be able to assert the “state secrets” privilege that has killed similar cases against the federal government.

According to the suit, Jeppesen Dataplan, an aviation logistics firm, is liable under the Alien Tort Statute (ATS) for aiding and abetting the “forced disappearance, torture, and inhumane treatment” of three suspected terrorists who were rendered to Morocco, Afghanistan and Egypt.

“Publicly available records demonstrate that Jeppesen facilitated more than 70 secret rendition flights over a four-year period to countries where it knew or reasonably should have known that detainees are routinely tortured,” the complaint says.

Jeppesen boasts on its Website that it "makes it possible every day for people around the globe to safely and efficiently reach their destinations" -- to which plaintiffs Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza can apparently testify.

The ATS allows foreign nationals to sue in U.S. courts for violations of “those international norms that have definite content and acceptance among civilized nations.” According to one recent article, “no judgment has been entered against any multinational corporation based upon a claim asserted under the Alien Tort Statute.”

The ACLU says Jeppesen violated numerous "definite and accepted international norms" codified in such international conventions as the United Nations Convention Against Torture and the International Convention on Civil and Political Rights.

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the U.S. Supreme Court said the ATS does not cover kidnapping but did not resolve whether it applies to torture. “The prohibition against torture ... is a 'specific, universal and obligatory' norm of customary international law cognizable under the Alien Tort Statute,” the ACLU contends.

But the Jeppesen case could meet the same fate as El-Masri v. U.S., 479 F.3d 296 (2007), in which the 4th U.S. Circuit Court of Appeals rubber-stamped the Bush administration's assertion of the state secrets privilege and upheld the dismissal of a German citizen's civil-rights claims related to his “extraordinary rendition” by the CIA.

Without access to the details of the rendition program, how will the ACLU be able to show Jeppesen violated international norms? “This lawsuit ... cannot be tried unless the entire government policy of extraordinary rendition is tried, and this is something I cannot imagine a federal court doing,” a FindLaw columnist says.

Other commentators have suggested Jeppesen was “entitled to assume that the government agencies they service are themselves acting lawfully.” But the ACLU alleges the company “had actual knowledge of the consequences of its activities.”

“A former Jeppesen employee,” the suit says, “informed the New Yorker Magazine that at an internal board meeting, a senior Jeppesen official stated: 'We do all of the extraordinary rendition flights -– you know, the torture flights. Let's face it, some of these flights end up that way.”

By Peyton Burgess
7/10/07