When “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake,” what happens when the relevant documents become public? Rendition suits have become a hot topic since 9/11 and with the continued challenges to the practices of the United States Government, it would be surprising to suddenly see these suits stop. With the recent release of 1,500 pages of documents concerning rendition, some believe that the number of rendition suits may increase. Early this summer, the Supreme Court denied certiorari in the case of Mohamed v. Jeppesen DataPlan, giving the Ninth Circuit the last word. Mohamed and the other plaintiffs allege that they were tortured by people working for the United States Government, but, more salient, Jeppesen offered the transportation services to make the torture possible.
In a 5-1-5 en banc decision, the Ninth Circuit found that the state secrets doctrine applied to the case. Relying on Totten and Reynolds, the Court found that the plaintiffs’ case was barred by the state secrets doctrine, as “‘the very subject matter of the action’ is ‘a matter of state secret.’” The standard for invoking the Reynolds privilege is that the court must determine whether “‘there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged.’” Furthermore, if there is a danger and the privileged evidence is inseparable from the nonprivileged information, the court must consider if litigation would “present an unacceptable risk of disclosing state secrets.” The Government urged the Court that it cannot disclose “‘ information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities;  information about whether any foreign government cooperated with the CIA in clandestine intelligence activities;  information about the scope or operation of the CIA terrorist detention and interrogation program; [or 4] any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods.’” Upon the court’s independent examination of the Government statements regarding the type of information contained in the requested documents, the court avoided any discussion of the information itself and quickly concluded the infor
mation was privileged.
However, the more important aspect of the analysis concerned whether the privileged information was so “infused” with the nonprivileged information and the merits of the plaintiffs’ case and the applicable defenses that the case must be dismissed “because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” Even when the case was being litigated, there was a lot of public information about the process of Jeppesen providing logistical support for the Government. Nonetheless, the underlying facts on the logistical support necessarily implicate the privileged state secrets, which required the court to dismiss the plaintiffs’ case.
Recently, more documents have become publicly available that some believe may reopen this litigation or, at the very least, open the door for other plaintiffs to sue companies that provided logistical support to the Government. Specifically, there are now “1,500 pages of new documents that provide extensive additional information on CIA renditions.” However, at least in the Ninth Circuit, this is probably still insufficient to dodge the state secrets doctrine. The degree of public information was not important to the Ninth Circuit. Rather, the mere
fact that the privileged evidence was infused with the nonprivileged evidence prevented the litigation from proceeding. Thus, the newly available documents may be sufficient to cause many plaintiffs to litigate their claims, but their success is unlikely considering rendition litigation will still involve state secrets that are infused with the plaintiffs’ claims and the defendants’ defenses. Of course, any true understanding of the chances of dismissal requires knowledge of the state's secrets, but it is easy for the Government to say that litigation into the logistical support of a private company implicates the clandestine operations despite information about the private companies’ support.
Times Battleland: http://battleland.blogs.time.com/2011/08/31/new-documents-offer-details-on-cia-program-that-critics-charge-abetted-torture/
Ninth Circuit Decision: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/07/08-15693.pdf