(State) Secrets Don't Make Friends

Mohamed v. Jeppesen Dataplan, Inc.

This decision by the Ninth Circuit concerns the state secrets doctrine. This doctrine allows the government to have evidence that amounts state secrets kept out of a trial or even to have an entire law suit dismissed because it is predicated on state secrets. The case here involves a civil suit brought against a private government contractor who aided the CIA in their "extraordinary rendition program." The suit is brought by several people who claim to be victims of extraordinary rendition. Remember that the CIA's rendition program involved taking suspected terrorists and flying them to various foreign countries (in this case Morocco and Egypt) where those suspects could be subjected to harsh imprisonment and interrogation. The government intervened in this case on behalf of the defendant to argue that the state secrets doctrine should put a stop to this suit.

In short, the court's opinion here says that the Reynolds evidentiary rule applies to this case and not the Totten complete bar rule. The plaintiffs argued that the Totten rule should bar this case because it involves a secret agreement between Jeppesen and the federal government. The court did not buy this and said that the rule is that a case is barred under Totten if it involves an agreement between the plaintiffs in the case and the government. Here the plaintiffs are not the ones with the agreement with the government, the defendants are, thus the court did not apply Totten.

The Reynolds rule says that evidence cannot be admitted in a case if that evidence rises to the level of a state secret. The court says here that the Reynolds rule is preferable to Totten because it fits more nicely with the notion of separation of powers and doesn't allow the executive branch to cut out the judicial branch all together in the state secrets arena. Basically, the court decides here that Reynolds bars the discovery of state secret evidence, but does not bar the litigation of the underlying facts. Therefore, as long as a party can prove the underlying facts through information that is not deemed to be a state secret then they can proceed with their case. Reynolds will only act to bar a case completely if information that is deemed to be a state secret is essential to the plaintiff establishing its prima facie case or is essential for the defendant to raise a necessary defense. I gather from this opinion that any information that might be deemed a state secret will be given to the judge for an in camera review so that he can determine whether or not to allow it.

Since this appeal was one of a 12(b)(6) motion the court did not have to determine whether any evidence was a state secret because no evidence has been discovered in the case yet. The court here remanded the case to the district court to allow it to move on. For a more detailed and informational explanation of the case check out SCOTUSblog's post.