Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, Bisher Al-Rawi, Plaintiffs-Appellants, v. Jeppesen Dataplan, Inc., Defendant-Appellee, and the United States of America, Intervenor-Appellee

Court	United States Court of Appeals for the Ninth Circuit, United States
Case number	08-15693 (D.C. No. 5:07-CV-02798-JW)
Decision title	Opinion
Decision date	8 September 2010
Parties	Binyam Mohamed Abou Elkassim Britel Ahmed Agiza Mohamed Farag Ahmad Bashmilah Bisher al-Rawi Jeppessen Dataplan Inc. United States of America
Categories	Torture
Keywords	Torture; arbitrary detention; extraordinary rendition; accountability (private contractors); PMC; immunity; state secret doctrine
Links	Opinion
Other countries involved	Afghanistan Egypt Morocco Sweden

Summary

In 2007, the American Civil Liberties Union filed a claim against Jeppesen Dataplan Inc., a subsidiary of Boeing, on behalf of five individuals from Iraq, Yemen, Ethiopia, Italy and Egypt. The plaintiffs alleged that they had been victims of the CIA’s extraordinary rendition programme – covert operations whereby individuals suspected of involvement in terrorism were secretly detained, transferred all over the world by “black flights” and taken to “black sites” or secret prisons where they were tortured for years. The role of Jeppesen – a company specialised in the aviation sector, providing navigational information, crew and fleet management solutions, and other services in the sector – in this practice was, allegedly, that the company facilitated the CIA’s black flights, inter alia,by providing airports with false flight plans to conceal all information about the aircrafts.

In first instance, after the U.S. government intervened in the case on the side of Jeppesen, the claim was dismissed immediately as the California District Court found that the state secret doctrine prevented it from reviewing the case. This judgment was partly revoked in appeal when the Ninth Circuit Court of Appeals found that defendants had not properly proven that the state secret doctrine was applicable; the case was remanded for rehearing, though. Ultimately, in its 6-5 majority decision of 8 September 2010, the full bench of the Appeals Court ruled that in the current case the state secret doctrine indeed applied, concluding that ruling in the case would be impossible due to substantial information being “privileged” or non-disclosable. Therefore, the plaintiffs’ claim was dismissed.

Procedural history

The ACLU (American Civil Liberties Union), on behalf of three alleged victims of the CIA extraordinary rendition programme, filed a complaint against Jeppesen Dataplan at the U.S. District Court for the Northern District of California on 30 May 2007. The other two victims were added to the lawsuit in the amended complaint of 1 August 2007. On 13 February 2008, the District Court granted the motion of the U.S. government – which intervened in the case on the side of Jeppesen – to dismiss the case under the state secrets privilege. The U.S. successfully argued that the entire subject-matter of the case would compromise national security if revealed.

However, after an appeal brief of the plaintiffs filed on 30 June 2008 (see also the reply brief of plaintiffs-appellants of 25 September 2008), the U.S. Court of Appeals for the Ninth Circuit reversed the decision on 28 April 2009, finding that the subject-matter of the suit was not a state secret. The Court of Appeals held ‘that the Executive's national security prerogatives are not the only weighty constitutional values at stake’, and, quoting Boumediene et al. v. Bush et al., decided that security depends on the "freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers’ (para. 12). The case was subsequently remanded for trial. The defendants petitioned for rehearing or rehearing en banc (i.e., before a full 11-judge panel instead of the regular one or three judges) on 12 June 2009; the petition for rehearing en banc was granted in a Memorandum Opinion and Order of 17 December 2009.

Related developments

After the Court of Appeals reversed the previous decision, approving the first instance judgment that dismissed the plaintiffs’ claims due to the state secret doctrine, plaintiffs petitioned for a writ of certiorari, requesting the U.S. Supreme Court to review the case. Several human rights organisations intervened with an amicus curiae brief on 12 January 2011. The petition was dismissed on 16 May 2011, when the Supreme Court declined (the need) to judicially review the case.

Legally relevant facts

The plaintiffs alleged that the Central Intelligence Agency (CIA), together with other government agencies and officials of foreign governments, operated an extraordinary rendition program to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation by U.S. or foreign officials employing ‘interrogation methods that would [otherwise have been] prohibited under federal or international law’. Relying on documents in the public domain, all plaintiffs claimed that they were each victimised by the extraordinary rendition program (p. 6).

All five defendants are foreign (non-U.S.) nationals who were captured and allegedly transferred to different secret prisons in different countries by the CIA in order to torture them to extract information about terrorist organisations they were believed to be involved in or in any way connected with.

Plaintiffs contended that publicly available information established that defendant Jeppesen Dataplan, Inc. – a U.S. corporation – provided flight planning and logistical support services to the aircraft and crew on all of the flights transporting each of the five plaintiffs among the various locations where they were detained and allegedly subjected to torture. The complaint asserted that ‘“Jeppesen played an integral role in the forced” abductions and detentions’, ‘provided direct and substantial services to the United States for its so-called ‘extraordinary rendition’ program’ (thus “enabling the clandestine and forcible transportation of terrorism suspects to secret overseas detention facilities), and that Jeppesen did so ‘with actual or constructive “knowledge of the objectives of the rendition program”’ and of the disappearance and torture of plaintiffs (p. 9). The suit was brought under the Alien Tort Statute, alleging several theories of liability – ranging from active participation and conspiracy to aiding and abetting and recklessness – marshalled under two claims, one for “forced disappearance” and another for “torture and other cruel, inhuman or degrading treatment” (paras. 253-266 of the amended complaint).

With regard to ‘Jeppesen’s alleged actual or constructive knowledge that its services were being used to facilitate “forced disappearance,” plaintiffs allege[d] that Jeppesen “knew or reasonably should have known that the flights involved the transportation of terror suspects pursuant to the extraordinary rendition program,” that their “knowledge of the objectives of the rendition program may be inferred from the fact that they allegedly “falsified flight plans submitted to European air traffic control authorities to avoid public scrutiny of CIA flights” and that a Jeppesen employee admitted actual knowledge that the company was performing extraordinary rendition flights for the U.S. government’ (p. 10). Moreover, it was alleged ‘that Jeppesen “knew or should have known that that torture would result because it should have known it was carrying terror suspects for the CIA and that “the governments of the destination countries routinely subject detainees to torture and other forms of cruel, inhuman, or degrading treatment.”’, and that ‘U.S. State Department country reports describing torture as “routine” in some of the countries to which plaintiffs were allegedly rendered’ (p. 10).

The District Court entered judgment in favour of Jeppesen, stating that ‘“at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals – clearly a subject matter which is a state secret”’(p. 11). In appeal, this judgment was reversed and remanded, holding that the government had failed to establish a basis for dismissal under the state secrets doctrine but permitting the government to reassert the doctrine at subsequent stages of the litigation.

Core legal questions

As the current judgment was issued before the en banc panel of judges, they reviewed de novo the interpretation and application of the state secrets doctrine and reviewed for clear error the District Court’s underlying factual findings (p. 12).

Specific legal rules and provisions

Alien Tort Claims Act of 1789 (Title 28 U.S. Code, Chapter 85, Section 1350)

Court's holding and analysis

First and foremost, the Court of Appeals emphasised that the Supreme Court ‘has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely’ (p. 12). The state secrets doctrine, as held by the Court, encompasses two applications of this principle: adjudication of claims premised on state secrets is either completely barred (see the Supreme Court’s ruling of 1876 in Totten v. USA), or certain “privileged evidence” is to be excluded from the case (which may lead to dismissal – see the Supreme Court’s ruling of 1952 in USA v. Reynolds) (p. 12). Both consequences were found to be – in principle – applicable to the current case, contrary to, inter alia, claims made by plaintiffs that the complete bar only applied to certain espionage cases.

When applying the state secrets doctrine in the current case, the Court first reiterated both parties’ claims: ‘[t]he government contends that plaintiffs’ lawsuit should be dismissed, whether under the Totten bar or the Reynolds privilege, because “state secrets are so central to this case that permitting further proceeding[s] would create an intolerable risk of disclosure that would jeopardize national security.” Plaintiffs argue that the Totten bar [note: which was applied by the District Court] does not apply and that, even if the government is entitled to some protection under the Reynolds privilege, at least some claims survive’ (p. 24). Considering the Totten bar, the Court emphasised that it applies only in narrow circumstances; namely, ‘when the “very subject matter” of the action is a state secret’ (p. 24). This may very well apply to ‘allegations that Jeppesen conspired with agents of the United States in plaintiffs’ forced disappearance, torture and degrading treatment’, as the Court noted; however, arguments ‘that Jeppesen should be liable simply for what it “should have known” about the alleged unlawful extraordinary rendition program while participating in it are not so obviously tied to proof of a secret agreement between Jeppesen and the government’ (pp. 26-27). Nevertheless, the Court did not feel much for reviewing the applicability of the Totten bar because a) they could because they have a certain degree of discretion, and b) reviewing the Reynolds bar ‘avoids difficult questions about the precise scope of the Totten bar and permits us to conduct a searching judicial review, fulfilling [the Court’s] obligation under Reynolds “to review the [government’s claim] with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege”’ (pp. 26-27).

Applying the Reynolds assessment requires three steps: First, to ‘“ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied.”’ Second, to ‘make an independent determination whether the information is privileged. . . . Finally, “the ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim”’ (p. 17). The first requirement was deemed fulfilled at the outset. Considering the second one, it was noted that ‘[t]he government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests’ (p. 28). The final question that had to be answered was, thus, which consequences the categorisation of the information as “privileged’ should have. On this issue, the Court concluded that – even though it assumed ‘without deciding that plaintiffs’ prima facie case and Jeppesen’s defenses may not inevitably depend on privileged evidence’ – that dismissal is ‘nonetheless required under Reynolds because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets’ (p. 31). Hence, the plaintiffs’ case was dismissed as non-justiciable.

Further analysis

‘Mohamed et al v. Jeppesen Dataplan, Inc.’, The Rendition Project.

‘Mohamed v. Jeppesen - Plaintiff Profiles’, American Civil Liberties Union (ACLU), 30 May 2007.

‘Mohamed et al. v Jeppesen Dataplan, Inc’, American Civil Liberties Union (ACLU), 15 November 2011.

Related cases

Supreme Court of the United States, Boumediene et al. v. Bush et al., Case No. 06-1195, Certiorari, 12 June 2008.

United States Court of Appeals for the Second Circuit, Maher Arar v. John Ashcroft et al., Case No. 06-4216-cv, Appeal, 2 November 2009.

Additional materials

J. Mayer, 'The C.I.A.'s Travel Agent', The New Yorker, 30 October 2006.

H. Khan, ‘Obama Administration Maintains Bush Position on ‘Extraordinary Rendition’ Lawsuit’, ABC News, 9 February 2009.

M. Townsend, ‘Revealed: full horror of Gitmo inmate’s beatings’, The Guardian, 22 February 2009.

R. Norton-Taylor, ‘Binyam Mohamed accuses Britain of complicity in torture’, The Guardian, 23 February 2009.

A. Worthington, ‘By One Vote, U.S. Court OKs Torture and “Extraordinary Rendition”’, The Huffington Post, 15 September 2010.

‘Binyam Mohamed et al. v. Jeppesen Dataplan Inc. US Court of Appeals for the Ninth Circuit & US Supreme Court’, Redress, 2011.

M. Perelman and K. Hakiki, ‘Exclusive: an unlikely victim of the ‘War on Terror’’, France 24, 15 July 2014.