Federal Evidence Review

In case involving the “extraordinary rendition program,” Ninth Circuit reverses dismissal of civil action based on third party government intervenor’s claim of state secrets privilege; judicial role, premised on Marbury v. Madison, should allow for court determination on the application of the privilege on a case by case basis, 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)

The Ninth Circuit recently considered the application of the state secret privilege. In doing so, it rejected the broad application of the government, who intervened in the case, and decided that the court should independently decide the whether the privilege could be claimed.

In the case, the plaintiffs, who were foreign nationals, alleged that they were subjected to an “‘extraordinary rendition program’ to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation by United States or foreign officials.” The program included “interrogation methods that would [otherwise have been] prohibited under federal or international law.” Mohamed, 563 F.3d at 997. The plaintiffs filed a civil action under Alien Tort Statute against Jeppesen Dataplan, Inc. (Jeppesen), a subsidiary of the Boeing Company, which they claimed “provided flight planning and logistical support services to the aircraft and crew on all of the flights transporting the five plaintiffs among their various locations of detention and torture.” Mohamed, 563 F.3d at 999.

Before an answer to the complaint was filed, the government intervened, and moved to dismiss the action based on the state secrets privilege. The Director of the Central Intelligence Agency filed a classified and unclassified declaration in support of the motion to dismiss, stating that “[d]isclosure of the information covered by this privilege assertion reasonably could be expected to cause serious -- and in some instances, exceptionally grave -- damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” Mohamed, 563 F.3d at 999. In granting the motion to intervene and dismiss the action, the district court noted “the very subject matter of this case is a state secret.” Mohamed, 563 F.3d at 1000. The plaintiffs appealed the dismissal of the action.

The Ninth Circuit reversed the dismissal of the case and remanded to reinstate the action. Initially, the circuit reviewed the “thin history” of the state secret privilege, identifying “[t]wo parallel strands of the state secrets doctrine.”:

• The first strand identified by the circuit is found in Totten v. United States,, 92 U.S. 105 (1875). Totten essentially “stands for the proposition that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings because the ‘very subject matter’ of the suit is secret.” Mohamed, 563 F.3d at 1000.
• The second strand starts with United States v. Reynolds, 345 U.S. 1 (1953). That case suggests that an evidentiary privilege may be asserted to bar “discovery of secret evidence when disclosure would threaten national security.” Mohamed, 563 F.3d at 1000-01. The privilege is limited to the matters involving national security, and “the litigation can proceed, therefore, so long as (1) the plaintiffs can prove the essential facts of their claims without resort to [privileged evidence], and (2) invocation of the privilege does not deprive the defendant of information that would otherwise give the defendant a valid defense.” Mohamed, 563 F.3d at 1001 (quotation marks and citations omitted).

According to the circuit, the bar under Totten was inapplicable “where third-party plaintiffs (not Jeppesen) seek compensation from Jeppesen (not the government) for tortious detention and torture (not unpaid espionage services). Totten’s logic simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities.” Mohamed, 563 F.3d at 1002. The circuit noted a role for judicial review of the executive branch claim of necessity by applying a balancing test:

According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law. We reject this interpretation of the ‘very subject matter’ concept, not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty ‘to say what the law is,’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and the Executive’s constitutional duty ‘to preserve the national security,’ United States v. Valenzuela-Bernal, 458 U.S. 858, 880 (1982). We simply need not place the ‘coequal branches of the Government’ on an all-or-nothing ‘collision course.’” Cheney [v. United States Dist. Court for Dist. of Columbia,] 542 U.S. [367,] 389 (2004)]…. [I]n the state secrets context, the difficulty of [balancing the need for information in a judicial proceeding and the executive branch’s desires to excluded it] and the violence of the collision are both substantially less extreme within the Reynolds evidentiary framework, when both branches are made to engage in a ‘formula of compromise,’ [Reynolds,] 345 U.S. at 10, rather than by application of the winner-takes-all Totten rule…. Within the Reynolds’s framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance ‘the circumstances of the case’ and the plaintiff’s ‘showing of necessity’ for the evidence against the ‘danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.’ Id. 10-11. Where a plaintiff’s need for the evidence is ‘strong . . ., the claim of privilege should not be lightly accepted,’ but ‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied’ that the privilege applies. Id. at 11.

Mohamed, 563 F.3d at 1003. Instead of an all or nothing assertion of the privilege, the court suggest review “on an item-by-item basis.” In sum, “if a lawsuit is not predicated on the existence of a secret agreement between the plaintiff and the government, Totten does not apply, and the subject matter of the suit is not a state secret. Here, plaintiffs have not sued the government to enforce an alleged secret agreement between themselves and the Executive Branch. The subject matter of this action therefore is not a state secret, and the case should not have been dismissed at the outset.” Mohamed, 563 F.3d at 1004.

The circuit also concluded dismissal was not required under the Reynolds formulation since “Reynolds applies to evidence, not information” and could not “prevent the litigation of allegations, rather than simply discovery of evidence.” Mohamed, 563 F.3d at 1004. Consequently, “within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant.” Mohamed, 563 F.3d at 1006.

The circuit also considered when evidence may be “secret” under the privilege, and rejected the government’s argument, based on Freedom of Information Act cases, that “any evidence containing ‘classified’ information, which remains ‘secret’ unless and until such information has been ‘officially disclosed’ by a high ranking government official.” Mohamed, 563 F.3d at 1006. The executive branch alone could decide what was classified and therefore secret. The courts should independently determine whether any evidence was secret under the privilege. The case was remanded for a determination whether the privilege applied to specific evidence.