Raising further the prospect that the courts may never rule on the legality of the Central Intelligence Agency’s alleged program of “rendition” of terrorism suspects to other countries for questioning and perhaps for torture, the en banc Ninth Circuit Court on Wednesday dismissed the latest challenge.   Dividing 6-5, the Court relied on a broad “state secrets” theory to put a stop — before any evidence was offered — to a case against a small air flight planning firm that allegedly worked with the CIA to arrange those trips.

Together with the Fourth Circuit Court’s 2007 decision in the case of Khaled el-Masri (which the Supreme Court refused to hear that year, in case 06-1613), the Ninth Circuit’s ruling in Mohamed, et al., v. Jeppesen Dataplan, Inc. (Circuit docket 08-15694) goes far toward insulating the “rendition” program from judicial review — unless the Supreme Court took on that case and reversed the result.

Given how vigorously the Jeppesen case has been pursued by both sides, it seems highly likely that it will be appealed to the Supreme Court.

It was difficult to assess just what dangers to state secrets the Ninth Circuit majority found would arise if the case went further, since the majority said explicitly that it had relied heavily upon classified statements that government officials had submitted in calling for dismissal.  It did say it was satisfied that the Obama Administration, which took over the effort to block the case from the Bush Administration, did not claim the “state secrets privilege” in order “to avoid embarrassment or to escape scrutiny” of the once-secret program.

The majority’s broadest holding was that a court rule that supposedly focuses only on whether specific evidence is to be excluded as a trial proceeds can actually be used to end a case before it goes beyond its mere filing and no disputes had yet arisen over what would be allowed in or kept out.

The five dissenting judges argued that this “evidentiary privilege” — traced to the Supreme Court’s 1953 decision in United States v. Reynolds — can never be used to stop a case, barring every legal claim, even before the other side has filed a reply and before one item of evidence has been put forth.   The dissenters, however, lost on that point because there were six votes for the majority opinion.

The case, in summary, involves claims by five non-citizens that the Jeppesen Dataplan Inc. contracted with the CIA to provide plans for what a Jeppesen executive later called “torture flights” or “ghost flights.”  According to the lawsuit, the company’s executives knew full well that the trips were arranged to transport detainees to foreign countries known for torture and severe interrogation techniques, and thus knew that they would suffer terrible abuse as authorities sought evidence of terrorist acts or links.

Before Jeppesen could even answer the lawsuit’s claims, the U.S. government stepped in, invoked the “state secrets privilege,” and urged the federal courts to end the case at the outset because of its perception that secrets about intelligence-gathering techniques would inevitably come out if the case went forward.

The Circuit Court, in upholding the “state secrets” claim, said it was doing so on the basis of the Reynolds decision’s creation of an evidentiary privilege, rather than a supposedly broader doctrine that a case must be dismissed if the very subject matter of the claims was a government secret.  By making what the majority said was a thorough and skeptical review of the two sides’ written and oral arguments on the privilege issue, the majority said it was persuaded that the case could not go even one step further without posing a serious risk of forcing secrets into the open.

In fact, the majority concluded that, even if the detainees’ lawyers could pursue their claims by relying entirely on information that was already public about the “rendition” program — that is, even if those lawyers used only evidence not covered by the “state secrets” protection — the case still could not go forward, because of the risk that secrets might come out either in pre-trial “discovery” or in questioning at the trial.

Because of the public disclosures that have been made about the CIA program, the majority concluded that the fact of that program is no longer a secret.  “The program has been publicly acknowledge by numerous government officials including the President of the United States,” the main opinion said.

The majority also found that there simply are no procedures that a District Court judge could adopt that would head off the risk that some secrets would come out.  Because the facts underlying the detainees’ claims “are so infused with secrets,” the majority said, “any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets, even if [the detainees] could make a prima face case on one or more claims with non-privileged evidence.”

Circuit Judge Raymond C. Fisher wrote the majority opinion, joined by Chief Judge Alex Kozinski and Circuit Judges Richard C. Tallman, Johnnie B. Rawlinson and Consuelo M. Callahan.  Circuit Judge Carlos T. Bea said in his brief separate opinion that he joined the result.  While Bea said he woould have based the ruling on a broader ban on trials involving “state secrets,” he specifically supported the majority’s treatment of the Reynolds evidentiary privilege.

Circuit Judge Michael Daly Hawkins wrote the dissenting opinion, joined by Circuit Judges Mary M. Schroeder, William C. Canby, Sidney R. Thomas and Richard A. Paez.   The dissenters would have sent the case back to District Court for the judge there to examine whether any part of the case could go forward, with disputes over specific evidence and its admission to be worked out, item by item.

The majority, while seeking to remove the case entirely from the courts, suggested that there might be other remedies for those claiming harms from the CIA program.  Among the suggestions were a compensation scheme, some chance to sue the government for damages in a special claims court, and possibly bills in Congress to provide individual compensation to the detainees.

Posted in Cases in the Pipeline, Detainee Litigation, Featured