DOJ Requests Rehearing Or En Banc Review Of Recent State Secret Privilege Ruling

In case involving “extraordinary rendition program,” DOJ requests en banc review of panel decision reversing dismissal of civil action based on third party government intervenor’s claim of state secrets privilege, in Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. April 28, 2009) (No. 08-15693), amended, 579 F.3d 943 (9th Cir. Aug. 31, 2009)

As previously posted, a Ninth Circuit panel recently reversed a district court dismissal of a civil action challenging the rendition program after the government intervened as a third party and claimed the state secret privilege applied. The panel ordered the civil action to be reinstated and established a process of judicial review of the executive branch claim of necessity by applying a balancing test.

On Friday, June 12, 2009, the U.S. Department of Justice filed a petition for rehearing en banc. The Government's brief emphasized the significance of the issue:

We emphasize that the Government’s request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege. As the President made clear two weeks ago, while the state secrets privilege is necessary to protect national security, the United States will not invoke the privilege to prevent disclosure of “the violation of a law or embarrassment to the government.
Petition for Rehearing or Rehearing En Banc, at 1.

The department further argues that the panel treated the claim of state secrets as a mere evidentiary privilege:

No other court of appeals has so restricted the state secrets privilege, and the panel’s order is directly at odds with the cardinal principle, repeatedly applied by courts of appeals, that a case must be dismissed regardless of its stage if it cannot be litigated further without risking disclosure of state secrets.… The panel further held that, outside of the narrow context of suits alleging a plaintiff’s espionage relationship, the state secrets doctrine is merely a limited evidentiary privilege covering only specific materials or documents, which cannot be used to protect categories of information or as a basis to dismiss claims in litigation threatening disclosure of state secrets. This unprecedented view of the privilege conflicts with the construction endorsed and applied in various cases by the courts of appeals, including this Court, and will significantly hamstring the Government’s ability to prevent the disclosure of highly sensitive state secrets through litigation.

The effect of the panel’s ruling is to permit litigation to go forward even though, as the Executive Branch and the district court have both concluded in this case, further proceedings can reasonably be expected to cause serious or even exceptionally grave harm to our national security. The en banc Court should review the panel’s decision before allowing it to become the law of this Circuit, and to govern this case.
Petition for Rehearing or Rehearing En Banc, at 2-4 (citation omitted).

The case raises important questions about the judicial review of a claim of a state secret. Should a court accept an executive branch claim of privilege after declarations are submitted by top executive branch officials? Alternatively, to what extent may a court review the assertion of the privilege and to what extent? It will be interesting to see whether the Ninth Court rehears the case en banc, and whether the Supreme Court ultimately reviews this issue concerning the state secret privilege. As previously posted, Congress is presently considering legislation which would strike a new balance for considering state secret privilege claims.

Federal Rules of Evidence