Wednesday, September 8, 2010

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. Obamahere.

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 ReynoldsUnited 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.


Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, Recent Cases, Separation of Powers, State Secrets, War Powers | Permalink

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I suppose the only saving grace and thus perhaps cause for hope is, as you note, the fact that the court was "sharply divided."

Posted by: Patrick S. O'Donnell | Sep 9, 2010 1:49:19 PM

Dear Patrick,

There is another saving grace: The Ninth Circuit declined specifically to root the privilege in constitutional separation-of-powers principles, as the Fourth Circuit did. Under the Fourth Circuit approach, assertion of the privilege by the executive could be a game ender--on the pleadings, with no judicial review of the evidence. Judges would just defer to the executive, much as they defer to the political branches on issues of, say, foreign policy. The Ninth Circuit did not go so far (and instead went out of its way to demonstrate how thoroughly it reviewed the evidence before ruling on the privilege).

But these are odd saving graces, no? In the end, we still have the Ninth Circuit (of all circuits) dismissing a private case on the pleadings after the government intervened and asserted the privilege, and in a case where so many of the material facts were already in the public domain.


Posted by: Steven D. Schwinn | Sep 9, 2010 3:20:55 PM

American reactions to the 9th Circuit en banc court ruling in Mohamed v. Jeppesen Dataplan on 9/8/2010

One of the primary functions of a court of law is to provide a venue that allows the powerless to challenge the powerful. By deciding that the powerless have no recourse to law and justice, this court has effectively ceded their power to the executive. The reign of terror has officially begun.

Obama has disappointed his supporters by keeping Gitmo open and doing nothing to lead the nation away from the barbarism begun by Bush.

Where is the change he promised?

This may be a victory for Obama, but it is a defeat for America.
So the government can secretly do anything in the name of protecting secrets? Who is going to protect us from this type of government? And who is going to protect us from these stooges wearing judge robes?
I think 9th CIRCUiT FEDERAL APPEALS COURT FLUSHES CONSTITUTION DOWN TOILET would’ve been a more accurate headline. The entire state-secrets concept should be abolished. Instead, even as a citizen, I have absolutely no guarantee that I can’t be kidnapped by the CIA at 3am tomorrow morning, tortured secretly in ‘black-box sites’, and have no legal recourse. So basically I have no rights anymore, even as a citizen. Right now we might be using these powers on ‘terrorists’, but it’s not inconceivable that an upcoming political regime in America could start labeling dissidents as ‘terrorists’. So welcome to ’1984′, President Obama. I’ll be glad to see how President Palin uses these expanded powers you’re about to bequeath her. And the scariest part? No matter what country you’re in, the CIA can always find you if they really want to
Extraordinary rendition is a crime, not a secret. It is really quite disingenuous of President Obama to accuse Florida pastor Terry Jones of putting our soldiers in harm’s way by burning copies of the Quran when his administration continues to defend Bush policies of equating past torture with current national security. A national policy of secrecy regarding torture is going to recruit as many terrorists as the individual act of burning the Muslim sacred text. Obama is an embarassment. He promised an open administration and he has failed to deliver.
Oh, that’s great. So now our brave SS-CIA-men may torture with impunity. But, as far as I remember, torturing constitutes international crime and so is universally punishable. Where is the justice, guys? And there is our democracy?
This is just wrong. What it is about Mr. Obama that the right finds so abhorrent. He is just continuing the Bush/Cheney doctrine. Change?

The United States has to do better than this.
Another utterly shameful chapter in our nation’s history.
The circular logic of the ruling would make Kafka proud, and may yet cause Orwell to rise from the dead.

Posted by: Anon | Sep 16, 2010 12:50:45 AM

Don't forget that Obama has admitted to murdering a US Citizen with out due process ! He takes Intelligence and Law Enforcement secrets and unilaterally decides who lives or dies via a Predator Missile strike on a US Citizen. I am all about killing AQ and other Non-lawful combatants but when it is an American doesn't that citizenship mean anything?

Posted by: sc reid | Aug 9, 2012 7:44:56 AM

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