Binyam Mohamed v. Jeppesen Dataplan, Inc.
614 F.3d 1070, 2010 WL 3489913, 2010 U.S. App. LEXIS 18746 (2010)
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Rule of Law:
A lawsuit against a private entity must be dismissed under the state secrets doctrine if the court concludes that litigating the claims and potential defenses would create an unacceptable risk of disclosing state secrets, even if the case's subject matter is not itself a state secret under the Totten bar.
Facts:
- Plaintiffs Ahmed Agiza, Abou Elkassim Britel, Binyam Mohamed, Bisher al-Rawi, and Farag Ahmad Bashmilah, all foreign nationals, allege they were captured as part of the CIA's 'extraordinary rendition' program.
- Each plaintiff claims they were secretly transported to foreign countries for detention and interrogation.
- Plaintiffs allege they were subjected to severe physical and psychological torture, including beatings, electric shocks, scalpel cuttings, and sensory deprivation, by U.S. or foreign officials.
- The defendant, Jeppesen Dataplan, Inc., a U.S. corporation, allegedly provided flight planning and logistical support services for the aircraft used to transport the plaintiffs.
- Plaintiffs allege Jeppesen provided this assistance with knowledge that the flights were part of the extraordinary rendition program and that the plaintiffs would be subjected to forced disappearance and torture.
Procedural Posture:
- Plaintiffs sued Jeppesen Dataplan, Inc. in federal district court (a court of first instance) under the Alien Tort Statute.
- The United States government intervened and moved to dismiss the complaint, invoking the state secrets doctrine.
- The district court granted the government's motion and dismissed the case.
- Plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel of the Ninth Circuit reversed the district court's dismissal.
- The Ninth Circuit then granted the government's petition for a rehearing en banc, meaning the case would be heard by a larger panel of the court's judges.
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Issue:
Does the state secrets doctrine require the dismissal of a lawsuit against a private government contractor where litigating the case would create an unjustifiable risk of disclosing privileged information, even if the plaintiffs might be able to establish a prima facie case using non-privileged evidence?
Opinions:
Majority - Judge Fisher
Yes. The state secrets doctrine requires dismissal because there is no feasible way to litigate the defendant's alleged liability without creating an unjustifiable risk of divulging state secrets. The court bypasses the absolute Totten bar, which applies when the very subject matter is a secret, and instead applies the Reynolds evidentiary privilege. The court finds that while plaintiffs may have public evidence for their claims, any plausible defense by Jeppesen would require it to confirm or deny a covert relationship with the CIA and disclose other operational details. Because the privileged and non-privileged facts are inextricably linked, the risk of inadvertent disclosure is too high, compelling dismissal at the pleading stage to protect national security.
Dissenting - Judge Hawkins
No. Dismissal is premature and represents a misapplication of the state secrets doctrine. The Reynolds privilege is an evidentiary rule, not a threshold bar to litigation, and should be applied to specific pieces of evidence as the case proceeds, not to dismiss the entire action at the pleading stage. The majority speculates about Jeppesen's potential defenses before an answer has even been filed. The proper course is to remand to the district court to allow the case to proceed with non-privileged evidence and address specific claims of privilege as they arise, thereby preventing the doctrine from being used as a shield for alleged government misconduct.
Concurring - Judge Bea
Yes. The lawsuit must be dismissed, but it should have been dismissed under the more direct Totten bar. The very subject matter of the action—the alleged arrest, detention, and interrogation of the plaintiffs by the U.S. government—is a state secret. Therefore, the court should not even reach the more detailed Reynolds evidentiary analysis, as the entire case is non-justiciable from the outset.
Analysis:
This decision significantly clarifies the modern application of the state secrets doctrine, particularly the Reynolds evidentiary privilege. It establishes that a case against a private contractor can be dismissed at the pleading stage if the court determines that the act of litigating itself, especially the defendant's ability to mount a defense, poses an unacceptable risk to national security. This lowers the bar for dismissal, as it does not require the court to find that the very subject matter is a secret under Totten. The ruling creates a high hurdle for plaintiffs seeking to hold private contractors accountable for their alleged roles in covert government operations, prioritizing executive national security concerns over judicial review and redress for alleged human rights violations.
