By Jonathan Abrams, NSJ Staff Editor, HLS 2012
On October 27th, the Ninth Circuit granted en banc review to an important case involving the “state secrets” privilege.
The case, Mohamed v. Jeppesen Dataplan Inc., 579 F.3d 943 (9th Cir. 2009), involves a lawsuit brought by five foreign nationals who claim they were part of the CIA’s “extraordinary rendition program.” The plaintiffs accuse Jeppesen of providing flight planning and logistical support to the program, which allegedly involved their transportation to secret prisons where they were tortured. Before Jeppesen could answer the complaint, the United States government intervened, asserted the state secrets privilege, and on that basis, moved for dismissal. The government argued that allowing the lawsuit to go forward would result in the disclosure of information that could be expected to cause grave damage to the national security of the United States. The district court granted the motion to dismiss, finding that the subject matter of the suit involved state secrets, namely, allegations of covert operations in foreign countries.
A unanimous panel of Ninth Circuit judges reversed. The court rejected the government’s assertion that when the “subject matter” of a lawsuit is a state secret, the entire lawsuit should be dismissed. The court found that this position had no logical limit, as it would effectively allow the government to “cordon off all secret government actions from judicial scrutiny.” This would force an unnecessary zero-sum decision between the Judiciary’s duty to say what the law is, and the Executive’s duty to preserve the national security. The court held that the government could ask judges to conduct a case-by-case review of whether the disclosure of documents would imperil national security, but they cannot shut down an entire lawsuit.
In agreeing to hear the case en banc, the Ninth Circuit has delayed or averted Supreme Court review. The argument date has not been announced.
A New York Times article detailing the panel decision can be found here.