By Paul Elias

The Associated Press

Tuesday 05 February 2008

San Jose, California - Bush administration lawyers cited national security concerns Tuesday in urging a federal judge to toss out a lawsuit accusing a Boeing Co. subsidiary of illegally helping the CIA secretly fly terrorism suspects to overseas prisons to be tortured.

The American Civil Liberties Union sued Jeppesen Dataplan Inc. last year in San Jose federal court, accusing it of aiding the CIA in the "forced disappearance, torture and inhumane treatment" of five suspected terrorists in violation of national and international laws. The ACLU alleges that Jeppesen, based in San Jose, knowingly participated in the program by supplying aircraft, crews and logistical support to the CIA flights.

On Tuesday, Justice Department lawyers asked U.S. District Judge James Ware to toss the lawsuit without further litigation because of unspecified national security risks.

In an earlier court filing, CIA Director Michael Hayden invoked the "state secrets privilege," which would let him bar evidence sensitive to national security from being used in court.

The judge appeared sympathetic to Hayden's position Tuesday, but declined to rule immediately. Ware said he would issue a written opinion soon.

ACLU lawyers argued Tuesday that Hayden's security concerns are trumped because the rendition program is public knowledge.

"No interrogation method alleged ... is a secret," ACLU attorney Ben Wizner said. "Every one of those has been publicly disclosed and confirmed and in the public record."

Wizner pointed out the Hayden even discussed "waterboarding" Tuesday in testimony before Congress.

President Bush also has confirmed the existence of the rendition program.

"Many specifics of this program, including where these detainees have been held and the details of their confinement cannot be divulged," Bush said in a September 2006 speech defending the rendition program as a vital national security tool. "Doing so would provide our enemies with information they could use to take retribution against our allies and harm our country."

On Tuesday, Assistant U.S. Attorney Michael Abate said Bush and other high-ranking officials have discussed the program only in broad terms and that "this did not declassify any of the specifics."

For instance, Abate argued that the government has neither confirmed nor denied that any of the five men represented by the ACLU were ever in CIA custody. To do so would jeopardize the agency's intelligence gathering abilities, Abate argued.

Outside court, the ACLU's lawyer said the CIA's opposition to the lawsuit was the agency's latest attempt to avoid having a court rule on the legality of its rendition program.

"No court has ever ruled on the legality of the government's torture program," Wizner said.

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