Binyam Mohamed v. Jeppesen Dataplan, Inc.

(internal quotation in the statute.” ed omitted)).

marks disagrees with the arbitrator’s

Rosenfeld law, he

interpretation of California but has that the ex-

not demonstrated arbitrator powers.

ceeded his

Conclusion parties agreed that the to arbi-

We hold provided by the

tration under the rules hold, further, that

CAA. We Rosenfeld has no for vacatur of the arbitra-

shown basis

tor’s award under the CAA.

AFFIRMED.

Binyam MOHAMED; Abou Elkassim

Britel; Agiza; Ahmed Mohamed Far

ag Bashmilah; Ahmad Bisher Al-

Rawi, Plaintiffs-Appellants,

v. INC., DATAPLAN,

JEPPESEN

Defendant-Appellee, America,

United States of

Intervenor-Appellee.

No. 08-15693. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted En

Banc Dec. 2009. Sept.

Filed 2010. Abate,

chael P. Department United States Justice, D.C., Washington, for interve- nor-appellee United States of America. Gary Jassy, Bostwick and Jean-Paul LLP, Jassy Angeles, Bostwick & Los Cali- fornia, for amici curiae Professors William G. and M. Weaver Robert Pallitto. Barbara Moses and David J. Stankiew- icz, Morrillo, Abramowitz, Grand, Iason, P.C., Bohrer, York, Amello & New New York; Hafetz, Aziz Huq and Jonathan Brennan Center for Justice NYU School Law, York, York, New New for amici curiae former United diplomats. States Aceves, Wiliam J. California Western Law, California; School of Diego, San Ger- ald Lopez, Staberock and Carlos Interna- Watt, (argued), M. Ben Wizner Steven Jurists, Geneva, tional Commission of Jameel and R. Shapiro, Jaffer Steven Switzerland; Ferstman, Carla American Civil Liberties Union Founda- Lorna tion, York, York; Ann McGregor Moxham, REDRESS, New New Brick and Lucy Mass, Julia Harumi American Civil Liber- London, Kingdom; United Denna R. Hur- ties Union Foundation of Northern Cali- witz, Rights Human Program, University fornia, Francisco, California; San Paul Law, Charlottesville, of Virginia School of Hoffman, Seplow Schonbrun DeSimone Virginia, for amici curiae REDRESS and LLP, Venice, Harris & Hoffman Califor- the International Commission of Jurists. nia; Metcalf, Hope Litigation National Vladeck, Stephen I. American Universi- Project, Allard K. Lowenstein Internation- ty Law, Washington College Washing- Clinic, School, al Human Rights Yale Law ton, D.C.; Natalie L. Bridgeman, Law Haven, Connecticut, plaintiffs- New for the Offices of Bridgeman, Natalie L. San appellants. Francisco, California, for amici curiae Clive Zachary Stafford-Smith and Katz- professors law, of constitutional federal Nelson, London, Reprieve, England, for jurisdiction and foreign relations law. plaintiff-appellant Binyam Mohamed. McBride, Andrew G. Thomas R. McCar- Margaret L. Satterthwaite and Amna thy Obermeier, Stephen Wiley J. Rein Akbar, Clinic, Rights International Human LLP, D.C., Washington, for amicus curiae Services, Washington Square Inc., Legal Foundation for the Defense of Democra- York, York, New New for plaintiff-appel- cies. lant Farag Mohamed Ahmad Bashmilah. Popeo Daniel J. Samp, and Richard A. Daniel P. Paul (argued), Collins J. Wat- Foundation, Washington Legal Washing- ford, Mark Henry R. Yohalem and Weiss- ton, D.C., amici Washington for curiae Le- mann, LLP, Munger, Tolies & Olson Los gal Foundation and Allied Educational California, Angeles, for defendant-appellee Foundation. Jeppesen Dataplan, Inc. Wiebe, Richard R. Law of Rich-

Ian Office Gershengorn, Heath F. Michael Hertz, Russoniello, Wiebe, Francisco, California; R. Joseph P. ard San Douglas N. Cohn, Letter (argued), Swingle Cindy Tien, Sharon and Mi- A. Opsahl, Lee Kurt case, Bankston, McSherry tantly conclude this is such a and the Corynne Kevin S. Electronic Frontier action must dismissed. Ac- Tyre, plaintiffs’ be and James S. Francisco, California, Foundation, for San cordingly, judgment we affirm the of the Frontier Founda- curiae Electronic amicus district court.

tion. Background I. Chance US Ringer, M. Clifford

James York, begin procedur- with the factual and York, curi- We LLP, for amici New New history appeal. doing al relevant to this In Lawyers Association ae Commonwealth so, largely upon three-judge draw and Justice. we

panel’s language Jeppesen in v. Mohamed (9th Inc., 943, Dataplan, 579 F.3d 949-52 Cir.) I), (Jeppesen rehearing en banc (9th Cir.2009). 1108 granted, 586 F.3d We factual emphasize background that this is only allegations plaintiffs’ on the based KOZINSKI, Chief Before: ALEX at in SCHROEDER, complaint, stage litiga- which this Judge, MARY M. CANBY, HAWKINS, light tion we construe “in the most favor- WILLIAM C. THOMAS, plaintiff[s], taking R. RAYMOND C. able to the all [them] SIDNEY PAEZ, FISHER, A. allegations drawing RICHARD as true and all reason- TALLMAN, JOHNNIE B. RICHARD C. in complaint able inferences from the RAWLINSON, M. States, CONSUELO v. favor.” Doe United 419 [their] BEA, T. (9th Cir.2005). and CARLOS CALLAHAN F.3d 1062 Whether Judges. Circuit in plaintiffs’ allegations are fact true has and, in litigation, not been decided this FISHER; by Judge Opinion nature given allega- the sensitive of the BEA; by Dissent by Judge Concurrence tions, in nothing say opinion we this should DALY HAWKINS. Judge MICHAEL understood otherwise. be OPINION Background A. Factual FISHER, Judge. Circuit Pro- Extraordinary 1. The Rendition requires case us to address the This gram balance the state secrets doctrine difficult allege that the Central Intelli- Plaintiffs principles between fundamental strikes (“CIA”), in gence Agency working concert justice, liberty, including transparency, our government agencies and offi- with other Al- accountability security. and national an foreign governments, operated cials of to honor all of though judges as we strive gather extraordinary program rendition are times when ex- principles, these there by foreign na- intelligence apprehending an circumstances create irrecon- ceptional in suspected tionals of involvement terror- them. those cilable conflict between On transferring them in se- ist activities and occasions, are to follow the rare we bound for detention and foreign cret to countries admonition that “even Supreme Court’s by foreign or interrogation United States compelling necessity cannot over- the most pro- this According plaintiffs, officials. if is privilege come the claim of the court agents gov- allowed of the U.S. gram has are ultimately satisfied that secrets [state] interrogation methods employ ernment “to Reynolds, States v. stake.” United prohibit- have 1, 11, [otherwise been] would 73 S.Ct. 97 L.Ed. U.S. (1953). deliberation, law.” under federal or international After much we reluc- ed in public charges on documents do- rorism-related and

Relying sentenced to nationals, main, claim in plaintiffs, foreign years prison. all a Moroccan they processed through each the ex- were Mohamed, Binyam Plaintiff 28-year- traordinary program. They rendition also Ethiopian legal old citizen and resident of following allegations. make the individual Kingdom, the United was arrested in Paki- an Agiza, Egyptian immigration charges.

Plaintiff Ahmed na- stan on Mohamed seeking asylum tional who had been allegedly was flown to Morocco under con- Sweden, captured by above, was Swedish authori- ditions similar to those described ties, allegedly transferred to American where he claims he was transferred to the In custody Egypt. Egypt, custody and flown to he security agents. Moroccan he was held for five weeks “in a claims These Moroccan allegedly authorities sub- windowless, cell,” squalid, frigid jected and physical where Mohamed to “severe and “severely torture,” repeatedly he was and beaten” psychological including routinely subjected through beating electric shock him breaking his bones. He lobes, nip- says they electrodes attached to his ear cut him scalpel with a all over ples genitals. Agiza and was held in body, including de- his penis, on his and years, tention for two a poured and half after “hot stinging liquid” into open given which he was a six-hour trial before wounds. He was blindfolded and hand- court, military a convicted and being sentenced cuffed while made “to listen to ex- years Egyptian to 15 in prison. According tremely day loud music and night.” After plaintiffs, “[vjirtually to every aspect of in custody, 18 months Moroccan Mohamed rendition, Agiza’s including allegedly his torture in was transferred back to Ameri- Egypt, publicly has been acknowledged by can custody and Afghanistan. flown to He government.” the Swedish claims he was detained there in a CIA prison” “dark where kept he was in “near Britel, Plaintiff Abou Elkassim a 40- permanent subjected darkness” and to year-old Italian origin, citizen of Moroccan noise, loud such as the recorded screams was arrested and detained in Pakistan on children, of women and 24 day. hours a immigration charges. After several Mohamed was fed sparingly irregular- and detention, months in Pakistani Britel was ly in and four months he lost between 40 allegedly transferred custody to the pounds. Eventually, and 60 Mohamed was American officials. These officials dressed transferred to military prison the U.S. at Britel in a diaper and a torn t-shirt and Cuba, Bay, Guantanamo where he re- shackled and blindfolded him for a flight to nearly years. mained for five He was Morocco, in says Morocco. Once he he released and returned to the United King- by was detained incommunicado Moroccan during pendency dom appeal.1 of this security prison, services the Temara beaten, deprived where he was sleep al-Rawi, Plaintiff 39-year-old Bisher a and food and with Iraqi threatened sexual tor- legal citizen and resident of the Unit- ture, including sodomy with a Kingdom, bottle and ed was arrested in Gambia while castration. being After released traveling legitimate and re- on business. Like the detained, says Britel he was plaintiffs, coerced into other put al-Rawi claims he was confession, a signing false diaper convicted of ter- in a and placed shackles and on an 1. Mohamed's in other Obama, and the United litigation F.Supp.2d allegations Kingdom. in both the United States have See Mohammed v. (D.D.C.2009); been discussed R and Commonwealth (Mohamed.) Court of (Civ) Appeal). (decision v. Secretary of the United Affairs, State ^[2010] for Kingdom Foreign EWCA crime, time Afghani- to of a trivial sentenced to served where he was flown airplane, in detained says He he was abroad and released. stan. Mohamed and loud prison” “dark as same Alleged Jeppesen’s 2. Involvement in day per 24 hours played were

noises Program Rendition alleges he sleep. him of Al-Rawi deprive Bagram Air eventually transferred was that publicly Plaintiffs contend available Base, “subjected to humilia- where he was information establishes that defendant tion, psycho- physical and and degradation, Inc., Dataplan, Jeppesen corpora- U.S. officials,” including by torture U.S. logical tion, provided flight planning logistical beaten, deprived sleep and threat- being aircraft and crew support services eventually Al-Rawi was ened with death. all flights transporting on of the each of Guantanamo; in prepara- transferred plaintiffs among the five the various loca- flight, says he he was “shack- tion for they alleg- tions where were detained and as excruciating pain” handcuffed led and edly subjected complaint to torture. The beatings. Al-Rawi was a result of his “Jeppesen played integral asserts an role eventually from Guantanamo and released in the forced” abductions and detentions Kingdom. to the United returned “provided direct and substantial ser- Bashmilah, a Farag Plaintiff Ahmad 38- vices to the United States for its so-called citizen, says ap- he was year-old Yemeni ‘extraordinary program,” rendition’ there- by gov- of the prehended agents Jordanian by “enabling the clandestine and forcible visiting Jordan to ernment while he was transportation suspects of terrorism to se- ailing mother. After a brief assist his cret overseas detention facilities.” It also “subjected] during which he was detention alleges Jeppesen provided that this assis- physical psychological to severe and tance with actual or constructive “knowl- abuse,” given he was Bashmilah claims edge objectives of the of the rendition government, of the agents over to U.S. knowledge that program,” including in Afghanistan who flew him to similar subjected “would be to forced plaintiffs in plaintiffs. as the other Once fashion detention, by and torture” disappearance, says he was Afghanistan, Bashmilah foreign government U.S. and officials.2 confinement, in in 24-hour placed solitary darkness, deprived sleep where he was Summary B. of the Claims in He was painful positions. and shackled brought against Jeppesen Plaintiffs suit subsequently moved to another cell where Statute, the Alien Tort 28 U.S.C. under subjected 24-hour and loud light he was liability § seven theories of alleging conditions, Depressed by his Bash- noise. claims, under one for marshaled two La- attempted milah suicide three times. disappearance” and another for “forced ter, transferred Bashmilah claims he was cruel, other inhuman or de- “torture and by an “black airplane to unknown CIA Am. grading Compl. treatment.” First sensory where he “suffered prison, site” ¶¶ 253-66. through exposure constant manipulation respect disappear- With to the forced noise, deafeningly alternating with white claim, plaintiffs assert four theories of ance light. music” and 24-hour Bashmilah loud (1) par- active liability: liability direct for once more to alleges he was transferred (2) of the Yemen, ticipation, conspiracy agents he and with where was tried convicted oppo- plaintiffs assert demonstrates this Among plaintiffs filed in which 2. the materials government's motion to dismiss sition to the knowledge. See Dissent at 1095 n.3. declaration, Jeppesen employee’s ais former ¶¶ (3) 16, 17, States, aiding abetting Similarly, plaintiffs and Id. 56. al- United (4) agents of the United States and direct lege Jeppesen that knew or should have liability [Jeppesen] demonstrated “because known that that torture would result be- to whether Plain- disregard reckless as cause it should have known it was carrying subjected disap- tiffs would be to forced suspects terror for the CIA and that “the pearance through participation its in the governments of the destination countries extraordinary program spe- rendition and subject routinely detainees to torture and cifically provision flight logistical its and cruel, inhuman, degrad- other forms of or to aircraft and support services crew ¶¶ 17, ing treatment.” They Id. 56. also reasonably it or should have known knew rely on Department country U.S. State transport them to secret would be used to reports describing torture as in “routine” ¶¶ interrogation.” and detention Id. 254- some of the plaintiffs countries to which 57. rendered, allegedly were and note that degrading

On torture and treatment Jeppesen claims on its website that it claim, plaintiffs assert three theories of political security “monitors and situations” (1) liability: conspiracy agents with of the part trip planning as of its services. Id. plaintiffs’ in degrading U.S. torture and ¶¶ 14, 42, 56. (2) treatment, aiding abetting agents of the in subjecting plaintiffs U.S. to tor- History C. Procedural (3) degrading ture and di- treatment Jeppesen Before answered the com- liability rect [Jeppesen] “because demon- plaint, the United States moved to inter- disregard strated a reckless as to whether vene and to plaintiffs’ complaint dismiss subjected Plaintiffs would be to torture or under the state secrets doctrine. The cruel, inhuman, other degrading or treat- CIA, then-Director of the General Michael by providing flight ment and logistical sup- Hayden, filed two declarations in support port to aircraft and it crew knew or rea- dismiss, classified, of the motion to one sonably should have known would be used other redacted pub- and unclassified. The extraordinary program rendition lic declaration that states of “[disclosure transport them to detention interroga- and by the information covered privilege this ¶¶ tion.” Id. 262-64. assertion reasonably expected could be Regarding Jeppesen’s alleged actual or instances, cause serious—and in some ex- constructive knowledge that its services ceptionally grave damage to the national — being

were used to facilitate “forced disap- and, security of the United States there- pearance,” plaintiffs allege Jeppesen that fore, the information should be excluded reasonably “knew or should have known any in from use this case.” It further flights that the involved transportation that highly asserts “because classified in- suspects of terror pursuant to the extraor- allegations formation is central to the and dinary program,” rendition that their case, issues in great this1 the risk is that “knowledge objectives of the of the rendi- litigation further will lead to disclosures program” may tion be inferred from the security and, harmful to national U.S. ac- fact that they allegedly flight “falsified cordingly, this case should be dismissed.” plans European submitted to air traffic The court granted district the motions control public scrutiny authorities to avoid to intervene and dismiss and flights” judg- of CIA a entered Jeppesen and that em- in ployee Jeppesen, stating actual ment favor of that “at knowledge admitted that the company performing extraordinary against was the core of Plaintiffs’ case Defen- rendition flights government. for the Jeppesen ‘allegations’ U.S. dant are of covert in operations foreign military or CIA II. U.S. Standard of Review nationals —clear- against foreign countries interpreta review de novo the We a se- subject matter which is state ly a application tion and of the state secrets three-judge A appealed. Plaintiffs cret.” and review for clear error the doctrine remanded, of this court reversed panel factual underlying findings. district court’s had failed to government that the holding Found., Al-Haramain Islamic Inc. v. dismissal under the a basis for establish (9th Cir.2007). Bush, 1190, 507 F.3d permitting the doctrine but state secrets to reassert doctrine government III. The Doctrine State Secrets Jep- stages litigation. of the subsequent long recognized has Supreme The Court I, 953, took 579 F.3d at 961-62. We pesen exceptional that in circumstances courts questions of en banc to resolve the case country’s act in the of the must interest regarding importance exceptional security prevent disclosure of national secrets application of the state scope and secrets, even point state dismiss- 35(a)(2). R.App. P. doctrine. See Fed. ing entirely. a case See Totten v. United States, 105, 107, 92 U.S. 23 L.Ed. 605 maintains its assertion government The (1876). contemporary The state secrets continuing rely appeal, on privilege encompasses applications two doctrine declarations. Hayden’s two on General completely adju- One bars principle. this Barack Oba- appeal pending was While premised of claims on state dication se- as Presi- George W. Bush ma succeeded (the bar”); an crets “Totten the other is September States. On dent of the United (“the Reynolds evidentiary privilege privi- 2009, an- 23, administration the Obama lege”) privileged that excludes evidence invoking for the state policies nounced new may from the case and result dismissal 1, 2009, privilege, effective October secrets Reyn- of the claims.3 See United States v. Attorney from the Gen- in a memorandum olds, 528, 97 345 U.S. 73 S.Ct. L.Ed. Attorney Memorandum from the eral. See (1953). the nature We first address Dep’ts the Heads of Executive Gen. to them to applications apply these and then Policies and Procedures Gov- Agencies on the facts of this case. Secrets erning Invocation of State (“Holder 2009) Privilege (Sept. Bar A. The Totten Memo”), http://www.justice.gov/opa/ Supreme In Court stated “as documents/state-secret-privileges.pdf. public policy for- general principle [ ] both in its briefs government The certified in a any the maintenance of suit court argument before the en banc bids and at oral trial of which would inevita- justice, levels of of the “highest court that officials at the the of matters which bly of the new lead to disclosure Department the of Justice” regards law itself as confidential.” reviewed the assertion the administration had added). Totten, (emphasis 92 at 107 in this case and determined U.S. privilege in newly again principle The invoked the appropriate it under the Court that was Redacted, 1953, citing proposition for the that Totten policies. announced See Unclas- very subject matter of the Reh’g En Banc “where the sified Br. for U.S. on secret,” Br.”) (“U.S. “a matter of state an action” is 3. case, broader in civil protect secrets] is much [state a criminal the state secrets 3. Were this apply narrowly. SeeEl- prosecutions.”); would more in criminal see doctrine matters than 296, States, 12, F.3d 313 n. 7 v. United 479 Reynolds, Masri at 73 S.Ct. 528. 345 U.S. also Cir.2007) (“[T]he (4th authority to Executive’s 1078 pleadings recently on the The Court more may

action be “dismissed reaffirmed reaching question the of evi- explained without ever and the Totten in a case in- bar volving it is “so obvious that the spies dence” because two former Cold who War prevail privi- over the action should never accused the of reneging CIA on a com- 26, lege.” Reynolds, at 11 n. provide 345 U.S. 73 mitment to financial in support application exchange S.Ct. 528. This Totten’s for espionage their services. general principle we refer to as the Relying on “Totten’s core concern” of —which “designed merely Totten bar —is not to “preventing plaintiffs’ the existence of the claims, preclude defeat the asserted but to relationship with the Government from Doe, judicial inquiry” entirely. revealed,” Tenet v. being the Court held that the 1, 4, 1230, n. was, 544 U.S. 7 125 S.Ct. 161 action like Totten and Weinberger, (2005). Tenet, L.Ed.2d 82 incapable judicial review. 544 8-10, U.S. at 125 S.Ct. 1230.4 The this in applied Court first bar Tot- itself, ten where the estate of a Civil War Plaintiffs contend that the Totten spy breaching sued the United States for applies only bar to a narrow category of alleged agreement compensate an to the here, they say implicated cases are not spy espionage for his wartime services. namely premised plaintiffs claims on a Setting “general principle” quot- forth the espionage relationship govern with the above, ed the held that the Court action disagree. ment. We We read the Court’s was it premised barred because was on the discussion of Totten in Reynolds to mean a existence of “contract for secret services the applies Totten bar in eases government,” with the which was “a fact which very subject “the matter of the ac Totten, not to be disclosed.” at U.S. tion” is “a matter of state secret.” Reyn 107. olds, 11, n.26, 345 U.S. at 73 S.Ct. 528. later, century A applied the Court perform contract to espionage” only “[A] is Weinberger Totten bar in v. example. Catholic Ac- an Id. This conclusion is con Project, tion Education by Weinberger, firmed which relied on the Hawaii/Peace 139, 47, 197, 454 U.S. 102 S.Ct. 70 Totten bar to hold that a case involving 146— (1981). There, secrets, L.Ed.2d 298 plaintiffs weapons nuclear having noth sued contracts, under the National Environmental ing espionage to do with was Policy “beyond § Act of judicial scrutiny.” U.S.C. 4321 et See Wein seq., compel Navy prepare berger, 146-47, 197; an 454 U.S. at 102 S.Ct. Tenet, environmental impact regarding statement see also U.S. 125 S.Ct. military facility Navy alleged- where the (characterizing Weinberger aas case ly proposed bar). weapons. applying Thus, store nuclear although the Totten The Court held that allegations were claims both Totten and Tenet were “beyond because, judicial scrutiny” premised on espionage “[d]ue the existence of reasons, security to national ... Navy agreements, though plaintiffs even deny can neither admit propos- nor that it in both Totten and Tenet were themselves es to store weapons parties nuclear at facili- to espionage agreements, [the the the Totten, 107). ty].” (citing Id. 92 U.S. at general Totten bar rests on a principle Tenet, 8-9, application 4. Tenet also made clear that of the See 544 U.S. at 125 S.Ct. 1230 bar); Tenet, require Totten (applying bar does not a formal assertion the Totten Doe v. 1135, (9th Cir.2003) privilege by govern- (underly- of the state secrets the F.3d 1151-52 procedural ment requirements ing appellate noting that meets the decision that no formal filed). explained Reynolds yet in and discussed below. assertion had been automatically require dismissal of not context. does specific that beyond extends that instances, however, the unduly nar In some the case. reject plaintiffs’ therefore We privilege require bar and reaffirm will dismissal the Totten assertion of view of row bar that the apparent during in Al-Haramain the holding it will become our because that where principle the into the case cannot analysis “has evolved that Reynolds is a of a lawsuit subject evidence, matter very the or privileged proceed without secret, be action must the matter of state judgment on the case to a litigating that question of reaching the without dismissed unacceptable an present the merits would Al-Haramain, at 507 F.3d evidence.” disclosing state secrets. risk of below, Totten bar the explain As we 1197. military a aircraft Reynolds involved rule, as it not as narrow but is is a narrow equipment. Id. electronic carrying secret contend. plaintiffs plane 3, 528. After the at 73 S.Ct. related plaintiffs’ with disagree alsoWe crashed, of three civilian ob- the estates ap- bar cannot that the Totten contention brought tort killed in the accident servers a party a to plaintiff the is unless ply In government. the discov- against claims government. the agreement with secret production of the Ait- ery, plaintiffs sought and individuals groups The environmental investigation re- official accident Force’s Weinberger in were plaintiffs were the who surviving of three port and the statements with the United agreements to parties not Air Force refused to crew members. The purpose The States, or otherwise. secret materials, to citing the the need produce moreover, bar, prevent the is of the military security and se- protect national harmful to na- secrets revelation of state 4-5, 528. The dis- crets. Id. at 73 S.Ct. pressing a no less security, concern tional pro- government ordered the trict court the strangers are plaintiffs the when in camera so the court the documents duce litigation that their espionage agreement they contained whether could determine Thus, plain- if even threatens to reveal. govern- the material. When privileged bar is correct that the Totten tiffs were refused, the the court sanctioned ment espionage on premised eases limited to on by establishing the facts government government, we with the agreements plaintiffs’ in favor. negligence the issue the bar reject their contention that would 5, 528. Id. at 73 S.Ct. cases in which the necessarily limited to is and sus- Court reversed Supreme The to those parties are themselves plaintiffs privilege claim of government’s tained agreements. danger a reasonable “there was because report investigation Privilege the accident Reynolds B. The to the secret references would contain bar, the In addition to the Totten pri- which was the equipment electronic a encompasses “priv state secrets doctrine at the mission.” Id. mary concern of military against revealing [or state] ilege provided The Court also 73 S.Ct. 528. secrets, estab which is well privilege privilege should guidance on how claims Reynolds, law of evidence.” lished that, under the cir- analyzed and held be 6-7, A success at 73 S.Ct. 528.5 345 U.S. cumstances, court should have the district Reynolds under privilege ful assertion even re- privilege without sustained from privileged evidence will remove produce quiring government bar, a the Totten litigation. Unlike 10-11, Id. at for in camera review. Reynolds report privilege under valid claim of holding." Ten- Totten’s broader retreat from applications of the doctrine remain 5. The two et, distinct; 125 S.Ct. 1230. way signaled 544 U.S. Reynolds [a] no "in not, however, context, a the did different decision to 73 S.Ct. 528. The Court invoke Rather, outright. given serious, privilege dismiss the case the “be a must consid- equipment was that the secret electronic judgment, simply ered an not administra- accident, of the it unrelated to the cause formality.” tive v. United States W.R. court, affording remanded to the district Grace, (9th Cir.2008) 499, 526 F.3d 507-08 try to plaintiffs opportunity the to estab- (en banc). claim The formal must reflect privileged the lish their claims without ac- certifying personal the judgment; official’s statements. report cident and witness Id. responsibility may for this task not be 11, at 73 S.Ct. 528. delegated to lesser-ranked officials. The Analyzing Reynolds under the claims claim in presented also must be sufficient steps: privilege involves three detail to indepen- for the court make an First, that the proce- we must “ascertain validity dent of the determination of the invoking dural for the requirements claim of privilege scope and the of the privilege state secrets have been satis- subject privilege. evidence the Second, must make an fied.” we inde- case, In present the General Michael pendent determination whether the in- CIA, Hayden, then-Director of the assert- privileged.... Finally, formation is initial, ed the claim privilege formal of question “the ultimate to be resolved is public submitted detailed and classified proceed how in light the matter should declarations. We were informed at oral of the claim.” privilege successful argument that current Attorney the Gen- (citation Al-Haramain, 507 F.3d at 1202 eral, Holder, Eric has also reviewed and omitted) (quoting El-Masri v. United approved the claim of ongoing privilege. (4th States, 296, Cir.2007)). 479 F.3d Although Reynolds require does not re- steps in We discuss these turn. approval Attorney view and the by General 1. Requirements Procedural when a agency different head has control matter, of by such additional review privilege. a. Assertion “The chief lawyer ap- executive branch’s is privilege belongs Government and it; by propriate encouraged. must be asserted it can neither be to be by private party.” claimed nor a waived b. Timing. Plaintiffs contend that the (foot Reynolds, 345 U.S. at 73 S.Ct. 528 government’s of privilege assertion was omitted). privilege

1081 Cir.2005) (“Courts (D.C.Cir. (4th required are not to 977, Helms, F.2d 985-87 690 v. 1982) produc (interrogatories, document fire and chance further disclo- play with In depositions). and oral requests inadvertent, mistaken, tion in- or even sure— the addition, may raise government the very pur- defeat the tentional —that would privi disclosure privilege prevent exists.”). The privilege for which the pose responsive pleading, in a leged information must showing government make Mitchell, F.2d v. 709 Ellsberg in as it did privilege on a claim of state secrets prevail (D.C.Cir.1983), and Black v. 51, 54 & n.6 attempted difficult when may especially be (8th 1115, States, 1117-19 62 F.3d United specific for information any request before Inc., Cir.1995). Honeywell, Huey v. See made, actually but or has been evidence Cir.1996) (9th 327, (explaining F.3d 333 82 try- from even foreclosing government may of an answer be that the contents showing would be incon- ing to make that Corp., 629 Lockwood v. evidentiary); Wolf se- protect with the need to state sistent Cir.1980) (9th (holding that 603, 611 F.2d crets. parties’ pleadings in opposing admissions evidence). as are admissible Independent Evalua- 2. The Court’s govern that the also conclude We Privilege tion the Claim of Reynolds privilege a may assert ment privilege prop has been When pleading even at the prospectively, claim invoked, indepen make an erly “we must waiting for an evidentia rather than stage, the informa determination whether dent discovery or during to arise ry dispute Al-Haramain, 507 privileged.” tion is El-Masri, See, 479 F.3d at 308 e.g., trial. a The court must sustain F.3d at 1202. (“[Dismissal stage ap is pleading at the satisfied, when it is privilege claim of central to if secrets are so propriate state case, circumstances of the “from all the litigated be that it cannot proceeding a that danger reasonable that there is a disclosure.”); threatening their without ... expose evidence will compulsion of the Black, (dismissing the at 1117-19 62 F.3d which, of national in the interest matters stage based on pleading at the action divulged.” Reyn security, not be should over privilege assertion government’s olds, 10, If this 73 S.Ct. 528. information concern 345 U.S. categories of certain met, absolutely Farns intelligence operations); is ing U.S. is the evidence standard Grimes, Cannon, 635 F.2d Inc. v. worth plaintiffs’ of the privileged, irrespective banc) Cir.1980) (en 281(4th 268, (per cu it. id. at countervailing need for See Al-Haramain, riam); 507 F.3d at see also (“[E]ven compelling the most 73 S.Ct. 528 Reynolds may re (recognizing that the claim of necessity cannot overcome “await[ing] in even without sult dismissal ultimately if the court is satisfied privilege cases, In some discovery”). preliminary stake.”); are at Hal that secrets [state] to determine with may be able the court kin, F.2d at 990. allegations nature of the certainty from the Reynolds analysis step in the This sup in declarations government’s and special burden “places on the court litigation secrecy port of its claim balance is appropriate itself that an assure cut off order be limited or must securi national protecting struck between secrets, any dis even before protect state open an court preserving ty matters have been evidentiary requests covery or Al-Haramain, F.3d at 1203. system.” cases, specific waiting for made. In such secrecy, “we need for evaluating In be both to arise would evidentiary disputes Ex to the acknowledge the need to defer dangerous. unnecessary potentially foreign policy and Tenet, matters of ecutive on 416 F.3d Sterling v. See 1082 surely 3. the security legiti cannot How Should Matter Proceed?

national and mately guessing the find ourselves second court When a sustains a claim of “ Id. But in this arena.” “the Executive then privilege, it must resolve ‘how the represent not a state secrets doctrine does in light matter the suc proceed should of ” over judicial of control access to surrender Al-Haramain, cessful claim.’ privilege El-Masri, 479 F.3d at courts.” 312. El-Masri, the (quoting 507 at 479 F.3d 1202 Rather, 304). that the state “to ensure secrets F.3d at The court must assess frequently is asserted no more for privilege litigation whether it is feasible the to necessary, proceed protected the than it is essen without evidence sweepingly and, so, if how. critically that to tial the courts continue invocation.” instances of its Ells examine government When the successful very “We take 709 F.2d at 58. seri berg, ly privilege, invokes the state secrets “the ously obligation the[govern our to review completely evidence is removed from the careful, very ment’s with a indeed claims] Kasza, case.” “ 133 1166. F.3d at skeptical, eye, accept a and not to at face possible, ‘[W]henever sensitive informa government’s justifica the claim or value tion disentangled must be from nonsensi Al-Haramain, privilege,” of 507 tion F.3d tive information to allow for the release ” 1203, though at we must “do so without the (quoting Ellsberg, latter.’ Id. 709 forcing very a of the thing 57). disclosure However, F.2d at occa there will be protect____ privilege designed when, is to Too practical matter, sions as a secret judicial inquiry much into the claim sepa and nonsecret information cannot be cases, therefore, In rated. some “it is privilege would force disclosure of the appropriate that courts restrict thing privilege meant to protect, was parties’ only access not to which evidence a complete judicial while abandonment secret, itself risks the disclosure of a state control would lead to intolerable abuses.” but also pieces those evidence or areas 8, Reynolds, 345 U.S. at 73 S.Ct. 528. of questioning press closely upon which so a We do not offer detailed defini highly sensitive material that a they create of what tion constitutes state secret. high risk of inadvertent or indirect disclo Supreme Reynolds The Court found it v. Dynamics Corp., sures.” Gen. Bareford say privilege sufficient to that the covers (5th 1138, Cir.1992); 973 F.2d 1143-44 see which, “matters in the interest of national Kasza, (“[I]f also F.3d at 133 1166 seem security, divulged.” should not be Id. at ingly information of a part innocuous is 10, note, however, 73 S.Ct. 528. doWe mosaic, ... may secrets privilege state an classify that executive decision to infor be its invoked to bar disclosure and the mation is insufficient to establish that the government court cannot order to di privileged. [i.e., infoimation is See Ellsberg, sentangle this information from other (“[T]he information.”). F.2d at privilege may secret] 709 57 not be to any used shield material not strictly Ordinarily, simply excluding or other necessary prevent injury to national walling privileged wise off the information security.”). Although classification may be may protect suffice to the state secrets “ secrecy, an indication of the for need treat ‘the will proceed accordingly, case with it ing as conclusive would trivialize the no consequences those from resulting save ” role, Supreme court’s which the Court has Al-Haramain, the loss of evidence.’ 507 clearly admonished “cannot be abdicated Ellsberg, F.3d at 1204 (quoting 709 F.2d the caprice 64); see, Doe, of executive officers.” e.g., v. Webster 486 U.S. 9-10, 604-05, Reynolds, 345 U.S. at 73 S.Ct. 528. 108 S.Ct. L.Ed.2d (1988) be if the circumstances make to continue without dismissed (permitting case evidence); privileged clear that information will be so Reynolds, 345 U.S. at privileged (same). litigation any attempt 11-12, central 73 S.Ct. proceed threaten that information’s will instances, however, application In some disclosure.”); Bareford, at 1144 973 F.2d may require dismissal of privilege of the (“We compelled are to conclude that the reached, point is When this the action. inevitably of would to a trial this case lead converges with the Reynolds privilege the highly infor significant risk that sensitive bar, require dismissal. because both Totten concerning system mation this defense the are three circumstances when There disclosed.”); be v. Penthouse Fitzgerald would justify terminat- Reynolds privilege would 'l, Ltd., 1236, Int 776 F.2d 1241-42 a case. ing (4th Cir.1985) (“[I]n some circumstances First, plaintiff if “the cannot military sensitive secrets will be so central elements of her prove prima the facie of that subject litigation to the matter the evidence, nonprivileged then the claim with any will dis attempt proceed to threaten claim as it may dismiss her would court matters.”); privileged closure of the prove any plaintiff who cannot her with Cannon, (dis 635 Farnsworth F.2d at 281 Kasza, 1166; 133 F.3d at see also case.” missing action at the because the outset “ Second, F.2d ‘if the Ellsberg, 709 at 65. “any part attempt plaintiff on the of the to of privilege deprives the defendant infor prima a facie so establish case would give the de mation that would otherwise threaten disclosure state secrets that claim, the then a valid defense to fendant overriding the interest of the United summary judgment may grant to the court preservation the of its state States and ” Kasza, 133 F.3d at 1166 the defendant.’ precludes any attempt to secrets further 1141); Bareford, F.2d at ac (quoting 973 (Phil id. pursue litigation”); this at 279-80 Case, 139, F.3d 153 In re Sealed 494 cord J., lips, dissenting and specially concurring (D.C.Cir.2007); also, e.g., see Tenenbaum decision) (con three-judge panel from the (6th Simonini, 372 777 v. F.3d Cir. entirely cluding “litigation that should be 2004). by outset of the foreclosed at the dismissal that appears danger action” if it “the here, Third, even if and relevant compromise protected of the inadvertent might claims and defenses theoretical the outweighs pri public state secrets the relying on privi established without ly be formally to attempting vate interests in evidence, impossible it leged may be honoring the dispute resolve the while proceed privi the litigation with because— cir privilege”). explain, As we shall this inseparable from leged being evidence requires here dis cumstance exists information that will be nec nonprivileged missal. essary litigating the claims or defenses— a the judgment case to on merits the Application IV. risk present unacceptable an of dis

would See, turn to e.g., application In re We therefore the closing state secrets. (“If Case, in this case. 494 at 153 the dis the state secrets doctrine F.3d Sealed government plaintiffs’ the The contends that subject court determines that trict dismissed, un- a case that there lawsuit should be whether matter of is so sensitive privi- Reynolds or the way litigated risking it can be without der Totten bar is no secrets, are so central lege, case be because “state secrets national then the must dismissed.”); pro- this that further permitting 479 F.3d ease at 308 El-Masri (“[A] ceeding[s] create an intolerable risk state would proceeding in which the secrets nation- jeopardize that would successfully interposed must disclosure privilege is security.” Br. 13.6 ar- Tenet and applied al U.S. Plaintiffs Totten Court apply that the bar does not and Totten bar to “the distinct cases gue Totten class of that, government depend upon even if the is entitled to that spy clandestine relation- Tenet, 9-10, protection Reynolds ships,” under see privi- some U.S. at Totten, 1230; at least claims survive. The S.Ct. and in lege, some U.S. appears Weinberger court have Court applied district dismissed the Totten bar, making depended action under the Totten a bar to a case that on whether very Navy proposed weap- “threshold determination” “the to store nuclear subject particular facility, Weinberger, matter of the case is state se- ons at a see basis, 146-47, on that 454 Having cret.” dismissed the U.S. at 102 Al- S.Ct. 197. though court did not address whether the has ap- district Court not limited the Tot- privilege premised of plication Reynolds espio- the would ten bar to on cases secret require nage agreements dismissal. or the location of nuclear weapons, guid- has it neither offered much so quite We do not find it clear that the ance on when the Totten applies bar be- very subject this matter of case is a state yond these limited Be- circumstances. Nonetheless, having secret. conducted rarely cause the Totten bar is applied and own we analysis, our detailed conclude that defined, not clearly judge- because it is a the district court reached the correct re- made extremely doctrine with harsh conse- is sult because dismissal warranted even quences and because more conducting a Reynolds. Recognizing under the serious analysis detailed will improve tend to the consequences dismissal, of plaintiffs we accuracy, transparency legitimacy and possible our explain ruling so far as within the proceedings, presented district courts imposed the considerable constraints on us with disputes about state secrets should by the state secrets doctrine itself. ordinarily a Reynolds undertake detailed analysis deciding before whether dismissal A. The Totten Bar justified. on pleadings the is categorical, The protection “absolute Here, plaintiffs’ might some of necessary in claims enunciating [the Court] found well fall within the Totten bar. In particu- Totten appropriate only the rule” is in lar, Tenet, allegations their that Jeppesen narrow con- circumstances. 544 U.S. at spired with 11, 125 agents of the S.Ct. The Totten bar United States applies 1230. plaintiffs’ only subject disappearance, when the forced “very matter” of torture the and i.e., degrading action is a treatment premised state when it are on is secret — the conducting alleged “obvious” without the existence of an detailed covert relation- analysis required by Reynolds ship Jeppesen “that between govern- the the action prevail privi [c]ould never over the ment —a matter that the Fourth Circuit Reynolds, n.26, lege.” U.S. at 11 “practically indistinguish- 345 73 has concluded is 528. applied S.Ct. The Court has able categorically Tot- from that by barred Tot- just occasions, ten bar on El-Masri, three ten involving and Tenet.” 479 F.3d at two different hand, kinds of state secrets: In 309.7 On the other allegations based government’s ("ATS”). 6. The briefing assuming classified Statute But con- that the supporting provide specific declarations more spiracy cognizable, they require claims are support government’s for state secrets See, proof agreement. e.g., of an Presbyterian contentions. This information is crucial to Inc., v. Energy, Church Sudan Talisman El-Masri, our decision. See 479 F.3d at 312. (2d Cir.2009) F.3d (holding that conspiracy liability under the re- ATS would any 7. We do plaintiffs’ not decide whether " quire "agreement” either an or 'a criminal cognizable are claims under the Alien Tort review, obligation un- judicial fulfilling should our theory Jeppesen that plaintiffs’ on [govern- “to review the Reynolds have der for it “should simply what liable be careful, a very with indeed claim] ex- ment’s unlawful alleged known” about face eye, accept and not to skeptical, par- while rendition traordinary program justifica- government’s claim or value obviously tied to in it are not so ticipating Al-Haramain, privilege.” tion of Jep- agreement between of a secret proof at 1203.8 F.3d government. and the pesen question not resolve the difficult We do Reynolds Privilege B. The may be barred which claims precisely of the application because under Totten gov no dispute There is ’ us to conclude privilege leads Reynolds complied Reynolds pro has ernment with further. proceed litigation that this cannot requirements invoking for cedural rather Reynolds privilege rely on We filing privilege by state secrets General reasons. bar for several than the Totten in his Hayden’s privilege formal claim of First, the government the has asserted focus on public declaration.9 We therefore the Totten privilege along with Reynolds steps Reynolds and third in the the second bar, Reynolds inviting inquiry the further First, to ex analysis; whether and what that com- requires presenting and a record government the tent the matters contends alternate even on this pels dismissal kept must be secret are in fact matters of Second, we to secret; second, are, have discretion ground. they and if state by affirm the rec- any supported on basis action can without litigated whether the be Roberts, 27, Thigpen v. 468 U.S. necessarily ord. See relying on evidence that would 29-30, 2916, L.Ed.2d 23 closely 104 S.Ct. 82 those secrets or so press reveal Dressel, 1082, (1984); v. F.3d unjustifiable Shanks 540 them as to an upon create Cir.2008). (9th Third, this resolving they doing be In 1086 risk that would revealed. ques- so, Reynolds explain avoids difficult our much as we case under we decision as compromising the Totten the secrets we precise scope the of can without tions about searching required protect. to a to permits and us conduct are bar Morocco, Afghanistan, Egypt, and participate to in a common criminal tion in intention Tadic, ") they subjected would be to acts of design' (quoting v. Case where Prosecutor ¶ IT-94-1-A, cruel, degrad- Appeal (July other or Judgment, 206 torture and inhuman No. Fernandez-Larios, treatment.”). 15, 1999)); ing v. 402 Cabello 1148, (11th Cir.2005) (holding that F.3d 1159 requires liability skepticism justified all in conspiracy the ATS This is the more under 8. wrong- agreed allege government persons to proof that "two or more cases that serious act”). allega allegations heighten wrongful doing. the risk a Plaintiffs’ Such commit government may to conspiracy de be motivated that claims that officials tions confirm their See, only by secrets not relationship. invoke the state doctrine pend proof of a on covert protect security ¶ obligation to national Compl. ("Jeppesen their e.g., en Am. 255 First by protect a desire to themselves or but also agreement agents the an with of tered into scrutiny. from their associates unlawfully Plaintiffs States to render United Morocco, Egypt, and to secret detention in ¿¿.¶ noted, ("Defendant previously government filed Afghanistan.”); entered As 262 9. meeting require- procedural agreement agents the United declarations an with into though support Reynolds privilege even provide flight logistical for the to ments States strictly necessary to ex are in the such declarations not to aircraft and crew used services Tenet, U.S. at unlawfully support a Totten claim. 544 traordinary program to See rendition interroga- 1230. 125 S.Ct. render Plaintiffs detention secrets, “which, 1. to What Extent valid state in Whether and the interest Privileged Evidence Is of national security, should not be di- vulged.” Reynolds, U.S. asserts the state government The se S.Ct. government’s 528. The classified four privilege categories crets over of evi disclosures to persuasive the court are that government particular, dence. In con compelled or inadvertent disclosure of it Jeppesen tends that neither nor should such information in the course of litigation compelled, through responsive plead be seriously legitimate would harm national otherwise, ing, or discovery responses fact, security In every interests. judge disclose: information would tend “[1] government’s who has reviewed the for- deny Jeppesen confirm or whether or mal, classified claim of privilege in this any private entity other assisted the CIA with clandestine intelligence activities; ^[2] case agrees that in this sense the claim of privilege although is proper, we have dif- any information whether foreign about ferent scope views as to the privi- government cooperated with the CIA lege impact plaintiffs’ and its on case. The activities; intelligence clandestine [3] in plaintiffs dispute that, themselves “do not scope operation formation about the or during litigation, the course of may there interroga CIA terrorist detention and well be may relevant evidence that be program; any tion 4] other information [or properly pursuant withheld privi- concerning intelligence CIA clandestine lege.” Br. Plaintiffs-Appellants 26. operations that would tend to reveal intelli El-Masri, (affirm- See F.3d at sources, 308-13 gence activities, or methods.” ing the dismissal a case involving U.S. Br. 7-8. essen- indisputably These are mat tially the types same claims on the ters that the basis privilege may state secrets doctrine). See, Tenet, of the cover. states secrets e.g., 11, 544 U.S. at 125 (emphasizing S.Ct. 1230 pro the “absolute are precluded We from explaining pre- tection” the state secrets doctrine affords cisely which the privilege matters covers against revealing espionage relationships); lest we jeopardize the secrets we are Sims, 159, 175, CIA v. 471 U.S. 105 S.Ct. Black, protect. bound to See 62 F.3d at 1881, (1985) (“Even 85 L.Ed.2d 173 a small (“Care 1119 protecting in state secrets is chance that some court will order disclo necessary during not a only court’s review identity sure of a source’s could well im evidence, of the in but its subsequent pair intelligence gathering and cause treatment question of the in any holding; ”); sources to a up ‘close like clam.’ In re a properly phrased opinion should not Case, Sealed 494 F.3d at (prohibiting 152 strip the veil state from secrets even if sources, “all intelligence discussion of ca ambiguity in a results loss of focus and like”); pabilities, Al-Haramain, and the clarity.”). say, however, We can that the 507 F.3d at (applying privilege the to secrets fall within or one more of the four means, “the and sources methods of intelli categories by government identified the gence gathering”); Ellsberg, 709 F.2d at and that independently we have and criti- 57 (applying privilege the to the “disclo cally confirmed that their disclosure could sure of intelligence-gathering methods or expected be significant to cause harm to capabilities”). security. national thoroughly We have critically and re- 2. Proceedings on the Effect government’s viewed the public and classi- fied declarations and are Having convinced that at that privilege determined the least some of the matters it pro- applies, seeks to we next determine whether the tect in from litigation disclosure this are case must be dismissed under the Reyn- is, thoroughly ilege requires have con- dismissal —that whether olds privilege.10 We prima could a plaintiffs prove facie case claims, possible plaintiffs’ several sidered evidence, privileged without or whether of this prospective path the defenses and privilege deprives Jeppesen the of evi carefully and also have litigation. We give that would otherwise it a valid dence government’s the skeptically reviewed Kasza, See plaintiffs’ claims. defense submissions, sup- which include classified 1166; supra F.3d at Part III.B.3.11 the presented not plemental information Instead, deciding we assume without that rely heavily on these court. We district prima Jeppesen’s facie case and plaintiffs’ submissions, the state se- which describe inevitably may depend not on defenses here, the harm to national implicated crets Proceeding evidence. on that privileged security government that believes assumption, we hold that dismissal is none dis- explicit implicit result from or would Reynolds required under theless because gov- in why, reasons closure way litigate no Jeppes there is feasible view, further would litigation ernment’s alleged liability creating without an en’s that disclosure. risk unjustifiable divulging risk of state secrets. plaintiffs’ Given extensive submission El-Masri, (coming 479 F.3d at 312 See of the stage documents and public in a the same conclusion related and com case), rely denied, on first two litigation, we do not parable cert. U.S. (2007).12 Reynolds priv 128 S.Ct. 169 L.Ed.2d 258 circumstances which dissent, earlier, however, Reynolds analysis. sug- did not The As noted the district court 10. analysis plaintiffs’ plaintiffs prima a sever- gests conduct detailed that could a establish the sub- al claims because it concluded that case for at least two of their claims facie ject case secret matter of the entire is state relying privileged without on evidence bar. dismissed under the Totten and therefore discovery namely, perhaps any without all— dissent, urged by option, vigorously One Jeppesen recklessly provided flight and that to the court for would be to district remand logistical support flights rendition while it for analysis court a more detailed to conduct support or known its was knew should have As the has devel- in the first instance. case disappearance being used for and tor- forced proceedings, oped during en banc how- these Appendix. Although ture. See our Dissent ever, unnecessary because we find remand holding require us to this does not resolve analysis persuades Reynolds us that our own we reli- question, are not so sure. Plaintiffs' litigation proceed. Although cannot it the in ance on information set forth the dissent’s preferable the district would have been for evidentiary Appendix would have to overcome first, analysis this we now court conduct obstacles, hearsay problems as and other such had it ourselves and it makes no have to do majority the fact the vast of the and that judgment that— suspend sense to our own reports putting Jeppesen on media cited as given the before us the nature of record and published Jeppesen's were ser- notice after realistically can- plaintiffs’ case claims—this any alleged vices were to have occurred. In against Jeppesen without litigated not be event, analysis aspect the our own under third compromising secrets. There is thus no state persuades Reynolds or us these "knew of risk, remanding the point, in and much have claims must be dis- should known” through Reynolds go anal- district the court well. missed as prefer. accept ysis the would We as dissent respect principles the and the that motivate El-Masri, Supreme declined 12. In the Court dissent, justify principles but those do not the Circuit's dismissal of to review Fourth here. prolonging process the against claims the United similar various corporate government al- States and actors before, supra 7 related 11. As noted see n. and directly responsible leged be for the text, to more plaintiffs' would at some of claims least interrogation programs and at issue rendition require proof agreement rela- of an or covert Nothing Supreme state in the Court's tionship government Jeppes- here. the and between jurisprudence suggests plaintiffs' that might secrets These well barred under en. claims be here, alleged against provider of certainly a an and would fall even under claims Totten might reach this conclusion because all that divulge privi- We sev- witnesses some claims, plaintiffs’ leged of even if during en taken as material cross-examination is true, as Jeppesen providing logis- great privileged describe non-privi- because the and broad, support complex process, leged tical in a inextricably material are linked. We which, aspects government certain the compelled are to conclude that the trial us, persuaded absolutely protected inevitably has are case signifi- this would lead to a by privilege. state secrets Notwith- cant highly risk that sensitive information standing that some information about concerning system that this defense be would process public, Jeppesen’s disclosed.”); Fitzgerald, has become al- 776 F.2d at 1243 (“In leged liability role and its attendant cannot examining personal witnesses with that aspects knowledge secrets, be isolated from are military secret of relevant protected. underly- parties and Because the facts every would have incentive to plaintiffs’ so ing claims are infused probe dangerously with close to the state se- secrets, any these effort plausible by Jep- crets In circumstances, themselves. these pesen to defend them against would state create secrets be compromised could even unjustifiable an revealing witness.”); risk of state without by se- direct disclosure a crets, plaintiffs Cannon, even if could prima make a Farnsworth 635 F.2d at 281 (“[T]he facie case on one or more claims plaintiff lawyers with and its have would nonprivileged Kasza, evidence. See every probe incentive to as close to the 1170; Black, F.3d 62 F.3d at core secrets the trial judge per- as would (“[Pjroof of ‘the allegations factual mit. probing Such in open court would Complaint Amended are so tied to the inevitably revealing. be It is evident that privileged that litiga- any information further attempt part on the plaintiff of the will tion constitute an undue threat that establish a prima facie case would so privileged ”) information will be disclosed.’ threaten disclosure state that secrets (quoting court); and affirming district the overriding interest of the United Bareford, (“[T]he 973 F.2d at 1144 danger States and preservation state its logistical support programs, lege to those should analysis.” form a "continuum of proceed against government where claims F.3d may at 1201. caseA fall outside corporate plaintiffs who allege actors "very Totten bar its subject because matter” primarily responsible were secret, failed. is yet not a state may it become conducting Reynolds clear in analysis a notes, correctly As the dissent pre we have plaintiffs case, prima cannot establish facie viously disapproved of El-Masri for conflat deprived that defendants are de- of a valid ing "very subject the Totten bar's matter” litigated fense or that the case cannot be inquiry Reynolds privilege. with the See Al- presenting without certainty either a or an Haramain, 507 1201. F.3d at We adhere to unacceptable revealing of risk state secrets. approach today by maintaining that a distinc reached, point ap- When that including, is if tion between the bar on the Totten one hand plicable, pleading stage, at the is dismissal Reynolds the privilege and on the other. See Tenet, appropriate Reynolds tire privilege. under 544 (explain U.S. at S.Ct. 1230 Notwithstanding its ing Reynolds that erroneous conflation of way signaled "in no our Reynolds the Totten bar and the privilege, retreat from we holding Totten's broader that rely premised on it alleged properly lawsuits El-Masri because espionage on conclud- agreements forbidden”). respect allegations altogether comparable are ed—with to to distinction, ever, Maintaining "virtually those any that here—that how conceivable does Reynolds privilege response [plaintiffs’] allegations not mean that the to can nev would dis- information,” and, therefore, prospectively be privileged er raised or close result in a dis stage. missal at pleading the that the litigated As we ex action could not be "without (as

plained in threatening Al-Haramain do we in the the disclosure” of state secrets. text), El-Masri, the Reynolds Totten the privi- bar and at 479 F.3d 310. govern- the allegations,” to entire or that attempt further cise any precludes secrets required In re must make its claims litigation.”); see also ment be “to this pursue (acknowl- Case, specific regard at 152-54 with F.3d of state secrets Sealed of appropriateness dismissal such edging groups the items of evidence or of items matters privileged and unprivileged sought when in the as their use is lawsuit.” of the risk are so that disclosure 1094,1097. entwined at Dissent high, unacceptably material is privileged of may A case fall outside the Totten bar that the case before although concluding yet may during it become clear the and category). not fall that the court did within analysis that dismissal is re Reynolds an un- Here, litigation presents further Al-Haramain, at outset. quired the See se- acceptable risk of disclosure state the (explaining F.3d at 1201 that Tot- or theo- legal crets matter what factual no Reynolds privilege bar and the form a ten choose to advance Jeppesen ries would in analysis,” “continuum of and that some during Jeppes- or not a defense. Whether may “the itself not be barred cases suit provided logistical support in connec- en subject yet of its matter and ulti because extraordinary and tion with the rendition mately, privilege may the state secrets precious there interrogation programs, is from preclude pro nonetheless the case say about its relevant Jeppesen little could merits,” ceeding even without revealing knowledge without conduct and Here, “await[ing] discovery”). preliminary about how the United States information Reynolds analysis that our detailed reveals or not conduct co- government does does possible claims are so and defenses holds no vert Our conclusion operations. with that the infused state secrets risk dis- protective procedures matter what and disclosing apparent them is both inev liti- might Adversarial employ. trict court itable. Dismissal under these circum including pretrial discovery of doc- gation, stances, like dismissal under Totten presentation and the uments and witnesses bar, general principle reflects the trial, testimony and is documents at “public policy forbids the maintenance Al- complex unpredictable. inherently and justice, in court of the trial of any suit a equipped are well though district courts inevitably lead to disclo which would disclosure, from wall off isolated secrets law itself re of matters which the sure greater is challenge exponentially confidential, respecting gards as which one, exceptional cases this where like to be it will not allow the confidence violat or impossible relevant secrets are difficult Totten, ed.” 92 U.S. 107. and even efforts to define isolate unprivi- boundary privileged between necessarily precluded Although arewe by leged would risk disclosure evidence this precisely why case explaining from circumstances, In rare implication. these risking litigated disclo- cannot be without proceed- the risk of disclosure that further secrets, or the nature of the sure of state ings cannot be averted would create we con- security harm to national that are through protec- the use of devices such as litigation, from further vinced would result testimony. on tive orders or restrictions a are to offer few observations. we able stage at the under pleading Dismissal First, recognize plaintiffs we that have not a result and should Reynolds is drastic publicly of of pages hundreds proffered persuad- are readily granted. be We not documents, many catalogued in available ed, however, that by dissent’s views the they say cor- Appendix, that the dissent’s can never be privilege the state secrets allegations their con- ex- some of during stage to roborate pleading “asserted the 1090 Jeppesen’s alleged participation appellants in which the an

cerning expressed have extraordinary pro- of the aspects rendition can properly interest remain classified’ or gram. government As the has acknowl- otherwise from privileged disclosure.” privilege its claim of does not ex- edged, Audit v. (quoting Military Project Casey, public Accordingly, tend documents. to 724, 752(D.C.Cir.l981))); F.2d 656 see also any of we do not hold that the documents at 1144 Bareford, (explaining 973 F.2d that subject have submitted are plaintiffs circumstances, in some of in- “disclosure rather, we that the conclude privilege; by government formation can officials be assuming plaintiffs even could establish interests, prejudicial government even if solely through nonprivi- their case entire already divulged the information has been unlikely may as leged that be— evidence— sources”). non-government from any by Jeppesen effort to defend would unjustifiably Third, risk disclosure of state se- we acknowledge govern- the (con- El-Masri, 479 crets. F.3d at 309 ment’s argument certification oral that Cf. any that cluding “virtually re- conceivable privilege its assertion of the state secrets [by sponse government defendants comports with the revised standards set allegations on factual claims based materi- in forth the current Sep- administration’s ally ... case’s] identical this would dis- memorandum, tember adopted information”). privileged close years government several after the first Second, we do not hold that the exis in privilege invoked the this case. Those the extraordinary pro tence of rendition require the responsible agency standards gram itself a program is state secret. The to show that of privilege “assertion the is publicly acknowledged has been numer by necessary to protect the unau- information government including ous officials the thorized disclosure of which reasonably President the United States. Even if be expected significant could to cause may its mere existence once a have been harm to the foreign national defense or which, “matter[ ] in the interest of national Memo, relations.” supra, Holder at 1. security, divulged,” should not is be it not They also that Department mandate a Reynolds, state secret now. 345 U.S. at “will Justice not defend an invocation of 528; Al-Haramain, 73 S.Ct. cf. (i) privilege order to: viola- conceal (concluding F.3d at 1193 light ex “[i]n law, of the inefficiency, tions or adminis- government tensive disclosures” that a (ii) error; prevent trative embarrassment warrantless wiretapping program not was person, organization, to a agency or of the secret). Nonetheless, matter state (iii) government; United States restrain partial disclosure of the existence and even (iv) prevent or competition; delay or aspects some of the extraordinary rendi release of information the release of which program preclude tion does not other de reasonably not expected would be to cause tails remaining from state if their secrets significant security.” harm to national Id. grave disclosure would risk harm to na at 2. That certification here is consistent Al-Haramain, security. tional See conclusion, our independent with having (concluding F.3d at 1203 that some undis government’s reviewed the public and closed details of wiretapping program declarations, govern- classified protection were entitled to under state invoking ment is not privilege to avoid Halkin, privilege); secrets at 994 F.2d scrutiny (“We escape embarrassment or to of its reject, as we have previously, the recent controversial transfer interro- theory that ‘because some information project policies, ostensibly gation protect about the in rather than to le- is now the domain, public in nothing project gitimate security about the national concerns.

1091 security secrecy national demands. For Remedies V. Other instance, repara- government the made is to holding today not intended Our Japanese tions to Latin Americans abduct- non- pre-judge possible foreclose—or to — for in ed from Latin America internment relief, it warranted for should be judicial during States World War II. the United judicial of a any plaintiffs. Denial of the States, Mochizuki v. United 43 Fed.Cl. See secrets doctrine forum based on the state (1999).13 97 both individual and concerns at poses plain- For the individual structural levels. Second, authority Congress has the to action, forecloses tiffs in this our decision alleged and investigate wrongdoing re- remedies, and judicial of at least one set by excesses the executive branch.14 strain opportunity prove deprives them of the to power Congress of the to conduct “The mistreatment and obtain alleged their legislative in investigations is inherent the level, terminat- At a structural damages. States, v. United 354 process.” Watkins judicial eliminates re- ing case further the 178, 187, 1173, 77 1 U.S. S.Ct. L.Ed.2d litigation, important view in this civil one (1957); accord 1273 Eastland v. U.S. Ser- by offi- alleged government check on abuse Fund, 491, 504, 421 vicemen’s U.S. contractors. Other rem- putative cials and (1975). 1813, 44 S.Ct. L.Ed.2d 324 “Con- may partially mitigate these con- edies has ... gress unquestionably broad au- cerns, however, recognize although we thority investigate, public, to to inform the it brings with its own options each of these and, ultimately, legislate against sus- set of concerns and uncertainties. pected corruption power and abuse of in First, judicial may branch have the the Executive Branch.” Nixon v. Adm’r branch’s claim of deferred to the executive Servs., 425, 498, 97 Gen. 433 U.S. S.Ct. in interest of national securi- privilege (1977) 2777, (Powell, J., 53 L.Ed.2d 867 from ty preclude government not does Hayes, v. concurring); Branzburg see also principles jus- honoring the fundamental 665, 2646, 741, 408 U.S. 92 S.Ct. government, having tice. access to The (1972) (Stewart, J., dissent- L.Ed.2d 626 information, can the secret determine (“We recognized ing) long have the value have plaintiffs’ whether claims merit played by legislative investiga- role mistakes were misjudgments whether or ”). .... tions rights. human plaintiffs’ made that violated Third, Congress power also has the case, government Should that be the Fitzger- private enact bills. See Nixon v. may ways remedy able to find such be ald, 5, 2690, 762 n. 102 S.Ct. alleged maintaining harms while still U.S. See, (es- 403q § e.g., 50 U.S.C. governments have committed to do- utive branch. 13. Other See, ing e.g., Inspector Minister David tablishing this. Prime the Office of General in Cameron, by A the Prime Statement Given Intelligence Agency “to initiate the Central on the Minister to the House of Commons inspections, independently and conduct inves- 6, 2010), Suspects (July of Terror Treatment tigations, relating programs and audits http://www.numberlO.gov.uk/news/ Agency”); operations see also Office of statements-and-articles/2010/07/statement-on- General, Agen- Intelligence Inspector Central ("[W]e committed to me- detainees-52943 are Special cy, Review: Deten- Counterterrorism brought with who have civil diation those Interrogation (September tion and Activities claims about their detention Guantanamo. 2003), May (partially 2001-October appropriate, we will com- And wherever offer redacted), http://grapb.ics8. available pensation.”). nytimes.com/packages/pdf/politics/20090825- DETAIN/2004CIAIG.pdf. addition, Congress constituted inde- 14. In has pendent investigatory within exec- bodies 1092 (1982) C.J., con in (Burger, pursuit

73 L.Ed.2d 349 interest the of their claims to (“For uncompensated injuries curring) the duty preserve executive’s to our na- provide Congress may in its discretion security, tional this means that remedies separate nonjudicial pri remedies such as proven for ... violations that be cannot bills.”); Farm, v. Spendthrift vate Plaut existing legal standards, under if there are Inc., 211, n.9, 1447, 239 S.Ct. 514 U.S. 115 remedies, to be such must provided by be (1995) (“Private bills in 131 L.Ed.2d 328 Congress. That is govern- where the common, Congress are and were still even remedy power wrongs ment’s to is ulti- in days more the before establishment so Helms, mately reposed.” Halkin v. 690 Court.”); of the Claims Pers. of (footnote Office omitted). F.2d at 1001 Richmond, 414, 431, 110 Mgmt. v. 496 U.S. (1990) (“Con 2465, S.Ct. 110 L.Ed.2d 387 VI. Conclusion gress employ private legisla continues to We, dissent, like the emphasize that it tion to provide remedies individual cases a should be rare case when the state se- hardship.”). of a general Because as mat crets to doctrine leads dismissal at the ter equipped the federal courts are better Nonetheless, outset aof case. there are claims, to see v. handle Kosak United just such subject cases—not those to Tot- States, 848, 867-69, 465 U.S. 104 S.Ct. rule, se per ten’s but those where the (1984) (Stevens, J., 79 L.Ed.2d 860 for mandate is apparent dismissal even dissenting), Congress can refer the case to under the searching more examination re- the to Court of Federal Claims make a quired by Reynolds. of This is one those deciding recommendation before whether rare cases. bill, to a private enact see 28 U.S.C. For the 1492; § all reasons the dissent articu- see also Corp. Prods. v. Banfi States, including impact the on (1997), United human Fed.Cl. lates— although Congress rights, importance alone will make of constitutional protections ultimate decision. When national security and the of a judge- constraints deny alleged wrongful interests victims made doctrine —we do not our reach deci- governmental meaningful action access to sion or lightly without close and skeptical judicial forum, a may private bills be an scrutiny of the govern- record and the appropriate remedy.15 alternative secrecy for ment’s case and dismissal. We expect today our decision to inform district

Fourth, Congress authority has the limits, courts that Totten its every has that enact legislation authorizing remedial ap- effort parse should be made to claims propriate procedures causes of action and salvage case using Reynolds like this presented address claims like those approach, here. that When the state secrets peremp- doctrine standards for “compels appellants’ the subordination tory very high dismissal are and it is the Proceedings 15. example, requiring in the Court of Federal Claims for the Court of Federal following congressional may pose referral Claims to make its recommendation based problems require some solely plaintiffs' same testimony dis- on the own here—the nonprivileged public missal Court of Federal Claims documents in the do- Moreover, must Congress avoid disclosure of state secrets presumably pos- too. main. proceedings might proble- The power referral application be less sesses the to restrict of the lawsuit, however, because, matic privilege proceed- than this for state secrets in the referral Al-Haramain, example, question third-party liability ings. F.3d 1205-06 Cf. private be (remanding would not the focus: a bill address- to the district court consider compensation by government, es by Intelligence the Foreign not whether Surveillance addition, Act, 1806(f), parties. Congress third might § In preempts U.S.C. the state secrets, protect tailor by, privilege). its referral to state secrets

1093 activities, role in such fact-finding merely Jeppesen’s its role to use court’s district matter state secret. it are a of advantage to full before tools and other is of step the rare dismissal that concludes HAWKINS, Circuit DALY MICHAEL this acknowledge that also justified. We SCHROEDER, Judges Judge, with whom conflict between painful a presents case THOMAS, PAEZ, CANBY, and Circuit As security. and national rights human join, dissenting: Judges, to tried our best evaluate have judges, we the and competing plaintiffs claims of the A Flawed Procedure that conflict ac- and resolve government my colleagues major- in the agree I with the principles governing the cording to Reynolds, that States v. 345 ity United by the doctrine set forth secrets state 528, (1953), 1, 97 727 is 73 L.Ed. U.S. S.Ct. Supreme Court. States United evidence, requiring courts to un- a rule of stated, the we hold that For the reasons that review of evidence dertake careful of the state valid assertion government’s might support a claim or defense to deter- the warrants dismissal of privilege secrets either could be made with- mine whether affirm the judgment the of litigation, I legitimate resort to state secrets. out shall government The district court.16 company concerning when and where part parties’ appeal. costs on bear all take place. that review should AFFIRMED. the in its majority The dismisses case has even an entirety Jeppesen before filed BEA, Judge, concurring: Circuit complaint. to Plaintiffs’ Outside of answer Fisher’s well-rea- Judge I concur with context, narrow the state se- the Totten join fully in result. opinion and his soned applied pre- has never privilege crets analysis Judge with Fisher’s I also concur the truth or parties litigating from vent Reynolds, v. respect facts, to United States with or or informa- falsity allegations, of 528, 1, 97 727 73 S.Ct. L.Ed. simply government 345 U.S. the re- tion because (1953). I separately only I because falsity allegations write the or of the gards truth v. this under Totten Reynolds case would decide secret. Within the frame- to be 107, States, 105, L.Ed. work, 92 23 if justified only U.S. is if and United dismissal (1876). privileged 605 evidence is itself indis- specific the of establishing either truth pensable requires The bar our courts Totten or a valid defense plaintiffs’ allegations the very subject mat- “where the dismiss cases available to the that would otherwise be matter of state action” is “a ter Browner, See, e.g., v. Kasza defendant. 26, 73 at 11 n. Reynolds, 345 U.S. secret.” (9th Cir.1998). F.3d case, in the every claim 528. In this S.Ct. an allega- important, approach This is because complaint on the Plaintiffs’ is based specific evidence after is- gov- that focuses on that of the United States tion officials confining joined are has the benefit Plaintiffs sues arrested and detained ernment operation of the state secrets doctrine subjected specific interroga- them than facts, broadly it more sweep not that will no alleged so techniques. tion Those government's requires court to review dissent’s confidence We not share the 16. do proceedings present within privilege. come alone That fact formal claim 12(b)(6). of Civil Procedure 12(b)(6). Federal Rule Rule question into reliance on calls 1093-95, necessarily Reynolds 1097. Dissent City Angeles, 250 Lee v. Los F.3d See materials outside entails consideration of Cir.2001). (9th minimum, Reynolds analysis pleadings: at necessary. controlling The state secrets doc- our clearly embedded decisional law. judicial without trine is a construct founda- Government of claims state secrets there- Constitution, yet application tion in the its fore be by judiciary. must entertained the ordinarily we trumps often what consider But the dangerous doctrine is so as a process of law. This case now to be due hiding governmental means of misbehavior a illustration. presents classic Plaintiffs guise security, under the of national and so facts, alleged which must be taken have as of rights process, violative common to due dismiss, purposes a motion to true for of that application courts should confine its to person any agree that reasonable would to the narrowest still pro- circumstances that the of gross be violations of norms interna- government’s tect the essential secrets.1 law, remediable tional under the Alien When, here, as successfully the doctrine is They Tort have in alleged Statute. detail at litigation, invoked the threshold of the complicity or Jeppesen’s recklessness in necessarily claims of secret are broad and in participating gov- these violations. The hypothetical. The result is a maximum intervened, ernment and asserted that the interference with the due processes of the endanger suit would state secrets. The courts, general on the most claims of state opinion majority accepts here that thresh- privilege. secret It is far to require better government, objection by old the so Plain- government the to make its claims of state attempt in prove tiffs’ to their case court is to regard specific secrets with items of simply They off. are cut not even allowed or of groups evidence such items as their by attempt prove to their case the use sought use is in the An lawsuit. official in of evidence own nonsecret their hands truly certification that evidence is a state parties. or in the hands of third secret will be more if focused the head of a that, judicial It true though department certify is construct specific must that evi- is, it state the secrets doctrine has sought become dence in litigation the course of is 15, 1953) 1. (quoted Abuse of the Nation's Mayer, information classifica- in Kenneth R. With system tion is not unheard the of. Former U.S. Stroke a Pen: Executive Orders and of Griswold, (2001)). Solicitor General Presidential Power 145 Erwin who ar- Reynolds, gued government’s Even in Pentagon the avoidance of embarrass- case in the matter, preservation ap- ment—not of Papers explained state Washing- a later in secrets — pears have motivated the Executive's invo- quickly ton Post editorial that "[i]t becomes privilege. cation of the the There Court apparent any person who has considerable government’s credited that assertion "this experience with classified that material there a military plane accident occurred to which overclassification, is massive that and gone equip- had aloft secret to test electronic principal concern is of classifiers not with ment,” and that "there was a reasonable security, governmen- national rather but with danger investigation report that the accident tal embarrassment one of sort or another.” would contain references to the secret elec- Griswold, Keep- Erwin N. Secrets Not Worth equipment primary tronic which was the ing: Information, the Courts and Classified 10, of the concern mission.” 345 U.S. at Post, 15, 1989, Wash. Feb. at A25. 1996, however, S.Ct. In 528. the "secret” Attorney Former General Herbert Brownell report accident involved that case was de- similarly complained in a 1953 letter Presi- revealed, A report classified. review of the proce- dent Eisenhower that classification any project plane not "details of secret broadly were dures then "so drawn loose- in,” "[ijnstead, was involved but a ... horror ly possible administered as to make it for story incompetence, bungling, tragic government up Wills, to cover officials their own Garry Why error.” the Government wrongdoing Lie, mistakes and even their under Legally Can 56 N.Y. Rev. Books guise protecting security.” (2009). national pre- Courts be should concerned to Attorney Letter from General power Herbert Brow- vent a of unchecked concentration (June Dwight permit nell to President Eisenhower that would such abuses. province of trial courts and for revealed with- ticular truly secret and cannot be it. they good are at Not overriding, govern- sound reason: danger to essential out directing the district court to do work responsive interests. And when ment discovery exactly wrong message under in the complete and sends is pleading handling these critical and to whether secret mate- sensitive way, judgments as “unnecessary,” Jep- Finding case cases. remand as is to Plaintiffs’ or rial essential here, majority [Maj. Op. does be made more accu- pesen’s defense can n.10], only not rewards district courts for rately. to their failing job, do but ensures that to voluminous By refusing examine the to do appeals future courts will have that by materials public record submitted job for them.4 claims,2 in of their and support Plaintiffs 12 analysis Jep- appeal an This is an from a Rule dis- by failing to undertake of missal, ability against those which means that the district court pesen’s to defend claims, every required to the the district court forced was assume that well- the appeals pleaded allegations complaint to of are judge of the court of undertake true, and we complaint was no small undertak- that “construe the that effort. This in the most favorable the ing. government light plain- Materials the considers to States, v. securely had moved back Doe United 419 F.3d top tiffs].” secret to be Cir.2005). (9th 1058, majority country and forth the and made 1062 The across importance in a of environ- minimizes the of these require- available “cone silence” by three-judge panel gratuitously attaching “alleged- ment first the as- ments to nearly to twenty-seven ly” describing the case and then the each sentence signed say them, judges happened of this court to evaluate what Plaintiffs to active by quickly dismissing pub- the merited en banc consid- the voluminous whether case quite literally put licly cart supporting eration. This the available evidence those horse, reviewing allegations, that depriving including Jeppesen the knew before going arranged a record which its traditional what was on when it upon court of of officials flights by function could be carried out.3 described one its own review Instead, flights.”5 majority the This is more than a matter of convenience. as “torture prima even if facie Making par- factual is the assumes that Plaintiffs’ determinations 1,800 compel summary pages might of that courts the disclosure of docu- 2. A the some of by appears Appendix legitimately this information as an ments covered the state secrets privilege. dissent. context, Supreme the has 3. In another Court According to the sworn declaration of for- 5. pointed problems the created out structural Belcher, Jeppesen employee the mer Sean appellate presented are with un- when courts Jeppesen Trip International Plan- Director of Jones, developed v. 515 records. Johnson " him, Services, Overby, ning Bob ‘We do told 309, 316-17, 2151, 132 U.S. 115 S.Ct. ” extraordinary flights,' rendition all (1995). L.Ed.2d 238 " 'the which he also referred to as torture ” "spook flights.” flights’ Belcher or stated ability of district 4. I have confidence in employees who that were were "there some determinations, judges and in to make such aspect Jeppesen's with that of not comfortable process handling of information which " they because knew 'some of these business” Dismissing government considers secret. this ” passengers being flights up' end with "compelled suit of fear or inadvertent out of Overby He that had ex- tortured. noted during the of secret information disclosure” " is, 1086], just plained, way 'that’s it we're do- [Maj. litigation, Op. at course as- of ” flights ing "the government might them' because rendition sumes that the make mis- produces, paid very well.” takes what it or district in 1096 privilege ap- defense did not de- state secrets rather than its Jeppesen’s

case and evidence, plication speculative on pend privileged dismissal is facts. way is no

required “because there feasible The Totten Bar litigate alleged liability with- Jeppesen’s unjustifiable it, of creating divulg- out an risk it to apply While chooses not [Maj. ing Op. state secrets.” majority correctly 1087]. general recites the in- or Jeppesen yet But has to answer even to terpretation non-justiciability of the bar of idea plead, otherwise so we have no what States, v. Totten United U.S. might or be. those defenses assertions (1876).7 However, L.Ed. its definition Making assumptions about the contours of Totten’s scope applying “any case — litigation speculation, future involves mere very subject which ‘the matter the ac- ” straight doing flies in the face of so [Maj. tion’ ‘a is matter state secret’ long standing principles by Rule law Op. at the concurrence’s full- 1078]—and might extending to inquiry the what be blown its application embrace of here mer- divulged litigation.6 in future response. it We should have remanded this matter to the Totten bar in applied Courts have Reynolds do work district court to the (1) plaintiff one of two scenarios: The is in should have the first place. been done party agreement to a with gov- secret the ernment;8 (2) this or The plaintiff

Because of fundamental defect in sues to soli- matter, posture government the of this the cit information from remainder the on a Weinberger scope of the dissent focuses on the “state secret” matter.9 See v. of the Miller, Wright political 6. See 5 Charles A. & R. non-justiciability, Arthur “a rule of akin to a (3d question”). § and Federal Practice Procedure 1356 ed. 2010) (Rule 12(b)(6) inquiries "essentially are complaint”); ... limited to the content of the 8. Totten itself involved the estate of a former Tellabs, Rights, see also Inc. v. Makor Issues & spy seeking compensation. Civil War 92 U.S. Ltd., 308, 322-23, 2499, 551 U.S. 127 S.Ct. 105, Doe, 23 L.Ed. 605. See also Tenet v. 544 (2007) (listing permissible 168 L.Ed.2d 179 1, 10, 1230, U.S. 125 S.Ct. 161 L.Ed.2d 82 motion, 12(b)(6) evidence to consider a in (2005) (suit against CIA director for failure to evidence, prospective with no of mention and provide compensation financial for Cold War emphasis with on an examination of the "un services). facts”); derlying Williston Basin Interstate Pipeline Storage Co. Anv. Exclusive Gas Lease category 9. of This Toften-bar cases is distinct Cloverly & hold Easement in the Subterranean involving plaintiff's attempt from those a to Formation, 1090, Geological 524 F.3d 1096 government solicit information from the via (the (9th Cir.2008) may court consider in a (FOIA). the Freedom Information of Act 12(b)(6) "only allegations motion contained in element, Weinberger, has a which FOIA was pleadings, the exhibits attached to the com grounds grounds, decided on FOIA and Totten plaint, properly subject judi and matters and relevant here is the Totten-related deci- notice”) (citing Grp., cial Outdoor Media Inc. Weinberger sion. See v. Catholic Action of Beaumont, 895, City v. 506 F.3d 899-900 of 139, Project, Educ. 454 U.S. Hawaii/Peace (9th Cir.2007)). 197, 146, (1981). 102 S.Ct. 70 L.Ed.2d 298 easily distinguishable. The FOIA are cases See, 697, e.g., v.Libby, 7. Wilson 535 F.3d 710 litigation The FOIA entail the cases for sole (D.C.Cir.2008) (discussing justiciability "the independent purpose obtaining and of disclo- ”); doctrine of Totten v. United States Am. sure of classified information. See U.S.C. 5 Agency, also, Civil 552(a)(4)(B); Liberties Union v. Nat’l Sec. § 493 e.g., Knopf, see A. Alfred 644, (6th (the Cir.2007) 1362, n. 2 (4th F.3d 650 Colby, Totten Inc. v. F.2d 509 1370 Cir. 1975) a non-justiciability”); rule is "rule of (addressing authority Al-Har the court’s under Found., Bush, amain Islamic Inc. v. 507 F.3d FOIA to order the disclosure classified in- 1190, Cir.2007) (the (9th book). publication Totten rule formation a is for in While “lips ports a conclusion that their [are] Educ. Action Catholic Hawaii/Peace 197, for the on respecting” be ever sealed claim 102 S.Ct. Project, U.S. (Totten sue, (1981) filing which such that this lawsuit they applies bar 70 L.Ed.2d recovery. defeat Tot would itself See for against Navy the United States to suit ten, 92 at 106. U.S. impact an environmental failure to file capable” a “nuclear regarding statement questions “avoiding] Instead of difficult Navy have to admit or facility where would the precise scope about the Totten bar” nuclear deny storage weapons proposed 1085], [Maj. majority ought the Op. the More Tot- facility). generally, at the inapplicable, have bar found Totten against applied to suits ten bar has been rejected analysis.11 and the district court’s plaintiffs to a government, never apply not Plain- Totten cannot does against third-party/non-governmen- suit tiffs’ claims. entity.

tal Reynolds Evidentiary Privilege The Here, subject “very matter” of this correctly The majority Reyn- describes in an Jeppesen’s lawsuit involvement is evidence, only olds a rule of which as program. Plaintiffs overseas detention government may [Maj. assert. at 1080- agreement to a parties are neither secret cannot, However, Reynolds 81]. as they at nor are government, with contends, majority during be asserted lawsuit, result this to tempting, as the of stage allegations. to excise entire pleading government from on information the solicit Rather, they matter. are a “state secret” argues majority plead- The that because remedy “widespread to viola attempting evidence, ings Huey serve as see v. can rights” Inc., 327, (9th of constitutional oc tions individual Honeywell, 82 F.3d 333 existence has curring program in a whose Cir.1996); Corp., Lockwood v. 629 Wolf (9th Cir.1980), v. AT & public. Hepting made See 603, been F.2d the state se- 611 (N.D.Cal.2006). 974, T, F.Supp.2d “may any 439 993 privilege crets be asserted at time, stage.” [Maj. pleading at the even logic cannot be simply Totten’s 1080], Op. at here, as encompass to the claims stretched by plaintiffs Thus, they brought third-party majority argues, are the this court actors to conclude that neither against non-government defendant would be incorrect Reynolds in tortious activi- the Rules nor would for their involvement Federal at permit plead- us to dismiss this case the Nothing sup- Plaintiffs have done ties.10 alleged citizenry performance that an contract vital to the func- the [is] "an informed by tioning society,” Dep’t would violate their democratic Inte- entered into others of a Ass’n, statutory rights”); Liberties v. Water Am. Civil Union rior v. Klamath Users Protective 754, 16, 1060, 1, Agency, F.Supp.2d Nat'l 438 763 121 S.Ct. 149 L.Ed.2d Sec. 532 U.S. (E.D.Mich.2006) omitted), apply (2001) (internal (refusing to be quotations the Totten 87 "applies [only] actions where there often in cause to balance interests will more lilt it relationship espionage the the is a secret between favor of the Executive when disclosure is Government”), the on vacated primary end in and of itself. FOIA therefore Plaintiff (6th Cir.2007). grounds, 493 644 predictably greater the other F.3d entails deference to system than does the national classification 11. the choice to affirm the district Nor can state secrets doctrine. Reynolds justified as an affir- court be under by “any supported Corp., F.Supp.2d the rec- v. AT & T 441 mance on basis 10. See Terkel 1085], (N.D.Ill.2006) Op. at (refusing apply [Maj. The result the to Tot- ord.” here, majority of Plaintiffs' plaintiffs case were seeks a dismissal ten "the in this because entirety, supported by the case not parties alleged the did in its is not to contract nor rather, terms; they agree case law. they to its claim invoked, stage basis of an ings evidentiary erly on the the privi- fifth amendment be privilege during that must invoked dis- lege against self-incrimination ... can covery majority’s view, or In the at trial. [8(b)(6) operation avoid the of Rule ].” Id. pleadings at the privilege applies stage the at 487. that it to permits such manner remove But a proper privilege invocation of the any complaint allegations from a where does not excuse a defendant the re- from “secret and information nonsecret cannot quirement to responsive file a pleading; [Maj. separated.” Op. be at 1082]. the obligation is to answer allega- those validity may be Whatever there to the can tions that be answered and to make a that evidentiary privileges idea can apply specific claim of privilege the as to the stage, at pleadings wrong sug- the it is to rest, so the suit can move forward. Id. gest application permit that such an would Miller, C. (citing Wright & A. Federal allegations the removal of entire resulting § Practice Procedure in out-and-out dismissal the entire suit. (1969)). Instead, privilege oper- the state secrets According rationale, to this Plaintiffs are at the pleadings stage except ates from government correct that moving for- 8(b)(6) implications of Rule the refusal may ward assert the state secrets privilege not, to answer allegations, certain as the prevent Jeppesen from answering any contends, government permit gov- allegations, where the answer would con- ernment or Jeppesen filing to avoid a re- properly protected by stitute evidence sponsive pleading [Maj. at all. Op. at But, privilege. recognizing privi- that the In Fifth 1085-86]. Amendment con- lege may apply at pleadings stage text, explained the Fourth has Circuit prevent defendants from certain answering privilege against self-incrimination allegations operation vis-a-vis of Rule “protects an individual ... answering from 8(b)(6) not does mean the can privilege be specific allegations in complaint a or filing used to altogether subject remove certain

responses interrogatories to ain civil ac- matters from a Observing lawsuit. tion that where the answers” would violate his pleadings may evidence, rights under constitute privilege. the N. River in other Ins. Co., words, Stefanou, 484, Inc. v. 831 does not evidentiary F.2d 486-87 transform an (4th Cir.1987). Accordingly, “when prop- privilege immunity into an doctrine.12 The 12. It is Reynolds not at all clear the ing stage because the main Black information privilege can pleading be asserted at the sought complaint, in his which would "con- stage, majority as the Maj. Op. claims. [See deny alleged firm or Black's contacts with v.Mitchell, 51, Ellsberg at 1080-81]. 709 F.2d officers,” government was the basis of Black's (D.C.Cir.1983), 52 on majority which the re- it, go claim. Without suit his could not for- lies, involved the formal claim state of secrets Here, ward. arguably where Plaintiffs have privilege by entered the op- United States in ample public proceed information to with position plaintiffs’ to the compel to motion suit, their we do not have such a cut-and- and, discovery opinion while the references privilege. dried of App'x], [See case Dissent government's the amended answer to tire Moreover, pleadings are not footnote, considered evi complaint in centrally a it focuses Zermeno, dence. See United States v. 66 F.3d on respond the refusal the of defendants "to 1058, (9th Cir.1995) ("The government's 1062 any plaintiffs’ remaining to of allegations the evidence.”); pleadings assertions in its are questions” not presented plaintiffs' or as in the 746, (9th Conway, S. Pac. v. interrogatories. Co. 115 F.2d 750 submitted at Id. 53-54 & ("[T]he Cir.1940) States, 1115, pleading In office of a n.6. Black v. is to United 62 F.3d (8th Cir.1995), 1117 state ultimate not majority on which the facts and evidence of such relies, facts.”). Eighth government seeking also the If the Circuit dismissed a suit is to ex against by engineer allegations the CIA an electrical cise with entire with the invocation of government security plead- at privilege clearances the the pleading stage, at the such an

1099 the falsity allega- of the truth or of evidentiary an five as privilege, secrets state tion.13 sufficiency the not to is relevant privilege, only to the but sufficien- complaint, the

of 12(b)(6) Reynolds and Rule later available to substanti- of evidence cy majority claims there is “no feasible The complaint. ate the litigate alleged liability way Jeppesen’s to any Reynolds privilege, like Because the creating unjustifiable an risk without of “ only evidentiary privilege, ‘extends secrets,”14 other [Maj. at divulging Op. state ” facts,’ Upjohn and not to 1087], [evidence] to principles ignoring well-established States, 395-96, 383, which, 449 U.S. this of procedure stage v. United civil at Co. of (1981) permit not the 677, (quot- litigation, prospec the do 66 L.Ed.2d 584 101 S.Ct. hypothetical of claims of tive evaluation Westinghouse v. Elec. ing Philadelphia government yet the has to privilege that (E.D.Pa.1962)), Corp., F.Supp. 831 205 yet to raise and the district court has prevent litigant invoked to a it cannot be consider. the or persuading jury a of truth from non-

falsity allegation by reference to reviewing grant an task in the of a Our evidence, regardless necessarily whether 12 “is privileged Rule motion dismiss Rhodes, also limited one.” Scheuer v. 416 U.S. might proba- be privileged evidence plaintiffs complaint, require the the amended ulti- an assertion that would invocation very subject mately, privilege lawsuit a state as one matter of the is was asserted secret, information, evidentiary of an piece plain- and not assertion which the without FBI, privilege. v. F.2d See Molerio proceed; bring could not an tiff not he could (D.C.Cir.1984) (where object "the whole intentional infliction emotional distress discovery is of the suit and of to establish against CIA claim without information secret,” compliance with a state a fact that is any government existing with about contacts be discovery as a whole can "excused contacts, on his officers. Id. The information necessity examining gross, in- without plaintiff attempted which to solicit via his Al-Haramain, documents”); dividual cf. complaint, privileged. say was Id. To Black Reynolds directly (applying F.3d Reynolds privilege permits assertion of the privi- evidence—a sealed document —where pleading stage holding. its in the is to misstate government’s response to lege asserted in was to the accidental disclosure of documents majority cites v. United 14. The El-Masri declining very plaintiffs, to find "the sub- and 296, States, (4th Cir.2007), 479 F.3d 308-13 secret). a ject of the suit to be state matter” comparable a case wherein the court found as Here, majority declines reach the while the to litigation se- further risked disclosure of state subject question, "very matter” Totten bar the grave to crets and threatened harm American Jeppesen’s an this involvement in of lawsuit — 1087, [Maj. Op. citing security. at national pub- program been overseas detention —has However, El-Masri, 312], noting 479 F.3d at licly acknowledged a is not state secret. appears the have that Fourth Circuit to “merged concept 'subject of matter’ with the assertion, Contrary majority’s the to the 13. case,” prima proof a facie this the notion of of pro- Reynolds privilege cannot be asserted rejected expressly in El- court Al-Haramain spectively, the evi- without an examination of logic. 1201. the Masri's 507 F.3d at In item-by-item dence basis. To conclude on an Circuit, ‘subject matter’ a law- Ninth "the of Totten, Reynolds, applies prevent like that to necessarily] not one and the same [is [as] suit allegations, litigation rather than sim- the of necessary litigate the Id. the facts case.” evidence, erode ply discovery of would be to Accordingly, the Fourth Circuit "[b]ecause two of the distinction between the versions meaning expansive the accorded an Moreover, has Eighth the Circuit the doctrine. action, Black, 'subject that relies, of an one we have matter’ majority 62 case on the which support adopted, 1117, El-Masri does not dis- not ultimately prospective a was not F.3d subject the based on the matter of Reynolds privilege. the missal While assertion of the Id. privilege response suit.” government asserted the in 1683, 232, 236, Reynolds, 94 S.Ct. 40 L.Ed.2d 90 confidential. See 345 U.S. at 8- (“the (1974). 9, principles We are not to determine whether 73 S.Ct. which con- particular party ultimately prevail, a will trol the application privilege” of the re- only complaint but a quire instead whether the “formal claim of privilege” by the which upon claim relief can be government respect “state[s] a with to the challenged 12(b)(6). evidence); 10-11, (the Pro. If granted,” Fed. R. Civ. id. at 73 S.Ct. 528 stated Plaintiffs here have a claim on court must litigants’ consider the “showing which can granted, they necessity” requested relief be should of the for evidence in present in opportunity determining have an evidence whether “the occasion for in- support allegations, regard their without voking privilege of the is appropriate”). Nor for the likelihood of ultimate parties success. See can we determine whether the will (a Scheuer, 236, 416 U.S. at S.Ct. be able to their establish cases without use district “prematurely” court acts and “er- of privileged evidence without also know- well-plead- roneously” ing when it dismisses a what non-privileged they evidence will complaint, thereby “precluding] any ed marshal. Corp. See Crater v. Lucent Techs., opportunity Inc., for plaintiffs” 1260, the to establish 423 F.3d 1267- “by 68(Fed.Cir.2005) their subsequent proof’); case also see (“deciding impact the Corp. Twombly, 544, Bell v. government’s Atl. 550 U.S. the assertion the state 556, (2007) 127 S.Ct. 167 L.Ed.2d 929 privilege” secrets before the record is “ad- (“[A] well-pleaded complaint may proceed equately developed” puts “the cart before horse”). appears even if a recovery very it ‘that is Thus neither the Federal ” Scheuer, unlikely.’ remote and (quoting Rules Reynolds nor permit would us to 1683)). 416 U.S. at 94 S.Ct. dismiss this case for “failure to state a upon claim granted,” which relief can be inquiry This limited long-standing —a 12(b)(6), R. Fed. Civ. Pro. on the basis of feature Rules of Civil Procedure— evidentiary relevant, an privilege not to judicial serves purpose. a sensible We sufficiency complaint, of the but only to simply Reyn- cannot resolve whether the the sufficiency of evidence available to la- olds evidentiary privilege applies without complaint.15 ter substantiate (1) an request actual discovery spe- for (2) evidence, cific explanation an from A decision to remand would have the evidence, of their for Plaintiffs need additional benefit of conforming with “the (3) a formal invocation of privilege general rule ... that a appellate federal by government respect with court does not passed consider an issue not evidence, why below,” explaining it must remain on and will allow the district court government styled While the procedural posture its motion The of this case thus 15. or, below as "Motion to Dismiss in the Kasza, fundamentally differs from that Alternative, Summary Judgment,” for the dis- grant summary judgment. which involved a of grant trict did summary judgment, court not 1459, Perry, F.Supp. See Frost v. 919 1465-67 but rather dismissal—and it could have not (D.Nev.1996), Kasza, 'd sub nom. 133 F.3d aff party done otherwise. A is entitled to sum- (granting summary 1159 judgment because mary judgment only pleadings, "the if the invoked, privilege, “the as covered various file, discovery and disclosure materials on (cid:127) Plaintiffs,” discovery requested by items of any genu- and affidavits that show there is no including photographic "various exhibits” any ine as issue to material fact.” Fed. R. affidavits,” and "under ... and seal therefore 56(c). Here, Civ. Jeppesen Pro. because has genuine "Plaintiffs have to failed establish a complaint, not even answered the it is uncer- any issue as to fact running material without allegations dispute, tain which are in much military disputes might genuine privi less afoul of the and which raise state secrets issues of material fact. lege").

1101 and the remedy its own determine first instance. errors Reynolds the apply to 106, 120, only deprive judi- not Wulff, dispensed would the Singleton v. 428 U.S. See (1976); role, 2868, but ciary deprive L.Ed.2d 826 see of its also Plaintiffs 49 96 S.Ct. 499, California, by 543 U.S. of a fan assessment of their a v. claims also Johnson (2005) 1141, 160 515, 125 majority’s L.Ed.2d 949 The suggestion neutral arbiter. S.Ct. Gottshall, Corp. Rail v. (citing payment reparations Consol. of of to the of victims 2396, 532, 557-58, 114 rendition, S.Ct. 129 extraordinary as paid U.S. such those (1994)(reversing and L.Ed.2d 427 remand Japanese injus- Latin for the to Americans apply court the correct ing for the lower to under during tices suffered Internment instance)). in the first legal II, standard fifty years over after those World War 1091], at injustices [Maj. Op. were suffered analysis prema- is majority’s The here impractical point to the of elevates not determine ture. This court should Similarly, congressional a in- absurdity. way litigate no feasible to that there is bill, vestigation, enacting private or of “re- disclosing liability state Jeppesen’s without 1092], legislation,” [Maj. Op. medial secrets; is the a determination dis- such legislative leaves to the branch claims responsive make a trict to once court’s which the federal courts are better filed, discovery been or re- pleading has equipped to handle. Kosak v. See United for should remand quests made. We States, 848, 867, 104 S.Ct. 465 U.S. privilege to assert with government (1984) J., (Stevens, 79 L.Ed.2d 860 dissent- evidence, and for the respect secret ing). what district court to determine evidence any such and whether evi- privileged is Arbitrary imprisonment and un torture “ to Plaintiffs’ indispensable dence is either ‘gross a any der circumstance is ” case or a valid defense prima facie despotism.’ ... act of notorious Hamdi if Jeppesen. Only otherwise available 507, 556, Rumsfeld, v. 542 U.S. 124 S.Ct. indispensable is to ei- privileged evidence (2004) J., (Scalia, L.Ed.2d complaint. it party ther should dismiss dissenting) (quoting 1 Blackstone 131-33 “ (1765)). of [and abuse] But ‘confinement by secretly hurrying him to person, Conclusion sufferings his are unknown [prison], where opinion its with majority The concludes forgotten; is a a public, or less less strik a alternative remedies. recommendation ing, dangerous therefore more en insufficient, only Not are these remedies ” (Sca arbitrary government.’ gine Id. the sever- suggestion but their understates lia, J., dissenting) (quoting Blackstone to Plaintiffs from ity consequences added). (1765))(emphasis 131-33 Suggesting, judicial the denial of relief. I remand the district court to would the Executive could example, for can determine whether Plaintiffs establish jus- principles the fundamental “honor[ ] their or prima facie elements of claims by determining plaintiffs’ “whether tice” merit,” Jeppesen against could defend whether Maj. Op. [see 1091] claims have to state those claims without resort secrets concept checks bal- disregards the police evidence. Permitting ances. executive

APPENDIX

1H7 notes The “is not to be premature, urging Reynolds that the privi- lightly especially invoked.” Id. This is lege obligation cannot be raised before an when, case, government true inas this to produce specific subject evidence to a preclude merely seeks not the produc claim privilege actually has arisen. We (as particular tion of items evidence in disagree. may privilege The be asserted Reynolds) but to obtain dismissal of the time, at any pleading even at the stage. entire action. privilege indisputably may The privilege To ensure that the is invoked be raised with respect discovery re extensively no more often or than neces- quests seeking govern information the “[tjhere sary, Reynolds held must be ment privileged. contends is Courts have privilege, lodged by formal claim of repeatedly privilege sustained claims of department head of the which has control See, under e.g., those circumstances. matter, over personal after actual con- (doc Reynolds, 345 U.S. S.Ct. 528 7-8, by sideration that officer.” Id. at requests); (footnote omitted). production ument Kasza v. S.Ct. 528 This certifi- Browner, (9th 1159, 1170 cation 133 F.3d Cir. government’s is fundamental to the 1998) (various claim privilege. discovery requests); As we have observed Halkin

Case Details

Case Name: Binyam Mohamed v. Jeppesen Dataplan, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 8, 2010

Citation: 614 F.3d 1070

Docket Number: 08-15693

Court Abbreviation: 9th Cir.