The suit was filed under the Alien Tort Statute by Binyam Mohamed and four other foreign nationals suspected of involvement in terrorist activities. Once they were apprehended, they were transferred in secret to foreign countries for detention and interrogation by U.S. or foreign officials. The rendition program allowed agents of the U.S. government “to employ interrogation methods that would [otherwise have been] prohibited under federal or international law.”
The plaintiffs were represented by the ACLU. “American corporations should not be profiting from a CIA rendition program that is unlawful and contrary to core American values,” stated ACLU executive director Anthony D. Romero. “Corporations that choose to participate in such activity can and should be held legally accountable.”
The five plaintiffs sued Jeppesen Dataplan, Inc., a Boeing subsidiary and CIA contractor, alleging the company had actual or constructive knowledge that its planes were being used to facilitate “forced disappearance.” According to the plaintiffs, Jeppesen’s “flights involved the transportation of terror suspects pursuant to the extraordinary rendition program,” and the program’s objectives could be inferred by the “falsified flight plans submitted to European air traffic control authorities to avoid public scrutiny of CIA flights.” They asserted seven theories of liability under two claims: one for “forced disappearance” and another for “torture and other cruel, inhumane or degrading treatment.”
The United States moved to intervene before Jeppesen answered the complaint. The U.S. asked the court to dismiss the suit based on the state secrets doctrine and filed two declarations, one classified and the other redacted and unclassified, from then-CIA director Michael Hayden. Those declarations were later reviewed and found appropriate by the Obama administration. The district court dismissed the complaint; a panel of the Ninth Circuit reversed, and en banc review ensued.
The contemporary state secrets doctrine includes two applications that recognize exceptional circumstances require a court to “act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely,” the appellate court wrote. “One completely bars adjudication of claims premised on state secrets (‘the Totten bar’); the other is on evidentiary privilege (‘the Reynolds privilege’) that excludes privileged evidence from the case and may result in dismissal of the claims.”
The U.S. Supreme Court established the Totten bar in 1876 when it stated, “as a general principle  that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” The Totten bar is “designed not merely to defeat the asserted claims, but to preclude judicial inquiry” entirely.
The Reynolds privilege prohibits “revealing military [or state] secrets, a privilege which is well established in the law of evidence.” The Ninth Circuit held that it was the Reynolds privilege that applied to this case, for there was evidence that the suit involved state secrets. Dismissal was proper because if Jeppesen defended the lawsuit on the merits it “would present an unacceptable risk of disclosing state secrets.”
It was not the rendition program itself that constituted a state secret, as it had “been publicly acknowledged by numerous government officials including the President of the United States,” wrote the Court of Appeals. Nonetheless, there were other aspects of the extraordinary rendition program that would present a risk of “grave harm to national security” if disclosed. Of course, those aspects were not described.
The Ninth Circuit said other remedies may exist for the plaintiffs. First, the government may find that it violated their human rights and make reparations. Second, Congress has the authority to investigate and restrain excesses by the Executive Branch (assuming it chooses to do so). Third, Congress has the power to enact private bills. Finally, Congress has authority to pass remedial legislation authorizing appropriate causes of action to address claims such as those raised by the plaintiffs.
Accordingly, the district court’s order of dismissal was affirmed. The dissenting appellate judges noted that as Jeppesen had not yet answered the suit, it was unknown what information it would need to defend itself and whether such information included state secrets. See: Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc), cert. denied.
Additional sources: www.aclu.org, http://takingthefifth-acriminallawblog.com
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Related legal case
Mohamed v. Jeppesen Dataplan, Inc.
|Cite||614 F.3d 1070 (9th Cir. 2010) (en banc)|
|Level||Court of Appeals|