The Ninth Circuit en banc upheld the decision to dismiss Mohamed v. Jeppesen Dataplan.

In Jeppesen, Binyam Mohamed and four other plaintiffs sued Jeppesen, a CIA contractor for their seizure in foreign countries and transportation to other countries where they were tortured and interrogated as part of the government’s extraordinary rendition program. In this manner the government avoided the protections provided defendants and detainees accused of terrorist related crimes.

After the plaintiffs filed their complaint the government received permission to intervene in the matter and moved to dismiss the case on the grounds that the charges involved matters of national security and state secrets.

The decision points out that there are two ways to dismiss a case where state secrets may be disclosed at trial. One involves where the subject matter of a suit is a state secret. This is called a Toten Bar after the 1876 case in which spies for the government sued to enforce a secret agreement to pay them for their work against the Confederacy in the Civil War. While all of the plaintiff’s claims in Mohamed involve government secrets Toten has never been invoked in cases not involving the government as a party. While some of the Circuit judges wanted to base the decision on Toten the majority instead based the decision on United States v. Reynolds, 345 U.S. 1, 11 (1953)

Reynolds created a rule of evidentiary exclusion. It permits the exclusion of evidence involving national secrets. But in rare cases where there is insufficient admissible evidence without using state secrets for the plaintiff to make a prima facie case or to allow the defendants to put forth defenses it allows for the dismissal of a case. Basing its decision on Reynolds the Ninth Circuit ruled that without the use of sate secrets there is insufficient evidence for Jeppesen to defend itself.

The problem with this, as the dissent points out, is that since Jeppesen has not answered the complaint yet we do not know what evidence they will need to defend themselves. According to the five dissenting judges the government’s motion was untimely and it should only be considered when and if Jeppesen requests discovery of documents or the deposition of individuals which would reveal state secrets. But the majority say the motion can be brought at any time and it is clear that the case cannot be defended without exposing state secrets which would affect the nation’s security.

As all of the judges admit dismissing a case and denying the plaintiffs justice and compensation for what appears to be serious injuries is an extreme measure and should not be taken lightly. The majority expresses a number of alternatives most of which require Congress to award compensation to the plaintiffs for their injuries. The dissent points that this is an abrogation of judicial responsibilities. It is hard to see how Congressional action would be more protective of national secrets than judicial action.

I would suggest that in exchange for the courts hearing the matter that the plaintiffs be asked to waive a jury trial and a public hearing. The trial could be conducted by declarations filed under seal. In other cases attorneys have been required to get security clearances and the Courts have limited which legal personnel can review secret documents. For example this has been done with national security documents used in the Guantanamo habeas proceedings. At least 28 judges on the Ninth Circuit have already seen the secret documents and no harm has been accomplished. The trial court can fashion procedures maintaining the secrecy of state secrets. In this way the plaintiffs can be compensated for their injuries and the state secrets can be maintained.

While the United States does everything in its power to prevent civil suits against those involved in extraordinary renditions, the practice of the CIA of kidnapping alleged terrorists abroad and shipping them to third countries, Italy is criminally prosecuting CIA agents involved in the renditions.

Twenty-three Americans were convicted of kidnapping a Muslim cleric, Osama Moustafa Hassan Nasr, off the streets of Milan and transporting him to Egypt where he was allegedly tortured. Robert Seldon Lady, the former CIA base chief in Milan was sentenced to eight years and 22 other CIA employees were sentence to five years each. Lady is quoted as saying, “I’m not guilty. I’m only responsible for carrying out orders that I received from my superiors,” Since they were prosecuted in absentia it is unlikely that any of the agents will serve their time.

In February I wrote a post, No Change Here about the oral argument in the Ninth Circuit case, Mohamed V. Jeppesen Data Plan, in which the Obama administration announced its intention to carry out the Bush administration’s plan to attempt to prevent Binyam Mohamed and several other individuals who had been subject to extraordinary rendition from suing the Boeing subsidiary, Jeppesen Data Plan for its part in aiding the government’s transport of Mohamed and others as part of the extraordinary rendition. The Bush and Obama administrations intervened in the action and convinced the trial judge to dismiss the case in that it involved government secrets under the states secrets privilege.

The Ninth Circuit reversed the trial court’s decision finding that since the subject of the suit is not a state secret entered into between the parties the privilege does not apply. There is a related evidentiary privilege but the government will have to bring that in the trial court. Furthermore the evidentiary privilege generally only affects the admissibility of a particular evidentiary matter. It is possible that a case can be so inundated with secret information that one side or the other will be prevented from making its case, but it is too early to rule on that matter since the defendant has yet to respond to the complaint.