June 15, 2009
Government Seeks Review of Ninth Circuit's State Secrets Ruling
The government filed a petition for reconsideration or rehearing en banc of the Ninth Circuit panel's decision in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its alleged role in the CIA's extraordinary rendition program. The panel rejected the government's claim that the state secrets privilege required dismissal of the entire suit at the pleading stage. I posted most recently on the case here; my interview with lead counsel for the plaintiff, ACLU attorney Ben Wizner, is here.
The government's petition argued that the panel took an unduly narrow view of the privilege as recognized in Totten v. United States; that case, it wrote, held that "dismissal is appropriate whenever it becomes clear that further proceedings risk disclosure of state secrets," and not only under the narrow facts of Totten, i.e., when a plaintiff seeks to enforce an espionage agreement.
The government also took issue with the panel's interpretation of United States v. Reynods that the state secrets privilege is an evidentiary privilege that therefore cannot protect against the disclosure of secret information through pleadings. Under the panel's ruling, the government argued, Jeppesen would have to answer the complaint's allegation that it secretly contracted with the CIA to help conduct the extraordinary rendition program. Any answer could reveal a state secret, wrote the government, and revealing the information would harm CIA relations with cooperating foreign nations. (Take a look at the amended complaint yourself. It is, indeed, quite specific in its allegations about the extraordinary rendition program, but it's also based largely on publicly available information (and it cites its sources).)
Finally, the government highlighted the circuit split, leading with El Masri v. United States, the Fourth Circuit decision affirming the pleading-stage dismissal of all claims against the government for alleged detention and torture by the CIA, thus teeing up its Supreme Court cert. petition should the full Ninth Circuit reject the government's claims.
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