Ninth Circuit Dismisses Torture Claims Based on State Secrets Privilege

A sharply divided (6-5) Ninth Circuit today ruled in Mohamed v. Jeppesen Dataplan that the state secrets privilege compelled the dismissal of Binyam Mohamed's claims against Jeppesen Dataplan, Inc., for its role in his extraordinary rendition and torture.  In so ruling, the court upheld a district court decision dismissing the case.  We covered the Ninth Circuit panel's ruling (reversing the district court) here; we more recently covered the privilege in a different case, Al-Haramain Islamic Foundation v. Obama, here.

The case attracted attention because the government (not a party to the case) moved to intervene and then to dismiss on the pleadings based upon a sweeping state secrets claim.  This aggressive assertion of the privilege was asserted first by the Bush Justice Department and then again by the Obama Justice Department.

There are several notable aspects of today's ruling:

• The Ninth Circuit read Totten broadly.  Totten v. United States involved a Civil War spy's claim against the federal government for payment under his spy contract.  The Court ruled in that case that the very subject matter of the suit was a state secret, and therefore the case could not go forward.  The so-called Totten bar was the first version what later became the state secrets privilege.  It is an absolute bar to litigation in matters in which the very subject matter is a state secret.  Mohamed argued that the Totten bar should be (and is) limited to its facts--a secret contract with the government.  The Ninth Circuit rejected that interpretation and ruled that the Totten bar applies anytime the very subject matter of a case is a state secret.

• But it didn't dismiss Mohamed based on Totten.  Despite the court's broad reading of the Totten bar, the court did not dismiss the case based upon it.  (One judge, Judge Bea, would have dismissed based on Totten.)  While the court stretched the Totten bar (in dicta), it also recognized limitations, possibly including this case.

• Instead it dismissed the entire case, on the pleadings, based upon Reynolds.  United States v. Reynolds involved claims against the government arising out of a "secret" government program.  (It turned out later that the government's position in the case had nothing to do with the secrecy of the program, but rather its desire to avoid embarrassment.)  Reynolds established an evidentiary privilege that allows the government to keep certain secret information out of litigation.  Like other evidentiary privileges, the so-called Reynolds privilege applies (or not) to evidence as it's propounded in a case--and not to dismiss the entire case on the pleadings, before there's even a chance for anyone to propound evidence.  The Ninth Circuit ruled here that the Reynolds privilege can be used to dismiss a case on the pleadings--when litigating the case would raise an "unjustifiable risk of divulging state secrets"--and not just to object to particular pieces of evidence. The court also validated the practice of the government intervening in an otherwise private dispute to assert the privilege and then move to dismiss.  This application of Reynolds pushes the outer edges of the courts' treatment of the privilege. 

• The court did not ground the privilege in the Constitution.  Even though the court stretched the privilege to its outer edges, it stopped short of grounding the privilege in the Constitution (as the Fourth Circuit did in El-Masri, a similar case, but against the government).  This approach preserves the courts' role in checking the executive's assertion of the privilege.  (In contrast, the Fourth Circuit's approach all but takes the judiciary out of the equation, requiring it to defer blindly to the executive anytime the executive asserts it.)

• The majority seemed to take its job seriously.  The majority claimed to scrutinize the voluminous evidence carefully before issuing its ruling--another sign that the ruling preserves the courts' role in checking executive assertions of the privilege.  It also recognized historical abuses of the privilege and reminded the political branches of their tools to remedy this wrong.  It's too much to say that the court was apologetic in its application of the privilege, but it seemed sensitive to counter-balancing interests in a case like this.  Again, this approach sets the case apart from El-Masri in the Fourth Circuit.

Despite these last two mitigating aspects of the ruling, it still represents a breathtaking application of the privilege.

SDS