IN THE npr rne onrt of BINYAM MOHAMED, ET AL., UNITED STATES OF AMERICA, JEPPESEN DATA.PLAN, INC., Pe ti tioners, Respondent, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI ALAN L. SCHLOSSER JULIA HARUMI MASS AMERICAN CML LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 HOPE METCALF NATIONAL LITIGATION PROJECT ALLARD K. LOWENSTEIN INTERNATIONAL RIGHTS CLINIC/YALE LAW SCHOOL 127 Wall Street New Haven, CT 06520 (203) 432-9404 BEN WIZNER Counsel of Record STEVEN R. SHAPIRO STEVEN M. WATT JAMEEL JAFFER AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street New York, NY 10003 (212) 549-2500 [email protected](Counsel continued on inside cover)
Transcript
IN THE
npr rne onrt of
BINYAM MOHAMED, ET AL.,
UNITED STATES OF AMERICA,
JEPPESEN DATA.PLAN, INC.,
Pe ti tioners,
Respondent,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF APPEALS FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ALAN L. SCHLOSSER
JULIA HARUMI MASS
AMERICAN CML LIBERTIES
UNION FOUNDATION OF
NORTHERN CALIFORNIA
39 Drumm StreetSan Francisco, CA 94111(415) 621-2493
245 Sullivan StreetNew York, NY 10012(212) 998-6657
For and on behalf ofPlaintiff Mohamed FaragAhmad Bashmilah only
CLIVE STAFFORD-SMITH
REPRIEVE
PO Box 52742London EC4P 4WSEngland+44 (0) 207 353 4640
For and on behalf ofPlaintiff BinyamMohamed only
PAUL HOFFMAN
SCHONBRUN DESIMONE
SEPLOW HARRIS
8~ HOFFMAN LLP
723 Ocean Front Walk,Suite 100
Venice, CA 90291(310) 396-0731
QUESTION PRESENTED
Whether the Court of Appeals, sitting enbanc, erred in affirming the pleading-stagedismissal on the basis of the evidentiary statesecrets privilege of a suit seeking compensationfor Petitioners’ unlawful abduction, arbitrarydetention, and torture.
PARTIES TO THE PROCEEDINGS
Petitioners in this case are BinyamMohamed, Ahmed Agiza, Abou Elkassim Britel,Bisher A1-Rawi, and Mohamed Farag AhmadBashmilah. The respondents are JeppesenDataplan, Inc., and the United States of America(Intervenor-Appellee below).
CONSTITUTIONAL AND STATUTORYPROVISIONS .........................................................1
STATEMENT OF THE CASE ...............................2
A. The Petitioners ........................................2
B. Jeppesen’s Role in the RenditionProgram .................................................16
C. Proceedings Below .................................18
REASONS FOR GRANTING THEPETITION ............................................................19
I. The Government’s Increased Reliance onthe Evidentiary State Secrets Privilegeto Preclude Any Judicial Inquiry IntoSerious Allegations of Intentional andGrave Executive Misconduct Presents anIssue of Overriding NationalSignificance ...........................................19
II. The Court Should Grant Review toClarify the Proper Scope and Applicationof the State Secrets Privilege ................ 23
ii
A. There is conflict and confusion inthe lower courts as to theapplication and scope of theprivilege .........................................23
B. This case is illustrative of the lowercourts’ departure from the privilege’sevidentiary roots and from theprinciples of Reynolds .....................29
II. If The Court Believes that ReynoldsRequires Dismissal of Petitioners’Claims, then This Case Presents anAppropriate Vehicle for PartialReexamination of Reynolds ...................34
APPENDIX ...........................................................1 a
Order Granting the United States Motionto Intervene and Granting the UnitedStates Motion to Dismiss with Prejudice,February 13, 2008 .............................. la-20a
Opinion, United States Court of Appealsfor the Ninth Circuit (En Banc),December 15, 2009 ........................... 2 la-93a
TABLE OF AUTHORITIES
Cases
ACL U v. NSA,438 F. Supp. 2d 754 (E.D. Mich. 2006) ............22
Arar v. Ashcroft,414 F. Supp. 2d 250 (E.D.N.Y. 2006) ...............22
Bareford v. Gen. Dynamics Corp.,973 F.2d 1138 (5th Cir. 1992) ..........................26
Boeing Co. v. United States,567 F.3d 1340, cert. granted, 131 S. Ct. 62(U.S. Sept. 28, 2010) (No. 09-1302) ..................34
Boumediene v. Bush, 553 U.S. 723 (2008) ..........36
Amanda Frost, 77~e State Secrets Privilege andSepal~tion of Powers, 75 FORDIIAM L. REV.1931, 1939 (2007) .............................................21
Editorial, Too Many Secrets, N.Y. TIMES,Mar. 10, 2007, at A12, available at 2007WLNR 4552726 ................................................21
Ex-Terrorism Suspect to be Compensated, WASH.P()ST, Sept. 20, 2008, at A14 ..............................5
Garry Wills, Why the Government Can LegallyLie, 56 N.Y. REV. (~F BOOKS 32, 33 (2009) ........20
Ian Cobam, David Cameron Announces TortureInquiry, THE GUARDIAN (LOND()N),July 6, 2010 ......................................................30
John F. Burns & Alan Cowell, Britain toCompensate Former Guantdnamo Detainees,N.Y. TIMES, Nov. 16, 2010 .......................... 11, 13
Memorandum from Eric Holder, Attorney Gen., toHeads of Executive Dep’ts and Agencies andHeads of Dep’t Components (Sept. 23, 2009),available athttp ://www.j ustice, gov/op a/documents/st ate -secret-privileges.pdf ......................................... 23
vi
Ryan Devereaux, Is Obama’s Use of State SecretsPrivilege the New Normal?, TttE NATION, Sept.29, 2010 ............................................................. 21
Spencer Hsu, Obama invokes ’state secrets’ claimto dismiss suit against targeting of U.S. citizenal-Aulaqi, Washington Post, Sept. 25, 2010 ....23
The Military and State Secrets Privilege:Protection for the National Security orImmunity for the Executive?, 91 YALE L.J. 570,581 (1982) .........................................................22
William G. Weaver & Robert M. Pallitto, State-secrets and Executive Power, 120 POL. ScI. Q.85, 100 (2005) ...................................................21
International Law
Adalah Legal Ctr. for Arab Mi~mrity Rights in Isr.v. Minister of Interior, 2006 Isr. HCJ 7052/03443, 692-93 .......................................................37
Conway v. Rimmer,[19681 A.C. 910,918, 951-52 (H.L.) (Eng.) ......37
Glasgow Corp. v. Cent. Land Bd.,[19561 S.C. (H.L.) 1 (Scot.) ...............................37
Kl~adr v. Attorney Gen. of Can.,[2008] F.C. 807 para. 27 (Can.) ........................37
Mohamed v. Sec’y of State for Foreign andCommonwealth Affairs, [2008] EWHC(Admin) 2048, [2008] All E.R. (D) 123, [148](Q.B.) (Eng.) ......................................................37
People’s Union for Civil Liberties v. Union ofIndia, (1998) 1 S.C.C. 301 ................................37
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Blank Page
OPINIONS BELOW
The en banc opinion of the Court of Appeals(App. 21a-93a) is reported at 614 F.3d 1070 (9thCir. 2010). The opinion of the original three-judgepanel of the Court of Appeals is reported at 579F.3d 943 (9th Cir. 2009). The opinion of thedistrict court (App. la-20a) is reported at 539F.Supp.2d 1128 (N.D. Cal. 2008).
JURISDICTION
The Court of Appeals for the Ninth Circuit,sitting en banc, entered its judgment onSeptember 8, 2010. The jurisdiction of this Courtis invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORYPROVISIONS
This petition involves application of thestate secrets privilege, which has not beencodified by any Act of Congress. Petitioners’underlying complaint raises claims under theAlien Tort Statute, 28 U.S.C. § 1350, whichprovides: "The district courts shall have originaljurisdiction of any civil action by an alien for atort only, committed in violation of the law ofnations or a treaty of the United States."
STATEMENT OF THE CASE
A. The Petitioners
Each of the five petitioners in this actionwas forcibly disappeared and transported toarbitrary detention and torture on flightsorganized by Jeppesen Dataplan at the directionof the Central Intelligence Agency (CIA). Theinformation collected below is corroborated bysworn declarations, government documents, flightrecords, official reports, and other reliable andpublicly available evidence.
Ahmed Agiza
On December 18,2001, Swedish authoritiesseized Plaintiff Ahmed Agiza, a 48-year-oldEgyptian father of five seeking asylum in Sweden,and drove him to an airport, where they handedhim to agents of the U.S. and Egyptiangovernments. Mr. Agiza’s clothes were sliced fromhis body and a suppository was forced into hisanus. He was then ch’essed in a diaper andoveralls and dragged - barefooted, blindfolded,and shackled - to an awaiting ah’craft, where hewas strapped to a mattress on the floor. The flightplanning and logistical support for this aircraft -a Gulfstream V jet, registered with the U.S.Federal Aviation Administration (FAA) as N379P
- were organized by Jeppesen. First AmendedCompl. ¶¶ 133-38, 243-45; ER 786-87, 816.1
Mr. Agiza was flown to Egypt andtransferred to authorities there. For five weeks,he was held incommunicado in a squalid,windowless, and frigid cell approximately twosquare meters in size. Id. ¶¶ 140-42; ER 787-88.During this period, Mr. Agiza was routinelybeaten by interrogators, and he was oftenstrapped to a wet mattress and subjected toelectric shock through electrodes attached to hisear lobes, nipples, and genitals. Id. ¶¶ 143-45; ER788-89. After two and a half years in detention,Mr. Agiza was given a six-hour show trial before amilitary court. He was convicted of membershipin a banned Islamic organization and is presentlyserving a 15-year sentence in an Egyptian prison.Id. ¶ 148; ER 789.
Virtually every aspect of Mr. Agiza’srendition, including the torture he suffered inEgypt, has been publicly acknowledged by theSwedish government. Jeppesen’s involvement isalso a matter of public record. The Swedishgovernment’s decision to expel Mr. Agiza to Egyptand its subsequent decision to repeal thatexpulsion are substantiated in governmentdocuments. Declaration of Anna Wigenmark("Wigenmark Decl.") ¶¶ 2, 7; ER 491 and 493. Thedecision-making process of the Swedishgovernment leading up to Mr. Agiza’s expulsion,as well as its involvement with the U.S. and
1 "ER" refers to the Excerpts of Record submitted to the
court of appeals below.
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Egyptian governments, have been exhaustivelyand publicly investigated by the ChiefParliamentary Ombudsman and the SwedishParliament’sStanding Committeeof theConstitution.
The Ombudsman’s reportexplicitlydiscusses contacts between the CIAand theSwedish government over Mr. Agiza’s transport toEgypt: "Some time before the expulsion decisionwas made.., the Security Police received an offerfrom the American Central Intelligence Agency(CIA) of the use of a plane that was said to havewhat was referred to as direct access so that itcould fly over Europe without having to touchdown." Wigenmark Decl. ¶ 11; ER 495. Quotingfrom a memorandum ch’awn up by the Swedishsecurity police on February 7, 2002, theOmbudsman also notes: "After some consultationwith the staff of the Ministry for Foreign Affairsthe Foreign Minister then gave approval of theacceptance by SJi, PO/RPS of the help offered bythe USA for the transport of A. [Mr. Agiza]." Id.The Ombudsman further documents thedisturbing details of Mr. Agiza’s mistreatmentand humiliation at Bromma ai~’port. Id. ¶ 14; ER496. The Political Director at the Ministry forForeign Affairs at the time of Mr. Agiza’srendition, Mr. Sven-Olof Petersson, advised theStanding Committee of the Constitution of theinvolvement of the U.S. government in initiallyproviding information about Mr. Agiza and inconvincing Egypt to accept his return. WigenmarkDecl. ¶ 20; ER 498.
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The fact of Mr. Agiza’s abuse and thenegotiation between Sweden and Egypt of"diplomatic assurances" for his well-beingfollowing his removal to Egypt were reviewed bythe United Nations Committee Against Torture.That Committee, which based its conclusions inpart on documents obtained from the Swedishgovernment, found that Sweden had violated itsobligations under international human rightslaw. Wigenmark Decl. ¶ 6; ER 492-93. On May16, 2007, the Swedish government, recognizingthe illegality of the order that expelled Mr. Agizafrom Sweden, repealed that order and reopenedhis application for a residence permit in Sweden.The Swedish government thereafter agreed to paythe equivalent of $450,000 in damages to Mr.Agiza in compensation for Sweden’s participationin his rendition to Egypt. See Ex-TerrorismSuspect to be Compensated, W~*,SH. POST, Sept. 20,2008, at A14.
Separate inquires by the Council of Europeand the European Parliament identified theaircraft - a Gulfstream V jet, then registered withthe FAA, as N379P - used to transport Mr. Agizato Egypt. Wigenmark Decl. ¶ 21; ER 499. Theseinquiries, as well as investigations by plaintiffs’attorneys, have also produced three documentsfrom public records confirming that Jeppesenprovided flight planning and logistical support tothe aircraft and crew used for this renditionflight. First, the local "data string" for the flightplan filed for this flight contains an originatorcode, KSFOXLDI, uniquely identifying Jeppesenas the entity having filed the plan with Europeanair traffic control authorities. Declaration of
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Steven Macpherson Watt ("Watt Decl.") ¶ 57; ER298.2 Second, an invoice, numbered 19122416,from Luftfartsverket Division, Stockholm toJeppesen, notes that Jeppesen was billed fornoise, landing, terminal navigation, emission,passenger, and security fees for a Gulfstream Vaircraft with registration N379P for December 18,2001. Id. ¶ 56; ER 297. Third, the information inthe Luftfartsverket invoice is corroborated by arecord from the Swedish Civil AviationAdministration, which also notes that the aircraftlanded at Bromma airport at 19:54 and departedfor Cairo at 20:49 on December 18, 2001 with ninepassengers on board. Id.
Abou Elkassim B~itel
On March 10, 2002, Plaintiff AbouElkassim Britel, a 43-year-old Italian citizen ofMoroccan origin, was arrested and detained inPakistan on immigration charges. First AmendedCompl. ¶¶ 90, 94; ER 777-78. While detained, Mr.Britel was interrogated by U.S. and Pakistaniofficials. Over the course of the following weeks,he was beaten repeatedly and suspended from theceiling of his cell by his Pakistani captors. His
e "KSFOXLDI" is {,he originator code assigned to Jel)l)esen
in the Aeronautical Fixed Telecommunication Network(.M~ITN). EveR" flight plan submitted by Jeppesen to airlraffic control authorities, including Eurocontrol, includeslhis originator code. which indicates the entity responsiblefor filing 1.he l)lan. Eurocontrol’s Integrated Initial Flight,Plan Processing System, IFPS Users Manual notes that |he"AFTN address KSF()XLDI is a collective address fi)rJel)l)esen flighl planning services in San Francisco." Wat!Dec[ ¶! 51: 294-295.
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numerous requests to both U.S. and Pakistaniofficials to meet with the Italian Embassy wererefused. Id. ¶¶ 94-98; ER 777-79. To escapefurther abuse, Mr. Britel confessed falsely tobeing a "terrorist."
On May 24, 2002, Mr. Britel was handedover to U.S. officials. He was stripped of hisclothing, dressed in a diaper and overalls, andchained, shacked, and blindfolded, thentransported to Morocco on the same Gulfstream Vjet aircraft that had been used five months earlierto transport Mr. Agiza to Egypt. The flightplanning and logistical support for the aircraftand its crew were once again provided byJeppesen. Id. ¶¶ 96, 100, 102, 241-42; ER 778,779-80, 815. Upon arrival in Morocco, Mr. Britelwas handed over to agents of the Moroccansecurity services who detained himincommunicado at the notorious Temara prison.
For the next eight months, Mr. Britel wasseverely beaten, deprived of sleep and food, andthreatened with forms of sexual violation -including being sodomized with a bottle andhaving his genitals cut off- by his Moroccancaptors. Id. ¶¶ 104-05; ER 780. On February 11,2003, Mr. Britel was released without charge. Id.¶ 107; ER 781. With the assistance of his Italianwife and the Italian Embassy, Mr. Britel madearrangements to return to his home in Italy. Onthe eve of his return, however, Mr. Britel wascaught up in a government dragnet in the wake ofthe May 16, 2003 bombings in Casablanca. Hewas once again detained incommunicado at theTemara prison, where he was coerced into signing
7
a false confession he was never permitted to read.Id. ¶¶ 111, 113-14; ER 781-82. On October 3,2003, Mr. Britel was convicted of a terrorism-related charge by a Moroccan court and sentencedto 15 years in pl~son. An observer ii’om the ItalianEmbassy reported that the trial wasfundamentally flawed and failed to meetuniversally accepted minimum fair trialstandards.
Citing a complete lack of evidence of anycriminal wrongdoing, on September 29, 2006,Italian authorities closed an exhaustive six-yearinvestigation into Mr. Britel’s allegedinvolvement in terrorist activities. Declaration ofAbou Elkassim Britel ("Britel Decl.") ¶ 27; ER 93.In January 2007, nearly one hundred Italianparliamentarians and members of the EuropeanParliament supported a request calling onMoroccan authorities to pardon Mr. Britel. TheItalian government also separately sought apardon from the King of Morocco, as well as Mr.Britel’s immediate release and repatriation toItaly. Mr. Britel remains incm’cerated in /kinBourja prison in Casablanca. Id. ¶ 28; ER 94.
Mr. Britel’s allegations of forceddisappearance and abuse in Morocco have beeninvestigated and corroborated by the EuropeanParliament and by the International Federationfor Human Rights. Watt Decl. ¶ 33; ER 272-73.The European Parliament has identified theaircraft used to transport Mr. Britel fromPakistan to Morocco as a Gulfstream V jetaircraft, then registered with the FAA as N379P.Flight records examined by the European
Parliament also confirm that on May 24, 2004,this aircraft flew from Pakistan to Rabat and thenon to Porto, Portugal. Britel Decl. ¶ 14; ER 91-92.Jeppesen’s involvement in providing the flightplanning and logistical support to the aircraft andcrew is also substantiated by flight records. Thelocal "data string" for the flight plan filed withEuropean air traffic control authorities for thisflight contains Jeppesen’s originator code,KSFOXLDI. Britel Decl. ¶ 14-15; ER 91-92.
Binyam Mohamed
On April 10, 2002, Plaintiff BinyamMohamed, a 31-year-old Ethiopian citizen andlegal resident of the United Kingdom, wasarrested at the airport in Karachi, Pakistan onimmigration charges. For more than threemonths, Mr. Mohamed was held in secretdetention, interrogated, and abused by hisPakistani captors. During this time, he was alsointerrogated by agents of the U.S. and Britishgovernments. First Amended Compl. ¶¶ 59-60;ER 771. On July 21, 2002, Mr. Mohamed washanded over to U.S. officials, who stripped,shackled, blindfolded, and dressed him in atracksuit before dragging him on board aGulfstream V jet aircraft, then registered withthe FAA as N379P - the same aircraft used torender plaintiffs Agiza and Bl~itel to Egypt andMorocco - and flying him to Morocco. Oninformation and belief, Jeppesen provided theflight and logistical support for this aircraft andits crew. Id. ¶¶ 65-68, 238; ER 772-73,814.
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Mr. Mohamed was handed over to agents ofthe Moroccan security services. Over the next 18months, he was routinely beaten to the point oflosing consciousness, and a scalpel was used tomake incisions all over his body, including hispenis, after which a hot stinging liquid waspoured into his open wounds. Id. ¶¶ 69-71; ER773. On January 22, 2004, Mr. Mohamed wasreturned to the custody of U.S. officials. Theseofficials photographed him, stripped him, dressedhim in overalls, handcuffed, shackled, andblmdfolded him, and then put him on board anaircraft and flew him to Afghanistan. The flightplannmg and logistical support to the aircraft - aBoeing 737 business jet, then registered with theFAA as N313P - were provided by Jeppesen. Id.
¶¶l 73-75,239-40; ER 774, 814-815.
Immediately after arriving in Afghanistan,Mr. Mohamed was taken to a CIA-run prisonoutside Kabul commonly known as the "DarkPrison." He was held there for the next fourmonths. He was physically beaten, had his headrepeatedly slammed against a wall, and wassuspended by his arms from a pole. He wasdeprived of sleep by being subjected toexcruciatingly loud noises, including the screamsof women and children, thunder, and loud rockmusic 24 hours a day. Id. ¶¶ 76-80; ER 774-75.Deprived of adequate food, Mr. Mohamed lostbetween 40 and 60 pounds. He was permittedoutside once during this time and then only forfive minutes - the only time he had seen the sunin two years. Id. ¶¶ 78, 80, 83; ER 775-76. InSeptember 2004, Mr. Mohamed was transferredto Guant~namo. Id. ¶ 88; ER 777. Mr. Mohamed
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was released from Guant~namo during thependency of this litigation, and he now resides inthe United Kingdom.
Mr. Mohamed’s allegations have beenextensively investigated and his accountcorroborated by the Council of Europe, theEuropean Parliament, and human rightsorganizations. In November of 2010, in order tosettle litigation that Mr. Mohamed broughtagainst the U.K. government for its role in hisunlawful detention and torture, that governmentreportedly paid Mr. Mohamed and fifteen othercurrent and former Guant~namo detaineesseveral million dollars. John F. Burns & AlanCowell, Britain to Compel~sate FormerGuantdnamo Detainees, N.Y. TIMES, Nov. 16,2010. That settlement followed years of judicialproceedings and official investigations into thecircumstances of Mr. Mohamed’s detention andinterrogation in U.S. and Moroccan custody. Forexample, inquiries by both the EuropeanParliament and the Council of Europe, throughexamination of flight records, identified theaircraft used in both Mr. Mohamed’s renditionfrom Pakistan to Morocco in 2002 and hisrendition from Morocco to Afghanistan in 2004,determining that the aircraft - respectively, aGulfstream V jet, registered N379P and a BoeingBusiness Jet, then registered N313P - had beeninvolved in numerous other rendition flights.Stafford-Smith Decl. ¶¶ 6-7; ER 21-22.
Documentation uncovered in a criminalinvestigation by a Spanish prosecutor concerningthe CIA’s use of Spanish airports as a "staging
11
post" for unlawful rendition flights and by theCouncil of Europe’s similar inquiry substantiatesJeppesen’s role in furnishing the flight planningand logistical support to the aircraft and crewused for Mr. Mohamed’s second rendition. TheSpanish prosecutor obtained a telex fromJeppesen to its agent in Mallorca, Spain,Mallorcair requesting that Mallorcair provideground handling se~ices and pay ai~]~ort fees forN313P from January 25-27, 2004. Declaration ofClive Stafford-Smith ("Stafford-Smith Decl.") ¶ 8;ER 22. In a statement to Spanish police,Mallorcair confirmed receipt of instructions forthis aircraft from Jeppesen. Id. ¶ 9; ER 22-23.
Bisher Al-Rawi
On November 8, 2002, Plaintiff Bisher AI-Rawi, a 42-year-old h’aqi citizen and legalresident of the United Kingdom, was arrested atthe international airport in Banjul, Gambia,where he had traveled with several colleagues tocommence a business venture. First AmendedCompl. ¶l¶l 193, 203; ER 800, 803. On the first dayof his detention, U.S. officials, who appeared to bein control of the situation, met with andinterrogated Mr. Al-Rawi. Id. at 204; ER 803-04.
On December 8, 2002, Mr. Al-Rawi wasdriven to an airport. There, U.S. agents strippedhim, dressed him in a diaper and overalls,chained and shackled him, and dragged him onboard an awaiting aircraft. The flight planningand logistical support services for this aircraft - aGulfstream V jet, then registered with the FAA asN379P - were provided by Jeppesen. Id. ¶¶ 204,
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212,215,248-49; ER 803-04, 806,816-17; see alsoDeclaration of Bisher Al-Rawi ("Al-Rawi Decl.")¶¶ 43-44; ER 116.
Mr. Al-Rawi was flown to Afghanistan anddetained at the CIA-run "Dark Prison" where, fortwo weeks, he was held in isolation in a tiny,pitch-black cell, constantly chained and shackled.Loud noises were blasted into his cell 24 hours aday, making sleep almost impossible. FirstAmended Compl. ¶¶ 215-17; ER 806-07. Mr. Al-Rawi was later transferred to the U.S.-runBagram Air Base, where he was beaten, keptshackled with heavy chains for extended periods,and deprived of adequate sleep, water, andclothing. Id. at ¶¶ 219-22; ER 807-808. InJanuary 2003, Mr. Al-Rawi was transferred to theGuant~namo Bay Naval Station. On March 20,2007, after four and a half years in U.S.-controlled detention without charge, he wasreleased back to his home and family in theUnited Kingdom. Id. ¶¶ 223,227; ER 808,809.
In November of 2010, in order to settlelitigation that Mr. AI-Rawi brought against theU.K. government for its role in his unlawfuldetention and torture, that governmentreportedly paid him and fifteen other current andformer Guant~namo detainees several milhondollars. John F. Burns & Alan Cowell, Britain toCompensate Former Guantdnamo Detainees, N.Y.TIMES, Nov. 16, 2010. That settlement waspreceded by the British government’s disclosureof numerous documents corroborating Mr. AI-Rawi’s allegations. According to a reportpublished by the U.K. Parhamentary Intelligence
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and Security Committee on July 25, 2007, theBritish Security Service "was informed by theU.S. authorities that they intended to conduct...a ’Rendition to Detention’ operation, to transfer[Mr. A1-Rawi and others] from The Gambia toBagram Air Base in Afghanistan. The Serviceregistered strong concerns, both orally and inw~iting, at this suggestion and alerted the FCO(U.K. Home, Foreign and Commonwealth Office)."British diplomats in both Gambia and the UnitedStates raised protests with their counterparts atthe U.S. State Department and the NationalSecurity Council. A1-Rawi Decl. ¶¶ 44-45; ER 116-17.
Separate inquires by the Council of Europeand the European Parliament identified theaircraft - a Gulfstream V jet, then registered withthe FAA, as N379P - used to transport Mr. A1-Rawi to Afghanistan. A1-Rawi Decl. ¶ 42; ER 116.These flight records also confirm that Jeppesenprovided flight planning and logistical support tothe aircraft and crew used for this renditionflight. The local "data strmg" for the flight planfiled for this flight contains Jeppesen’s originatorcode, KSFOXLDI. A1-Rawi Decl. ¶¶ 42-43; ER116.
Mohamed Farag Ahmad Bashmilah
On October 21, 2003, Plaintiff MohamedFarag Bashmilah, a 42-year-old Yemeni citizen,was apprehended by agents of the Jordaniangovernment while he was visiting Jordan to carefor his ailing mother. First Amended Compl. ¶152, 154; ER 790-91. After several days of
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detention and interrogation under brutal torture,Mr. Bashmilah was coerced into signing a falseconfession. Id. 7 156; ER 791. The Jordaniansthen handed him over to agents of the U.S.government, who beat and kicked him, sliced offhis clothes, replaced them with a diaper and ablue outfit, shackled and blindfolded him, thendragged him on board an awaiting aircraft.Declaration of Mohamed Farag AhmadBashmilah ("Bashmilah Decl.") 7¶[ 36-41; ER 311-13. The flight planning and logistical support forthis aircraft - the same Gulfstream V jet that hadbeen used in the transportation of the other fourplaintiffs - were organized by Jeppesen, FirstAmended Compl. 77 160, 246-47; ER 792, 816,and used Jeppesen’s unique o~iginator code,Bashmilah Decl. 7 42; ER 313.
On October 26, 2003, Mr. Bashmilah wasflown to Afghanistan, where he spent nearly sixmonths in secret incommunicado detention at aU.S.-run facility. Id. 7 163; ER 793. For the firstthree months, he was held in a windowless six-square-meter cell with a bucket as a toilet; duringhis first 15 days, he was kept in the same diaperthat had been forced on him in Jordan, and hishands and legs remained fled. Bashmilah Decl.¶17 56-64; ER 317-19. On three separate occasionsduring these initial months of detention, Mr.Bashmilah tried to end his life. Id. 7 66; ER 319-20.
In April 2004, Mr. Bashmilah was"rendered" a second time to a site in an unknowncountry, where he was subjected to similarphysical and psychological abuse. First Amended
15
Compl. ¶¶ 171-72; ER 794-95. At one pomt duringhis detention in this facility, Mr. Bashmilah cuthimself and used his own blood to write "I aminnocent" and "This is unjust" on his cell walls.Bashmilah Decl. ¶ 116; ER 336. On May 5, 2005,U.S. authorities transferred Mr. Bashmilah toYemen, his country of birth. Bashmilah Decl. ¶¶172-76; ER 352-54. On February 13, 2006 Mr.Bashmilah was tried for the crime of forgerybased on his admission that he had used a falseidentity document while living in Indonesia.Bashmilah Decl. ¶ 178; ER 354. On February 27,2006, the Yemeni court sentenced him to timeserved both inside and outside of Yemen - whichincluded the 18 months he was held in U.S.detention facilities. Bashmilah Decl. ¶ 181; ER354-55.
Flight records detail Mr. Bashmilah’srendition flight from Jordan to Afghanistan onOctober 26, 2003 on bom’d a CIA-ownedGulfstream V jet, registered N379P. Jeppesen’sinvolvement in providing the flight planning andlogistical support services to the aircraft and crewis a matter of public record. Bashmilah Decl. ¶42; ER 313.
B. Jeppesen’s Role in the RenditionProgram
Jeppesen’s involvement in the renditionflights described above, as well as many others, isa matter of public record, traceable in flight plansand other documents filed with national andinter-governmental aviation authorities in theUnited States and across Europe. Jeppesen was
16
not only providing crucial flight planning andlogistical support se~-cices to the aircraft and crew- including filing flight plans, planningitineraries, obtaining landing permits, andarranging for fuel and ground handling - it wasalso using its legitimacy as a well-known aviationservices company to enable the CIA to disguisethe true nature of these flights. The Council ofEurope has revealed that Jeppesen filed "multiple’dummy’ flight plans" for many of the CIA flightsit supported, further contributing to theconcealment of the flights’ unlawful purposes.Watt Decl. ¶ 34, Exh. S(b); ER 274-79.
Jeppesen participated in the renditionprogram with full knowledge of the consequencesof its actions. On August 11, 2006, Sean Belcher,who then worked for Jeppesen, attended ameeting for new employees convened by BobOverby, dh’ector of Jeppesen International TripPlanning Service at Jeppesen’s San Jose office.During his presentation, Overby said: "We do allthe extraordinary rendition flights." Apparentlybelieving that only a few people present knewwhat he was referring to, Overby clarified thatthese were "torture flights," explaining, "let’s faceit, some of these flights end up this way," orwords to that effect. He added that the flightspaid very well and that the government spared noexpense. He also revealed that two employees,one mentioned by name, handled rendition flightsfor the company. Declaration of Sean Belcher("Belcher Decl.") ¶4; ER 16.
17
C. Proceedings Below
On May 30, 2007, petitioners filed suitagainst Jeppesen, seeking compensation for itscomplicity in their unlawful abduction, arbitrarydetention, and torture. The complaint allegedviolations of the Alien Tort Statute, 28 U.S.C. §1350. Although not named as a defendant, theUnited States moved to inte~-cene before Jeppesenhad answered the complaint, and before discoveryhad commenced, for the purpose of seekingdismissal of the suit pursuant to the evidentiarystate secrets privilege. The government arguedthat the subject matter of the suit was a statesecret as a matter of law, and that any litigationof petitioners’ claims would cause harm tonational security. On February 13, 2008, thedistrict court granted the motion to dismiss.
On April 28, 2009, a three-judge panel ofthe Ninth Circuit reversed. The court held thatthe government’s invocation of the state secretsprivilege had been premature and overbroad, andthat the privilege must be invoked with respect tospecific evidence as opposed to broad categories ofinformation. It remanded the case to permit thegovernment to assert the privilege over discreteevidence and to permit the district court to assessthe consequences of the government’s properprivilege assertion.
The United State thereafter petitioned foren banc review; the court of appeals granted thepetition and held argument on December 15,2009. On September 8, 2010, the en banc courtaffirmed the district court’s dismissal of theaction by a 6-to-5 vote. The court "assume[d]
18
without deciding that plaintiffs’ prima facie caseand Jeppesen’s defenses m[ight] not inevitablydepend on privileged evidence." App. 60a. But thecourt held that "dismissal [was] nonethelessrequired . . . because there [was] no feasible wayto litigate Jeppesen’s alleged liability withoutcreating an unjustifiable ~sk of divulging statesecrets .... " Id.
Judge Hawkins dissented. Writing for fivejudges, Judge Hawkins asserted that dismissal ofa suit pursuant to the state secrets privilege is"justified if and only if specific privileged evidenceis itself indispensable to establishing either thetruth of the plaintiffs’ allegations or a validdefense that would otherwise be available to thedefendant." App. 74a-75a. The dissenting judges"would [have] remand[ed] to the district court todetermine whether Plaintiffs can establish theprima facie elements of their claims or whetherJeppesen could defend against those claimswithout resort to state secrets evidence." App.93a.
REASONS FOR GRANTING THE PETITION
I. The Government’s Increased Relianceon the Evidentiary State SecretsPrivilege to Preclude Any JudicialInquiry Into Serious Allegations ofIntentional and Grave ExecutiveMisconduct Presents an IssueofOverriding National Significance.
In United States v. Reynolds, 345 U.S. 1(1953), this Court recognized the government’slimited right to prevent disclosure through
19
discovery of "military and state secrets,"cautioning that the privilege was "not to be lightlyinvoked." Id. at 7-8. Reylmlds arose out of adamages action brought by the families ofcivilians who died in the crash of a militaryaircraft. In response to a discovery request forthe flight accident report, the governmentasserted the state secrets privilege, arguing thatthe report contained information about secretmilitary equipment that was being tested aboardthe aircraft during the fatal flight. 345 U.S. at 3-4. The Court upheld the Executive’s authority toassert the state secrets privilege, requiring "aformal claim of privilege, lodged by the head ofthe department which has control over thematter, after actual personal consideration bythat officer." Id. at 7-8. Mindful that misuse ofthe privilege might lead to "intolerable abuses,"the Court admonished that "judicial control in acase cannot be abdicated to the caprice ofexecutive officers." Id. at 9-10.:~ The greater thenecessity for the allegedly privileged informationin presenting the case, the more a "court shouldprobe in satisfying itself that the occasion forinvoking the privilege is appropriate." Id. at 11.
a The Court’s concern was well-founded. In 1996, theaccidenl report at issue was declassified. A review of therel>orl revealed no "details of any secret project the planewas involved in," bu[ "[ilnstead .... a horror storyincompelence, bungling, and tragic error." (lard~ Wills,tim (;o~,ern.ment Can Legally Lie, 56 N.Y. REV. <~F B< ~OKS 32.33 (2009).
2O
This Court has not dh’ectly addressed thescope and application of the privilege sinceReylmlds. In the intervening years, the p~-ivilegehas become unmoored from its evidentiaryorigins. No longer is the privilege invoked solelywith respect to discrete evidence; rather, thegovernment now routinely invokes the privilegeat the pleading stage, before any evidentiarydisputes have arisen. Reynolds’ instruction thatcourts are to weigh a plaintiffs showing of needfor particular evidence in determining how deeplyto probe the government’s claim of privilege isrendered wholly meaningless when the privilegeis invoked before any request for evidence hasbeen made. Moreover, the government hasinvoked the privilege with greater frequency;~ incases of greater national significance;’~ and in a
4 Amanda Frost, The State Secrets Privilege and Separation
of Powers, 75 F(~RDH:~X~ L. REV. 1931. 1939 (2007) ("TheBush Administration has raised the privilege in twenty-eight percent more cases per year than in the previousdecade, and has sought dismissal in ninety-two percentmore cases per year than in the previous decade."): WilliamG. Weaver & Robert M. Pallitto, State-secrets and Exec~ttivePower, 120 P(~L. S(~I. Q. 85, 100 (2005) (concluding that, theexecutive is asserting the privilege with increasingfrequency, and declaring that the "Bush administrationlawyers are using the privilege with offhanded abandon"):see also Ryan Devereaux. Is Obama~ Use of Sta, te SecretsPrivileg~ the ,Yew Normal?, THE NATI~N, Sept. 29, 2010(noting Obama administration’s continuation of Bushadministration’s state secrets policies).
s Editorial, Too Many Secrets, N.Y. TIMES, Mar. 10. 2007. a!A12, available at 2007 WLNR 4552726 ("It is a challenge tokeel) track of all the ways the Bush administration iseroding constitutional protections, but one that, should getmore attention is its abuse of the state secrets doctrine.").
21
manner that seeks effectively to transform it froman evidentiary privilege into an immunitydoctrine, thereby "neutraliz[ing] constitutionalconstraints on executive powers." Note, TheMilital), and State Secrets Privilege: Protection forthe National Security or Immunity for theExecutive?, 91 Y~XLE L.J. 570, 581 (1982). Theconsequence of this transformation has been thata broad range of official misconduct has beenshielded from judicial review after governmentofficials have invoked the privilege to avoidadjudication.
In particular, since September 11, 2001, thegovernment has invoked the p~ivilege frequentlyin cases that present serious and plausibleallegations of grave executive misconduct. Forexample, it has sought to foreclose judicial reviewof the National Security Agency’s warrantlesssm~eillance of United States citizens incontravention of the Foreign IntelligenceSurveillance Act, ACLU v. NSA, 438 F. Supp. 2d754 (E.D. Mich. 2006). And, as here, it hasinvoked the privilege to seek dismissal of suitschallenging the government’s seizure, transfer,and torture of innocent foreign citizens. SeeJeppesen, supra; El-Masri v. United States, 479F.3d 296 (4th Cir. 2007); Arar v. Ashcroft, 414 F.Supp. 2d 250 (E.D.N.Y. 2006) (dismissed on othergrounds). Most recently, it has invoked theprivilege to seek dismissal of a suit challengingthe Executive’s authority to use lethal forceagainst a United States citizen outside of armedconflict and without due process, albeit as a "lastresort" if other grounds are rejected. See SpencerHsu, Obama invokes ’state secrets’ claim to
22
dismiss suit against targeting of U.S. citizen al-Aulaqi, Washington Post, Sept. 25, 2010.�~
These quahtative and quantitative shifts inthe government’s use - and the courts’ acceptance- of the state secrets privilege warrant SupremeCourt review.
II. The Court Should Grant Reviewto Clarify the Proper Scope andApplication of the State SecretsPrivilege
A. There is conflict andconfusion in the lower courtsas to the application andscope of the privilege.
The proliferation of cases in which thegovernment has invoked the state secretsprivilege, and the lack of guidance from thisCourt since its 1953 decision in Rey~mlds, haveproduced conflict and confusion among the lower
’~ The Attorney General recently issued a new set ofguidelines to regulate the Executive Branch’s use of theprivilege. See Memorandum from Eric Holder, AttorneyGen., to Heads of Executive Dep’ts and Agencies and Headso~" Del)’t Components (Sept. 23, 2009), avaihd~ athttp :Hwww.j ustice.gov/ol)a/documents/state-secret-privileges.i)df. Even under the new policy, however, theExecutive continues to assert (as it. has in this case) that theprivilege may be used to dismiss cases at. the pleadingstage, before the opposing party has a chance to l)rove it.scase using non-privileged evidence. In any evenl, voluntaryexecutive-branch self-policing is no substitute for checksand balances.
23
courts regarding the proper scope and applicationof the pl"ivilege.
In Tenet v. Doe, 544 U.S. 1 (2005), the Courtclal~fied the distinction between the evidentiarystate secrets p1~ivilege, which may be invoked toprevent disclosure of specific evidence duringdiscovery, and the so-called Totten rule, whichrequires outright dismissal at the pleading stageof cases involving unacknowledged espionageagreements/ As the Court explained, Totten is a"unique and categorical . . . bar-a rule designednot merely to defeat the asserted claims, but topreclude judicial inquiry." Tenet, 544 U.S. at 6.By contrast, the Court noted, the state secretsprivilege deals with evidence, not justiciability.Id. at 9-10. Nevertheless, some courts--includingthe court of appeals below--have permitted thegovernment to invoke the evidentiary statesecrets privilege to terminate litigation evenbefore there is any evidence at issue.
Because the state secrets privilege wasdiscussed in Tenet only to contrast it with theTotten rule, the Tenet Court had no occasion toclarify the proper scope and use of the statesecrets p~ivilege. This Court should accept reviewin the present case to resolve conflicting decisionsand widespread confusion in the lower courtsabout when a case may be dismissed on the basisof the p~ivilege.
7 In 7bttett �,. Uuited States, 92 U.S. 105 (1875). the Courtdismissed at the pleading stage an at[ion to entbrce analleged secret espionage contrac[, because the governmentcouhl neither confirm nor deny the cont,rac|’s existence.
24
The greatest source of confusion in thelower courts with respect to the privilege iswhether a case may properly be dismissed at thepleading stage on the basis of the state secretsprivilege - a stage at which the invocation mustbe asserted over abstract or predictive categoriesof information, and must be assessed in a vacuumwithout actual contested evidence. Decisionspermitting pleading-stage dismissal of entireactions or claims on state secrets grounds oftenstem from an erroneous conflation of theTotten/Tenet doctrine and the evidentiary statesecrets privilege.
A number of courts have held that a casemay be dismissed at the pleading stage pursuantto the state secrets privilege if the "very subjectmatter" of the suit is a state secret. See, e.g., E1-Masri, 479 F.3d at 306, 311 (affirming pleading-stage dismissal of suit alleging arbitrarydetention and torture at CIA-run prison onground that the suit’s very subject matter was astate secret); Zuckerbraun v. Gen.-DynamicsCorp., 935 F.2d 544, 547 (2d Cir. 1991)(dismissing wrongful death claim implicatingship’s weapons system at the pleading stagebecause the very subject matter was a statesecret). This application of the state secretsprivilege, which effectively imports Totten’sjusticiability regime into the evidentiary doctrineof Reynolds, has not been accepted by othercourts. See In re Sealed Case, 494 F.3d 139, 158(D.C. Cir. 2007) (Brown, J., concurring anddissenting) (observing that D.C. Circuit, whichhears numerous state secrets cases, "has had nooccasion to apply the ’very subject matter’
Still other courts, like the en banc NinthCircuit below, have dismissed suits at thepleading stage not because the "very subjectmatter" was a state secret, but because the courtaccepted the government’s wholly predictivejudgment that state secrets would be so central toproving the pro’ties’ claims or defenses that thelitigation could not conceivably reach resolution.See, e.g., Jeppesen, App. 60a (assuming thatprivilege would not interfere with plaintiffs’claims or defendants’ defenses but affirmingdismissal on ground that there was "no feasibleway to litigate Jeppesen’s alleged liability withoutcreating an unjustifiable risk of divulging statesecrets" (emphasis omitted)); Farnsworth Cannon,Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980)(en banc) (dismissing contract suit betweendefense contractors at pleading stage because anytrial would "inevitably" reveal state secrets);Bareford v. Gen. Dynamics Corp., 973 F.2d 1138(5th Cir. 1992) (dismissing case because trial"would inevitably lead to a significant risk" thatstate secrets would be disclosed).
A thi~’d set of cases, however, have properlyrefused to dismiss suits at the pleading stage,rejecting the government’s invitation to assess theeffect of a privilege claim in the absence of actualevidence, and recognizing the impossibility ofdetermining at the pleading stage what evidencewould be relevant and necessary to the pro’ties’claims and defenses. See, e.g., In re United States,
26
872 F.2d 472, 477 (D.C. Cir. 1989) (refusing todismiss Federal Tort Claims action merely onbasis of the government’s "unilateral assertionthat privileged information lies at the core of th[e]case."); DTM Research, L.L.C. v. AT&T Corp., 245F.3d 327, 334-35 (4th Cir. 2001) (upholding claimof privilege but rejecting premature dismissal oftrade secret misappropriation suit and remandingfor further discovery); Monarch Assurance P.L.C.v. United States, 244 F.3d 1356, 1364 (Fed. Cir.2001) (reversing premature dismissal of contractsuit on basis of the privilege so that plamtiff couldengage in further discovery to support claim withnon-privileged evidence); Spock v. United States,464 F. Supp. 510, 519 (S.D.N.Y. 1978) (rejectingpre-discovery motion to dismiss Federal TortClaims Act suit on state secrets grounds aspremature); Hepting v. AT&T Corp., 439 F. Supp.2d 974, 994 (N.D. Cal. 2006) (refusing to evaluatewhether pro’ties could prove claims and defenseswithout state secrets-and to dismiss on thatbasis--at pleading stage).
This confusion among lower courts as to whendismissal of complaints may be permissiblereflects uncertainty about the proper balancebetween robust judicial review and deference tothe Executive. Compare Kasza v. Browner, 133F.3d 1159, 1166 (9th Cir. 1998) (holding thatgovernment’s privilege claim is owed "utmostdeference"), with In re United States, 872 F.2d at475 ("[A] court must not merely unthinkinglyratify the Executive’s assertion of absoluteprivilege, lest it inappropriately abandon itsimportant judicial role."). The court of appealsbelow applied a degree of deference that is
27
difficult to reconcile with ordinary pleading-stagepractice. As this Court has made clear, "[w]hen afederal court reviews the sufficiency of acomplaint, before the reception of any evidence..., its task is necessarily a limited one. The issue isnot whether a plaintiff will ultimately prevail butwhether the claimant is entitled to offer evidenceto support the claims." Scheuer v. Rhodes, 416U.S. 232,236 (1974).
The court of appeals abandoned that well-settled practice, opting instead for predictivejudgments about a nascent litigation andconcluding that "the facts underlying plaintiffs’claims are so infused with secrets,[that] ans’ plausible effort by Jeppesen to defendagainst them would create an unjustifiable risk ofrevealing state secrets, even if plaintiffs couldmake a prima facie case on one or more claimswith nonprivileged evidence." Jeppesen, App.61a-62a. The court denied the petitioners anyopportunity to attempt a prima facie showingbased on evidence already assembled and onnonprivileged discovery. Nor did it require thedefendant to demonstrate any actual defense thatit might be precluded from advancing by theelimination of evidence. In so doing it"abandon[ed] the practice of deciding cases on thebasis of evidence . . in favor of a system ofconjecture." In re Sealed Case, 494 F.3d at 150.
This Court should clarify that dismissal of asuit on the basis of the state secrets privilege isappropriate solely when the removal of privilegedevidence renders it impossible for the plaintiff toput forth a prima facie case, or for the defendant
28
to assert a valid defense-a determination thatcannot be made at the pleading stage. And itshould permit the plaintiff to submit all non-privileged evidence before the court evaluates theconsequences of the government’s invocation ofthe privilege.
B. This case is illustrative of the lowercourts’ departure from the privilege’sevidentiary roots and from theprinciples of Reynolds.
This case provides a compelling example ofthe lower courts’ acquiescence in thegovernment’s expansion of the privilege beyondits evidentiary foundation. In this case, thegovernment sought outright dismissal of allclaims by invoking an evidentiary privilege beforeany evidence had even been requested. Relyingentirely on the CIA Director’s speculativeassessment of what evidence might be required toadjudicate petitioners’ claims, the court of appealsacceded to the government’s demand thatpetitioners be denied any judicial remedy for theunconscionable and unlawful treatment to whichthey were subjected.
As the court of appeals acknowledged, theCIA’s extraordinary rendition program is not astate secret. App. 66a. Moreover, Jeppesen’sinvolvement in that program, as petitioners haveamply demonstrated, is a matter of public record,confh’med through sworn testimony, public flightrecords, and other documentary evidence. As amatter of law and common sense, the governmentcannot legitimately keep secret what is already
29
widely known. See, e.g., Ellsberg v. Mitchell, 709F.2d 51, 61 (D.C. Cir. 1983) (rejecting portion ofprivilege claim on ground that so much relevantinformation was already public); see also Snepp v.United States, 444 U.S. 507, 513 n.8 (1980)(suggesting that the government would have nointerest in censoring information already "in thepublic domain")
Indeed, the volume of publicly confirmedinformation about the CIA’s rendition program,Jeppesen’s role in that program, and theparticipation of other nations in the rendition,detention, and interrogation of the petitioners isvast and growing. Britain and Sweden haveprovided compensation to three of the petitioners,as noted earlier, and the British government hasrecently announced an independent inquiry,headed by a retired appeals court judge, into theaccusations of the British Intelligence agenciescollusion with the CIA and other foreignorganizations in the torture of terrorism suspects.See Ian Cobain, David Cameron An~muncesTorture Inquiry, THE GUARDIAN (LOND(~N), July 6,2010. It would be a remarkable irony if U.S.courts were persuaded to affirm the dismissal ofthis suit in order to protect from disclosure theroles played by other nations -- when those verynations have been engaged in proceedings thatcontinue to expose precisely the relationships andinformation that the United States herecharacterizes as "state secrets."
Furthermore, in other contexts, U.S. courtshave already taken note of the facts underlyingthis litigation and assessed their legal
3O
significance. In a habeas corpus case in theDistrict of Columbia brought by a Guant~namoBay detainee named Farhi Saeed BinMohammed, the government sought to rely onstatements obtained from Binyam Mohamed, apetitioner in this case, in an attempt to establishthat the habeas petitioner had trained in al-Qaeda camps. Mohammed v. Obama, 704 F.Supp. 2d 1 (D.D.C. 2009). The governmentcontended that the statements, obtained afterBinyam Mohamed’s transfer to Guant~namo,were uncoerced and therefore reliable. Id. at 18.However, Judge Kessler made clear that the"Government’s claims of reliability [were]undermined by the sworn declaration of BinyamMohamed that he was brutalized for years whilein United States custody overseas at foreignfacilities." Id. at 20.
Judge Kessler summarized BinyamMohamed’s "harrowing story" of detention andtorture in Pakistan, Morocco, and Afghanistan,noting that the government did "not challenge ordeny the accuracy of Binyam Mohamed’s story ofbrutal treatment," id. at 24. Notwithstanding thegovernment’s position, Judge Kessler found thatMohamed’s account of rendition and torture wascredible, explaining that it was "extraordinarilydetailed," it "provide[d] approximate dates atmultiple points in the narrative, describe[d] thephysical features and conduct of guards andinterrogators, and [wa]s consistent throughoutseveral accounts." Id. at 25. Moreover, "the factthat Binyam Mohamed . . . vigorously and verypublicly pursued his claims in British courtssubsequent to his release from Guant~namo Bay
31
suggests that the horrific accounts of his torturewere not simply stories created solely to exculpatehimself.... His persistence in telling his storydemonstrates his willingness to test the truth ofhis version of events in both the courts of law aswell as the court of public opinion." Id. at 25-26.
Having deemed Mohamed’s allegationscredible, Judge Kessler assessed theirsignificance:
Binyam Mohamed’s trauma lasted for twolong years. Du~ing that time, he wasphysically and psychologicallytortured.His genitals were mutilated.He wasdep~ived of sleep and food.He wassummm’ily transported from one foreignprison to another. Captors held him instress positions for days at a time. He wasforced to listen to piercingly loud music andthe screams of other prisoners while lockedin a pitch-black cell. All the while, he wasforced to inculpate himself and others invarious plots to imperil Ame~icans.
IT]here is no question that throughout hisordeal Binyam Mohamed was being held atthe behest of the United States. Captorschanged the sites of his detention, andfrequently changed his location within eachdetention facility. He was shuttled fromcountry to country, and interrogated andbeaten without having access to counseluntil arriving at Guanthnamo Bay ....
32
Id. at 26-28. Accordingly, "based on the factorsdiscussed above," Judge Kessler held that"Binyam Mohamed’s will was overborne by hislengthy prior torture, and therefore hisconfessions to Special Agent [Redacted] do notrepresent reliable evidence to detain Petitioner."Id. at 29. Judge Kessler ordered the governmentto release the petitioner,s
That Binyam Mohamed’s credible account ofrendition and torture could form the basis foranother detainee’s successful habeas corpuspetition, but may not be put forward in support ofhis own petition for rech’ess, demonstrates thatthe state secrets doctrine has been stretchedbeyond coherence. The abundant documentary,testimonial, and physical evidence submitted bypetitioners below and collated by the dissentingjudges of the court of appeals into an appendix ofpublicly available information corroboratingpetitioners’ claims demonstrate that this casecould be litigated without recourse to statesecrets.
~ In the habeas corl)uS litigation, as in the courts below, thegovernment refnsed to confirm or deny Binyam Mohamed’sallegations of torture. However. Judge Kessler did notpermit the government’s refusal to confirm or deny theallegations to prevent her from evaluating their credibilityand assessing their legal consequences.
33
II. If The Court Believes that ReynoldsRequires Dismissal of Petitioners’Claims, then This Case Presentsan Appropriate Vehicle for PartialReexamination of Reynolds.
This Court has not revisited its holding inReynolds in more than half a century.9 Reynoldswas a wrongful death suit in which the privilegewas invoked during discovery to block disclosureof a single document. The Executive Branch’sassertion of the state secrets privilege in such acase is quite unlike a sweeping assertion of theprivilege to foreclose judicial review of entirecategories of executive misconduct. Experiencehas shown that a set of rules devised to governthe former situation may be inadequate as acheck on the latter.
Two developments since Reynolds furtherundermine any reliance on that decision tosupport pleading-stage dismissals. First, theprivilege is now routinely invoked to blockadjudication of disputes that raise profoundconstitutional questions about the enumeratedpowers of the three branches and, more
+’ The Court has granted certiorari in consolidated casesinvolving the government’s invocation of the state secretsprivilege to prevent military contractors from obtainingevidence to defend against a government breach-of-contractclaim. See Gen. D, yn,~tmics Co~p. v. United States; BoeingCo. ~’. (Trilled ~gh~tes, Nos. 09-1298 & 09-1302. Those cases,however, raise a question distinct from the question1)resen~e(I here and in the lion’s share of state secrets cases:thal is, whelher the governmenl may maintain a claim<~gclin.st a party when il has invoked the state secretsprivilege lo deny lhat parD" a defense to the claim.
34
specifically, the role of courts in safegum’dingindividual rights against serious abuses ofgovernment power. (See Point I, supra). Second,courts have become more accustomed to assessingclaims regarding access to sensitive informationthan they were in 1953. Under the Freedom ofInformation Act (FOIA), for instance, Congressauthorized courts to determine whether thegovernment has properly classified information.See 5 U.S.C. § 552(a)(4)(B) & (b)(1) (2002); Ray v.Turner, 587 F.2d 1187, 1191-95 (D.C. Ch’. 1978)(describing de novo review procedures required byFOIA). Similarly, under the Foreign IntelligenceSurveillance Act ("FISA"), Article III judges mustindependently review the government’s assertionthat electronic su~veillance is needed for foreignintelligence purposes. See 50 U.S.C. § 1805(2006). FISA empowers all federal district courts,not just the special FISA court, to review highlysensitive information in camera and ex parte todetermine whether the surveillance wasauthorized and conducted in accordance withFISA. See 50 U.S.C. § 1806(f) (2006).
Finally, the Classified InformationProcedures Act (CIPA), 18 U.S.C. App. 3,empowers federal judges to craft specialprocedures to determine whether and to whatextent classified information may be used at trial.See generally United States v. Pappas, 94 F.3d795, 799 (2d Cir. 1996). Section 4 of CIPA, whichallows for defense discovery of classifiedinformation, explicitly provides courts withdiscretion to deny government requests to deletespecific data from classified materials orsubstitute summaries or stipulations of facts. 18
35
U.S.C. App. 3 § 4. When section 4 of CIPA isinvoked, a judge must determine the relevance ofthe information in light of the asserted need forinformation and any claimed governmentprivilege.
Most recently, courts have weighed classifiedand other highly sensitive evidence in the habeascorpus proceedings of petitioners detained inGuant~namo Bay. See Boumediene v. Bush, 553U.S. 723 (2008). Notwithstanding thegovernment’s objections to the adversarial testingof that evidence, courts have employed securityclearances and protective orders to fashionproceedings that safeguard both the government’slegitimate security interests and the rule of law.
These developments call for thereexamination of Reynolds, if Reynolds is deemedto support the pleading stage dismissal thatoccurred in this case. At a minimum, the Courtshould require in all instances that thegovernment produce the evidence as to which ithas invoked the privilege for in camera inspectionby the district court. Courts are plainly equippedto evaluate such evidence, and requiring incamera inspection would avoid the doctrinalconfusion attendant to adjudicating the effects ofan evidentiary privilege in the absence of actualevidence. And, in cases in which the government(or its agents) is a party and plaintiffs raiseserious allegations of grave executive misconduct- such as the kidnapping and torture claims atthe heart of this suit - the evidentiaryconsequences of the government’s invocation ofthe state secrets privilege should not be borne by
36
the plaintiffs alone. In such cases, even if theprivilege is validly invoked to prevent disclosureof sensitive evidence, compensatory action - suchas construing facts in favor of deprived litigantsor shifting burdens against the government ordefendant - may be the only means for the courtsto enforce constraints on executive power.Finally, this Court should consider adopting the"proportionality" analysis routinely employed byforeign courts applying parallel secrecyprivileges,1° and by U.S. courts in analogouscircumstances,1~ to permit lower courts to weighthe competing public, private, and constitutionalinterests that have been wholly overridden by the"absolute" nature of the Reynolds privilege.
> See, e.g., h’ltadr t’. Attortt~ Get~. of (hm., [20081 F.C. 807para. 27 (Can.) (noting that the disclosure of records isrequired, but it is "subject to the balancing of nationalsecurity and other considerations"): Mol~amed v. Sec ly ofState for Foreign trod Cot~ mop, wealth. Affairs, [20081 EWH C(Admin) 2048. [2008] ~M1 E.R. (D) 123, [148] (Q.B.) (Eng.)(weighing the government’s interesl in national securityagainst plaintiffs interes, in document disclosure andfinding in favor of the plaimif0: Conw(~y v. Rimmer, [1968]A.C. 910, 918. 951-52 (H.L.) (Eng.); People~ Union for CivilLiberties v. ~rnion of India. (1998) 1 S.C.C. 301: AdalahLegal Ctr. for Arab Mitmrity Rigl~.ts in Isr. ~,. Minister ofInterior. 2006 Isr. [tCJ 7052/03 443, 692-93: Glasgow Corp.�,. Ccitt. l_~mdBd., [1956] S.C. (H.L.) 1 (Scot.).
~ See, e.g.. tlalper~ v. FBI, 181 F.3d 279, 297 (2d Cir. 1999)(weighing l)ublic interest in FOIA disclosure againstgovernmental interest in non-disclosure): U~dted States v.~garkissia~t, 841 F.2d 959 (9th Cir. 1988) (holding that. indeciding whether to disclose confidential materialsubmitted by the government in criminal prosecutionpursuant to CIPA, judge was free to balance defendant’sneed for documents against, national security concerns).
37
This Court allocated the evidentiary burdensin Reynolds, and it has both the authority and theobligation to amend those burdens if theyinterfere with the judiciary’s constitutional role inreviewing the legality of executive actions.Otherwise, the government may engage intorture, declare it a state secret, and by virtue ofthat designation avoid any judicial accountabilityfor conduct that even the government purports tocondemn as unlawful under all circumstances.Under a system predicated on respect for the ruleof law, the government has no privilege to violateour most fundamental legal norms, and it shouldnot be able to do so with impunity based on astate secrets privilege that was developed toachieve very different ends.
CONCLUSION
The petition for a writ of certiorari should begranted.
Respectfully submitted,
Ben WiznerCounsel of Record
Steven R. ShapiroSteven M. WattJameel JafferAmerican Civil Liberties
Union Foundation125 Broad StreetNew York, NY 10003(212) [email protected]
38
Alan L. SchlosserJulia Harumi MassAmerican Civil LibertiesUnion Foundation ofNorthern California
39 Drumm StreetSan Francisco, CA 94111(415) 621-2493
Hope MetcalfNational Litigation ProjectAllard K. Lowenstein Rights
Clinic/Yale Law School127 Wall StreetNew Haven, CT 06520(203) 432-9404
