Wednesday, October 28, 2009
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Court Grants En Banc Review in ‘Extraordinary Rendition’ Suit
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals agreed yesterday to grant en banc review of a ruling that five former terrorism suspects can sue a Boeing Co. subsidiary for allegedly flying them to secret prisons around the world to be tortured as part of the CIA’s “extraordinary rendition” program.
Chief Judge Alex Kozinski, in a brief order, said a majority of the court’s active judges—with the exception of six who recused themselves—had voted to grant review in Mohamed v. Jeppesen DataPlan, Inc., 08-15693.
A unanimous three-judge panel held in April that a district judge wrongly tossed out the lawsuit against San Jose-based Jeppesen DataPlan Inc. after the government asserted the case involved a “state secret” and would harm national security if allowed to go forward.
U.S. District Judge James Ware of the Northern District of California dismissed the case last year before the men could present evidence allegedly showing the company’s participation in the program was illegal.
Judges Stephen Reinhardt, M. Margaret McKeown, Ronald M. Gould, Jay S. Bybee, Milan D. Smith Jr. and Sandra S. Ikuta did not participate in deliberations over the decision to grant review or vote in the case.
Six Recusals
The Ninth Circuit did not disclose the reasons for their recusals, but Reinhardt is married to ACLU of Southern California Executive Director Ramona Ripston. The ACLU represents the plaintiffs and Reinhardt normally recuses himself from cases involving the group.
Bybee, a former assistant attorney general in the Bush administration who joined the Ninth Circuit in 2003, authorized a now-repudiated memo in 2002 which significantly narrowed the definition of torture.
The Bush administration, and then the Obama administration, argued the lawsuit should be thrown out before the government turned over any evidence because the nature of the legal action was itself a classified matter. The federal government intervened on the company’s side, saying it feared top-secret information would be disclosed.
However, the appeals court, in an opinion by Judge Michael Daly Hawkins, said the five men could try to prove their case without using top-secret information that legitimately needs protection from disclosure.
“Only if privileged evidence is indispensable to either party should [the court] dismiss the complaint,” Hawkins wrote.
Alien Tort Statute
Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi brought the suit under the Alien Tort Statute, which allows U.S. courts to hear human rights cases brought by foreign citizens, including cases against American officials and corporations.
The men alleged Jeppesen conspired with the CIA and other governments to torture them, or should have known it was delivering them to be tortured.
Ware granted the government’s motion to dismiss after concluding the information at the core of the case involved a state secret.
But Hawkins, writing on appeal, said reversal was required under two strands of jurisprudence that have emerged with respect to the state secrets doctrine.
In 1875, the Supreme Court in Totten v. United States 92 U.S. 105 rejected an attempt to recover compensation from the government for services rendered as a spy during the Civil War, reasoning that the subject matter of a suit could only be a “state secret” if predicated on the existence of a secret agreement between the plaintiffs and the executive.
More than 75 years later, the court in United States v. Reynolds (1953) 345 U.S. 1 recognized the existence of an evidentiary privilege preventing discovery of secret evidence when disclosure would threaten national security.
Applying Totten, Hawkins said the case should not have been dismissed at the outset because there was no agreement between the plaintiffs and the government. He opined that the government’s position would “effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and the limits of the law.”
Turning to Reynolds, Hawkins wrote that “the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.”
He explained:
“[D]ismissal is justified if and only if specified 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.”
Hawkins also said that while classification of information may be a strong indication of secrecy, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether the contents are secret within the meaning of the privilege.
“The government could not seriously argue, for example, that the Pentagon Papers remained ‘secret’ and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise ‘officially disclose’ the content of the papers,” he commented.
Joined by Judge Mary M. Schroeder and Senior Judge William C. Canby Jr., Hawkins similarly declined to evaluate hypothetical claims of privilege by the government until the district court could first consider them.
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