A closely divided en banc Ninth Circuit Court of Appeals has dismissed a lawsuit which sought damages from a private company for its alleged role in the CIA's "extraordinary rendition" program.
In a 6-5 decision issued Wednesday, the court reversed a lower court ruling that would have allowed a suit against Jeppesen Dataplan to move forward. Five foreign plaintiffs filed suit against Jeppesen in May 2007 claiming that they were rendered by the CIA to the custody of countries such as Egypt and Morocco where they were tortured. According to the plaintiffs, Jeppesen was integral to the operations:
"Jeppesen played an integral role in the forced [abductions and detentions] and provided direct and substantial services to the United States for its so-called 'extraordinary rendition' program…enabling the clandestine and forcible transportation of terrorism suspects to secret overseas detention facilities."
After the complaint was filed, the United States moved to have the case dismissed on the grounds that it would lead to the disclosure of state secrets. In particular, while recognizing that the program itself was no longer a secret, the government argued that there was no way to litigate the case without disclosing:
- Information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities;
- Information about whether any foreign government cooperated with the CIA in clandestine intelligence activities;
- Information about the scope or operation of the CIA terrorist detention and interrogation program; or
- Any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods.
Officials from both the Bush and Obama administrations—including then-CIA Director Michael Hayden and current Attorney General Eric Holder—have reviewed and approved the invocation of the State Secrets privilege in this case.
In reviewing the lower court decision, the full 11-judge panel of the Ninth Circuit was asked to resolve whether the facts at issue were genuinely state secrets and, if so, whether the suit could proceed without using the information.
As to the first question, the majority suggested that there was near unanimity, explaining that:
"every judge who has reviewed the government's formal, classified claim of privilege in this case agrees that in this sense the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact on plaintiffs' case."
Having recognized the sensitivity of the issues presented, the court then turned to whether the plaintiff should be able to proceed without reference to classified material. In rejecting this option, the court explained that dismissal of a case based on national security grounds may be appropriate when "litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets."
Finding the invocation of the States Secrets privilege proper, the court dismissed the charges. A federal court in Virginia has already dismissed similar claims against government actors who were alleged to have been more directly responsible for the rendition program. Speaking after the Ninth Circuit issued its ruling, Ben Wizner, a staff attorney with the American Civil Liberties Union lamented:
"If today's decision is allowed the stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers."
While explaining that it had attempted to strike a delicate balance between "justice, transparency, accountability, and national security," the majority recognized the severity of its ruling. In addition to ordering that all costs associated with the appeal would be paid by the government, the court proposed non-judicial methods of relief, including a call for investigations by both the Department of Justice and the legislative branch.