A closely-divided en banc 9th Circuit has reversed an earlier panel decision that had in turn reversed a district court decision dismissing this civil suit relating to the CIA’s rendition program. The majority opinion by Judge Fisher was joined by Chief Judge Kozinski and also by Judges Tallman, Rawlinson, and Callahan. The dissent by Judge Hawkins was joined by Judges Schroeder, Canby, Thomas, and Paez. Judge Bea broke the tie with a solo concurrence. I've not had time yet to digest the dissent, and will post about it later. For now, here is an overview of the Fisher and Bea opinions.
I won’t recap the background in detail. Suffice to say that the plaintiffs allege that they were rendered by the CIA to the custody of third countries in whose hands they were tortured, that the defendant Jeppesen Dataplan “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 subject to torture,” and that Jeppesen did this “with actual or constructive ‘knowledge of the objectives of the rendition program.’” (slip op. at 13526)
Key Points in the Five-Vote Opinion of Judge Fisher
(1) The Fisher opinion contends that the so-called Totten bar applies not just to suits involving a plaintiff’s own alleged espionage relationship with the government, but more broadly to any suit in which the very subject matter of the action is a state secret. The opinion describes the Totten bar as a manifestation of the state secrets privilege concept, though distinct from the evidentiary application of the privilege as illustrated in Reynolds.
(2) As to the state secrets privilege itself (i.e., the evidentiary privilege discussed in Reynolds):
(a) The privilege was invoked by the proper official (then-CIA Director Michael Hayden), and also has been reviewed more recently by Attorney General Holder (the opinion states that review by the AG is “appropriate and to be encouraged,” but not actually required).
(b) The privilege may be asserted “at any time,” including in order to prevent disclosures in responsive pleadings and prospectively in anticipation of evidentiary disputes that are certain to arise.
(c) As to how much deference is owed to the executive’s claim that disclosure would risk harm to national security, the opinion plays it both ways, sounding themes of deference and independence. (13537-13538)
(d) The fact that the executive has classified information is not enough to warrant invocation of the privilege; the court must make an independent judgment as to whether the information in issue warrants protection.
(e) Successful invocation of the privilege at times merely requires “walling off” that information from use in the litigation. At other times, however, “application of the privilege may require dismissal of the action. When this point is reached, the Reynolds privilege converges with the Totten bar….” (13539). There are three such circumstances. First, this occurs if the plaintiffs cannot prove the prima facie elements of a claim with nonprivileged evidence. Second, this occurs if the privilege precludes the defendant from advancing a valid defense. Third, this occurs when it is “impossible to proceed with the litigation because—privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses—litigating the case to a judgment would present an unacceptable risk of disclosing state secrets.” (13539-40)
(3) Applying this framework to this suit, Judge Fisher concludes that it is not clear that the Totten bar applies, but that it is clear that dismissal is warranted under the state secrets privilege in its evidentiary aspect (under the third rationale noted above at (2)(e)).
(a) The opinion states that some of the claims might well fall under the Totten bar, particularly those requiring proof of an agreement between Jeppesen and the CIA. But the opinion ultimately refrains from relying on this ground.
(b) As to the state secrets privilege, the questions are whether (i) the information at issue is genuinely a state secret and (ii) whether the suit could be litigated without using such information.
(i) Judge Fisher accepts that at least some of the information at issue constitutes a state secret, but indicates that the precise reason why cannot be discussed other than to say it has to do either with the existence of a confidential relationship with CIA, the existence of relationships with foreign countries, the scope or nature of CIA clandestine operations, or the sources and methods of intelligence gathering. Judge Fisher bases this conclusion in part on the classified record, and states that “every judge who has reviewed [that record]…agrees that in this sense the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact on plaintiffs’ case.” (13545)
(ii) Judge Fisher assumes without deciding that plaintiffs could make their prima facie case without privileged evidence, and that Jeppesen is not barred from asserting a valid defense. Nonetheless, Judge Fisher concludes that litigation still creates an unacceptable risk of disclosure of protected information. “We reach this conclusion because all seven of plaintiffs’ claims, even if taken as true, describe Jeppesen as providing logistical support in a broad, complex process, certain aspects of which , the government has persuaded us, are absolutely protected by the state secrets privilege….Because the facts underlying plaintiffs’ claims are so infused with these secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets….” (13549)
(4) Other remedies checks on the executive – the opinion concludes with a survey of other means by which plaintiffs could receive justice or the executive branch’s covert activities can be checked (private bills for relief, congressional investigations, etc.)
Key points in the concurrence of Judge Bea
Judge Bea writes briefly, and separately, to say that he would decide the case under Totten, on the ground that the suit’s very subject matter is the allegation that US government agents secretly captured and arranged the torture of the plaintiffs.