In Brief – The plaintiffs seek to hold Jeppesen Dataplan accountable for providing aircraft, pilots, and logistical support for CIA rendition flights responsible for transporting detainees to torture. On July 10, 2008, the Brennan Center filed an amicus curiae (or friend of the court brief) in the U.S. Court of Appeals for the Ninth Circuit on behalf of a group of former United States ambassadors and diplomats.
Question Presented – The diplomats’ brief argues that prematurely invoking the state secrets doctrine to deny any judicial forum for allegations of kidnapping and torture compounds the diplomatic harm caused by the rendition program itself and impedes international cooperation in combating terrorism.
Procedural History – Presently in Ninth Circuit awaiting response from U.S. government. Arguments to be scheduled.
In Detail – On July 10, 2008, the Brennan Center filed an amicus curiae (or friend of the court brief) in the U.S. Court of Appeals for the Ninth Circuit on behalf of a group of former United States ambassadors and diplomats in the case of Mohamed v. Jeppesen Dataplan, Inc. This lawsuit was brought in the U.S. District Court for the Northern District of California by five individuals who allege that they were illegally rendered to secret prisons and detention sites where they were tortured by and on behalf of the United States. The plaintiffs seek to hold Jeppesen Dataplan accountable for providing aircraft, pilots, and logistical support for CIA rendition flights responsible for transporting detainees to torture.
In February 2008, the district court granted a motion to dismiss on the basis of the state secrets privilege asserted by the U.S. government, which intervened in the case. The district court concluded that, despite widespread press coverage of the extraordinary rendition program, allowing plaintiffs claims to proceed would necessarily reveal state secrets. On appeal, plaintiffs have persuasively argued that Ninth Circuit and Supreme Court precedents establish that the state secrets doctrine is an evidentiary privilege that may be invoked to exclude certain material during discovery, but may not be used to dismiss a case at the threshold, except in the extreme circumstance in which the entire scope of a classified program is secret.
The diplomats’ brief argues that prematurely invoking the state secrets doctrine to deny any judicial forum for allegations of kidnapping and torture compounds the diplomatic harm caused by the rendition program itself and impedes international cooperation in combating terrorism. The brief catalogs the extensive, ongoing investigations into the extraordinary rendition program undertaken by close U.S. allies throughout Europe, as well as the prosecution of responsible CIA agents currently underway in Germany and Italy. These revelations have severely damaged perceptions of the United States abroad and have made it increasingly difficult for even our allies to cooperate publicly with the United States. In addition to chilling diplomatic relations, the brief demonstrates that concerns over torture and the rendition program have caused the United States’ closest allies—including the United Kingdom—to reduce intelligence cooperation in the fight against terrorism and cancel planned operations when they believed that the United States was likely to send individuals to be tortured. Ultimately, the brief shows that national security concerns lie on both sides of the decision of when and whether to dismiss a case based on the state secrets privilege and should be considered accordingly.
Additional information can be found on the ACLU’s (lead counsel) case page.
Barbara Moses and David Stankiewicz of the law firm Morvillo, Abramowitz, Grand, Iason, Anello, and Bohrer, PC, are co-counsel with the Brennan Center on the brief.