Binyam Mohamed v. Jeppesen Dataplan, Inc.

Opinion by Judge FISHER; Concurrence by Judge BEA; Dissent by Judge MICHAEL DALY HAWKINS.

OPINION

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. On those rare occasions, we are bound to follow the Supreme Court’s admonition that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11, 73 S.Ct. 528, 97 L.Ed. 727 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.

I. Background

We begin with the factual and procedural history relevant to this appeal. In doing so, we largely draw upon the three-judge panel’s language in Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949-52 (9th Cir.) (Jeppesen I), rehearing en banc granted, 586 F.3d 1108 (9th Cir.2009). We emphasize that this factual background is based only on the allegations of plaintiffs’ complaint, which at this stage in the litigation we construe “in the light most favorable to the plaintiff[s], taking all [them] allegations as true and drawing all reasonable inferences from the complaint in [their] favor.” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir.2005). Whether plaintiffs’ allegations are in fact true has not been decided in this litigation, and, given the sensitive nature of the allegations, nothing we say in this opinion should be understood otherwise.

A. Factual Background

1. The Extraordinary Rendition Program

Plaintiffs allege that the Central Intelligence Agency (“CIA”), working in concert with other government agencies and officials of foreign governments, operated an extraordinary rendition program to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation by United States or foreign officials. According to plaintiffs, this program has allowed agents of the U.S. government “to employ interrogation methods that would [otherwise have been] prohibited under federal or international law.” *1074Relying on documents in the public domain, plaintiffs, all foreign nationals, claim they were each processed through the extraordinary rendition program. They also make the following individual allegations.

Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[vjirtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

Plaintiff Abou Elkassim Britel, a 40-year-old Italian citizen of Moroccan origin, was arrested and detained in Pakistan on immigration charges. After several months in Pakistani detention, Britel was allegedly transferred to the custody of American officials. These officials dressed Britel in a diaper and a torn t-shirt and shackled and blindfolded him for a flight to Morocco. Once in Morocco, he says he was detained incommunicado by Moroccan security services at the Temara prison, where he was beaten, deprived of sleep and food and threatened with sexual torture, including sodomy with a bottle and castration. After being released and re-detained, Britel says he was coerced into signing a false confession, convicted of terrorism-related charges and sentenced to 15 years in a Moroccan prison.

Plaintiff Binyam Mohamed, a 28-year-old Ethiopian citizen and legal resident of the United Kingdom, was arrested in Pakistan on immigration charges. Mohamed was allegedly flown to Morocco under conditions similar to those described above, where he claims he was transferred to the custody of Moroccan security agents. These Moroccan authorities allegedly subjected Mohamed to “severe physical and psychological torture,” including routinely beating him and breaking his bones. He says they cut him with a scalpel all over his body, including on his penis, and poured “hot stinging liquid” into the open wounds. He was blindfolded and handcuffed while being made “to listen to extremely loud music day and night.” After 18 months in Moroccan custody, Mohamed was allegedly transferred back to American custody and flown to Afghanistan. He claims he was detained there in a CIA “dark prison” where he was kept in “near permanent darkness” and subjected to loud noise, such as the recorded screams of women and children, 24 hours a day. Mohamed was fed sparingly and irregularly and in four months he lost between 40 and 60 pounds. Eventually, Mohamed was transferred to the U.S. military prison at Guantanamo Bay, Cuba, where he remained for nearly five years. He was released and returned to the United Kingdom during the pendency of this appeal.1

Plaintiff Bisher al-Rawi, a 39-year-old Iraqi citizen and legal resident of the United Kingdom, was arrested in Gambia while traveling on legitimate business. Like the other plaintiffs, al-Rawi claims he was put in a diaper and shackles and placed on an *1075airplane, where he was flown to Afghanistan. He says he was detained in the same “dark prison” as Mohamed and loud noises were played 24 hours per day to deprive him of sleep. Al-Rawi alleges he was eventually transferred to Bagram Air Base, where he was “subjected to humiliation, degradation, and physical and psychological torture by U.S. officials,” including being beaten, deprived of sleep and threatened with death. Al-Rawi was eventually transferred to Guantanamo; in preparation for the flight, he says he was “shackled and handcuffed in excruciating pain” as a result of his beatings. Al-Rawi was eventually released from Guantanamo and returned to the United Kingdom.

Plaintiff Farag Ahmad Bashmilah, a 38-year-old Yemeni citizen, says he was apprehended by agents of the Jordanian government while he was visiting Jordan to assist his ailing mother. After a brief detention during which he was “subjected] to severe physical and psychological abuse,” Bashmilah claims he was given over to agents of the U.S. government, who flew him to Afghanistan in similar fashion as the other plaintiffs. Once in Afghanistan, Bashmilah says he was placed in solitary confinement, in 24-hour darkness, where he was deprived of sleep and shackled in painful positions. He was subsequently moved to another cell where he was subjected to 24-hour light and loud noise. Depressed by his conditions, Bashmilah attempted suicide three times. Later, Bashmilah claims he was transferred by airplane to an unknown CIA “black site” prison, where he “suffered sensory manipulation through constant exposure to white noise, alternating with deafeningly loud music” and 24-hour light. Bashmilah alleges he was transferred once more to Yemen, where he was tried and convicted of a trivial crime, sentenced to time served abroad and released.

2. Jeppesen’s Alleged Involvement in the Rendition Program

Plaintiffs contend that publicly available information establishes that defendant Jeppesen Dataplan, Inc., a U.S. corporation, 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 subjected to torture. The complaint asserts “Jeppesen played an integral role in the forced” abductions and detentions and “provided direct and substantial services to the United States for its so-called ‘extraordinary rendition’ program,” thereby “enabling the clandestine and forcible transportation of terrorism suspects to secret overseas detention facilities.” It also alleges that Jeppesen provided this assistance with actual or constructive “knowledge of the objectives of the rendition program,” including knowledge that the plaintiffs “would be subjected to forced disappearance, detention, and torture” by U.S. and foreign government officials.2

B. Summary of the Claims

Plaintiffs brought suit against Jeppesen under the Alien Tort Statute, 28 U.S.C. § 1350, alleging seven theories of liability marshaled under two claims, one for “forced disappearance” and another for “torture and other cruel, inhuman or degrading treatment.” First Am. Compl. ¶¶ 253-66.

With respect to the forced disappearance claim, plaintiffs assert four theories of liability: (1) direct liability for active participation, (2) conspiracy with agents of the *1076United States, (3) aiding and abetting agents of the United States and (4) direct liability “because [Jeppesen] demonstrated a reckless disregard as to whether Plaintiffs would be subjected to forced disappearance through its participation in the extraordinary rendition program and specifically its provision of flight and logistical support services to aircraft and crew that it knew or reasonably should have known would be used to transport them to secret detention and interrogation.” Id. ¶¶ 254-57.

On the torture and degrading treatment claim, plaintiffs assert three theories of liability: (1) conspiracy with agents of the U.S. in plaintiffs’ torture and degrading treatment, (2) aiding and abetting agents of the U.S. in subjecting plaintiffs to torture and degrading treatment and (3) direct liability “because [Jeppesen] demonstrated a reckless disregard as to whether Plaintiffs would be subjected to torture or other cruel, inhuman, or degrading treatment by providing flight and logistical support to aircraft and crew it knew or reasonably should have known would be used in the extraordinary rendition program to transport them to detention and interrogation.” Id. ¶¶ 262-64.

Regarding Jeppesen’s alleged actual or constructive knowledge that its services were being used to facilitate “forced disappearance,” plaintiffs allege that Jeppesen “knew or reasonably should have known that the flights involved the transportation of terror suspects pursuant to the extraordinary rendition program,” that their “knowledge of the objectives of the rendition program” may be inferred from the fact that they allegedly “falsified flight plans submitted to European air traffic control authorities to avoid public scrutiny of CIA flights” and that a Jeppesen employee admitted actual knowledge that the company was performing extraordinary rendition flights for the U.S. government. Id. ¶¶ 16, 17, 56. Similarly, plaintiffs allege that Jeppesen knew or should have known that that torture would result because it should have known it was carrying terror suspects for the CIA and that “the governments of the destination countries routinely subject detainees to torture and other forms of cruel, inhuman, or degrading treatment.” Id. ¶¶ 17, 56. They also rely on U.S. State Department country reports describing torture as “routine” in some of the countries to which plaintiffs were allegedly rendered, and note that Jeppesen claims on its website that it “monitors political and security situations” as part of its trip planning services. Id. ¶¶ 14, 42, 56.

C. Procedural History

Before Jeppesen answered the complaint, the United States moved to intervene and to dismiss plaintiffs’ complaint under the state secrets doctrine. The then-Director of the CIA, General Michael Hayden, filed two declarations in support of the motion to dismiss, one classified, the other redacted and unclassified. The public declaration states that “[disclosure of the information covered by this privilege assertion reasonably could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States and, therefore, the information should be excluded from any use in this case.” It further asserts that “because highly classified information is central to the allegations and issues in this1 case, the risk is great that further litigation will lead to disclosures harmful to U.S. national security and, accordingly, this case should be dismissed.”

The district court granted the motions to intervene and dismiss and entered judgment in favor of Jeppesen, stating that “at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert *1077U.S. military or CIA operations in foreign countries against foreign nationals — clearly a subject matter which is a state secret.” Plaintiffs appealed. A three-judge panel of this court reversed and remanded, holding that the government had failed to establish a basis for dismissal under the state secrets doctrine but permitting the government to reassert the doctrine at subsequent stages of the litigation. Jeppesen I, 579 F.3d at 953, 961-62. We took the case en banc to resolve questions of exceptional importance regarding the scope and application of the state secrets doctrine. See Fed. R.App. P. 35(a)(2).

The government maintains its assertion of privilege on appeal, continuing to rely on General Hayden’s two declarations. While the appeal was pending Barack Obama succeeded George W. Bush as President of the United States. On September 23, 2009, the Obama administration announced new policies for invoking the state secrets privilege, effective October 1, 2009, in a memorandum from the Attorney General. See Memorandum from the Attorney Gen. to the Heads of Executive Dep’ts and Agencies on Policies and Procedures Governing Invocation of the State Secrets Privilege (Sept. 23, 2009) (“Holder Memo”), http://www.justice.gov/opa/ documents/state-secret-privileges.pdf. The government certified both in its briefs and at oral argument before the en banc court that officials at the “highest levels of the Department of Justice” of the new administration had reviewed the assertion of privilege in this case and determined that it was appropriate under the newly announced policies. See Redacted, Unclassified Br. for U.S. on Reh’g En Banc (“U.S. Br.”) 3.

II. Standard of Review

We review de novo the interpretation and application of the state secrets doctrine and review for clear error the district court’s underlying factual findings. Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1196 (9th Cir.2007).

III. The State Secrets Doctrine

The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely. See Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1876). The contemporary state secrets doctrine encompasses two applications of this principle. One completely bars adjudication of claims premised on state secrets (the “Totten bar”); the other is an evidentiary privilege (“the Reynolds privilege”) that excludes privileged evidence from the case and may result in dismissal of the claims.3 See United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). We first address the nature of these applications and then apply them to the facts of this case.

A. The Totten Bar

In 1876 the Supreme Court stated “as a general principle [ ] that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential.” Totten, 92 U.S. at 107 (emphasis added). The Court again invoked the principle in 1953, citing Totten for the proposition that “where the very subject matter of the action” is “a matter of state secret,” an *1078action may be “dismissed on the pleadings without ever reaching the question of evidence” because it is “so obvious that the action should never prevail over the privilege.” Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528. This application of Totten’s general principle — which we refer to as the Totten bar — is “designed not merely to defeat the asserted claims, but to preclude judicial inquiry” entirely. Tenet v. Doe, 544 U.S. 1, 7 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005).

The Court first applied this bar in Tot-ten itself, where the estate of a Civil War spy sued the United States for breaching an alleged agreement to compensate the spy for his wartime espionage services. Setting forth the “general principle” quoted above, the Court held that the action was barred because it was premised on the existence of a “contract for secret services with the government,” which was “a fact not to be disclosed.” Totten, 92 U.S. at 107.

A century later, the Court applied the Totten bar in Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 146 — 47, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981). There, the plaintiffs sued under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., to compel the Navy to prepare an environmental impact statement regarding a military facility where the Navy allegedly proposed to store nuclear weapons. The Court held that the allegations were “beyond judicial scrutiny” because, “[d]ue to national security reasons, ... the Navy can neither admit nor deny that it proposes to store nuclear weapons at [the facility].” Id. (citing Totten, 92 U.S. at 107).

The Court more recently reaffirmed and explained the Totten bar in a case involving two former Cold War spies who accused the CIA of reneging on a commitment to provide financial support in exchange for their espionage services. Relying on “Totten’s core concern” of “preventing the existence of the plaintiffs’ relationship with the Government from being revealed,” the Court held that the action was, like Totten and Weinberger, incapable of judicial review. Tenet, 544 U.S. at 8-10, 125 S.Ct. 1230.4

Plaintiffs contend that the Totten bar applies only to a narrow category of cases they say are not implicated here, namely claims premised on a plaintiffs espionage relationship with the government. We disagree. We read the Court’s discussion of Totten in Reynolds to mean that the Totten bar applies to eases in which “the very subject matter of the action” is “a matter of state secret.” Reynolds, 345 U.S. at 11, n.26, 73 S.Ct. 528. “[A] contract to perform espionage” is only an example. Id. This conclusion is confirmed by Weinberger, which relied on the Totten bar to hold that a case involving nuclear weapons secrets, and having nothing to do with espionage contracts, was “beyond judicial scrutiny.” See Weinberger, 454 U.S. at 146-47, 102 S.Ct. 197; see also Tenet, 544 U.S. at 9, 125 S.Ct. 1230 (characterizing Weinberger as a case applying the Totten bar). Thus, although the claims in both Totten and Tenet were premised on the existence of espionage agreements, and even though the plaintiffs in both Totten and Tenet were themselves parties to the espionage agreements, the Totten bar rests on a general principle *1079that extends beyond that specific context. We therefore reject plaintiffs’ unduly narrow view of the Totten bar and reaffirm our holding in Al-Haramain that the bar “has evolved into the principle that where the very subject matter of a lawsuit is a matter of state secret, the action must be dismissed without reaching the question of evidence.” Al-Haramain, 507 F.3d at 1197. As we explain below, the Totten bar is a narrow rule, but it is not as narrow as plaintiffs contend.

We also disagree with plaintiffs’ related contention that the Totten bar cannot apply unless the plaintiff is a party to a secret agreement with the government. The environmental groups and individuals who were the plaintiffs in Weinberger were not parties to agreements with the United States, secret or otherwise. The purpose of the bar, moreover, is to prevent the revelation of state secrets harmful to national security, a concern no less pressing when the plaintiffs are strangers to the espionage agreement that their litigation threatens to reveal. Thus, even if plaintiffs were correct that the Totten bar is limited to eases premised on espionage agreements with the government, we would reject their contention that the bar is necessarily limited to cases in which the plaintiffs are themselves parties to those agreements.

B. The Reynolds Privilege

In addition to the Totten bar, the state secrets doctrine encompasses a “privilege against revealing military [or state] secrets, a privilege which is well established in the law of evidence.” Reynolds, 345 U.S. at 6-7, 73 S.Ct. 528.5 A successful assertion of privilege under Reynolds will remove the privileged evidence from the litigation. Unlike the Totten bar, a valid claim of privilege under Reynolds does not automatically require dismissal of the case. In some instances, however, the assertion of privilege will require dismissal because it will become apparent during the Reynolds analysis that the case cannot proceed without privileged evidence, or that litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.

Reynolds involved a military aircraft carrying secret electronic equipment. Id. at 3, 73 S.Ct. 528. After the plane crashed, the estates of three civilian observers killed in the accident brought tort claims against the government. In discovery, plaintiffs sought production of the AitForce’s official accident investigation report and the statements of three surviving crew members. The Air Force refused to produce the materials, citing the need to protect national security and military secrets. Id. at 4-5, 73 S.Ct. 528. The district court ordered the government to produce the documents in camera so the court could determine whether they contained privileged material. When the government refused, the court sanctioned the government by establishing the facts on the issue of negligence in plaintiffs’ favor. Id. at 5, 73 S.Ct. 528.

The Supreme Court reversed and sustained the government’s claim of privilege because “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.” Id. at 10, 73 S.Ct. 528. The Court also provided guidance on how claims of privilege should be analyzed and held that, under the circumstances, the district court should have sustained the privilege without even requiring the government to produce the report for in camera review. Id. at 10-11, *108073 S.Ct. 528. The Court did not, however, dismiss the case outright. Rather, given that the secret electronic equipment was unrelated to the cause of the accident, it remanded to the district court, affording plaintiffs the opportunity to try to establish their claims without the privileged accident report and witness statements. Id. at 11, 73 S.Ct. 528.

Analyzing claims under the Reynolds privilege involves three steps:

First, we must “ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied.” Second, we must make an independent determination whether the information is privileged.... Finally, “the ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.”

Al-Haramain, 507 F.3d at 1202 (citation omitted) (quoting El-Masri v. United States, 479 F.3d 296, 304 (4th Cir.2007)). We discuss these steps in turn.

1. Procedural Requirements

a. Assertion of the privilege. “The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party.” Reynolds, 345 U.S. at 7, 73 S.Ct. 528 (footnotes omitted). The privilege “is not to be lightly invoked.” Id. This is especially true when, as in this case, the government seeks not merely to preclude the production of particular items of evidence (as in Reynolds) but to obtain dismissal of the entire action.

To ensure that the privilege is invoked no more often or extensively than necessary, Reynolds held that “[tjhere must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Id. at 7-8, 73 S.Ct. 528 (footnote omitted). This certification is fundamental to the government’s claim of privilege. As we have observed in a different context, the decision to invoke the privilege must “be a serious, considered judgment, not simply an administrative formality.” United States v. W.R. Grace, 526 F.3d 499, 507-08 (9th Cir.2008) (en banc). The formal claim must reflect the certifying official’s personal judgment; responsibility for this task may not be delegated to lesser-ranked officials. The claim also must be presented in sufficient detail for the court to make an independent determination of the validity of the claim of privilege and the scope of the evidence subject to the privilege.

In the present case, General Michael Hayden, then-Director of the CIA, asserted the initial, formal claim of privilege and submitted detailed public and classified declarations. We were informed at oral argument that the current Attorney General, Eric Holder, has also reviewed and approved the ongoing claim of privilege. Although Reynolds does not require review and approval by the Attorney General when a different agency head has control of the matter, such additional review by the executive branch’s chief lawyer is appropriate and to be encouraged.

b. Timing. Plaintiffs contend that the government’s assertion of privilege was premature, urging that the Reynolds privilege cannot be raised before an obligation to produce specific evidence subject to a claim of privilege has actually arisen. We disagree. The privilege may be asserted at any time, even at the pleading stage.

The privilege indisputably may be raised with respect to discovery requests seeking information the government contends is privileged. Courts have repeatedly sustained claims of privilege under those circumstances. See, e.g., Reynolds, 345 U.S. at 3, 73 S.Ct. 528 (document production requests); Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir. 1998) (various discovery requests); Halkin *1081v. Helms, 690 F.2d 977, 985-87 (D.C.Cir. 1982) (interrogatories, document production requests and oral depositions). In addition, the government may raise the privilege to prevent the disclosure of privileged information in a responsive pleading, as it did in Ellsberg v. Mitchell, 709 F.2d 51, 54 & n.6 (D.C.Cir.1983), and Black v. United States, 62 F.3d 1115, 1117-19 (8th Cir.1995). See Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir.1996) (explaining that the contents of an answer may be evidentiary); Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir.1980) (holding that admissions in opposing parties’ pleadings are admissible as evidence).

We also conclude that the government may assert a Reynolds privilege claim prospectively, even at the pleading stage, rather than waiting for an evidentiary dispute to arise during discovery or trial. See, e.g., El-Masri, 479 F.3d at 308 (“[Dismissal at the pleading stage is appropriate if state secrets are so central to a proceeding that it cannot be litigated without threatening their disclosure.”); Black, 62 F.3d at 1117-19 (dismissing the action at the pleading stage based on the government’s assertion of privilege over certain categories of information concerning U.S. intelligence operations); Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281(4th Cir.1980) (en banc) (per curiam); see also Al-Haramain, 507 F.3d at 1201 (recognizing that Reynolds may result in dismissal even without “await[ing] preliminary discovery”). In some cases, the court may be able to determine with certainty from the nature of the allegations and the government’s declarations in support of its claim of secrecy that litigation must be limited or cut off in order to protect state secrets, even before any discovery or evidentiary requests have been made. In such cases, waiting for specific evidentiary disputes to arise would be both unnecessary and potentially dangerous. See Sterling v. Tenet, 41