Federal civil procedure - government may intervene and invoke state secrets privilege for defendant company that allegedly assisted CIA - Mohamed v. Jeppesen Dataplan, Inc.

• Author: Wilusz, John M.

Federal Civil Procedure--Government May Intervene and Invoke State Secrets Privilege For Defendant Company That Allegedly Assisted CIA--Mohamedv. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc), cert. denied, 131 S. Ct. 2442 (2011)

The United States judiciary will defer to the executive branch on matters of foreign policy and national security when evaluating the need for secrecy. (1) The state secrets doctrine, a common-law evidentiary privilege, permits the government to bar the disclosure of information that poses a reasonable danger of exposing military matters that should not be divulged in the interest of national security. (2) In Mohamed v. Jeppesen Dataplan, Inc., (3) the Court of Appeals for the Ninth Circuit considered the government's motions to intervene in and dismiss--on state secrets grounds--an action brought by foreign nationals against a company that purportedly assisted in the Central Intelligence Agency's (CIA) "extraordinary rendition" program. (4) On rehearing en banc, the court of appeals affirmed the district court's judgment and held that the plaintiffs' action must be dismissed at the pleadings stage, in the interest of national security. (5)

Binyam Mohamed and four co-plaintiffs alleged that CIA agents kidnapped them as part of its extraordinary rendition program. (6) According to the plaintiffs, the program allowed the United States government and its agents to employ prohibited interrogation methods by transferring suspected terrorists to secret detention facilities in Europe and the Middle East. (7) Although differing in detail, the individual circumstances underlying the plaintiffs' claims all involved forced disappearance for months or years, detainment in abject conditions, and both physical and psychological torture. (8) Using publicly available information, the plaintiffs contended that Jeppesen Dataplan (Jeppesen) provided aid to the CIA in the form of flight planning, logistics, and other services on all flights that had transported them to their detention and torture sites. (9) The plaintiffs' complaint asserted that Jeppesen played an integral role in the extraordinary rendition program by providing the CIA both knowledge of the program's objectives and information regarding the intended purpose of the transportation--namely, forced disappearance and torture. (10)

Mohamed sued under the Alien Tort Statute, (11) with one claim for forced disappearance and another for torture or other cruel, inhuman, or degrading treatment. (12) Before Jeppesen had filed an answer to the complaint, or any other pleading, the government filed motions to intervene and dismiss under the state secrets doctrine. (13) In support of the motion to dismiss, the Director of the CIA submitted two declarations explaining the necessity of the doctrine's use. (14)

The district court granted the government's motions to intervene and dismiss, and the plaintiffs appealed. (15) On appeal, a three-judge panel of the court of appeals reversed and remanded, holding that the government had failed to establish a basis for dismissal and that the state secrets privilege may only be asserted with respect to secret information, as opposed to a categorical bar that forecloses litigation at the outset. (16) The Ninth Circuit reviewed the case en banc and determined the state secrets doctrine had been properly applied at the district court level.17 Thus, the court of appeals affirmed the district court's judgment and dismissed the plaintiffs' case. (18)

Since its first use following the United States Civil War in Totten v. United States, (19) the state secrets privilege has served as a common-law evidentiary privilege that permits the government to deny the discovery of military secrets. (20) The Totten bar provides that cases falling within a certain class--specifically those involving a contract for a secret service--are entirely nonjusticiable. (21) While this core proposition of Totten is still relevant and active, the state secrets privilege has adopted a contemporary form that has been applied beyond contractual disputes or secret agreements. (22)

In 1953, the Supreme Court held in United States v. Reynolds that certain government evidence may be subject to a state secrets privilege, but the use of such a privilege would not constitute an outright bar to the case's justiciability. (23) With the Reynolds decision, the Court established a standard set of procedures for invoking the privilege, beginning with a formal claim of privilege filed by the head of the department controlling the material at issue, followed by the court determining whether circumstances are appropriate for the claim, and lastly, a final decision on how to proceed further in light of the change. (24) This judicial discretion, severely hampered by the Reynolds instruction that a court should not over examine the source of the claimed privilege to avoid the risk of exposing privileged material, has led to further expansion of the state secrets privilege. (25) In a number of decisions, courts across the country have held dismissal appropriate based on the pleadings alone where the court opined that plaintiffs either could not make out prima facie cases without the use of privileged information, or because the very subject matter and object of the claim were state secrets. (26)

In its most modern form, the Fourth Circuit demonstrated the government's reliance on the state secrets privilege as part of its legal response to the war on terror in the 2007 El-Masri v. United States decision. (27) In El-Masri, the court rejected the plaintiff's arguments and held that the existence of public information related to the extraordinary rendition program, the essence of the plaintiff's claim, could not prevent dismissal on state secrets grounds. (28) In a separate suit involving the same plaintiff, the court implied, but did not decide, that an expansion of the Totten bar was warranted because the extraordinary rendition claim concerned allegations of secret espionage relationships between the United States, foreign governments, and corporate defendants. (29)

In Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit applied the Reynolds test and affirmed dismissal of the case at the pleadings stage without resolving the question of which claims may be barred under Totten. (30) The court indicated that the procedural requirements established in Reynolds had been met, and held that the government's classified brief accurately stated that disclosure of the information at issue could cause grievous harm to legitimate national security interests with an appropriate exercise of the privilege. (31) The court assumed, but did not decide, that the plaintiffs' prima facie case--along with Jeppesen's defenses--may not depend upon the evidence at issue, but held dismissal was required because there would be no way to litigate liability without risking exposure of state secrets. (32) In applying the state secrets privilege, the court acknowledged that the extraordinary rendition program, in general, is no longer a secret, yet aspects of the program remain state secrets because their disclosure could greatly harm national security. (33) The court reasoned that the government invoked the privilege for legitimate concerns and not to avoid embarrassment or escape publicity, controversy, or other scrutiny with regard to the controversial program, as mandated by the Attorney General's policy memorandum. (34) The court maintained that its dismissal did not bar plaintiffs from seeking relief from the government in a nonjudicial forum. (35)

The court in Mohamed v. Jeppesen Dataplan, Inc. expanded the state secrets privilege by dismissing the plaintiffs' suit before an answer to the complaint was filed, improperly utilizing the Totten bar's standards through the form of a Reynolds test. (36) The logic of Totten--applied in the name of the Reynolds test--should not have been extended to the claims at bar, where the plaintiffs were not involved in a secret contract with the government, were not suing the government itself, and offered alternative public evidence that did not rely on privileged or confidential information to prove their case. (37) By failing to hold that Totten's justiciability rule is not applicable to a claim of plaintiffs against nongovernmental defendants, the court opens the door for future government use of the...