In dismissing the suit in February, the trial court agreed with the Bush Administration that the suit could jeopardize state secrets.

U.S. District Judge James Ware in San Jose said he had no authority to decide whether, as three current prisoners and two freed inmates alleged, Jeppesen International Trip Planning colluded with the CIA to violate their rights. The suit instead must be dismissed at the outset because its subject is a secret program that cannot be examined in a public proceeding, Ware said.

In today's filing, the ACLU says the U.S. stands alone in maintaining a false "states secrets" claim:

The U.S. government continues to misuse the “state secrets” privilege to avoid legal scrutiny of the unlawful program. It has become increasingly clear in recent months that other governments do not share the Bush administration’s conviction that the program must remain shrouded in false claims of state secrets.

“The U.S. government continues to use false claims of national security to dodge judicial scrutiny of extraordinary rendition, even as other countries are openly examining the unlawful program,” said Ben Wizner, staff attorney with the ACLU National Security Project. “The threat to our nation isn’t from the ACLU’s lawsuit; the threat is from the government’s continued insistence on covering up an illegal and secret program that involves flying innocent people to countries where they will probably be tortured.”

The ACLU further points out:

Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. On August 21, Britain’s High Court of Justice ruled that one of the men, Binyam Mohamed, is entitled to receive documents from the British government relating to his rendition, detention and interrogation, including documents confirming the cooperation between the U.S. and U.K. governments in those events. Last week another of the men, Ahmed Agiza, received a $450,000 settlement from the Swedish government for its role in his rendition to Egypt.

The only government not coming clean is the U.S.:

“Governments around the world are coming clean about their participation in the rendition program by handing over relevant documents and even paying restitution to the victims. The U.S. government truly stands alone when insisting on hiding behind false claims of state secrets,” said Steven Watt, staff attorney with the ACLU Human Rights Program. “The extraordinary rendition program is well known throughout the world. The only place it’s not being discussed is where it most cries out for examination – in a U.S. court of law.”

The ACLU's brief filed today is available here.