(May 8, 2009) On April 28, 2009, the U.S. Court of Appeals for the Ninth Circuit ruled that the state secrets privilege, which the U.S. Government has used to seek dismissal of cases involving secret government conduct, does not compel dismissal of a case at the outset solely because it involves government secrets.
Several plaintiffs filed a lawsuit in federal district court alleging they had been apprehended and detained under an “extraordinary rendition program” operated by the Central Intelligence Agency (CIA), resulting in psychological and physical abuse. The plaintiffs sued Jeppesen Dataplan, Inc., a government contractor that provided support to the CIA program. The U.S. Government intervened in the lawsuit and filed a motion to dismiss, claiming that because the case involved secret government activities, it should be dismissed under the state secrets privilege. The district court granted the government's motion.
In reversing, the Ninth Circuit held that the state secrets privilege requires only that secret evidence be kept out of a case, but does not require dismissal of a case involving secret programs. It ruled that the privilege prevents disclosure of secret evidence, but does not prevent litigation concerning secret programs using non-secret information. The court also ruled that the fact that the executive branch deems information classified may indicate it should be considered secret for litigation purposes, but the final determination over what may be presented at trial is a matter for the judiciary to decide. The court emphasized that “[s]eparation-of-powers concerns take on an especially important role in the context of secret Executive conduct.” It remanded the case to the district court to allow the litigation to proceed. (Mohamed v. Jeppesen Dataplan, Inc., No. 06-1613 (9th Cir. Apr. 28, 2009), available at http://www.ca9.uscourts.gov/datastore/opinions/2009/04/27/0815693.pdf.)