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States Secrets Doctrine Did Not Support Dismissal

The dismissal of tort claims against a contractor was reversed and remanded by the Court of Appeals for the Ninth Circuit because the state secrets privilege did not bar the suit from proceeding. The plaintiffs, all foreign nationals, sued under the Alien Tort Statute (28 USC 1350), alleging the Central Intelligence Agency operated an "extraordinary rendition program" to gather intelligence by apprehending individuals suspected of involvement in terrorist activities and secretly transferring them to foreign countries for detention and interrogation. The defendant was a government contractor that allegedly provided flight planning and logistical support services for the aircraft and crew on all of the flights transporting the plaintiffs among the various locations where they were allegedly detained and tortured. According to the plaintiffs, the contractor was liable for damages for "actively participating in their forcible and arbitrary abduction" and "conspiring in their torture and other cruel, inhuman, or degrading treatment." Before the contractor filed an answer, the government intervened with a motion to dismiss based on the state secrets privilege. The district court granted the government's motion, holding the privilege categorically barred the suit because the subject matter of the action was a state secret.


On appeal, the Ninth Circuit examined two parallel branches of the state secrets privilege. The appellate court first examined Totten v. U.S. (92 US 105), which held that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings because the "very subject matter" of the suit is secret. The government argued the Totten doctrine barred the suit because the action was based on the alleged existence of a secret agreement with the government. The court rejected this argument as unsupported by the facts and logic because none of the plaintiffs' theories of liability required proof of a secret contractual relationship between the contractor and the government. Moreover, the Totten doctrine bars suits that would reveal a secret agreement between the plaintiffs and the government, which clearly was not the case here. According to the court, "Totten's logic simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors' alleged involvement in tortious intelligence activities."


The court then looked to another case, U.S. v. Reynolds (345 US 1), which held the state secrets doctrine is an evidentiary privilege that prevents the discovery of secret evidence when disclosure would threaten national security. Application of the Reynolds privilege involves a "formula of compromise" in which the court must weigh "the circumstances of the case" and the interests of the plaintiff against the "danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." The government argued Reynolds barred the suit because "[p]rivileged information would be essential for plaintiffs to make out a prima facie case on, and to prove, their claims." The court rejected the argument, holding the government misconstrued the object of the state secrets doctrine under the Reynolds framework, as the privilege applies to evidence, not information. Pursuant to Reynolds, a court should not determine which facts are secret and may not be alleged. Rather, it should determine which evidence is secret and may not be disclosed in a public trial. Thus, the privilege is properly invoked to prevent discovery of secret evidence, but not to protect disclosure of the underlying facts, so long as the facts can be proven without resorting to privileged materials. The case, therefore, should not have been dismissed at the outset. (Mohamed, et al. v. Jeppesen Dataplan, Inc., et al., CA-9, 53 CCF 79,098)

(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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