Wrong in All Aspects

By Erwin Chemerinsky

Long ago, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Supreme Court declared that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Unfortunately, this was obviously forgotten by the judges in the majority of the 9th U.S. Circuit Court of Appeals' recent decision that victims of torture could not bring a suit against a company that allegedly actively participated in illegal abductions and inhumane treatment. Mohamed v. Jeppesen Dataplan Inc., 2010 WL 3489913 (9th Cir. Sept. 8, 2010). In a 6-5 en banc decision, the 9th Circuit reversed a panel's decision and held that the lawsuit had to be dismissed because of the state secrets doctrine.

The case involved several plaintiffs who claimed that they were victims of the CIA's extraordinary rendition program and were illegally abducted, taken in secret to foreign countries, detained in horrible conditions for long periods of time, and tortured. The torture described violated every protocol of human rights laws and included beatings which broke bones, electrodes attached to and administering electric shocks to genitals, and deprivation of food for long periods of time. The psychological torture included threats of harm to family members, extreme degradation, and sleep deprivation.

The plaintiffs sued Jeppesen Dataplan Inc., on the grounds that it "played an integral role in the forced" abductions and detentions. The complaint alleged that Jeppesen had actual or constructive "knowledge of the objectives of the rendition program" including knowledge that the plaintiffs "would be subjected to forced disappearance, detention, and torture" by U.S. and foreign government officials.

Not surprisingly, the Bush administration intervened in the lawsuit and sought to have it dismissed based on the state secrets doctrine. Far more surprising and terribly disappointing, the Obama administration took the same approach in this case. If the allegations of the plaintiffs' complaint are true, the illegal activities by the CIA and others should be public and not hidden, the plaintiffs should receive whatever remedies the law can provide, and all involved should be held accountable. It is deeply offensive and simply wrong that the government can violate the most essential norms of human rights and then hide behind secrecy.

Moreover, the central flaw in the 9th Circuit's opinion was its assumption that state secrets inevitably would be revealed by the litigation. Countless details of the CIA's rendition program already have been made public. The dissenting judges attached a 23-page appendix that lists publicly available information documenting this. At the very least, the plaintiffs should have had the chance to prove their case based on the publicly available material. The defendant's claim that it could not advance a defense without using "state secrets" was premature at the pleading stage of the lawsuit. Besides, surely there are other ways to protect sensitive classified information short of dismissing the plaintiffs' entire complaint.

Indeed, the 9th Circuit's decision was not justified even under the law of the state secrets doctrine. As the court correctly described, there are two distinct parts of the state secrets doctrine. One, called the "Totten bar," requires dismissal of claims which inevitably would reveal disclosure of state secrets. This is based on the Supreme Court's declaration in Totten v. United States, 92 U.S. 105 (1876), that "as a general principle...public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law regards as confidential." As the 9th Circuit explained, "[t]he Totten bar applies only when the 'very subject matter' of the action is a state secret." The 9th Circuit did not use the Totten bar to dismiss the plaintiffs' claim.

Rather, the 9th Circuit relied on the second aspect of the state secrets doctrine, which is an evidentiary privilege that excludes state secrets from being used as evidence. This is based on the Supreme Court's decision in United States v. Reynolds, 345 U.S. 1 (1953). The 9th Circuit declared: "[W]e hold that dismissal is nonetheless required under Reynolds because there is no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets." The court said that "further litigation presents an unacceptable risk of disclosure of state secrets no matter what legal or factual theories Jeppesen would choose to advance during a defense."

The court expressly relied upon a very disturbing decision of the 4th U.S. Circuit Court of Appeals, which ordered dismissal of a suit brought by a man who was allegedly apprehended by the CIA by mistake, brutally tortured, and then released by being dumped on the streets of Albania. El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, 552 U.S. 947 (2007). Jane Mayer, in her book, "The Dark Side" (2008), describes in detail how Khaled El-Masri was apprehended in Europe because of confusion with someone else of the same name, held for a lengthy period of time, and subjected to truly inhumane treatment, only to be dumped on the streets of a foreign country when the mistake was discovered by the CIA. The 4th Circuit ordered the case dismissed because there was an unacceptable risk of the disclosure of state secrets.

But both the 4th and 9th Circuits were wrong in using the Reynolds evidentiary privilege to dismiss a lawsuit at the pleading stage based on a motion to dismiss for failure to state a claim. An evidentiary privilege must be invoked in response to attempts to introduce specific pieces of evidence. It is premature to apply it before any evidence has been proffered. As the five dissenting judges in Jeppesen noted: "The state secrets privilege, as an evidentiary privilege, is relevant not to the sufficiency of the complaint, but only to the sufficiency of evidence available to later substantiate the complaint."

Put another way, an evidentiary privilege should not bar the plaintiffs from being able to prove their complaint through other, not privileged evidence. Especially in a situation like this one, where so much information already is public about extraordinary renditions, it is impossible to say at the pleading stage that the plaintiff could not prove its case or that the defendant could not defend itself without use of privileged information. Dismissal, if ever appropriate, was premature at the pleading stage.

Perhaps the case truly could not have been litigated without revealing state secrets and ultimately would have had to be dismissed. Such a conclusion would have been enormously distressing because it would have meant that the government and defendants could violate the law and avoid accountability by hiding behind secrecy. But it is even worse to dismiss at the pleading stage based on an assumption that the case might later require dismissal.

There must be a strong presumption that the legal system should be available to provide a remedy for those who allege that the government and businesses working with them engaged in illegal abductions and torture. The 9th Circuit was simply wrong in saying that the case should be dismissed because privileged state secrets might later be crucial evidence for the plaintiffs or defendants.

Hopefully, the powerful dissent of five 9th Circuit judges will persuade the Supreme Court to take the case and reverse this awful decision. The 9th Circuit's decision just can't be reconciled with Marbury's command that the "very essence of civil liberty" demands that remedies be provided to those whose basic rights have been violated.

Erwin Chemerinsky is Dean and Distinguished Professor of Law at the University of California, Irvine, School of Law. <!-- Wrong in All Aspects -->