Masquerading Justiciability: the Misapplication of State Secrets Privilege in Mohamed v. Jeppesen—reflections from a Comparative Perspective

• Publication year: 2012

Masquerading Justiciability: The Misapplication of State Secrets Privilege in Mohamed v. Jeppesen—Reflections from a Comparative Perspective

Galit Raguan^*

[Page 423]

Table of Contents

I. Introduction...............................................................................424

II. The State Secrets Privilege.....................................................426

III. Mohamed v. Jeppesen Dataplan, Inc..........................................430

IV. Misapplication of the State Secrets Privilege in Jeppesen.........................................................................................436

A. At What Stage of Litigation Should the State Secrets Privilege Apply?.......................................................................437
B. What Requires Protection? How Can Courts Assess the Validity of an Assertion of Privilege?......................................439
C. Consequences of Successfully Asserting the Privilege: Lack of a Balancing Test Under Reynolds...............................445
D. From an Evidentiary Privilege to a Doctrine of Nonjusticiability.......................................................................447

V. State Secrets Privilege from a Comparative Perspective...................................................................................451

A. Privileged Evidence Under Israel's Evidence Ordinance........452
B. Judicial Review of National Security Policies in Israel...........457
C. Analysis of the Israeli and U.S. Mechanisms from a Policy Perspective...............................................................................463

VI. Conclusion...................................................................................471

[Page 424]

I. Introduction

In September 2010, the Ninth Circuit sitting en banc dismissed a potential challenge against the U.S. government's extraordinary rendition program. The suit was filed against Jeppesen Dataplan, Inc., a subsidiary of Boeing Company, for its alleged role in facilitating the transportation of detainees to countries where they were subjected to presumably illegal interrogation techniques amounting to torture.¹ Although the lawsuit was filed against a private actor, the government was allowed to intervene and ask for dismissal.² A closely divided court dismissed the case under the state secret privilege as formulated in United States v. Reynolds,³ finding that "Jeppesen's alleged role and its attendant liability cannot be isolated from aspects that are secret and protected. Because the facts underlying plaintiffs' claims are so infused with these secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets . . . ."⁴

The decision, one of several recent federal court rulings in lawsuits attempting to challenge national security policy and involving state secrets,⁵

[Page 425]

is reflective of the flaws of contemporary application of the state secrets privilege. To begin with, the state secrets privilege as formulated by the Supreme Court in Reynolds created an inherent imbalance in favor of the government by providing privileged information with absolute protection once the privilege has been asserted successfully.⁶ Moreover, the majority's application of the privilege in Jeppesen has compounded this flaw tenfold by applying the state secrets privilege as a nonjusticiability doctrine rather than as an evidentiary privilege.⁷ In so doing, it has created an overly broad, substantive barrier for national security litigation—one that goes well beyond the original underlying rationale of the privilege. As a result, plaintiffs attempting to challenge potentially unconstitutional government behavior are forced to internalize the costs associated with asserting the privilege. From a policy perspective, this is undesirable.

Part II of this Article provides a brief background of the state secrets privilege. Part III presents in detail the Ninth Circuit's en banc decision in Jeppesen. Part IV goes on to analyze the majority's gross misapplication of the state secrets privilege in Jeppesen. It also criticizes the absence of a balancing test under Reynolds, which would allow courts to weigh competing interests of the parties when an assertion of privilege is made by the government. A comparative perspective of the treatment of privileged

[Page 426]

information in national security litigation in Israel then follows in Part V. The Israeli experience not only provides a different approach to legislative and judicial mechanisms than the one currently in use in the U.S but also illuminates an intrinsically different attitude regarding the feasibility of adjudicating national security matters. In the present environment in the United States, it may be difficult to conceive of adjudication of such sensitive matters. However, Israeli jurisprudence shows that such adjudication is possible given not only an accommodating legal scheme but also a more accommodating mindset, both of which may be attainable in the United States as well.

II. The State Secrets Privilege

The state secrets privilege is a common law evidentiary executive privilege that permits the government to bar the disclosure of information if "there is a reasonable danger" that disclosure will "expose military matters which, in the interest of national security, should not be divulged."⁸ As framed by the Ninth Circuit majority opinion in Jeppesen,⁹ the state secrets privilege has two variations originating from two Supreme Court precedents: Totten v. United States¹⁰ and Reynolds.

The Totten version of the state secrets privilege is the more drastic of the two. It completely bars adjudication of certain matters if such adjudication "would inevitably lead to the disclosure of matters which the law itself regards as confidential."¹¹ In other words, Totten stands for the proposition that "where the very subject matter of the action . . . [is] a matter of state secret," an action may be "dismissed on the pleadings without ever reaching the question of evidence."¹² It has been found to apply primarily to suits which allege the existence of a covert agreement or relationship between the plaintiff and the government.¹³

[Page 427]

Application of the state secrets privilege under Reynolds¹⁴ is narrower.¹⁵ It allows the court to exclude privileged evidence from a case. This requires, whenever possible, disentangling sensitive from nonsensitive information to allow for the release of only the latter. However, there are occasions when, as a practical matter, such a dichotomy is impractical. In such cases, the court may not be able to restrict access strictly to sensitive information and may be forced to deny the parties access to nonsensitive information as well, so as to avoid the risk of unintentionally disclosing a state secret. Hence, in the relatively easy cases, litigation will proceed by simply walling off the privileged information. The more difficult cases will require prohibiting access to a larger chunk of evidence, which may include nonprivileged evidence fused together with privileged evidence. Granted, this may burden the parties, however, it does not foreclose adjudication altogether.

The most difficult cases are those in which walling off the evidence is insufficient. In such cases, according to the majority in Jeppesen, the Reynolds privilege, in effect, converges with the Totten privilege and, like the latter, requires dismissal of the case altogether.¹⁶ As the Ninth Circuit

[Page 428]

explained in its majority opinion in Jeppesen, there are three circumstances which justify terminating a case under the Reynolds privilege: first, a plaintiff's claim is dismissible if the plaintiff cannot make a prima facie case without the nonprivileged evidence.¹⁷ Second, a defendant is entitled to summary judgment should the privilege deny a defendant a valid defense to the plaintiff's claim.¹⁸ Third, and most expansive, even if the privileged evidence is unnecessary to a claim or defense, should the risk of revealing state secrets during the litigation prove unacceptable, a court may refuse to proceed with the claim.¹⁹

The bare assertion of the privilege by the executive is not sufficient to invoke it. First, the privilege must be asserted by the head of the department which has the responsibility for the information and evidence in question.²⁰ Next, it is up to the court to determine whether the circumstances warrant assertion of the claim,²¹ taking into account the plaintiff's need for information to litigate the case; the greater the need of the plaintiff to receive the information, the deeper the court must delve into the state secret assertion.²² However, the privilege is absolute in the sense that once it has been validly asserted, it applies regardless of what the opposing interests at stake may be.²³ Some commentators have opined that in practice, courts

[Page 429]

show substantial deference to executive assertions of privilege,²⁴ primarily because of a presumption that the executive has greater expertise than the judiciary with regard to military and diplomatic matters.²⁵

It should be noted that some view Reynolds only as the basis for the state secrets privilege, whereas Totten is viewed as standing for the principle that the courts may dismiss claims which rely on a covert agreement with the government.²⁶ The relatively recent Supreme Court decision in Tenet v. Doe has been interpreted by some as having affirmed this distinction.²⁷ However, the Ninth Circuit's analysis in Jeppesen of the state secrets privilege views both precedents as separate prongs of essentially the same doctrine.²⁸ This framing is unsurprising given that, as is discussed below, the Jeppesen majority goes on to dismiss the suit presumably entirely under the Reynolds state secrets privilege.²⁹ Creating a linkage between Totten and Reynolds

[Page 430]

lends more support for a more extreme application of the state secrets privilege than...