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• IGI Case5:07-cv-02798-JW Document1 Filed05/30/07 Page1 of 46

1 STEVEN M, W ATT* swatt@aclu,org

BEN WIZNER (SBN 215724) bwizner@ac1u,org 2 JAMEEL JAFFER* jjaffer@aclu,org

STEVEN R, SHAPIRO* sshapiro@aclu,org 3 AMERICAN CIVIL LIBERTIES

4

UNION FOUNDATION 125 Broad Street, 18th Floor

5 New York, NY, 10004

TeL 212,549,2500/ Fax 212,549,2651 6

ANN BRICK (SBN 65296) abrick@ac1unc,org 7 ACLU FOUNDATION OF
8 NORTHERN CALIFORNIA 39 Drumm Street
9 San Francisco, CA, 94111
TeL 415,621.2493 / Fax 415,255.1478 10

11

CLIVE STAFFORD SMITH" clivess@mac,com ZACHARY KATZNELSON' (SBN 209489)

12 Zachary@reprieve,org,uk REPRIEVE

13 PO Box 52742

London EC4P 4WS 4 England

,
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5 TeL +44 (0)207 353 4640/ Fax +44 (0)2073534641

16 Additional Counsel Listed on Next Page

17

IN THE UNITED STATES DISTRICT COURT

RS

18

FOR THE DISTRICT OF NORTHERN CALIFORNIA

Division of San Jose 19

20 BlNYAM MOHAMED ABOU ELKASSIM BRITEL
21 AHMEDAGIZA

22

Plaintiffs,

23

v,

24

JEPPESEN DATAPLAN, INC,

26

Defendant,

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Civil Action No.
COMPLAINT DEMAND FOR JURY TRIAL

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1 PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com SCHONBRUN DESIMONE SEPLOW
2 HARRIS & HOFFMAN LLP
732 Ocean Front Walk, Suite 100 3 Venice, CA, 90291 4 Tel. 310.999.7040, ext. 41 Fax 310.999.7040

5 HOPE METCALF* hope.metcalf@yale.edu

NATIONAL LITIGATION PROJECT 6 ALLARD K. LOWENSTEIN INTERNATIONAL

7

HUMAN RIGHTS CLINIC YALE LAW SCHOOL

8 127 Wall Street New Haven, CT, 06520

9 Tel. 203.432.94041 Fax 203.432.9128

10 Attorneys for Plaintiffs BINYAM MOHAMED, ABOU EL KASSIM BRITEL, and

11

AHMEDAGIZA
* Pro Hac admission pending

12 tAttorneys for and on behalf of Plaintiff BINYAM MOHAMED only

13

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I

COMPLAINT

2

INTRODUCTION

3 I. This case arises from Defendant Jeppesen Dataplan, Inc. 's ("Jeppesen")
4 participation in the forced disappearance, torture, and inhumane treatment of Plaintiffs
5 Binyam Mohamed, Abou Elkassim Britel, and Ahmed Agiza by agents ofthe United
6 States and other governments.
7 2. Since at least 2001, Jeppesen has provided direct and substantial services to
8 the United States for its so-called "extraordinary rendition" program, enabling the
9 clandestine and forcible transportation of terrorism suspects to secret overseas detention
10 facilities where they are placed beyond the reach of the law and subjected to torture and
11 other forms of cruel, inhuman, or degrading treatment. Publicly available records
12 demonstrate that Jeppesen facilitated more than 70 secret rendition flights over a four-
13 year period to countries where it knew or reasonably should have known that detainees
14 are routinely tortured or otherwise abused in contravention of universally accepted legal
15 standards.
16 3. On April 10, 2002, Binyam Mohamed, a British resident seeking to return to
17 the United Kingdom from Pakistan, was arrested in Karachi, Pakistan and turned over to
18 agents of the U.S. Federal Bureau ofInvestigation and the Central Intelligence Agency.
19 After four months of interrogation, during which time he was refused access to a lawyer,
20 CIA agents stripped him and dressed him in overalls, blindfolded him, shackled his
21 hands and feet, strapped him to the seat of a plane, and flew him to Rabat, Morocco.
22 4. For the next eighteen months, Mr. Mohamed was secretly detained,

interrogated, and tortured by agents of the Moroccan intelligence services. On January 24
21, 2004, hc was once more stripped, blindfolded, and shackled by agents of the CIA and 25
26 flown to the secret U.S. detention facility known as the "Dark Prison," in Kabul,
Afghanistan. There, Mr. Mohamed was subjected to several more months of detention. 27

28

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interrogation, and torture by U.S. intelligence agents before being transferred to Bagram

2 airbase outside Kabul. In September 2004, Mr. Mohamed was transferred to the Naval

3 Station at Guantimamo Bay, Cuba where he remains.

4

5. On March 10,2002, Abou Elkassim Britel, an Italian citizen, was

5 apprehended by Pakistani police in Lahore, Pakistan. After two months of interrogation,

6 during which time his repeated requests to speak with the Italian consulate were denied,

7 he was turned over to CIA agents who stripped him, dressed him in overalls, blindfolded

8 him, shackled his hands and feet, and flew him to Rabat, Morocco.

9

6. For more than eight months, Mr. Britel was secretly detained, interrogated,

10 and tortured by agents of the Moroccan intelligence services until he was released

11 without charges in February 2003. In May 2003 he was arrested by Moroccan

12 authorities while attempting to return to Italy. In the same month, following a trial that

13 failed to comport with universally recognized fair trial standards, Mr. Britel was

14 sentenced to fifteen years in prison for his alleged involvement in terrorist-related

15 activities. His sentence was subsequently reduced to nine years on appeal.

16

7. On December 18, 2001, Ahmed Agiza, an Egyptian citizen seeking asylum in

17 Sweden, was secretly apprehended by Swedish security police, handed over to agents of

18 the CIA, and then stripped, dressed in overalls, chained, shackled, drugged, and flown

19 from Stockholm to Cairo. There, he was turned over to agents of the Egyptian

20 intelligence services who detained, interrogated, and tortured him.

21

8. For the first five weeks after his arrival in Egypt Mr. Agiza was detained

22 incommunicado. During this time and for some ten weeks thereafter he was repeatedly

23 and severely tortured and denied meaningful access to consular officials, family

24 members, and lawyers. In April 2004, following trial before a military tribunal that

25 failed to comport with universally recognized fair trial standards, Mr. Agiza was

26 convicted and sentenced to twenty-five years in prison for membership in an

_)'7"'

28

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organization banned under Egyptian law. The sentence has since been reduced to fifteen

2 years.

3

9. Plaintiffs Mohamed, Britel, and Agiza were victims of an unlawful program,

4 devised and developed by the CIA. Commonly known as "extraordinary rendition," the

5 program involves the clandestine apprehension and transfer of persons suspected of

6 involvement in terrorist activities to secret detention and interrogation facilities in

7 countries outside the United States, utilizing methods impermissible under U.S. and

8 intemationallaw. The program has been carried out by the CIA with the assistance of

9 U.S.-based corporations that have provided the aircraft, flight crews, and flight and

J0 logistical support necessary for hundreds of international flights.

II

10. In return for undisclosed fees, Jeppesen has played a critical role in the

12 successful implementation ofthe extraordinary rendition program. It has furnished

13 essential flight and logistical support to aircraft used by the CIA to transfer terror

14 suspects to secret detention and interrogation facilities in countries such as Morocco and

IS Egypt where, according to the U.S. Department of State, the use of torture is "routine,"

16 as well as to U.S.-run detention facilities overseas, where the United States government

17 maintains that the safeguards of U.S. law do not apply.

18

II. Jeppesen provided these services to the CIA in connection with the forced

19 disappearances, torture, and other inhumane treatment of Mr. Mohamed, Mr. Britel, and

20 Mr. Agiza. Among other services provided, Jeppesen prepared pre-departure flight

21 planning services, including itinerary, route weather, and fuel plans for both aircraft

22 involved in their renditions; procured necessary landing and overflight permits for all

23 legs of the rendition flights; and through local agents, arranged fuel and ground handling

24 for the aircraft; filed flight plans with national and inter-governmental air traffic control

25 authorities; paid passenger fees for the crew; and made arrangements to secure the safety

26 of the aircraft and crew on the ground.

27

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12. In providing its services to the CIA, Jeppesen knew or reasonably should

2 have known that Plaintiffs would be subjected to forced disappearance, detention, and

3 torture in countries where such practices are routine. Indeed, according to published

4 reports, Jeppesen had actual knowledge of the consequences of its activities. A former

5 Jeppesen employee informed The New Yorker magazine that at an internal board

6 meeting, a senior Jeppesen official stated: "We do all of the extraordinary rendition

7 flights - you know, the torture flights. Let's face it, some of these flights end up that

8 way." Jane Mayer, Outsourced: The C.I.A.·s Travel Agent, The New Yorker, Oct. 30,

9 2006.

10

13. Mr. Mohamed, Mr. Britel, and Mr. Agiza bring tills action against Jeppesen

11 because in providing flight and logistical services to the CIA, the company facilitated

12 and profited from Plaintiffs' forced disappearances, torture, and other inhumane

13 treatment.

14

JURSIDICTION AND VENUE

15

14. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331

16 (federal question); 28 U.S.C. § 1332 (diversity jurisdiction); and 28 U.S.c. § 1350 (Alien

17 Tort Statute).

18

15. Venue is proper pursuant to 28 U.S.C. § 1391(b) (I) and (c).

19

INTRADISTRICT ASSIGNMENT

20

16. This case should be assigned to the San Jose Division of this District

21 because Defendant Jeppesen Dataplan, Inc. has its headquarters in the city of San Jose.

22

PARTIES

17. Plaintiff Binyam Mohamed is an Ethiopian citizen. At the time of his

24 unlawful rendition, Mr. Mohamed was a legal resident of the United Kingdom. Mr.

25 Mohamed is currently imprisoned at Guantimamo.

26

27

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1

18. Plaintiff Abou Elkassim Britel is an Italian citizen. At the time of his

2 unlawful rendition, Mr. Britel was working in Pakistan. Mr. Britel is currently

3 imprisoned at the Ain Bourja prison in Morocco.

4

19. Plaintiff Ahmed Agiza is an Egyptian citizen. At the time of his unlawful

5 rendition, Mr. Agiza, together with his wife and five young children, was living in

6 Sweden, where the family had applied for political asylum and permanent residence. Mr.

7 Agiza is currently imprisoned in the Tora prison complex in Egypt. His wife and

8 children have since acquired refugee status and permanent residence in Sweden.

9

20. Defendant Jeppesen Dataplan, Inc. is a corporation with headquarters in San

10 Jose, California. Jeppesen provides an aviation logistical and travel service operating

11 under the trade name Jeppesen International Trip Planning. Jeppesen is a wholly owned

12 subsidiary of Jeppesen Sanderson, a corporation with headquarters in Englewood,

13 Colorado and with branch offices throughout the world. Jeppesen Sanderson, in tum, is

14 a wholly owned subsidiary of the Boeing Company, a publicly traded corporation with

15 world headquarters in Chicago, Illinois.

16

LEGAL FRAMEWORK

17

2l. The Alien Tort Statute CATS"), 28 U.S.c. § 1350, adopted in 1789, permits

18 aliens to bring suit in United States courts for violations of the law of nations or a treaty

19 of the United States. The ATS recognizes as federal common law those international

20 norms that have definite content and acceptance among civilized nations. Sosa v.

21 Alvarez Machain, 542 U.S. 692 (2004).

22

22. The acts described herein, constituting forced disappearance, torture, and

23 other cruel, inhuman or degrading treatment, are within the body of acts that violate such

24 definite and accepted international norms, as codified in numerous conventions,

25 declarations, and other international instruments, including, inter alia:

26

• United Nations General Assembly, "Declaration on the Protection of All Persons

27

from Enforced Disappearances" (Geneva: United Nations, 1992), A/RES/471133;

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I

• Inter-American Convention on Forced Disappearance of Persons, 33 l.L.M. 1429

2

(1994), entered into force March 28, 1996;

3

• International Convention for the Protection of All Persons from Enforced

4

Disappearance, E/CNAI2005IWG.22IWP.lIRevA (2005);

5

• United Nations Convention Against Torture and Other Cruel, Inhuman or

6

Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR

7

Supp. (No. 51) at 197, U.N. Doc. Al39/51 (1984), entered into force June 26,

8

1987;

9

• Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc. A/810 at

10

71(1948);

II

• International Convention on Civil and Political Rights, G.A. res. 2200A (XXI),

12

21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.

13

171, entered intoforce Mar. 23,1976.

14

23. Accordingly, the challenged conduct falls within the body of acts deemed

15 actionable under the federal common law by the United States Supreme Court in Sosa.

16 Moreover, since Sosa, courts have consistently recognized the existence of complicity

17 liability under the ATS. See, e.g., Cabello v. Fernandez-Larios, 402 F.3d 1148, 1157

18 (11 th Cir. 2005); Bowoto v. Chevron Texaco Corp., 2006 Wl 2455752 *3 (N.D. Cal. 2006);

19 Presbyterian Church o[Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289,321-324

20 (S.D.N.Y.2003).

21

FACTUAL ALLEGATIONS

22 General Facts

23 The United States Extraordinary Rendition Program

24

24. On information and belief, beginning in the early 1990s and continuing to

25 this day, the CIA, together with other U.S. government agencies, has developed an

26 intelligence-gathering program involving the apprehension and transfer of foreign

27 nationals suspected of involvement in terrorism to detention and interrogation in

28

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1 countries where, in the United States' view, federal and international legal safeguards do

2 not apply.

3

25. Suspects are detained at facilities outside U.S. sovereign territory, run by

4 either U.S. or foreign authorities, where they are interrogated by U.S. or foreign

5 intelligence agents. In all instances, detention and interrogation methods that do not

6 comport with federal and internationally recognized standards are employed. The

7 program is commonly known as "extraordinary rendition."

8

26. Testifying before a hearing ofthe Joint House/Senate Intelligence

9 Committee in Octoher 2002, George J. Tenet, then Director of Central Intelligence,

10 described the rendition program as a key counterterrorism tool, and testified that in an

11 unspecified period before September 11, 2001, the United States had undertaken 70 such

12 renditions.

13

27. On information and belief, since the September 11, 2001 attacks, the

14 primary objective of the rendition program, the transfer of suspects to stand trial, has

15 altered significantly and is now aimed at the clandestine apprehension, transfer,

16 detention, and interrogation of foreign nationals suspected of involvement in terrorism

17 outside the United States.

18

28. On information and belief, the extraordinary rendition program serves two

19 discrete functions: it permits agents of the United States to apprehend and detain foreign

20 nationals whom it considers terrorist suspects outside U.S. sovereign territory; and it

21 penuits those agents, either on their own or through counterparts in foreign intelligence

22 agencies, to employ interrogation methods that would be prohibited under federal or

23 international law as a means of obtaining information from suspects.

24

29. Memoranda prepared by the U.S. Department of Justice's Office of Legal

25 Counsel have consistently advanced the position that foreign nationals held at such

26 facilities, outside U.S. sovereign territory, are not protected by the Constitution or by

27 U.S. obligations under international law, and that U.S. officials cannot, therefore, be held

28

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accountable in U.S. courts for actions carried out in relation to such persons. For

2 example, government lawyers have advanced this argument in habeas eorpus

3 proceedings brought on behalf of foreign nationals detained and interrogated at

4 Guantanamo.

5

30. Pursuant to the extraordinary rendition program, foreign nationals suspected

6 of involvement in terrorism have been apprehended and transported to detention and

7 interrogation facilities in Morocco, Egypt, Afghanistan, Syria, Jordan, Guant{mamo, and

8 elsewhere. Of the foreign countries involved, Egypt, in particular, has played a leading

9 role in the extraordinary rendition program. On May IS, 2005, the Egyptian Prime

10 Minister stated publicly that Egypt had assisted the United States in the rendition of 60 to

II 70 terrorist suspects since the September II attacks.

12

31. Since at least 200 I, the press had begun to report on the existence of the

13 program as well as details of its operation. For example, on November 20,2001, the

14 Wall Street Journal published a detailed, front-page investigative story on earlier CIA-

IS orchestrated renditions to torture in Egypt. The article described the 1998 arrests of

16 several Egyptian terrorism suspects in Albania by local authorities at the behest of the

17 CIA, and the use of unmarked "CIA-chartered plane[s]" to send them to Egypt, where

18 they were detained and interrogated under torture. Two of the men were hanged in 2000.

19 The article's authors were explicit about the incident's relevance, arguing that it

20 "illuminates some of the tactical and moral questions that lie ahead in the global war on

21 terrorism. Taking this tight to the enemy will mean teaming up with foreign security

22 services that engage in political repression and pay little heed to human rights."

23 Use of Torture by Moroccan Intelligence Services
24 32. The United States Department of State has long documented the prevalence
25 of torture and other fonns of inhumane treatment in Morocco, particularly for detainees
26 in the custody of the country's security and intelligence services. For instance, State
27

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I Department reports for 2002 and 2003, spanning the years that Plaintiffs Mohamed and

2 Britel were rendered to detention and interrogation in Morocco, noted that members of

3 the security forces "tortured or otherwise abused detainees," while the failure to

4 prosecute such cases "raised concerns regarding the Government's commitment to

5 resolving the problem." The reports also listed several documented killings of prisoners

6 by security personnel. The 2003 report documented that the use of torture by security

7 personnel became even more commonplace following the passage of a new "anti-

8 terrorist" law in May, and that "[a]ttorneys for some persons convicted under the new

9 anti-terrorism law claimed their clients were convicted on the basis of confessions

10 coerced by torture."

II

33. U.N. Human Rights bodies and international non-governmental

12 organizations reported similar findings during this period. For example, in a 2002 report,

13 Amnesty International documented that "scores of detainees were tortured or ill-treated

14 in custody in order to extract confessions or to force them to sign statements which they

15 rejected or denied," and that many of the victims were "Islamists held in secret detention

16 and accused of involvement in or planning violent acts." And, mirroring the State

17 Department report, in 2003, the organization reported "an alarming upsurge in the

18 number of allegations of torture and ill-treatment" over the previous two years and stated

19 that many suspects "were reportedly tortured while held in secret and unacknowledged

20 detention by the Directorate for the Surveillance of the Territory (the internal intelligence

21 service)."

22 Use of Torture by Egyptian Intelligence Services
23 34. In Egypt as well, for well over a decade, the United States Department of
24
State has documented that torture and other forms of inhumane treatment are routine.

These reports make clear that terrorism suspects in the custody of the intelligence
26
services are particularly vulnerable to such treatment. For example, in its 2001 report, 27

28

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1 the State Department noted that "[i]n combating terrorism, the security forces continued

2 to mistreat and torture prisoners, arbitrarily arrest and detain persons, and hold detainees

3 in prolonged pretrial detention." The report noted that "[t]orture takes place in SSIS

4 [State Security Investigations Services] offices, including its headquarters in Cairo, and

5 at CSF [Central Security Forces] camps. Torture victims usually are taken to an SSIS

6 office, where they are handcuffed, blindfolded, and questioned about their associations,

7 religious beliefs, and political views. Torture is used to extract information, coerce the

8 victims to end their antigovernment activities, and deter others from similar activities."

9

35. U.N. Human Rights bodies, as well as international and national non-

10 governmental organizations, including Amnesty International, Human Rights Watch, and

11 the Egyptian Organization for Human Rights, have also documented that since at least

12 1993, the use of torture has become a widespread phenomenon in Egypt and has been

13 especially prevalent among members of the country's intelligence services in cases with

14 national security overtoncs.

15 Use of Torture at U.S. Detention Facilities in Afghanistan
16 36. The existence of U.S.-run detention centers in Afghanistan and elsewhere, as
17 well as the use of torture and other inhumane interrogation techniques by U.S. officials,
18 has been widely reported and documented since at least 2002. News reports from this
19 time revealed that individuals apprehended after September 11,2001, and held by the
20 U. S. at military bases or detention facilities in Afghanistan, were regularly subjected to

illegal interrogation methods, physical abuse, and torture at the hands of U.S. personnel. 22
As early as 2002, Amnesty International released a series of reports into the alleged 23
killings and mistreatment of detainees by U.S. forces in Afghanistan. And, in December, 24
2002 the Washington Post described how "captives are often •softened up' by MPs and
25
U.S. Am1Y Special Forces troops who beat them up and contine them in tiny rooms."
26

27

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1 The Post also reported that "alleged terrorists are commonly blindfolded and thrown into

2 walls, bound in painful positions, subject to loud noises and deprived of sleep."

3

37. In March, 2003, The New York Times also reported extensively on the

4 torture and other inhumane treatment of detainees by U.S. officials, and noted that

5 prisoners at Bagram Air Base were forced to stand naked, hooded, shackled, and

6 immobile for long periods of time and were deprived of sleep for days on end.

7 38. These same reports also disclosed that numerous detainees had died in
8 custody. For example, the New York Times reported in 2003 that two criminal
9 investigations had been launched into the deaths of detainees in Afghanistan. In one of
10 these cases, the death of an Afghan man in U.S. custody, the Times noted that a U.S.
II pathologist had ruled the death to be a homicide. Following the release ofthe Abu
12 Ghraib prison abuse photographs in the spring of 2004, news outlets in the United States
13 and around the world continued to report on the torture and other mistreatment of
14 detainees in U.S. custody in Afghanistan and elsewhere.
15 39. In March 2004, Human Rights Watch released comprehensive findings on
16 the mistreatment of detainees in U.S. detention facilities in Afghanistan and Pakistan
17 between 2003 and 2004, the period during which Plaintiff Mohamed was rendered to
18 detention and interrogation by U.S. forces in Afghanistan. Specifically, Human Rights
19 Watch found that detainees were severely beaten, doused with cold water and subjected
20 to freezing temperatures, forced to stay awake, or to stand or kneel in painful positions
21 for extended periods. Since this time, the widespread torture and abuse of detainees in
22 U.S. custody overseas has been widely reported in media outlets around the world and
23 documented in official U.S. government reports and other publicly available documents,
24 as well as in reports by U.N. Human Rights bodies and international non-governmental
25 organizations.
26

27 Corporate Involvemtmt in the Extraordinary Rendition Program

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40. U.S.-based corporations and their agents have played an integral role in the

2 implementation of the extraordinary rendition program. Some of these corporations have

3 furnished aircraft and personnel to transport persons identified by the United States as

4 potential terrorist threats to detention and interrogation facilities overseas. Other

5 corporations, including Jeppesen, have provided flight and logistical support services to

6 these aircraft and crew.

7

41. The services provided by Jeppesen have been crucial to the functioning of

8 the extraordinary rendition program. Jeppesen operates one of the largest aviation trip-

9 planning services in the world, and, on information and belief, Jeppesen has been one of

10 the main providers of flight and logistical support services to aircraft used in the

II program. On infonnation and belief, Jeppesen had two employees who were

12 "specifically designated" to provide services for the program.

13

42. Jeppesen has provided a number of services essential to all stages of

14 planning and execution of rendition flights:

15

a. In preparation for these flights, it fumished aircraft crew with

16

comprehensive flight planning services, including itinerary, route,

17

weather, and fuel planning. It has assumed responsibility for the

18

preparation of flight plans for rendition flights and, where necessary, filed

19

them in advance of departure with appropriate national and inter-

20

governmental air traffic control authorities, smoothing the way for the

21

renditions. It has established cooperative relationships with virtually

22

every govemment worldwide, allowing it to procure necessary overflight

and landing permits for aircraft involved in the rendition program;

24

b. During flights, Jeppesen has provided en-route, destination, and

departure weather forecasting to ensure the safe passage of aircraft; and,

26

c. Once aircraft have landed, Jeppesen, through its worldwide network of

27

local handling agents, has facilitated essential customs clearance in the

28

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1

countries of operation and made arrangements for ground transportation,

2

catering, and hotel accommodation for aircraft crew, as well as physical

3

security for the aircraft and crew. Jeppesen also has arranged fuel and

4

refueling services as well as maintenance for the aircraft involved.

5 In short, but for the assistance of Jeppesen and other corporations, the extraordinary

6 rendition program could not have gotten off the ground.

7

43. Just as important as the provision of these services, Jeppesen's role as

8 coordinator with virtually all public and private third parties has permitted the CIA to

9 conduct its illegal activities below the radar of public scrutiny and beyond the reach of

10 the rule of law. For example, on information and belief, through its interaction with

11 government officials for procurement of overflight and landing permits for the aircraft,

12 Jeppesen enabled the CIA to sidestep its obligations under the Convention on

13 International Civil Aviation, which requires any aircraft conducting State business to

14 request relevant authorizations from host nations.

15

44. Flight records obtained by a European Parliamentary inquiry and a parallel

]6 investigation by the Council of Europe into CIA activities in Europe, together with other

]7 flight records obtained from national civil aviation authorities in Portugal, Spain, the

18 Netherlands, and Italy in the course of criminal and journalistic investigations in those

19 countries, reveal that over a four-year period, beginning on or around December 16,

20 2001, Jeppesen provided flight and logistical support to at least 15 aircraft which made a

21 total of 70 flights. The European Parliament and the Council of Europe concluded that

22 all of these flights were made in the context of the extraordinary rendition program.

23

45. Among the 15 aircraft serviced by Jeppesen are a Gulfstream V aircraft

24 fonnerly registered with the Federal Aviation Administration ("FAA") as N379P, and a

25 Boeing-737 aircraft formerly registered with the FAA as N3J3P. On information and

26 belief, Jeppesen provided flight and logistical services for all of the CIA flights for these

27 two aircraft involving the rendition of terror suspects.

13

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46. More specifically, based upon flight logs and other corroborating evidence,

2 both the European Parliament and Council of Europe concluded that these two aircraft

3 were involved in at least six specific rendition flights carried out by the CIA:

4

• On December 18, 2001, the Gulfstream V aircraft was used to transport

5

Plaintiff Agiza and another Egyptian citizen, Mohammed El-Zery, from

6

Sweden to Egypt.

7

• On May 24, 2002, the Gulfstream V aircraft was used to transport

8

Plaintiff Abou Elkassim Britel from Islamabad, Pakistan to Rabat,

9

Morocco.

10

• On July 21, 2002, the Gulfstream V aircraft was used to transport Plaintiff

II

Binyam Mohamed from Islamabad to Rabat.

12

• On December 9, 2002, the Gulfstream V aircraft was used to transport

13

Bisher AI Rawi, an Iraqi citizen and legal resident of the United

14

Kingdom, and Jamil Al Banna, a Jordanian citizen who had been granted

15

asylum and permission to reside in the United Kingdom, from Banjul,

16

Gambia to Kabul, Afghanistan. Flight logs show that this aircraft

17

departed Banjul at 9:45 p.m. on December 8, 2002, landed in Cairo the

18

next morning at 3:45 a.m., and later that morning at 4:45 a.m. flew from

19

Cairo to Kabul, arriving there at 9:04 a.m. In Afghanistan the men were

20

detained and interrogated under torture by agents of the United States

21

government, first at the notorious "Dark Prison," and then at the Bagram

22

Air Base. In January 2003, both men were flown to Guantanamo. Mr. AI

Rawi was returned to the United Kingdom on March 29, 2007, where he

24

was released without charge. Mr. Al Banna remains incarcerated.

25

• On January 22,2004, the Boeing-737 aircraft was used to transport

26

Plaintiff Binyam Mohamed from Rabat, Morocco to a U.S. detention

facility in Afghanistan.

28

14

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page17 of 46

1

• On January 24, 2004, the same Boeing-737 aircraft was used to transport

2

German citizen Khaled El-Masri from Skopje, Macedonia to Kabul,

3

Afghanistan. Flight logs show that this aircraft departed Skopje at 1:30

4

a.m. on January 24,2004, landed in Baghdad at 5:53 a.m., and later that

5

morning at 7:15 a.m. flew from Baghdad to Kabul, arriving there at 11:14

6

a.m. In Afghanistan Mr. El Masri was detained and interrogated under

7

torture at the secret U.S.-run "Salt Pit" detention facility for more than

8

four months before he was released in Albania. The investigation by the

9

Council of Europe found that Mr. EI Masri's rendition was part of the

10

same, single-flight circuit as that ofMr. Mohamed.

11

47. On information and belief, the originator code on all these flight records

12 reveals that Jeppesen was responsible for filing pre-departure flight plans with

13 appropriate national and inter-governmental air traffic control authorities in each of these

14 renditions. On information and belief, Jeppesen also provided all other flight and

15 logistical support to the aircraft and crew, including, inter alia, compilation of itinerary,

16 route, weather, and fuel plans; providing weather forecasting both pre-departure and en-

17 route; procuring over-flight and landing permits; and, through its local ground handling

18 agents, providing customs clearance, ground transportation, catering, and hotel

19 arrangements for air crew and security for both the aircraft and crew.

20

48. In coordinating these flights, Jeppesen knew or reasonably should have

21 known that the flights involved the transportation of terror suspects pursuant to the

22 extraordinary rendition program and that the governments of the destination countries

23 routinely subject detainees to torture and other forms of cruel, inhuman, or degrading

24 treatment. Indeed, Jeppesen states on the website for its "International Trip Planning"

25 division that, among other services, the company "monitors political and security

26 situations" and provides "[fJull background on the political state of affairs in destination

27 countries so you know the lay of the land, before you land."

28

15

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• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page18 of 46

1 Specific Allegations Bv Plaintiffs

2 Background Information on Plaintiff Binyam Mohamed

3

49. PlaintiffBinyam Mohamed is a 28 year-old Ethiopian citizen. In 1994, Mr.

4 Mohamed, who had fled Ethiopia with his family, came to the United Kingdom where he

5 sought political asylum. While his asylum application was pending, he was granted

6 leave to remain in the country and remained there for seven years.

7

50. In the summer of2001, Mr. Mohamed traveled to Afghanistan to escape

8 from a social life in London where he had suffered a drug problem. When the U.S.-led

9 coalition invaded Afghanistan, he left that country for Pakistan, planning to return to the

10 United Kingdom.

II Detention, Interrogation and Torture in Pakistan

12

51. On April 10, 2002, Mr. Mohamed, while attempting to leave Pakistan and

13 return to the United Kingdom, was arrested by Pakistani officials at Karachi airport on

14 immigration charges. He was taken by Pakistani officials to a detention facility where he

15 was interrogated by agents of the FBI and British intelligence. His numerous requests to

16 speak to a lawyer were denied, and while detained and interrogated he was badly abused

17 by Pakistani security personnel.

18

52. During his detention, Mr. Mohamed was repeatedly interrogated about Al

19 Qaeda and his association with that organization. He was accused of being a high-

20 ranking member of AI Qaeda, although an agent for the FBI would later admit in a sworn

21 affidavit, that he was not a member at all.

22

53. On July 19, 2002, escorted by two Pakistani officials, Mr. Mohamed was

23 flown from Karachi to Islamabad. When the aircraft landed, he was handcuffed and

24 taken by bus to a pick-up truck, and then placed in a cell where he was detained until

25 July 21, 2002.

26 Efforts made by Mr. Mohamed's Family to Locate Him

27

28

16

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page19 of 46

1

54. In June or July 2002, after Mr. Mohamed's initial detention and

2 interrogation in Pakistan by U.S. and British officials, Mr. Mohamed's brother and sister,

3 both of whom reside in the United States, were visited by FBI officers.

4

55. These officers asked them various questions about Mr. Mohamed, but

5 because neither of them had seen or heard from him for some time, they were unable to

6 assist. Mr. Mohamed's siblings asked the officers if they knew where their brother was,

7 and the officers replied that he might be in the custody ofthe Pakistani government and

8 that if they wanted to inquire further, they should take matters up with Pakistani

9 consulate in New York.

10

56. Mr. Mohamed's siblings inquired with the Pakistani consulate about Mr.

11 Mohamed's whereabouts but to no avail. His sister also contacted one of the FBI

12 officers who had visited with her to ask ifhe had any information about Mr. Mohamed's

13 whereabouts. She called and spoke with him approximately ten times from July 2002 to

14 December 2003, when the officer told her to stop calling him and to call the Pakistani

15 consulate again.

16 Rendition to Morocco

17

57. On July 21, 2002, Mr. Mohamed was taken to what appeared to him to be a

18 military airport near Islamabad. He was left waiting for about two hours before being

19 turned over to the exclusive custody and control of U.S. officials.

20

58. At the airport, several Americans dressed in black, wearing masks and work

21 boots, stripped Mr. Mohamed of all his clothes. He was photographed and subjected to

22 an anal cavity search. Mr. Mohamed was then dressed in a tracksuit, shackled,

23 blindfolded, and forced to wear earphones.

24

59. Mr. Mohamed and two other prisoners were bundled on board an aircraft.

25 For the duration of the eight to ten hour flight that followed, Mr. Mohamed remained

26 unable to move. Early the next morning, July 22, 2002, the aircraft landed in Rabat,

Morocco.

28

17

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page20 of 46

60. Flight records show that on July 21, 2002, a Gulfstream V aircraft,

2 registered with the FAA as N379P, left Islamabad at 5:35 p.m. and arrived in Rabat,

3 Morocco at 3:42 a.m. the following day. Upon information and belief, Jeppesen

4 provided the flight and logistical support necessary to secure the aircraft's safe passage

5 from Islamabad to Rabat.

6 Detention, Interrogation, and Torture in Morocco

7

61. Between July 2002 and January 2004, Mr. Mohamed was detained,

8 interrogated, and tortured at a series of detention facilities in Morocco.

9

62. Mr. Mohamed was subjected to severe physical and psychological torture.

10 He was routinely beaten, suffering broken bones and, on occasion, loss of consciousness

11 due to the beatings. His clothes were cut off with a scalpel and the same scalpel was

12 then used to make incisions on his body, including his penis. A hot stinging liquid was

13 then poured into open wounds on his penis where he had been cut. He was frequently

14 threatened with rape, electrocution, and death.

15

63. Mr. Mohamed was handcuffed, fitted with earphones, and forced to listen to

16 extremely loud music day and night, sometimes interrupting his sleep for forty-eight

17 hours at a time. He was placed in a damp, moldy room with open sewage for a month at

18 a time. He helieved his food to be drugged, but when he refused to eat he was forcibly

19 hooked up to two different IVs. These IVs alternated pumping different substances into

20 his body, the combination of which forced him to undergo painful withdrawal symptoms.

21 In the end, Mr. Mohamed decided to return to eating solid food.

22

64. Under constant threat of torture, Mr. Mohamed continued to be interrogated

23 about Al Qaeda and suspected Al Qaeda members. He was told that the U.S. wanted a

24 story from him and that he had to prepare to testify against individuals then in U.S.

25 custody, including Jose Padilla, Khalid Sheikh Mohammed, Abu Zubaydah, and Ibn

26 Shiekh Al Libi. He was told to repeat, that he was a top Al Qaeda operative, that he had

27

28

18

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page21 of 46

met with Osama Bin Laden and twenty-five other Al Qaeda leaders on multiple

2 occasions, and that he had told Bin Laden about places that should be attacked.

3 Rendition to Afghanistan

4

65. On January 21,2004 - approximately eighteen months after he was

5 unlawfully rendered to Morocco - Mr. Mohamed was again handcuffed, blindfolded,

6 placed in a van, and driven for approximately thirty minutes. He was then placed in a

7 room with two other prisoners.

8

66. After two hours Mr. Mohamed heard an aircraft and American-accented

9 English. His blindfold was removed. Five U.S. agents dressed in black and grey,

10 wearing masks and work boots, entered the room. Once again, Mr. Mohamed's clothing

11 was cut off and he was photographed. This time, due to the extent of his injuries, the

12 picture taking process required approximately thirty minutes to complete. Later, in

13 Afghanistan, additional photographs were taken and Mr. Mohamed was informed that

14 the pictures were necessary "to show Washington" that his wounds were healing.

15

67. Flight records show that on January 22, 2004, a Boeing-737 aircraft,

16 registered with the FAA as N3l3P, left Rabat, Morocco at 2:05 a.m. and alTived in

17 Kabul, Afghanistan at 9:58 a.m. that same day. The Council of Europe concluded, based

18 on these documents and other cOlToborating evidence, that this same aircraft was used by

19 the CIA in the transportation and rendition of Gennan citizen Khaled El-Masri from

20 Skopje, Macedonia to Kabul, Afghanistan only two days later. And, on information and

21 belief, Jeppesen provided flight and logistical support services for this itinerary.

22

68. After the aircraft landed in Kabul, Mr. Mohamed was removed from the

23 aircraft, put in a truck, and driven along a dirt track until he reached the U.S.-run prison,

24 commonly known as the "Dark Prison." ~y) Detention, Interrogation, and Torture in Kabul, Afghanistan

26

69. Upon his alTival at the "Dark Prison," Mr. Mohamed's captors repeatedly hit

27 his head against the wall until he began to bleed. He was then thrown into a tiny cell

28

19

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page22 of 46

1 measuring barely more than two meters in either direction. He was chained to the floor,

2 leaving him little room to maneuver. Despite the extreme cold, he was given only shorts

3 and a thin shirt to wear and a single blanket as thin as a sheet for wannth.

4

70. At first, Mr. Mohamed was kept in near-pennanent darkness. His eell was

5 pitch black for twenty-three hours a day. There was a bucket in the corner for his toilet,

6 but it was difficult to use in the dark without spilling the contents all over his only

7 blanket. During the four months he was held in Kabul, the periods of darkness were

8 gradually reduced to twelve hours a day.

9

71. On his first day in the "Dark Prison," Mr. Mohamed was hung from a pole

10 in his cell. On his second day, he was allowed only a few hours sleep and then hung up

11 again. By the time he was next taken down - two days after that - his legs were

12 swollen and his wrists and hands had gone numb. Over the following weeks, loud

13 music, the sounds of "ghost laughter," thunder, aircraft taking oft: the screams of women

14 and children, and other frightening and irritating sounds were piped into his cell twenty-

15 four hours a day. To ensure that sleep was difficult, if not impossible, masked guards

16 would visit the cells throughout the night and make loud noises.

17

72. For the duration of his detention in Afghanistan, Mr. Mohamed was fed raw

18 rice, beans, and bread, sparingly and irregularly. He was weighed every other day and in

19 four months he lost between forty and sixty pounds. Initially, Mr. Mohamed was not

20 pennitted to shower, and when he eventually was, it was only rarely. He was seldom

21 given adequate clothing.

22

73. From the outset, Mr. Mohamed was subjected to intense interrogation at all

times of the day and night. His interrogations took place on almost a daily basis until he

24 left the facility. As part of the interrogation process he was shown pictures of Afghanis

25 and Pakistanis and was interrogated about the story behind each picture. Although Mr.

26 Mohamed knew none of the persons pictured, he would invent stories about them so as

27 to avoid further torture.

28

20

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page23 of 46

1

74. At one point, a group of American agents dressed from head to toe in black

2 came to him with a story. He was told that "Washington" wanted him to recount how he

3 had stolen parts for what they called a "dirty bomb" and how he had built it with Jose

4 Padilla in New York. Mr. Mohamed did not know what a "dirty bomb" was and could

5 not understand what they were talking about. He tried to repeat the story as he had been

6 instructed. One time, when he got the details wrong he was chained in a seated position

7 in his cell with his anus suspended over his head for several days.

8

75. In May 2004, Mr. Mohamed was allowed outside for five minutes. It was

9 the first time he had seen the sun in two years.

10 Transfer to Bagram Air Base and to Guantanamo

11

76. In late May 2004, Mr. Mohamed was blindfolded and forced to wear

12 earphones. He was tied together with a group of prisoners and they were thrown into

13 what he sensed was a helicopter. After a twenty to thirty minute flight he landed at what

14 he eventually learned was Bagram Air Base.

15

77. Processing at Bagram lasted for many hours and was not completed until the

16 early hours of the morning. During this time Mr. Mohamed remained tied, blindfolded,

17 and wearing earphones, and was not allowed to pray or use the bathroom. He was not

18 given a blanket or mat for two days, after which he was given just a blanket.

19

78. At Bagram, Mr. Mohamed was told that he was going to be transferred to

20 Guantimamo and would be tried immediately upon his arrival. He was forced to write a

21 twenty-page statement that detailed his relationship with Jose Padilla, how they went to

22 Afghanistan together, and how they planned to go to the United States to detonate a dirty

23 bomb.

24

79. Sometime in late Mayor June 2004, Mr. Mohamed met with a

representative of the International Committee of the Red Cross (ICRC).

26

80. Mr. Mohamed was held at Bagram until he was transferred in September

27 2004 to Guantanamo, where he was charged under the President's Military Order with

28

21

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page24 of 46

1 conspiracy. These charges were subsequently dropped after the military commission

2 system was declared unlawful by the U.S. Supreme Court. Mr. Mohamed remains

3 incarcerated at Guantanamo.

4

81. In early 2005, the ICRC notified Mr. Mohamed's siblings that he was

5 detained at Guantanamo.

6 Backgrouud Information on Plaintiff Abou Elkassim Britel

7

82. Plaintiff Abou Elkassim Brite! is a 40 year-old Italian citizen of Moroccan

8 descent. Mr. Britel immigrated to Italy from Morocco in 1989 and in October 1995

9 married an Italian woman, Anna Lucia Pighizzini. In 1999, Mr. Brite! was naturalized.

10

83. After immigrating to Italy, Mr. Brite! initially worked at a poultry shop

II before qualifying as an electrician in January 1996.

12

84. In 2000, Mr. Britel and his wife began translating Islamic books and texts

13 from Arabic to Italian. They set up a webpage "Islamiqra," on which they published

14 these translations as well as topical commentaries aimed at supporting the understanding

15 and spread ofIslam.

16

85. On June 17,2001, Mr. Britel traveled on a visa from his home in Bergamo,

17 Italy to Iran in order to seek financing to support his and his wife's translation work and

18 to conduct further research on Islamic issues. From there, Mr. Brite! traveled to

19 Pakistan, for the same professional reasons.

20 Detention, Interrogation, and Torture in Pakistan

21

86. On March 10, 2002, Mr. Britel was apprehended by agents of the Pakistani

22 police on immigration charges and detained and interrogated by them at a facility in

23 Lahore, Pakistan, known as "Garden Town." Following his initial apprehension and

24 continuously thereafter, Mr. Britel asserted his Italian citizenship and requested that he

25 be afforded legal representation and assistance from the Italian Embassy. These requests

26 were denied.

27

28

22

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page25 of 46

1

87. Throughout his detention and interrogation in Pakistan, Mr. Britel was

2 physically and psychologically tortured. His interrogators beat him severely, sometimes

3 with a cricket bat, and accused him of being a "terrorist fighter." Mr. Britel's hands and

4 feet were bound and he was hung from the walls or ceiling of his cell for extensive

5 periods of time. He was denied access to a toilet. His interrogators threatened to rape

6 the women in his family and frequently told him that he would be subjected to worse

7 torture and even death.

8

88. In April, 2002, following fainting spells brought on by continued beatings

9 and extreme sleep deprivation, Mr. Britel eventually succumbed and confessed to what

10 his interrogators had been insisting from the outset, that he was a terrorist. Soon

11 thereafter, Me Britel was brought before U. S. officials who fingerprinted and

12 photographed him. They told him his Pakistani interrogators would kill him ifhe did not

13 cooperate.

14

89. On May 5, Mr. Britel was brought from the detention facility in Lahore to

15 the headquarters of Pakistani intelligence services in Islamabad. On four separate

16 occasions he was blindfolded and taken from this facility to a house where he was

17 interrogated by agents of U.S. intelligence services. During these interrogations, which

18 focused on Mr. Britel's alleged association with Osama Bin Laden, his repeated requests

19 to contact the Italian Embassy were again denied.

20

90. At his tinal interrogation session, Mr. Britel was introduced to a U.S. official

21 by the name of "David Morgan." Mr. Morgan told Mr. Brite! that he had been tasked

22 with writing a profile on him for "Washington." Mr. Morgan asked him a number of

23 questions about his life, filling out a form with the answers. Mr. Britel reiterated his

24 request for a meeting with the Italian embassy but once more his request was denied.

25 Instead, Mr. Morgan told him he could meet with the Moroccan ambassador. This

26 meeting never occurred.

27

28

23

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page26 of 46

91. Shortly thereafter, Mr. Britel was told by one of his captors that he would

2 soon be released and allowed to return to Italy.

3 Rendition to Morocco

4

92. On the night of May 24, 2002, Mr. Britel was handcuffed, blindfolded, and

5 taken by car to an airport somewhere on the putskirts of the city. After approximately

6 one half hour, someone grabbed him from behind and held him so tightly around the

7 neck that he thought he would suffocate. Mr. Britel was escorted to what he later

8 discovered to be a bathroom where his clothes were cut off with a box cutter. At one

9 point his blindfold was removed and he saw four or five men dressed in black from head

10 to toe, with only their eyes showing. These men examined and photographed Mr. BriteJ

II and then dressed him in a diaper and a torn t-shirt. Mr. Britel was blindfolded again and

12 placed in a metallic slip which was chained to the shackles that bound his hands and feet.

13

93. Mr. Britel was dragged on to an aircraft and forced to lie down on his back.

14 Shortly thereafter, he heard another passenger being brought on board. Mr. Britel was

15 ordered not to move from his position on the floor of the aircraft; when he did move, he

16 was hit or kicked. During the flight his back began to hurt and he asked permission to

17 turn over, but he was refused. Tape was placed over his mouth instead. He was left like

18 this until the plane landed, when his handcuffs were removed and replaced with tight

19 plastic bands. He was denied permission to go to the bathroom for the entire duration of

20 the flight.

21

94. Flight records show that on May 23, 2002, a Gulfstream V aircraft,

22 registered with the FAA as N379P, departed from Washington D.C. at 12:45 a.m. and

23 arrived at Frankfurt, Germany at 7:39 a.m. before taking off at 10:08 a.m. that same

24 morning for Dubai, United Arab Emirates, arriving there at 4: 10pm. At 9:05 a.m. on

25 May 24, the same aircraft departed from Islamabad at 9:05 p.m. and arrived in Rabat,

26 Morocco at 7:03 a.m. the following day. Less than an hour later, at 7:58 a.m., the aircraft

27 departed Rabat for Porto, Portugal, where it remained overnight before departing Porto at

28

24

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page27 of 46

1 8 a.m. the next morning for Washington D.C., arriving there on May 26,2002 at 3:09

2 p.m. Upon infonnation and belief, Jeppesen provided all the flight and logistical support

3 services necessary to secure the aircraft's safe passage from the United States to

4 Germany, from Germany to Dubai, Dubai to Pakistan, Pakistan to Morocco, and

5 Morocco via Portugal to the United States.

6

95. Following his arrival in Rabat, U.S. officials transferred Mr. Brite1 to the

7 custody of agents of the Moroccan intelligence services who took him to the notorious

8 Temara prison.

9 Detention, Interrogation, and Torture in Morocco: May 2002 - February 2003

10

96. At the Temara prison, Mr. Britel was cut off entirely from the world for

1I nearly eight and a half months. He was denied access to family, friends, counsel, and the

12 Italian consulate. Not once was he pennitted outside the four walls of the prison. He

13 was held in total isolation in a tiny cell, deprived of both sleep and adequate food. He

14 was forced to undergo intensive interrogations about his private life and the people he

15 associated with in Italy and pressured to act as an infonnant.

16

97. While being interrogated, Mr. Britel was kept handcuffed and blindfolded

17 and then beaten severely on all parts of his body. He was threatened with worse torture,

18 including cutting of his genitals and a technique routinely used in Morocco called "bottle

]9 torture," whereby a bottle is forced into the detainee's anus. Threats were also made by

20 his interrogators against his wife and sisters.

21

98. From the moment of his disappearance, Mr. Britel's family had no idea of

22 his whereabouts. On June 7, 2002 - after Mr. Britel had been unlawfully rendered to

Morocco - Mr. Britel's brother, based in Italy, received a phone call from a man

24 claiming that he had been detained with Mr. Britel in Islamabad. It was not until January

25 2003, when a Moroccan official visited Mr. Britel's mother and sister in Morocco, that

26 any member of his family was made aware of his whereabouts.

27

28

25

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page28 of 46

1

99. On February 11,2003, Mr. Brite! was released from the Temara prison-

2 without any explanation and without any charges brought against him. He was

3 blindfolded, driven from the facility to his family's house in Kenitra, Morocco, and

4 immediately released.

5

100. On February 26, 2003, Mrs. Brite! arrived in Morocco and saw her

6 husband for the first time in over eighteen months. Mr. Brite! exhibited both physical

7 and psychological signs of his torture. He suffered from dizziness and chronic diarrhea,

8 and his left eye and ear were permanently damaged. Mrs. Brite! also noticed that large

9 portions of his skin had turned black and blue and that no hair grew in these areas.

10

101. Agents of the Moroccan intelligence services continued to harass Mr.

11 Britel after his release, insisting that he tell nobody about his imprisonment in the

12 Temara prison. An officer would call and meet with him at least once a week, pushing

13 him to agree to collaborate with Moroccan intelligence upon his return to Italy. Under

14 this constant pressure, Mr. Britel remained in a fragile psychological state.

15

102. Fearful for the safety of himself and his family, Mr. Britel attempted to

16 return home immediately to Italy with his wife, but his plans suffered numerous

j 7 administrative hurdles and delays. His Italian passport had been confiscated in Pakistan

18 and he was unable to freely leave Morocco and enter Italy.

19

103. After several months, on May 12, 2003, Mr. Britel tinallyreceived travel

20 documentation from the Italian embassy authorizing him to enter Italy. The permission

21 was valid through May 24, 2003. Fearful oftraveling to the airport without an escort

22 from the embassy, Mr. Britel explained to embassy officials that he would travel to Italy

23 over-land through Melilla, a town on the border between Morocco and Spain. Because

24 Mrs. Britel had already purchased a ticket on a return flight to Italy, Mr. and Mrs. Britel

25 decided that she would travel by plane as soon she heard that Mr. Britel had safely made

26 it across the Moroccan border.

28

26

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page29 of 46

104. That same day, Mr. Britelleft his home and took a bus towards the

2 Moroccan border town of Nador. Concerned about whether the documentation he had

3 would suffice to allow him to leave Morocco and enter Italy, Mr. Britel called his wife

4 and family multiple times over the course of his journey. The last time his family heard

5 from him was May 15,2003.

6

105. On May 16, Casablanca was bombed in a suspected terrorist attack.

7 When Mr. Britel reached Melilla he was stopped at the border and detained for six hours

8 without any explanation. He was then handcuffed, forced into a car, and driven to the

9 Temara prison. On May 17, 2003, the day after the bombing in Casablanca, Mrs. Britel

10 received news that an Italian of Moroccan descent had been arrested in the town of

! I Melilla.

12

106. This time Mr. Britel was held incommunicado at Temara for four months.

13 He was held in inhumaue conditions throughout this time and, eventually, under duress,

14 Mr. Britel signed a confession that he was never permitted to read.

15

107. On September 16, 2003, Mr. Britel was tried for terrorist activities in

16 Morocco. Mrs. Britel arrived in Morocco on September 28 and visited him at the Sale

17 prison, near Rabat, where he was now held. Mr. Britel was extremely thin and Mrs.

18 Britel could see that his wrists bore deep marks from his handcuffs.

19

108. On October 2,2003, Mr. Britel was convicted and sentenced to fifteen

20 years for involvement in terrorist activities. As an observer from the Italian embassy

21 who attended the trial noted, the procedures followed failed to comport with universally

22 accepted fair trial standards. In particular, the observer noted that in convicting Mr.

23 Brite!, the court relied upon the confessions he made while he was interrogated under

24 torture at the Temara prison. On appeal, Mr. Britel's sentence was reduced to nine years

25 imprisonment.

26

109. Mr. Britel remains incarcerated at the Ain Bourja prison in Casablanca.

Eighty-seven members of the Italian Parliament have petitioned the President of

28

27

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• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page30 of 46

1 Morocco to have Mr. Britel pardoned, released from prison, and immediately returned to

2 Italy. To date these efforts have been unsuccessful. Mr. Britel continues to be subjected

3 to harsh treatment and abuse inside the prison.

4

110. On September 29, 2006, following a six-year criminal investigation in

5 Italy into Mr. Britel's suspected involvement in terrorist activities, the examining judge

6 dismissed the prosecution case, finding a complete lack of any evidence linking Mr.

7 Brite! with any criminal, let alone terrorist-related, activity.

8 Background Information on Plaintiff Ahmed Agiza

9

111. Plaintiff Ahmed Hussein Mustafa Kamil Agiza is a 45 year-old Egyptian

10 citizen who is a licensed pharmacist. Mr. Agiza married his wife, Hanan Attia, in 1986.

11 Together they have fIve children.

12 112. In 1982, Mr. Agiza was arrested, detained, and interrogated under torture
13 by Egyptian security police because they suspected that his cousin had been involved in
14 the assassination of President Anwar Sadat. Following his release, Mr. Agiza was
15 continually threatened and harassed by the security police.
]6
113. In 1991, Mr. Agiza tiled a damages action against the Egyptian 17
government for the torture he had suffered in 1982. His lawyers were harassed and 18
arrested for filing the suit. Fearing for his own safety and that of his family, Mr. Agiza 19
fled the country with his wife and children, first to Saudi Arabia and then to Pakistan, 20
where they remained for a short period. In an attempt to escape the Middle East and seek 21
asylum in Europe, Mr. Agiza and his family traveled to Syria, and when that plan failed
22
they moved to Iran. In Iran, Mr. Agiza was granted a scholarship to study phannacy at 23
the University of Teheran. 24

25

114. In 1999, Mr. Agiza was tried and convicted in absentia before an

26 Egyptian military tribunal for alleged membership in "AI Gihad," a banned organization.

27

28

28

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In April 1999, he was convicted and sentenced to twenty-five years imprisonment with

2 hard labor and without the possibility of appeal.

3

115. Early in 2000, concerned that improving relations between Egypt and Iran

4 might result in his expulsion back to Egypt, Mr. Agiza decided to flee Iran with his

5 family and seek asylum in the United Kingdom. Because he could not get visas to travel

6 to the U.K., he purchased tickets to Canada. On September 23,2000, during a transit

7 stop through Stockholm, Mr. Agiza and his family decided to seek asylum in Sweden

8 instead.

9 116. Mr. Agiza made a joint application for asylum on his own behalf and on
10 behalf of his family. The application was predicated on Mr. Agiza's fear of arbitrary
11 arrest, detention, and torture should he be returned to Egypt, and his desire to keep his
12 family unified.
13
117. The Swedish Migration Board considered Mr. Agiza's application for 14
asylum and permanent residence. In its assessment, the Board considered that Mr. Agiza 15
was at risk oftorture or other ill-treatment should he be returned to Egypt and that he 16
was therefore in need of protection. However, because of Mr. Agiza's background, and 17
his in absentia conviction, the Board referred the matter to the Swedish Security Police 18
for their assessment. 19

20 From Asylum to Rendition

21

118. In its assessment, the Security Police considered secret evidence that Mr.

22 Agiza was given no opportunity to rebut. At the conclusion of their review, the Security

23 Police recommended that Mr. Agiza, together with his family, be denied a permanent

24 residence permit for "security reasons."

25

119. Because of this assessment, the Migration Board, while of the view that

26 Mr. Agiza and his family were in need of protection, referred the matter to the Swedish

27 government for determination. Under the statute then in force, the government was

28

29

COMPLAINT

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1 authorized to make a first and final decision whether to grant permanent residence to an

2 applicant if the Migration Board considered the case to be a "security case" regardless of

3 its assessment of the need for protection.

4

120. On December 18, 2001, the Swedish government determined that

5 although Mr. Agiza had demonstrated a well-founded fear of persecution if returned to

6 Egypt, he should be excluded from refugee status on national security grounds and

7 immediately expelled. The evidence upon which the government relied in reaching its

8 determination was not disclosed to Mr. Agiza or to his appointed attorney.

9 121. Earlier that same day, before the expulsion order was executed, an
10 unnamed Swedish police officer met with two U.S. Embassy officials at Bromma Airport
11 on the outskirts of Stockholm to discuss the removal of Mr. Agiza and his family from
12 Sweden to Egypt. At this time the parties knew that the Swedish government would
13 order Agiza' s expulsion. During this meeting, on information and belief, the
14 arrangements for Mr. Agiza's expulsion were made. Specifically, it was agreed that
15 Swedish Security Police would be responsible for apprehending Mr. Agiza and turning
16 him over to agents of the United States who, in tum, would secretly transport him to
17 Egypt for detention and interrogation by the Egyptian intelligence service.
18 122. On infonnation and belief, prior to the conclusion of this agreement, U.S.
19 officials had entered into an agreement with Egyptian government officials to detain and
20 interrogate Mr. Agiza in Egypt.
21

22

123. Later that same day, the Swedish foreign minister signed an order

23 expelling Mr. Agiza and his family to Egypt. On information and belief, this was the

24 first occasion upon which a decision to expel an asylum seeker was executed before its

25 tenns were communicated to the individual's legal counsel, without affording them an

26 opportunity to challenge the order before international fora, such as the European Court

27 of Human Rights.

28

30

COMPLAINT

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I

124. On May 24, 2005, in the course of a Parliamentary Inquiry into the

2 expulsions, the political director at the Swedish Ministry of Foreign Affairs, Sven-Olof

3 Petersson, revealed that the decision to expel Mr. Agiza was based primarily on

4 intelligence infonnation provided by U.S. officials to the Swedish Security Police and

5 political pressure exerted by the United States on the Swedish government to remove

6 him.

7

125. Shortly after the order was signed, without notifying his family, the

8 Swedish Security Police apprehended Mr. Agiza on the streets of his home town,

9 Karlstad.

10 126. Mr. Agiza was then driven from Karlstad to the Bromma airport, arriving
II there at around 8.20 p.m.
12 127. Shortly before 8 p.m., a Gulfstream V aircraft, registered number N3 79P,
13 the same aircraft that transported Plaintiff Mohamed from Pakistan to Morocco, touched
14 down on the runway. An officer of the Swedish Security Police met the crew of the
15 aircraft. The crew was comprised of seven or eight men, all U.S. nationals, and two
16 Egyptian officials. Swedish Security officers accompanied these men to a small police
17 post.
18

19

128. An officer then escorted Mr. Agiza to the same police post and handed

20 him over to the custody and control of the U.S. and Egyptian officials.

21

129. All of the men wore dark hoods and were dressed in civilian clothes. Mr.

22 Agiza was brought into a small room. There the men conducted a physical search,

23 forcibly sliced off his clothes, including his underwear, inserted suppositories into his

24 rectum, fitted him with a diaper, dressed him in overalls, blindfolded him, and placed a

hood over his head. One of the men photographed the whole process.

26

130. Thereafter, Mr. Agiza was handcuffed, shackled, dragged towards the

awaiting aircraft, and shoved inside. The entire process took place in complete silence

28

31

COMPLAINT

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and lasted no more than fifteen minutes. Once onboard, Mr. Agiza was chained and

2 shackled in an awkward and painful position on the floor of the aircraft for the duration

3 of the five-hour flight to Egypt.

4

131. Following the aircraft's arrival in Cairo, Mr. Agiza was handed over to

5 agents of the Egyptian intelligence services and driven to a secret detention facility on

6 the outskirts of Cairo.

7 Detention, Interrogation, and Torture by Egyptian Intelligence Agents
8 132. During the first five weeks of his incarceration, neither Swedish
9 government officials nor family members were permitted to meet with Mr. Agiza. No
10 member of his family knew exactly where in Egypt he was being held or anything about
II the conditions of his detention. Throughout this time, Mr. Agiza was tortured physically
12 and psychologically.
13

14

133. From the outset, Mr. Agiza was held in solitary confinement in a squalid

15 cell measuring little more than two square meters, without windows, heat, or light. He

16 was kept shackled and blindfolded, interrogated repeatedly, and forced into signing false

17 confessions.

18

134. Mr. Agiza was beaten and verbally abused. He was interrogated under

19 torture about his alleged membership in or connection to terrorist organizations and the

20 whereabouts of senior figures in those organizations.

21

135. On January 23, 2002, some five weeks after the rendition, the Swedish

22 Ambassador to Egypt arranged a visit with Mr. Agiza. Before the visit, Mr. Agiza was

23 warned, under threat of torture, not to mention either the conditions under which he was

24 being held or the extent of the torture and ill-treatment to which he had been subjected.

25 The Ambassador was not permitted to meet with Mr. Agiza in private and consequently

26 Mr. Agiza was unable to speak candidly about his torture. Nevertheless, Mr. Agiza made

serious allegations of inhumane treatment, including torture. A confidential

28

32

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page35 of 46

1 memorandum prepared by the Swedish embassy included his account of being brutalized

2 by the rendition team, blindfolded during interrogations in Egypt, placed in very small

3 cells, denied necessary medication, beaten by prison guards on the way to and from

4 interrogations, and threatened by interrogators with retaliation against family members if

5 a confession was not forthcoming.

6

136. On the same day, Mr. Agiza was permitted to meet with his mother.

7 Prison officials were present during this meeting also, and Mr. Agiza could not speak

8 freely. His mother noted, however, that he appeared pale, weak, and near breakdown.

9 137. Following these meetings, the torture increased in severity. On numerous
10 occasions Mr. Agiza was severely and repeatedly beaten and routinely subjected to
1 I electric shock treatment. Mr. Agiza was stripped naked and strapped to a wet mattress.
12 Electrodes were then applied to his ear lobes, nipples, and genitals, so that an extremely
13 strong electric current could be introduced causing his body to rise and fall. A doctor
14 was present throughout to ensure he did not die from torture. When the sessions ended,
15 the same doctor would apply cream to his hody where the electrodes had been so as to
16
prevent scarring and to minimize visible signs ofthe torture. Mr. Agiza was also made 17
to stand under a cold shower to prevent bruising. !8
138. After an initial visit, Swedish embassy officials met with Mr. Agiza 19
approximately every five weeks. During one of these meetings, Mr. Agiza described in 20
detail the torture he had endured, including the use of electric shocks. Eventually, Mr.
-)1,
Agiza was permitted to meet with members of his family. During these visits he 22
revealed to them the nature and the extent of the torture to which he was being subjected. 23

24

139. From October 2003, Mr. Agiza was transferred to various detention

25 facilities within the Tora prison complex and, finally, in January 2004, to the maximum

26 security facility, Abu Zabal.

27

28

33

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page36 of 46

1

140. On April 27, 2004, after a six-hour military trial which took place

2 between April 10 and 27, Mr. Agiza was sentenced to twenty-five years imprisonment

3 for membership in an Islamic organization banned under Egyptian law. His requests for

4 a forensic medical examination during his trial to prove his allegations of torture were

5 summarily denied by the court. Moreover, according to an independent trial monitor, the

6 proceedings failed to comport with internationally recognized due process requirements,

7 a fact later acknowledged by the Swedish government. In June, 2004, without

8 explanation, Mr. Agiza's prison sentence was reduced to 15 years and he was transferred

9 to the minimum security prison at Tora.

10

141. Mr. Agiza remains incarcerated at the Tora prison complex, and since

11 November 2005 has been held at the maximum security facility called Scorpio. His

12 physical and psychological health continue to deteriorate. He has requested a trial before

13 a civilian court, but to date this request remains unanswered. In June 2004, his wife and

14 children were granted asylum on humanitarian grounds by the Swedish government, and

15 a year later they were formally granted refugee status and are currently seeking Swedish

16 citizenship.

17 Official Investigations and Proceedings Before International Tribunals
18 142. On June 12,2006, following a seven-month investigation into alleged
19 secret detentions and unlawful inter-state transfers, including specific investigations into
20 the circumstances surrounding the secret detention, unlawful rendition, and torture of Mr.

Mohamed, Mr. Agiza, and others, the Council of Europe issued a report on the 22
"intentional or grossly negligent collusion" of European countries in the CIA rendition
23
program. Based in part on official information provided by national and international air 24
traffic control authorities, the Council of Europe concluded that the flights transporting

Mr. Mohamed and Mr. Agiza to Morocco, Egypt, and Afghanistan, were part of a 26
"spider's web" of unlawful inter-state transfers to secret detention centers across the 27

28

34

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page37 of 46

I globe. Specifically in relation to the rendition ofMr. Mohamed, the Couucil found that

2 flight records examined by them conclusively proved that the renditions of Mr.

3 Mohamed and Khaled EI-Masri were "carried out by the same CIA-operated aircraft,

4 within 48 hours of one another, in the course of the same 12-day tour in January 2004."

5

143. On January 30, 2007, following a ten-month inquiry, the European

6 Parliament adopted a final report into the alleged use of European countries by the CIA

7 for the transportation and illegal detention of prisoners. In its report, the European

8 Parliament stated conclusively that between 2001 and 2005, flights involving aircraft

9 directly or indirectly operated by the CIA were used to carry out the "proven

10 'extraordinary renditions'" ofMr. Mohamed, Mr. Britel, Mr. Agiza, and others.

11 According to the report, the publicly available flight data proves "the existence of a

12 widespread, methodical practice of 'extraordinary rendition,' following precise rules and

13 carried out by certain U.S. secret services."

14

144. At a national level, the Office of the Parliamentary Ombudsman of the

15 Swedish Government and the Swedish Parliament's Standing Committee on the

16 Constitution have inquired into the Swedish government's handling of Mr. Agiza's

17 rendition and the Swedish Security Police's involvement in the process and detenl1ined

18 that the circumstances surrounding the rendition violated relevant Swedish laws. The

19 Ombudsman's repOit concluded that U.S. and Egyptian officials involved in the rendition

20 had violated Swedish criminal law by subjecting Mr. Agiza to "degrading and

21 humiliating treatment"' and by exercising police powers on Swedish soil. And the

22 Standing Committee on the Constitution concluded that Swedish government actions

23 violated Swedish immigration laws prohibiting the transfer of anyone from Sweden to a

24 country where there is a substantial likelihood of his being subjected to torture.

25

145. In addition, two United Nations Human Rights bodies, the U.N.

26 Committee Against Torture and the U.N. Human Rights Committee, respectively, found

27 that the expUlsion of Mr. Agiza and Mohammed El-Zery - another Egyptian citizen

28

35

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page38 of 46

rendered from Sweden to Egypt at the same time as Mr. Agiza - violated, inter alia,

2 Article 3 ofthe Convention Against Torture and Other Cruel, Inhuman or Degrading

3 Treatment or Punishment (prohibition against rendition to torture) and Article 7 of the

4 International Covenant on Civil and Political Rights (prohibition against torture).

5 Pursuant to these two findings, Mr. Agiza is seeking remedies for these proven violations

6 from the Swedish government. To date, however, his demands have not been met. 7 Defendant Jeppesen's Involvement in Plaintiffs' Extraordinary Rendition

8

146, Defendant Jeppesen played an integral role in the forced disappearances

9 and rendition of Mr. Mohamed, Mr. Brite!, and Mr. Agiza to detention and interrogation

10 under torture in Morocco, Egypt, and Afghanistan.

1 1

147, On information and belief, Jeppesen entered into an agreement with

12 agents of the CIA and U.S,-based corporations that owned and operated the Gulfstream

13 V jet aircraft and the Boeing-737 business jet aircraft to provide flight and logistical

14 support to the aircraft and crew to transport Mr. Mohamed from Pakistan to detention in

15 Morocco and from Morocco to detention in Afghanistan; Mr. Britel from Pakistan to

16 detention in Morocco; and Mr. Agiza from Sweden to detention in Egypt.

17 148, Flight records from July 2002 confirm that the Gulfstream V jet aircraft
18 owned and operated by Premier Executive Transportation Services ("PETS") and Aero
19 Contractors Limited CACL") departed Islamabad, Pakistan on July 21,2002 at 5:35 p,m.
20 and arrived in Rabat, Morocco, the next morning, July 22,2002 at 3:42 a,m, before
21 departing Rabat an hour later, at 4:44 a,m., for Shannon, Ireland, arriving there at 7:21
22 a,m ..
23 149, Flight records from January 2004 confirm that a Boeing 737 business jet
24 aircraft, then owned by PETS and operated by ACL and registered with the FAA as
25 N313P, departed Larnaca, Cyprus, at 6:39 p,m. on January 21,2004, and arrived in
26

27

28

36

COMPLAINT

•

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page39 of 46

I Rabat, Morocco at 11:48 p.m. that night. The same aircraft departed Rabat the next day,

2 January 22,2004, at 2:05 a.m. and arrived in Kabul, Afghanistan, at 9:58 a.m..

3

ISO. Documents, including telex instructions from Jeppesen to its local

4 Spanish agent, Mallocair, also confirm that Jeppesen was responsible for arranging

5 "ground handling" services for this aircraft in Spain. The Council of Europe

6 investigation further confions that within a 48-hour period, this aircraft was involved in

7 the renditions of both Khaled EI-Masri and Plaintiff Mohamed.

8 lSI. Flight records from May 2002 confirm that the Gulfstream V jet owned
9 and operated by PETS and ACL departed Islamabad, Pakistan on May 24, 2002, at 9:05
10
p.m. and arrived in Rabat, Morocco, the next morning, May, 25, 2002 at 7:05 a.m. before II
depmiing Rabat less than an hour later at 7:58 a.m. for Porto, Portugal, arriving there at 12
9:19a.m. 13
152. The originator code on these flight records show that Jeppesen was 14
responsible for filing pre-departure flight plans with appropriate national and interIS
governmental air traffic control authorities for this itinerary. 16

17

153. Flight records from December 2001 confinn that a Gulfstream V jet

18 aircraft then owned by PETS and operated by ACL, then registered with the FAA as

19 N379P, departed Johnson County Airport, North Carolina at 12:13 a.m. on December 18,

20 2001, landed hriefly in Washington D.C., then proceeded to Cairo, Egypt, where it

21 arrived at I: 19 p.m.

22

154. Flight records for the same itinerary then confirm that the same aircraft

23 left Cairo for Bromma airport in Sweden at 2:43 p.m. and arrived there at 7:43 p.m. The

24 plane departed Bromma for Cairo at 8:48 p.m., arriving there at 1:30 a.m. on December

25 19,2001. On December 20,2001, the aircraft departed Cairo at 6:56 a.m., landed first at

26 Prestwick airport, Scotland, at 12:03 p.m., before finally touching down in Washington

27 at7:18p.m.

28

37

COMPLAINT

•

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page40 of 46

I

155. Swedish Civil Aviation Records and a related invoice confirm Jeppesen's

2 involvement in this extraordinary rendition, and, specifically, that Jeppesen was

3 responsihle, through its local Swedish agent, Luftfartsverket, for arranging landing and

4 overflight permits for this aircraft, air terminal navigation fees, noise and emission

5 charges, security charges, and passenger fees for a total of nine crew members.

6

156. On information and belief, in advance of the departure of both aircraft,

7 Jeppesen was responsible for, inter alia, itinerary, route, and fuel planning for the flights

8 from (i) Washington D.C. to Ireland; Ireland to Cyprus; Cyprus to Morocco; Morocco to

9 Kabul; Kabul to Algiers; and Algiers to Spain; (ii) Pakistan to Morocco; Morocco to

10 Portugal; (iii) Pakistan to Morocco; Morocco to Ireland; and (iv) the United States to

II Egypt; Egypt to Sweden; Sweden to Egypt; Egypt to Scotland; and finally, Scotland to

12 the United States.

13 157. On infonnation and belief, services provided by Jeppesen included pre-
14 filing flight plans with relevant national and inter-governmental traffic control
15 authorities, procuring all overflight and landing permits necessary for the itinerary, as
16 well as instructing local ground handling agents in countries including the United States,
17 Pakistan, Morocco, Cyprus, Spain, Portugal, Ireland, Egypt, Sweden, and Scotland and
18 to provide in-country assistance with re-fueling, aircraft maintenance, customs clearance,
19 servicing and re-fueling of aircraft, and aircraft and crew security.
20 158. In facilitating the transportation of Mr. Mohamed, Mr. Britel, and Mr.

Agiza to Morocco, Egypt and Afghanistan, Jeppesen knew or reasonably should have 22
known that they would be subject to forced disappearance, held in secret detention in 23
destination countries, interrogated, and subjected to torture and other forms of cruel,
24
inhuman, or degrading treatment there.

II 26
II 27

28

38

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CAUSES OF ACTION

2

First Claim For Relief

3 Alien Tort Statute: Forced Disappearance
4
159. Pursuant to the extraordinary rendition program, Plaintiffs were subjected 5
to forced disappearance by agents of the United States, Morocco, and Egypt. Customary 6
international law prohibits the arrest, detention, abduction, or any other form of 7
deprivation of liberty by agents of the State or by persons or groups of persons acting 8
with the authorization, support, or acquiescence of the State, and the subsequent refusal 9
to acknowledge the deprivation ofiiberty or concealment ofthe fate or whereabouts of 10
the disappeared person. The entire extraordinary rendition program is premised on the I 1
secret detention of suspects without any official acknowledgement of the location or fact 12
of their detention. The program has the effect of placing individuals beyond the reach of 13
legal protections, thereby rendering them particularly vulnerable to torture and other
14
illegal methods of detention and interrogation. The prohibition against forced 15
disappearance is a "specific, universal, and obligatory" norm of customary international 16
law cognizable under the Alien Tort Statute. 17

18

160. Jeppesen is directly liable for Plaintiffs' forced disappearance. The very

J9 nature and purpose of the extraordinary rendition program - to forcibly abduct

20 individuals in secret and to place them beyond the IUle ofiaw - constitutes forced

disappearance. Here, Jeppesen actively participated in numerous aspects of the logistical

22 planning and implementation of the extraordinary renditions of Plaintiffs, with actual or constlUctive knowledge that its involvement would result in the secret apprehension and

24 detention of Plaintiffs.

25

161. In the alternative, Jeppesen is liable for the violation of Plaintiffs' rights

26 because it conspired with agents ofthe United States in Plaintiffs' forced disappearance.

27 Jeppesen entered into an agreement with agents of the United States to unlawfully render

28

39

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page42 of 46

I Plaintiffs to secret detention in Morocco, Egypt, and Afghanistan. Defendant

2 participated in or committed a wrongful act in furtherance of said conspiracy, which

3 resulted in injury to Plaintiffs.

4

162. Further, or in the alternative, Jeppesen is liable for the forced

5 disappearance of Plaintiffs because it aided and abetted agents of the United States,

6 Morocco, and Egypt in subjecting Plaintiffs to such treatment. Specifically, Jeppesen

7 knew or reasonably should have known that the flight and logistical support that it

8 provided to the aircraft and crew would be used to transport Plaintiffs to secret detention

9 and interrogation in Morocco, Egypt, and Afghanistan. In addition, Jeppesen, through its

10 provision of flight and logistical services to aircraft and crew, provided substantial

11 practical assistance to U.S., Moroccan, and Egyptian government officials in subjecting

12 Plaintiffs to forced disappearance.

13

163. Further, or in the alternative, Jeppesen is liable for the violation of

14 Plaintiffs' rights because it demonstrated a reckless disregard as to whether Plaintiffs

15 would be subjected to forced disappearance through its participation in the extraordinary

16 rendition program and specifically its provision of flight and logistical support services

17 to aircraft and crew that it knew or reasonably should have known would be used to

18 transport them to secret detention and interrogation in Morocco, Egypt, and Afghanistan.

19 164. Defendant's acts and omissions described herein caused Plaintiffs to
20 suffer damages, including mental and emotional pain and suffering, in an amount to be
21 detennined at trial.

165. Defendant's acts or omissions were deliberate, willful, intentional,
wanton, malicious, and oppressive, and should be punished by an award of punitive
24
damages in an amount to be determined at trial.

26 II 27 II 28

40 COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page43 of 46

1

Second Claim For Relief

2 Alien Tort Statute: Torture and Other Cruel, Inhuman, or Degrading Treatment

3

166. Plaintiffs were subjected to torture and other crnel, inhuman, or degrading

4 treatment by agents of the United States, Morocco, and Egypt. Customary international

5 law prohibits any act by which severe pain or suffering, whether physical or mental, is

6 intentionally inflicted on a person for such purposes as obtaining from him or a third

7 person infonnation or a confession, punishing him for an act he or a third person has

8 committed or is suspected of having committed, or intimidating or coercing him or a

9 third person, or for any reason based on discrimination of any kind, when such pain or

10 suffering is inflicted by or at the instigation of or with the consent or acquiescence of a

11 public official or other person acting in an official capacity. This nonn incorporates,

12 inter alia, the prohibition against removing any person, regardless of status, to a country

13 where there is a substantial likelihood that he will be tortured. The prohibition against

14 torture and other cruel, inhuman, or degrading treatment is a "specific, universal, and

15 obligatory" nonn of customary international law cognizable under the Alien Tort Statute.

16

167. Plaintiffs were subjected to torture and other cruel, inhuman, or degrading

17 treatment during their transportation to Morocco, Egypt, and Afghanistan; as a

18 consequence of their rendition to these countries; and while detained and interrogated

19 there.

20

168. Jeppesen is liable for the violation of Plaintiffs' rights because it

21 conspired with agents of the United States in Plaintiffs' torture and other crnel, inhuman,

22 or degrading treatment, including their rendition to Morocco, Egypt, and Afghanistan,

when it knew or reasonably should have known that there was a substantial likelihood

that they would be subjected to torture and other fonns of cruel, inhuman, or degrading

25 treatment there. Defendant entered into an agreement with agents of the United States to

26 provide flight and logistical support services to aircraft and crew used in the

27 extraordinary rendition program to unlawfully render Plaintiffs to detention and

28

41

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page44 of 46

1 interrogation in Morocco, Egypt, and Afghanistan, where they would be subjected to acts

2 of torture and other cruel, inhuman or degrading treatment. Through its provision of

3 these services, Defendant participated in or committed a wrongful act in furtherance of

4 said conspiracy, which resulted in injury to Plaintiffs,

5

169. In the alternative, Jeppesen is liable for the torture and other cruel,

6 inhuman, or degrading treatment of Plaintiffs because it aided and abetted agents of the

7 United States, Morocco, and Egypt in subjecting Plaintiffs to such treatment.

8 Specifically, Jeppesen knew or reasonably should have known that the aircraft and crew

9 for which it provided flight and logistical support services would be used in the

10 extraordinary rendition program to transport Plaintiffs to detention and interrogation in

J J Morocco, Egypt, and Afghanistan, where they would be subjected to acts of torture and

12 other cruel, inhuman or degrading treatment. In addition, Jeppesen, through its provision

13 of flight and logistical services to aircraft and crew, provided substantial practical

14 assistance to U.S., Moroccan, and Egyptian government officials in subjecting Plaintiffs

15 to torture and other cruel, inhuman, or degrading treatment in Morocco, Egypt, and

16 Afghanistan.

17

170. Further, or in the alternative, Jeppesen is liable for the violation of

18 Plaintiffs' rights because it demonstrated a reckless disregard as to whether Plaintiffs

19 would be subjected to torture or other cruel, inhuman, or degrading treatment by

20 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 22 detention and interrogation in Egypt, Morocco, and Afghanistan, where they would be

subjected to torture and other cruel, inhuman, or degrading treatment.
24
171. Defendant's acts and omissions described herein caused Plaintiffs to

suffer damages, including mental and emotional pain and suffering, in an amount to be 26
determined at trial. 27

28

42

COMPLAINT

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page45 of 46

1

172. Defendant's acts or omissions were deliberate, willful, intentional,

2 wanton, malieious, and oppressive, and should be punished by an award of punitive

3 damages in an amount to be detennined at trial.

4

REQUEST FOR RELIEF

5 Plaintiffs respectfully request that this Court grant the following relief:
6 A. for compensatory damages in an amount to be proven at trial, but in an
7 amount over $75,000;
8

9

B. for punitive and exemplary damages in an amount to be proven at trial;

10

C. for reasonable attorneys' fees and costs of suit; and

I I

D. for such other relief as the Court deems just and proper.

12 JURY TRIAL DEMAND
13
Plaintiffs demand a jury trial on all issues so triable. 14

15 Dated: May30, 2007

16

Respectfully submitted,

17

18

STEVEN M. WATT

19

BEN WIZNER, SBN 215724 STEVEN R. SHAPIRO

20

JAMEEL JAFFER

American Civil Liberties Union Foundation

~ll'

125 Broad Street, 18th Floor

New York, NY 10004

22

Tel. 212.519.7870

_).1'

Fax 212.549.2629

24

25

26

27

28

43

COMPLAINT

•

• • Case5:07-cv-02798-JW Document1 Filed05/30/07 Page46 of 46

ANN BRICK, SBN 65296

2

American Civil Liberties Union Foundation

3

of Northern California

39 Drumm Street

4

San Francisco, CA, 94111

Tel. 415.621.2493

5

Fax 415.255.1478

6

7

By:

Ann Brick

8

*CLIVE STAFFORD-SMITH

9

*ZACHARY KATZNELSON, SBN 209489

Reprieve

10

PO Box 52742

1 1

London EC4P 4WS

England

12

Tel. +44 (0)207 3534640

Fax +44 (0)207 353 4641 13

14

PAUL HOFFMAN, SBN 71244

15

Schonbrun DeSimone Seplow Harris &

Hoffinan LLP

16

723 Ocean Front Walk, Suite 100

Venice, CA 90291

17

Tel. 310.396.0731, ext. 4

18

Fax 310.399.7040

19

HOPE METCALF

National Litigation Project

10

Allard K. Lowenstein International

Human Rights Clinic

21

Yale Law School

22

127 Wall Street

New Haven, CT 06520

23

Tel. 203.432.9404

Fax 203.432.9128

24

25
* For and on behalfof Plaintiff BINYAM MOHAMED only
26

27

28

44

COMPLAINT

 
 Case5:07-cv-02798-JW Document18 Filed06/26/07 Page1 of 1

1 HENRY WEISSMAN (SBN 132418) Henry.Weissman@mto.com
2 DANIEL P. COLLINS (SBN 139164) Daniel.Collins@mto.com
3 JOSEPH S. KLAPACH (SBN 206345) Joseph.Klapach@mto.com
4 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor
5 Los Angeles, CA 90071-1560 Telephone: (213) 683-9100
6 Facsimile: (213) 687-3702

7

Attorneys for Defendant JEPPESEN DATAPLAN, INC.

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN JOSE DIVISION

12 BINYAM MOHAMED; ABOU ELKASSIM BRITEL; AND AHMED AGIZA,
13 Plaintiffs,
14 vs.
15 JEPPESEN DATAPLAN, INC.,
16 Defendant.
17

CASE NO. C 07-2798 RS
NOTICE OF APPEARANCE OF COUNSEL FOR DEFENDANT JEPPESEN DATAPLAN, INC.

18

19

TO THE CLERK OF THIS COURT AND ALL PARTIES OF RECORD:

20

Please enter my appearance as counsel in this case for Defendant Jeppesen DataPlan, Inc.

21

I certify that I am admitted to practice in this Court.

22 DATED: June 26, 2007

MUNGER, TOLLES & OLSON LLP

23

24

By: /s/ Daniel P. Collins

Daniel P. Collins

25

Attorneys for Defendant

26

JEPPESEN DATAPLAN, INC.

27

28

NOTICE OF APPEARANCE OF COUNSEL—C-07-2798 RS

 
 Case5:07-cv-02798-JW Document25 Filed06/28/07 Page1 of 1

United States District Court For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 BINYAM MOHAMED,

No. C 07-02798 JW

8

Plaintiff(s),

9

v.

CLERK'S NOTICE

10 JEPPESEN DATAPLAN INC,

11

Defendant(s).

12 ___________________________________/

13 TO ALL PARTIES AND COUNSEL OF RECORD:
14

15

YOU ARE NOTIFIED THAT due to the reassignment of this case the Case Management

16

Conference before Judge Ronald M Whyte previously noticed September 14, 2007 at 10:30 AM, has

17

been reset to be heard before Judge James on September 24, 2007, at 10:00 AM, Courtroom 8,

18

4th Floor, 280 S. 1st Street, San Jose, California. The Parties shall file a Joint Case Management by

19

September 14, 2007.

20

Dated: June 28, 2007

21

FOR THE COURT,

Richard W. Wieking, Clerk

22

23

by:

/s/

24

Elizabeth Garcia

Courtroom Deputy

25

26

27

28

 
 LEGAL DEPARTMENT Case5:07-cv-02798-JW Document32 Filed09/04/07 Page1 of 1
AMERICAN CIVIL LIBERTIES UNION

AMERICAN CIVIL LIBERTIES UNION FOUNDATION LEGAL DEPARTMENT NATIONAL OFFICE 125 BROAD STREET, 18TH FL. NEW YORK, NY 10004-2400 T/212.549.2500 F/212. 549 .2651 WWW.ACLU.ORG
OFFICERS AND DIRECTORS NADINE STROSSEN PRESIDENT
ANTHONY D. ROMERO EXECUTIVE DIRECTOR
KENNETH B. CLARK CHAIR, NATIONAL ADVISORY COUNCIL
RICHARD ZACKS TREASURER

Honorable James Ware United States District Court Northern District of California 280 South First Street San Jose, California 95113

September 4,2007

Re: Mohamed et al v. Jeppesen Dataplan, Inc., 5:07-cv-02798-JW Dear Judge Ware:

I am writing, pursuant to Local Rule 3-15, to advise the Court of facts it may wish to consider. The national legal department of the American Civil Liberties Union (ACLU), based in New York, is lead counsel for the plaintiffs in this action. As the Court is aware, the Court's daughter, Carlie Ware, is currently a staff attorney in the ACLU's Drug Law Reform Project in Santa Cruz, California.

Ms. Ware has had no involvement in any aspect of this case, nor will she. Nor has she been involved in any way in El-Masri v. United States, another ACLU case challenging the conduct of government officials and corporations in the CIA's extraordinary rendition program, or in any other related matter. Indeed, as an employee of a separate ACLU project located in a separate office, Ms. Ware has had no more access to or information about these matters than any member of the general public. To the extent such an assurance is of further assistance to the Court, by this letter counsel for plaintiffs asserts that Ms. Ware will continue to be screened entirely from any involvement in this case.

Sincerely,

~~W~ Steven M. Watt Counsel for Plaintiffs

cc: Daniel Collins, counsel for Defendant

 
 Case5:07-cv-02798-JW Document60 Filed12/17/07 Page1 of 4

1 STEVEN M. WATT* swatt@aclu.org BEN WIZNER (SBN 215724) bwizner@aclu.org
2 JAMEEL JAFFER* jjaffer@aclu.org STEVEN R. SHAPIRO* sshapiro@aclu.org
3 ALEXA KOLBI-MOLINAS* akolbi-molinas@aclu.org AMERICAN CIVIL LIBERTIES
4 UNION FOUNDATION 125 Broad Street, 18th Floor
5 New York, NY 10004 Tel. 212.549-2500 / Fax 212.549.2651
6 ANN BRICK (SBN 65296) abrick@aclunc.org
7 ACLU FOUNDATION OF NORTHERN CALIFORNIA
8 39 Drumm Street San Francisco, CA 94111
9 Tel. 415.621.2493 / Fax 415.255.1478

10 Additional Counsel Listed on Next Page 11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 BINYAM MOHAMED; ABOU ELKASSIM BRITEL;
16 AHMED AGIZA; 17 MOHAMED FARAG AHMAD
BASHMILAH; 18 BISHER AL-RAWI,

Civil Action No. 5:07-cv-02798 (JW)

19

Plaintiffs,

20

v.

21 JEPPESEN DATAPLAN, INC.,

22

Defendant.

23

MOTION TO WITHDRAW AS COUNSEL

24

25

26

27

Case5:07-cv-02798-JW Document60 Filed12/17/07 Page2 of 4
1 CLIVE STAFFORD SMITH*† clivess@mac.com 2 ZACHARY KATZNELSON† (SBN 209489) zachary@reprieve.org.uk 3 REPRIEVE 4 PO Box 52742 5 London EC4P 4WS 6 England 7 Tel. +44 (0)207 353 4640 / Fax +44 (0)207 353 4641 8 9 PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com 10 SCHONBRUN DESIMONE SEPLOW 11 HARRIS & HOFFMAN LLP 12 732 Ocean Front Walk, Suite 100 13 Venice, CA 90291 14 Tel 310.999.7040, ext. 4 / Fax 310.999.7040 15 16 HOPE METCALF* hope.metcalf@yale.edu 17 NATIONAL LITIGATION PROJECT 18 ALLARD K. LOWENSTEIN INTERNATIONAL 19 HUMAN RIGHTS CLINIC 20 YALE LAW SCHOOL 21 127 Wall Street 22 New Haven, CT 06520 23 Tel. 203.432.9404 / Fax 203.432.9128 24 25 MARGARET L. SATTERTHWAITE*++ satterth@juris.law.nyu.edu 26 INTERNATIONAL HUMAN RIGHTS CLINIC 27 WASHINGTON SQUARE LEGAL SERVICES, INC. 28 NEW YORK UNIVERSITY SCHOOL OF LAW 29 245 Sullivan Street 30 New York, NY 10012 31 Tel. 212-998-6657 / Fax 212-995-4031 32 33 Attorneys for Plaintiffs BINYAM MOHAMED, ABOU ELKASSIM BRITEL, AHMED 34 AGIZA, MOHAMED FARAG AHMAD BASHMILAH, and BISHER AL-RAWI 35 * Admitted Pro Hac Vice 36 † Attorneys for and on behalf of Plaintiff BINYAM MOHAMED only 37 ++ Attorney for and on behalf of Plaintiff MOHAMED FARAG AHMAD BASHMILAH 38 only

Case5:07-cv-02798-JW Document60 Filed12/17/07 Page3 of 4

1

MOTION TO WITHDRAW AS COUNSEL

2

3

Alexa Kolbi-Molinas, undersigned counsel, moves to withdraw as counsel in the above

4

captioned matter. In support of this motion, she shows as follows:

5

1. She became counsel on June 20, 2007.

6

2. She has accepted a position as Staff Attorn ey Fellow a t the Rep roductive Freedom

7

Project of the Am erican Civil Libertie s Union. She ha s stopped working for and

8

representing clients on behalf of the National Security Pr oject of the American Civil

9

Liberties Union Foundation.

10

4. Ben W izner, Steven Watt, Steven Shapir o, and Jameel Jaffer of the Am erican Civil

11

Liberties Union Foundation and Ann Brick of the Am erican Civil Liberties U nion

12

Foundation of Northern California will continue to represent the plaintiffs in this case.

13

5. The plaintiffs have consented to this motion.

14

This is the 17th day of December 2007.

15

16

Respectfully submitted,

17

__/s/ Alexa Kolbi-Molinas__

18

ALEXA KOLBI-MOLINAS

19

BEN WIZNER SBN 215724

20

STEVEN M. WATT

21

STEVEN R. SHAPIRO

22

JAMEEL JAFFER

23

American Civil Liberties Union

24

Foundation

25

125 Broad Street, 18th Floor

26

New York, NY 10004

27

Tel. 212.519.7870

28

Fax 212.549.2629

29

30

ANN BRICK, SBN 65296

31

American Civil Liberties Union

32

Foundation of Northern California

33

39 Drumm Street

Case5:07-cv-02798-JW Document60 Filed12/17/07 Page4 of 4

1

San Francisco, CA, 94111

2

Tel. 415.621.2493

3

Fax 415.255.1478

4

5

*CLIVE STAFFORD-SMITH

6

*ZACHARY KATZNELSON

7

SBN 209489

8

Reprieve

9

PO Box 52742

10

London EC4P 4WS

11

England

12

Tel. +44 (0)207 353 4640

13

Fax +44 (0)207 353 4641

14

15

PAUL HOFFMAN, SBN 71244

16

Schonbrun DeSimone Seplow Harris &

17

Hoffman LLP

18

723 Ocean Front Walk, Suite 100

19

Venice, CA 90291

20

Tel. 310.396.0731, ext. 4

21

Fax 310.399.7040

22

23

HOPE METCALF

24

National Litigation Project

25

Allard K. Lowenstein International

26

Human Rights Clinic

27

Yale Law School

28

127 Wall Street

29

New Haven, CT 06520

30

Tel. 203.432.9404

31

Fax 203.432.9128

32

33

MARGARET SATTERTHWAITE++

34

International Human Rights Clinic

35

Washington Square Legal Services, Inc.

36

New York University School of Law

37

245 Sullivan Street

38

New York, NY. 10012

39

Tel. 212.298.6657

40

Fax. 212.995.4031

41

42

43

44 * For and on behalf of Plaintiff BINYAM MOHAMED only

45 ++ For and on behalf of Plaintiff MOHAMED FARAG AHMAD BASHMILAH only

 
 Case5:07-cv-02798-JW Document61 Filed12/20/07 Page1 of 4

UNITED S ALIFORNIA

OURT NORTH

1 STEVEN M. WATT* swatt@aclu.org BEN WIZNER (SBN 215724) bwizner@aclu.org
2 JAMEEL JAFFER* jjaffer@aclu.org STEVEN R. SHAPIRO* sshapiro@aclu.org
3 ALEXA KOLBI-MOLINAS* akolbi-molinas@aclu.org AMERICAN CIVIL LIBERTIES
4 UNION FOUNDATION 125 Broad Street, 18th Floor
5 New York, NY 10004 Tel. 212.549-2500 / Fax 212.549.2651
6 ANN BRICK (SBN 65296) abrick@aclunc.org
7 ACLU FOUNDATION OF NORTHERN CALIFORNIA
8 39 Drumm Street San Francisco, CA 94111
9 Tel. 415.621.2493 / Fax 415.255.1478

TATES DISTRICT C GRANTED
Judge James Ware
ERN DISTRICT OF C

10 Additional Counsel Listed on Next Page 11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 BINYAM MOHAMED; ABOU ELKASSIM BRITEL;
16 AHMED AGIZA; 17 MOHAMED FARAG AHMAD
BASHMILAH; 18 BISHER AL-RAWI,

Civil Action No. 5:07-cv-02798 (JW)

19

Plaintiffs,

20

v.

21 JEPPESEN DATAPLAN, INC.,

22

Defendant.

23

MOTION TO WITHDRAW AS COUNSEL

24

25

26

27

Case5:07-cv-02798-JW Document61 Filed12/20/07 Page2 of 4
1 CLIVE STAFFORD SMITH*† clivess@mac.com 2 ZACHARY KATZNELSON† (SBN 209489) zachary@reprieve.org.uk 3 REPRIEVE 4 PO Box 52742 5 London EC4P 4WS 6 England 7 Tel. +44 (0)207 353 4640 / Fax +44 (0)207 353 4641 8 9 PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com 10 SCHONBRUN DESIMONE SEPLOW 11 HARRIS & HOFFMAN LLP 12 732 Ocean Front Walk, Suite 100 13 Venice, CA 90291 14 Tel 310.999.7040, ext. 4 / Fax 310.999.7040 15 16 HOPE METCALF* hope.metcalf@yale.edu 17 NATIONAL LITIGATION PROJECT 18 ALLARD K. LOWENSTEIN INTERNATIONAL 19 HUMAN RIGHTS CLINIC 20 YALE LAW SCHOOL 21 127 Wall Street 22 New Haven, CT 06520 23 Tel. 203.432.9404 / Fax 203.432.9128 24 25 MARGARET L. SATTERTHWAITE*++ satterth@juris.law.nyu.edu 26 INTERNATIONAL HUMAN RIGHTS CLINIC 27 WASHINGTON SQUARE LEGAL SERVICES, INC. 28 NEW YORK UNIVERSITY SCHOOL OF LAW 29 245 Sullivan Street 30 New York, NY 10012 31 Tel. 212-998-6657 / Fax 212-995-4031 32 33 Attorneys for Plaintiffs BINYAM MOHAMED, ABOU ELKASSIM BRITEL, AHMED 34 AGIZA, MOHAMED FARAG AHMAD BASHMILAH, and BISHER AL-RAWI 35 * Admitted Pro Hac Vice 36 † Attorneys for and on behalf of Plaintiff BINYAM MOHAMED only 37 ++ Attorney for and on behalf of Plaintiff MOHAMED FARAG AHMAD BASHMILAH 38 only

Case5:07-cv-02798-JW Document61 Filed12/20/07 Page3 of 4

1

MOTION TO WITHDRAW AS COUNSEL

2

3

Alexa Kolbi-Molinas, undersigned counsel, moves to withdraw as counsel in the above

4

captioned matter. In support of this motion, she shows as follows:

5

1. She became counsel on June 20, 2007.

6

2. She has accepted a position as Staff Attorn ey Fellow a t the Rep roductive Freedom

7

Project of the Am erican Civil Libertie s Union. She ha s stopped working for and

8

representing clients on behalf of the National Security Pr oject of the American Civil

9

Liberties Union Foundation.

10

4. Ben W izner, Steven Watt, Steven Shapir o, and Jameel Jaffer of the Am erican Civil

11

Liberties Union Foundation and Ann Brick of the Am erican Civil Liberties U nion

12

Foundation of Northern California will continue to represent the plaintiffs in this case.

13

5. The plaintiffs have consented to this motion.

14

This is the 17th day of December 2007.

15

16

Respectfully submitted,

17

__/s/ Alexa Kolbi-Molinas__

18

ALEXA KOLBI-MOLINAS

19

BEN WIZNER SBN 215724

20

STEVEN M. WATT

21

STEVEN R. SHAPIRO

22

JAMEEL JAFFER

23

American Civil Liberties Union

24

Foundation

25

125 Broad Street, 18th Floor

26

New York, NY 10004

27

Tel. 212.519.7870

28

Fax 212.549.2629

29

30

ANN BRICK, SBN 65296

31

American Civil Liberties Union

32

Foundation of Northern California

33

39 Drumm Street

Case5:07-cv-02798-JW Document61 Filed12/20/07 Page4 of 4

1

San Francisco, CA, 94111

2

Tel. 415.621.2493

3

Fax 415.255.1478

4

5

*CLIVE STAFFORD-SMITH

6

*ZACHARY KATZNELSON

7

SBN 209489

8

Reprieve

9

PO Box 52742

10

London EC4P 4WS

11

England

12

Tel. +44 (0)207 353 4640

13

Fax +44 (0)207 353 4641

14

15

PAUL HOFFMAN, SBN 71244

16

Schonbrun DeSimone Seplow Harris &

17

Hoffman LLP

18

723 Ocean Front Walk, Suite 100

19

Venice, CA 90291

20

Tel. 310.396.0731, ext. 4

21

Fax 310.399.7040

22

23

HOPE METCALF

24

National Litigation Project

25

Allard K. Lowenstein International

26

Human Rights Clinic

27

Yale Law School

28

127 Wall Street

29

New Haven, CT 06520

30

Tel. 203.432.9404

31

Fax 203.432.9128

32

33

MARGARET SATTERTHWAITE++

34

International Human Rights Clinic

35

Washington Square Legal Services, Inc.

36

New York University School of Law

37

245 Sullivan Street

38

New York, NY. 10012

39

Tel. 212.298.6657

40

Fax. 212.995.4031

41 42 *** ORDER ***

43

For good cause, the Court GRANTS Alexa Rebecca Kolbi-Molinas' motion to withdraw

44 *asFcooruannsdelo. nTbheehCallfeorkf Pshlailnl ttiefrfmBiInNatYeAMMs.MKoOlHbiA-MMoEliDnaosnflryom the docket.

45 ++ For and on behalf of Plaintiff MOHAMED FARAG AHMAD BASHMILAH only

Date: December 20, 2007

__________________________________

JAMES WARE

United States District Court

 
 Case5:07-cv-02798-JW Document72 Filed03/14/08 Page1 of 11
The Honorable James Ware, Case no. 5:07-cv-02798
STEVEN M. WATT* swatt@aclu.org BEN WIZNER (SBN 215724) bwizner@aclu.org JAMEEL JAFFER* jjaffer@aclu.org STEVEN R. SHAPIRO* sshapiro@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY, 10004 Tel. 212.549.2500 / Fax 212.549.2651
ANN BRICK (SBN 65296) abrick@acJunc.org ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA, 94111 Tel. 415.621.2493 / Fax 415.255.1478
Additional Counsel Listed on Next Page

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTHERN CALIFORNIA
San Jose Division

1 BINYAM MOHAMED; ABOU ELKASSIM BRITEL;
1 AHMED AGIZA; MOHAMED FARAG AHMAD
1 BASHMILAH; BISHER AL-RAWI
1

1

Plaintiffs,

2

v.

21

2 JEPPESEN DATAPLAN, INC.

2

Defendant.

2

2

2

2

2

Civil Action No. 5:07-cv-02798 (JW) REPRESENTATION STATEMENT

REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page2 of 11 The Honorable James Ware, Case no. 5:07-cv-02798

1 CLIVE STAFFORD SMITH*t clivess@mac.com ZACHARY KATZNELSONt (SBN 209489)
2 Zachary@reprieve.org.uk
3 REPRIEVE PO Box 52742
4 London EC4P 4WS England
5 Tel. +44 (0)207 353 4640/ Fax +44 (0)207 353 4641

6 PAUL HOFFMAN (SBN 71244) hoffpaul@aol.com
7 SCHONBRUN DESIMONE SEPLOW HARRIS & HOFFMAN LLP
8 732 Ocean Front Walk, Suite 100 Venice, CA, 90291
9 Tel. 310.999.7040, ext. 4/ Fax 310.999.7040

10 HOPE METCALF* hope.metcalf@yale.edu
11 NATIONAL LITIGATION PROJECT ALLARD K. LOWENSTEIN INTERNATIONAL
12 HUMAN RIGHTS CLINIC YALE LAW SCHOOL
13 127 Wall Street New Haven, CT, 06520
14 Tel. 203.432.9404/ Fax 203.432.9128

15 MARGARET L. SATTERTHWAITE*++ satterth@juris.law.nyu.edu

16 INTERNATIONAL HUMAN RIGHTS CLINIC

WASHINGTON SQUARE LEGAL SERVICES, INC. 17 NEW YORK UNIVERSITY SCHOOL OF LAW

18

245 Sullivan Street New York, NY 10012

19 Tel. 212.998.6657 / Fax 212.995.4031

20 Attorneys for Plaintiffs BINYAM MOHAMED, ABOU EL KASSIM BRITEL, AHMED

AGIZA, MOHAMED FARAG AHMAD BASHMILAH, and BISHER AL-RAWI

21 *Admitted Pro Hac Vice

22

tAttorneys for and on behalf of Plaintiff BINYAM MOHAMED only
++ Attorney for and on behalf of Plaintiff MOHAMED FARAG AHMAD BASHMILAH

23 only.

24

25

26

27

28

REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page3 of 11
The Honorable James Ware, Case no. 5:07-cv-02798 1
REPRESENTATION STATEMENT Plaintiffs
Pursuant to Circuit Rule 3-2 in the Federal Rules of Appellate Procedure, Binyam Mohamed is identified as a plaintiff. He is represented by:

STEVEN M. WATT
BENWIZNER
JAMEEL JAFFER
STEVEN R. SHAPIRO
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION I 125 Broad Street, 18th Floor
New York, NY, 10004 I Tel. 212.549.2500 / Fax 212.549.2651

1 ANN BRICK

I

ACLU FOUNDATION OF NORTHERN CALIFORNIA

I 39 Drumm Street

San Francisco, CA, 94111

1 Tel. 415.621.2493 / Fax 415.255.1478

1 CLIVE STAFFORD SMITH 1 ZACHARY KATZNELSON
Zachary@reprieve.org.uk 1 REPRIEVE
PO Box 52742 1 London EC4P 4WS
England 2 Tel. +44 (0)207 353 4640/ Fax +44 (0)207 353 4641
21 PAUL HOFFMAN
2 SCHONBRUN DESIMONE SEPLOW HARRIS & HOFFMAN LLP
2 732 OceanFront Walk, Suite 100 Venice, CA, 90291
2 Tel. 310.999.7040, ext. 4 / Fax 310.999.7040
2 HOPE METCALF
2 NATIONAL LITIGATION PROJECT ALLARD K. LOWENSTEIN INTERNATIONAL
2 HUMAN RIGHTS CLINIC

2

REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page4 of 11

The Honorable James Ware, Case no. S:07-cv-02798

1 YALE LAW SCHOOL 127 Wall Street
2 New Haven, CT, 06520 3 Tel. 203.432.94041 Fax 203.432.9128

4

Pursuant to Circuit Rule 3-2 in the Federal Rules ofAppellate Procedure, Abou

5 Elkassim Britel is identified as a plaintiff. He is represented by:

6 STEVENM. WATT
7 BENWIZNER JAMEEL JAFFER
8 STEVEN R. SHAPIRO
AMERICAN CIVIL LffiERTIES 9 UNION FOUNDATION 10 125 Broad Street, 18th Floor
New York, NY, 10004
11 Tel. 212.549.2500 1Fax 212.549.2651

12 ANN BRICK ACLU FOUNDATION OF
13 NORTHERN CALIFORNIA 14 39 Drururn Street
San Francisco, CA, 94111 15 Tel. 415.621.24931 Fax 415.255.1478

16 PAUL HOFFMAN SCHONBRUN DESIMONE SEPLOW
17 HARRIS & HOFFMAN LLP 18 732 Ocean Front Walk, Suite 100
Venice, CA, 90291 19 Tel. 310.999.7040, ext. 41 Fax 310.999.7040

20 HOPE METCALF
NATIONAL LITIGATION PROJECT 21 ALLARD K. LOWENSTEIN INTERNATIONAL
22 HUMAN RIGHTS CLINIC YALE LAW SCHOOL
23 127 Wall Street New Haven, CT, 06520
24 Tel. 203.432.94041 Fax 203.432.9128

25

Pursuant to Circuit Rule 3-2 in the Federal Rules of Appellate Procedure, Ahmed

26 Agiza is identified as a plaintiff. He is represented by: 27

28

REPRESENTATION STATEMENT Case no. S:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page5 of 11

The Honorable James Ware, Case no. S:07-cv-02798

1 STEVEN M. WATT BENWIZNER
2 JAMEEL JAFFER
3 STEVEN R. SHAPIRO AMERICAN CIVIL LIBERTIES
4 UNION FOUNDATION 125 Broad Street, 18th Floor
5 New York, NY, 10004 Tel. 212.549.2500/ Fax 212.549.2651
6

7 ANN BRICK ACLU FOUNDATION OF
8 NORTHERN CALIFORNIA
39 Drumm Street 9 San Francisco, CA, 94111
Tel. 415.621.2493/ Fax 415.255.1478 10

11 PAUL HOFFMAN SCHONBRUN DESIMONE SEPLOW
12 HARRIS & HOFFMAN LLP 732 Ocean Front Walk, Suite 100
13 Venice, CA, 90291
14 Tel. 310.999.7040, ext. 4/ Fax 310.999.7040

15 HOPE METCALF NATIONAL LITIGATION PROJECT

16 ALLARD K. LOWENSTEIN INTERNATIONAL

HUMAN RIGHTS CLINIC 17 YALE LAW SCHOOL

18

127 Wall Street New Haven, CT, 06520

19 Tel. 203.432.9404/ Fax 203.432.9128

20

Pursuant to Circuit Rule 3-2 in the Federal Rules of Appellate Procedure,

21 Mohamed Farag Ahmad Bashmilah is identified as a plaintiff. He is represented by:

22
STEVEN M. WATT

23 BENWIZNER

JAMEEL JAFFER 24 STEVEN R. SHAPIRO

25

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

26 125 Broad Street, 18th Floor

New York, NY, 10004

27 Tel. 212.549.2500 / Fax 212.549.2651

28

REPRESENTATION STATEMENT Case no. S:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page6 of 11

The Honorable James Ware, Case no. 5:07-cv-02798

1

ANN BRICK 2 ACLU FOUNDATION OF

3

NORTHERN CALIFORNIA 39 Drumm Street

4 San Francisco, CA, 94111 Tel. 415.621.2493/ Fax 415.255.1478
5

PAUL HOFFMAN 6 SCHONBRUN DESIMONE SEPLOW

7 HARRIS & HOFFMAN LLP 732 Ocean Front Walk, Suite 100

8 Venice, CA, 90291 Tel. 310.999.7040, ext. 4/ Fax 310.999.7040
9

HOPE METCALF 10 NATIONAL LITIGATION PROJECT

11 ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC

12 YALE LAW SCHOOL 127 Wall Street
13 New Haven, CT, 06520

Tel. 203.432.9404 / Fax 203.432.9128 14

15 MARGARET L. SATTERTHWAITE*++ sattertb@juris.law.nyu.edu INTERNATIONAL HUMAN RIGHTS CLINIC

16 WASHINGTON SQUARE LEGAL SERVICES, INC.

NEW YORK UNIVERSITY SCHOOL OF LAW 17 245 Sullivan Street

18

New York, NY 10012 Tel. 212.998.6657/ Fax 212.995.4031

19

20

Pursuant to Circuit Rule 3-2 in the Federal Rules of Appellate Procedure, Bisher

21 AI-Rawi is identified as a plaintiff. He is represented by:

22 STEVEN M. WATT

23 BENWIZNER

JAMEEL JAFFER 24 STEVEN R. SHAPIRO

25

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

26 125 Broad Street, 18th Floor

New York, NY, 10004

27 Tel. 212.549.2500/ Fax 212.549.2651

28

REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page7 of 11

The Honorable James Ware, Case no. 5:07-cv-02798

1
ANN BRICK 2 ACLU FOUNDATION OF 3 NORTHERN CALIFORNIA
39 Drwnm Street 4 San Francisco, CA, 94111
Tel. 415.621.2493 I Fax 415.255.1478 5
PAUL HOFFMAN 6 SCHONBRUN DESIMONE SEPLOW 7 HARRIS & HOFFMAN LLP
732 Ocean Front Walk, Suite 100 8 Venice, CA, 90291
Tel. 310.999.7040, ext. 4/Fax 310.999.7040 9
HOPE METCALF 10 NATIONAL LITIGATION PROJECT
11 ALLARD K. LOWENSTEIN INTERNATIONAL
HUMAN RIGHTS CLINIC 12 YALE LAW SCHOOL
127 Wall Street 13 New Haven, CT, 06520
Tel. 203.432.9404 I Fax 203.432.9128 14

15 Defendants
16
Pursuant to Circuit Rule 3-2 in the Federal Rules of Appellate Procedure, 17
Jeppesen Dataplan, Inc. is identified as a defendant. Jeppesen Dataplan, Inc., is 18
represented by: 19

20 HENRY WEISSMAN

DANIEL P. COLLINS 21 JOSEPH S. KLAPACH

22

MUNGER, TOLLES & OLSON, LLP 355 South Grand Avenue, 35th Floor

23 Los Angeles, CA 90071-1560 Telephone: (213) 683-9100

24 Facsimile: (213) 687-3702

25'

26

27

28

REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page8 of 11

The Honorable James Ware, Case no. 5~07-cv-02798

1

2
Intervenors 3

4

Pursuant to Circuit Rule 3-2 in the Federal Rules of Appellate Procedure, the

5 United States of America Inc. is identified as an intervenor. The United States of

6 America is represented by:

7

8 JEFFREY S. BUCHOLTZ Acting Assistant Attorney General

9 SCOTT N. SCHOOLS

United States Attorney 10 CARL 1. NICHOLS

11

Deputy Assistant Attorney General JOSEPH H. HUNT

12 Director, Federal Programs Branch

VINCENT M. GARVEY

13 Deputy Director, Federal Programs Branch

MICHAEL P. ABATE 14 Trial Attorney

15 U.S. Department of Justice Civil Division, Federal Programs Branch

16 20 Massachusetts Avenue, NW Washington, DC 20001

17 Phone: (202) 616-8209

Fax: (202) 616-8470 18

19

20 Dated: March 13, 2008

Respectfully submitted,

21

22

~~

23

SifEVENMWATT

24

BEN WIZNER, SBN 215724 JAMEEL JAFFER

25

STEVEN R. SHAPIRO

American Civil Liberties Union Foundation

26

125 Broad Street, 18th Floor

New York, NY 10004

27

Tel. 212.519.7870

28

REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page9 of 11 The Honorable James Ware, Case no. 5:07-cv-02798
REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page10 of 11
The Honorable James Ware, Case no. 5:07-cv-02798
1 * For and on behalf of Plaintiff BINYAM MOHAMED only
2 ++ For and on behalf of Plaintiff MOHAMED FARAG AHMAD BASHMILAH only
3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19
20
21 22
23
24 25
26
27 28
REPRESENTATION STATEMENT Case no. 5:07-cv-02798

Case5:07-cv-02798-JW Document72 Filed03/14/08 Page11 of 11 The Honorable James Ware, Case no. S:07-cv-02798 Certificate of Service

I hereby certify that on March 13, 2008, I served the foregoing by overnight couneron:

Jeffrey S. Bucholz Acting Assistant Attorney General
Scott N. Schools United States Attorney
Carl J. Nichols Deputy Assistant Attorney General
Joseph H. Hunt Director, Federal Programs Branch
Vincent M. Garvey Deputy Director, Federal Programs Branch
Michael P. Abate Trial Attorney U.S. Department Of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, D.C., 20001
Henry Weissman
Daniel P. Collins
Joseph S. Klapach Munger, Tolles, & Olson, LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560

~1V1~
Steven Watt

REPRESENTATION STATEMENT Case no. S:07-cv-02798

 
 Case5:07-cv-02798-JW Document82 Filed04/28/09 Page1 of 31

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

⎫ BINYAM MOHAMED; ABOU ELKASSIM
BRITEL; AHMED AGIZA; MOHAMED FARAG AHMAD BASHMILAH; BISHER AL-RAWI,
⎬ Plaintiffs-Appellants, v.

No. 08-15693
D.C. No. 5:07-CV-02798-JW

JEPPESEN DATAPLAN, INC., Defendant-Appellee,

OPINION

UNITED STATES OF AMERICA,
⎭ Intervenor-Appellee,

Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding
Argued and Submitted February 9, 2009—San Francisco, California
Filed April 28, 2009
Before: Mary M. Schroeder, William C. Canby, Jr. and Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins

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MOHAMED v. J EPPESEN DATAPLAN

COUNSEL
Ben Wizner, American Civil Liberties Union Foundation, New York, New York, for Plaintiffs-Appellants.
Daniel P. Collins, Munger, Tolles & Olson, Los Angeles, California, for Defendant-Appellee.

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Douglas N. Letter and Michael P. Abate, Civil Division, United States Department of Justice, Washington, D.C., for Intervenor-Appellee.

Andrew G. McBride, Wiley Rein, LLP, Washington, D.C., for Amicus The Foundation for the Defense of Democracies in Support of Appellees Supporting Affirmance.

Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amici Washington Legal Foundation and Allied Educational Foundation.

William J. Aceves, California Western School of Law, San Diego, California, for Amici Redress and The International Commission of Jurists.

Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, California, for Amici Professors of Constitutional Law, Federal Jurisdiction, and Foreign Relations Law.

Jean-Paul Jassy, Bostwick & Jassy, Los Angeles, California, for Amici Professors William G. Weaver and Robert M. Pallitto.

James M. Ringer, Clifford Change US, New York, New York, for Amici Commonwealth Lawyers Association and JUSTICE.

David J. Stankiewicz, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, New York, New York, for Amicus Former United States Diplomats.

OPINION
HAWKINS, Circuit Judge:
Plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-

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MOHAMED v. J EPPESEN DATAPLAN

Rawi (“plaintiffs”), appeal the dismissal of this action,

brought under the Alien Tort Statute, 28 U.S.C. §

1350,

against Jeppesen Dataplan, Inc. (“Jeppesen”), a wholly owned

subsidiary of the Boeing Company. Before Jeppesen filed an

answer to the complaint, the United States intervened, assert-

ing that the state secrets privilege required dismissal of the

entire action on the pleadings. The district court agreed and

dismissed the complaint. On appeal, plaintiffs argue the dis-

trict court misapplied the state secrets doctrine and erred in

dismissing the complaint.

Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.

I. BACKGROUND

A. Factual Background

At this stage in the litigation, we “construe the complaint in the light most favorable to the plaintiff[s], taking all [their] 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).

1. The Extraordinary Rendition Program

Plaintiffs allege that the United States 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

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allowed agents of the United States government “to employ interrogation methods that would [otherwise have been] prohibited under federal or international law.”

Citing publicly available evidence, plaintiffs, all foreign nationals, claim they were each processed through the extraordinary rendition program.

Plaintiff Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, transferred to American custody, and flown to Egypt. In Egypt, 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 fifteen years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

Plaintiff Britel, a forty-year-old Italian citizen of Moroccan origin, was arrested and detained in Pakistan on immigration charges. After several months in Pakistani detention, Britel was transferred to the custody of American officials. These officials dressed Britel in a diaper and overalls, and shackled and blindfolded him for a flight to Morocco. Once in Morocco, he was detained incommunicado by Moroccan security services at the Temara prison. There, 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 was coerced into signing a false confession, convicted of terrorism-related charges, and sentenced to fifteen years in Moroccan prison.

Plaintiff Mohamed, a twenty-eight-year-old Ethiopian citizen and legal resident of the United Kingdom, was arrested in

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MOHAMED v. J EPPESEN DATAPLAN

Karachi, Pakistan, on immigration charges. Mohamed was flown to Morocco under similar conditions, where he was transferred to the custody of Moroccan security agents. Moroccan authorities subjected Mohamed to “severe physical and psychological torture,” including routinely beating him and breaking his bones. Authorities also cut him with a scalpel all over his body, including on his penis, and poured “hot stinging liquid” into the open wounds. He was also blindfolded and handcuffed while being made “to listen to extremely loud music day and night.” After eighteen months in Moroccan custody, Mohamed was transferred back to American custody and flown to Afghanistan. There he was detained in a CIA “dark prison” where he underwent further torture, including being kept in “near permanent darkness” and subjected to loud noise, such as the screams of women and children, for twenty-four hours per day. His captors also deprived him of food. Eventually, Mohamed was transferred to the 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.

Plaintiff al-Rawi, a thirty-nine-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 was placed in a diaper, overalls, and shackles and placed on an airplane, where he was flown to Afghanistan. Detained in the same “dark prison” as Mohamed, loud noises were played twenty-four hours per day to deprive him of sleep. Al-Rawi 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 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.

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Plaintiff Bashmilah, a thirty-nine-year-old Yemeni citizen, 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 “subject to severe physical and psychological abuse,” Bashmilah was given over to agents of the United States government, who flew him to Afghanistan in similar fashion as the other plaintiffs. Once in Afghanistan, Bashmilah was placed in solitary confinement, in twenty-four-hour darkness, where he was deprived of sleep and shackled in painful positions. He was subsequently moved to another cell where he was held in twenty-four-hour light and loud noise. Depressed by his conditions, Bashmilah attempted suicide three times. Later, Bashmilah 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 twenty-four-hour light. Bashmilah 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 Involvement in the Rendition Program

According to plaintiffs, publicly available evidence establishes that Jeppesen provided flight planning and logistical support services to the aircraft and crew on all of the flights transporting the five plaintiffs among their various locations of detention and torture. According to the complaint, “Jeppesen played an integral role in the forced” abductions and detentions. It “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.” Jeppesen furthermore provided this assistance with actual or constructive “knowledge of the objectives of the rendition program,” including knowledge that the plaintiffs

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“would be subjected to forced disappearance, detention, and torture” at the hands of U.S. and foreign government officials.1

B. Procedural Background

Plaintiffs brought suit under the Alien Tort Statute, 28 U.S.C. § 1350, claiming that Jeppesen is directly liable in damages for (1) actively participating in their forcible and arbitrary abduction, and (2) conspiring in their torture and other cruel, inhuman, or degrading treatment, in violation of customary international law cognizable under the Alien Tort Statute.

In the alternative, plaintiffs assert that Jeppesen is liable for aiding and abetting agents of the United States, Morocco, Egypt, and Jordan in subjecting them to torture and other cruel, inhuman, or degrading treatment because Jeppesen knew or should have known that the passengers of each flight for which it provided logistical support services were being subjected to such treatment by agents of those countries. They further allege in the alternative that Jeppesen demonstrated reckless disregard as to whether the passengers of each flight for which it provided logistical support services were being subjected to torture and other cruel, inhuman, or degrading treatment.

Before Jeppesen answered the complaint, the United States government intervened, asserting the state secrets privilege

1Plaintiffs cite, among other things, the sworn declaration of Sean Belcher, a former Jeppesen employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, “ ‘We do all the extraordinary rendition flights,’ ” which he also referred to as “ ‘the torture flights’ ” or “spook flights.” Belcher stated that “there were some employees who were not comfortable with that aspect of Jeppesen’s business” because they knew “ ‘some of these flights end up’ ” with the passengers being tortured. He stated that Overby had explained, “ ‘that’s just the way it is, we’re doing them’ ” because “the rendition flights paid very well.”

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and, on that basis, moved for dismissal. 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 asserts that “[d]isclosure 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.”

The district court granted the motions both to intervene and to dismiss, explaining:

The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case; and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense.

In its view, “inasmuch as the case involves ‘allegations’ about the conduct by the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege.” Moreover, “at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals—clearly a subject matter which is a state secret.” Holding that “the very subject matter of this case is a state secret,” the district court expressly declined to reach whether invocation of the privilege would deprive plaintiffs of evidence necessary to establish a prima facie case or Jeppesen of evidence necessary to mount a valid defense. Plaintiffs timely appealed.

II. STANDARD OF REVIEW

We review de novo the interpretation and application of the state secrets privilege and review for clear error the district

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court’s underlying factual findings. Al-Haramain Islamic Found., Inc. v. Bush , 507 F.3d 1190, 1196 (9th Cir. 2007).

III. DISCUSSION

A. Overview

[1] Two parallel strands of the state secrets doctrine have emerged from its relatively thin history. Totten v. United States, 92 U.S. 105 (1875), perhaps the earliest case to turn on state secrets in any form, stands for the proposition that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings because the “very subject matter” of the suit is secret. In that case, William Lloyd’s estate brought suit against the government to recover compensation for services that Lloyd had allegedly rendered as a spy during the Civil War. Id. at 105. Lloyd claimed to have performed on the contract, but not to have received full payment for his services according to the terms of the agreement. Id. at 106.

Dismissing the case on the pleadings, the Supreme Court

observed that the secrecy of the parties’ relationship was a

“condition of the engagement” and “[b]oth employer and

agent must have understood that the lips of the other were to

be for ever sealed respecting the relation of either to the mat-

ter.” Id. This condition of secrecy, the Court reasoned, is “im-

plied in all secret employments of the government in time of

war, or upon matters affecting our foreign relations.” Id. “The

publicity produced by an action” to enforce the conditions of

any such agreement, moreover, “would itself be a breach of

a contract of that kind, and thus defeat a recovery.”

Id.

Because “the existence of a contract of that kind is itself a fact

not to be disclosed,” id. at 107, “the very subject matter of the

action . . . [is] a matter of state secret,” and the action must

therefore be “dismissed on the pleadings without ever reach-

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ing the question of evidence,” United States v. Reynolds , 345 U.S. 1, 11 n.26 (1953) (citing Totten).2

[2] In contrast with the Totten bar, the Reynolds evidentiary privilege prevents only discovery of secret evidence when disclosure would threaten national security. See Reynolds, 345 U.S. 1.3 Application of the Reynolds privilege involves a “formula of compromise” in which the court must weigh “the circumstances of the case” and the interests of the plaintiff against the “danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Id. at 9-10. While the court should “defer to the Executive on matters of foreign policy and national security” in making this determination, AlHaramain, 507 F.3d at 1203, “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers,” Reynolds, 345 U.S. at 9-10. The court must therefore undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies. Once the court determines a claim of privilege is legitimate, however, “even the most compelling [personal] necessity cannot overcome” it. Reynolds, 345 U.S. at 11.

2The courts of appeals have generally interpreted the Totten bar as a rule

of non-justiciability. See, e.g., Wilson v. Libby , 535 F.3d 697, 710 (D.C.

Cir. 2008) (discussing the “the justiciability doctrine of Totten v. United

States”); Am. Civil Liberties Union v. Nat’l Sec. Agency , 493 F.3d 644,

650 n.2 (6th Cir. 2007) (the Totten rule is a “rule of non-justiciability”);

Al-Haramain, 507 F.3d at 1197 (the Totten rule is “a rule of non-

justiciability, akin to a political question”).

3The evidentiary version of the privilege appeared for the first time in

this Nation during Aaron Burr’s 1807 trial for treason, where the district

court considered entry of a letter asserted by the government to contain a

“matter which ought not to be disclosed.” United States v. Burr, 25 F. Cas.

30, 37 (C.C. Va. 1807). While the court acknowledged that “there may be

matter, the production of which the court would not require,” it concluded

that “[t]here is certainly nothing before the court which shows that the let-

ter in question contains any matter the disclosure of which would endan-

ger the public safety” and permitted entry of the letter.

Id; see also

Reynolds, 345 U.S. at 532 (“[The Reynolds] formula received authoritative

expression in this country as early as the Burr trial.”).

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[3] Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires “ ‘simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ” Al-Haramain, 507 F.3d at 1204 (quoting Ellsberg v. Mitchell , 709 F.2d 51, 64 (D.C. Cir. 1983)). Within the Reynolds framework, the “litigation can proceed,” therefore, so long as (1) “the plaintiffs can prove ‘the essential facts’ of their claims ‘without resort to [privileged evidence],’ ” id. (quoting Reynolds, 345 U.S. at 11), and (2) invocation of the privilege does not deprive “the defendant of information that would otherwise give the defendant a valid defense,” Kasza v. Browner , 133 F.3d 1159, 1166 (9th Cir. 1998).

B. Totten and the Subject Matter of the Lawsuit

Jeppesen, and to a lesser degree the government, argue that Totten’s categorical bar prevents litigation of this case altogether because it, like the suit in Totten, is predicated on the existence of an alleged secret agreement with the government. Neither Totten’s facts nor its logic supports that conclusion.

[4] In the first place, not all of plaintiffs’ theories of liability require proof of a relationship between Jeppesen and the government. Their claims, for example, that Jeppesen acted with reckless disregard for whether the passengers it helped transport would be tortured by agents of the United States, Morocco, Egypt, and Jordan, do not necessarily require establishing that the United States operated an extraordinary rendition program, much less that Jeppesen entered into a secret agreement with the government to assist in such a program. These claims require proof only that Jeppesen provided support for the flights on which the five plaintiffs were flown with actual or imputed knowledge that the passengers would be tortured at their destinations.

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[5] Totten also does not bar any of plaintiffs’ other causes of action because its plain language requires they (not Jeppesen) have an “agreement” or “contract” with the government, and an “underst[anding]” that “the lips of the other were to be for ever sealed respecting the relation.” Totten, 92 U.S. at 106. Only then would “[t]he secrecy which such contracts impose preclude[ ] any action for their enforcement.” Id. On facts similar to those in Totten itself, Tenet v. Doe, 544 U.S. 1 (2005), recently confirmed that Totten prohibits only suits that would necessarily reveal “the plaintiff’s [secret] relationship with the Government.” Id. at 10 (emphasis added).

[6] While it is conceivable, therefore, that the government could assert a Totten argument against Jeppesen if sued by Jeppesen to enforce an alleged clandestine contract between Jeppesen and the government, Totten has no bearing here, where third-party plaintiffs (not Jeppesen) seek compensation from Jeppesen (not the government) for tortious detention and torture (not unpaid espionage services). Totten’s logic simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities4. Nothing the plaintiffs have done supports a conclusion that their “lips [are] to be for ever sealed respecting” the claim on which they sue, such that filing this lawsuit would in itself defeat recovery. See Totten, 92 U.S. at 106.

4See Terkel v. AT&T Corp ., 441 F. Supp. 2d 899, 907 (N.D. Ill. 2006) (refusing to apply Totten because “the plaintiffs in this case were not parties to the alleged contract nor did they agree to its terms; rather, they claim that the performance of an alleged contract entered into by others would violate their statutory rights”); ACLU v. Nat’l Sec. Agency , 438 F. Supp. 2d 754, 763 (E.D. Mich. 2006) (refusing to apply Totten because it “applies [only] to actions where there is a secret espionage relationship between the Plaintiff and the Government”), vacated on other grounds , 493 F.3d 644 (6th Cir. 2007).

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[7] Neither does any Ninth Circuit or Supreme Court case law indicate that the “very subject matter” of any other kind of lawsuit is a state secret, apart from the limited factual context of Totten itself. The Supreme Court’s “very subject matter” language appeared in a footnote in Reynolds, where the Court simply characterized “the very subject matter of the [Totten lawsuit], a contract to perform espionage, [as] a matter of state secret.” Reynolds, 345 U.S. at 11 n.26. That brief passage did not signal a deliberate expansion of Totten’s uncompromising dismissal rule beyond secret agreements with the government, and we decline to adopt that expansion here.5 Tenet leaves no doubt that the “sweeping holding in Totten” applies only to suits “where success depends on the existence of [the plaintiff’s] secret espionage relationship with the Government,” and that the state secrets privilege does not otherwise “provide the absolute protection” from suit available exclusively under “the Totten rule.” Tenet, 544 U.S. at 89, 11.

[8] This narrow construction of the Totten “very subject matter” bar heeds the Supreme Court’s warning that “ ‘occasion[s] for constitutional confrontation between the [executive and judicial] branches,’ should be avoided whenever possible.” Cheney v. United States Dist. Court for Dist. of Colum-

5The government’s argument that Kasza, 133 F.3d 1159, has already

recognized that the subject matter of a lawsuit is a state secret outside the

Totten context any time secret information “is at the core” of the plaintiff’s

claims, is wrong. In that case, we affirmed dismissal according to the

Reynolds evidentiary framework because, after the privilege had been

asserted with respect to evidence during discovery, we concluded that “the

state secrets privilege bar[s the plaintiff] from establishing her prima facie

case on any of her eleven claims,” and that “[n]o protective procedure can

salvage [the plaintiff]’s suit.” 133 F.3d at 1170. Kasza’s off-handed “very

subject matter” comment thus appears to be superfluous dictum. Indeed,

we have already clarified that Kasza does no more than “confirm that

some cases are, indeed, non-justiciable as a consequence of the very sub-

ject matter of the action being a state secret,” and that it otherwise “pro-

vides scant guidance” for applying the state secrets privilege.

Al-

Haramain, 507 F.3d at 1200.

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bia, 542 U.S. 367, 389 (2004) (quoting Nixon, 418 U.S. 683, 692 (1974)).

United States v.

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves ‘allegations’ about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

[9] We reject this interpretation of the “very subject matter” concept, not only because it is unsupported by the case law, but because it forces an unnecessary zero-sum decision between the Judiciary’s constitutional duty “to say what the law is,” Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1803), and the Executive’s constitutional duty “to preserve the national security,” United States v. Valenzuela-Bernal , 458 U.S. 858, 880 (1982). We simply need not place the “coequal branches of the Government” on an all-or-nothing “collision course.” Cheney, 542 U.S. at 389.

[10] To be sure, all Presidential “claims of confidentiality and autonomy . . . push[ ] to the fore difficult questions of separation of powers and checks and balances.” Cheney, 542 U.S. at 389. Here, as in all such cases, “[t]he Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.” Id. But in the state secrets context, the difficulty of that task and the violence of the collision are both substantially less extreme within the Reynolds evidentiary

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framework, when both branches are made to engage in a “formula of compromise,” 345 U.S. at 10, rather than by application of the winner-takes-all Totten rule.

[11] Within the Reynolds’s framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance “the circumstances of the case” and the plaintiff’s “showing of necessity” for the evidence against the “danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.” Id. 10-11. Where a plaintiff’s need for the evidence is “strong . . ., the claim of privilege should not be lightly accepted,” but “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied” that the privilege applies. Id. at 11.

[12] By excising secret evidence on an item-by-item basis, rather than foreclosing litigation altogether at the outset, however, Reynolds recognizes that the Executive’s national security prerogatives are not the only weighty constitutional values at stake: while “[s]ecurity depends upon a sophisticated intelligence apparatus,” it “subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” Boumediene v. Bush , 128 S. Ct. 2229, 2277 (2008). The Constitution “ ‘protects us from our own best intentions,’ ” in other words, by “ ‘divid[ing] power . . . among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.’ ” Printz v. United States , 521 U.S. 898, 933 (1997) (quoting New York v. United States , 505 U.S. 144, 187 (1992)).

Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this Nation knew well, arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld , 542

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U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ” Id. (Scalia, J., dissenting) (quoting 1 Blackstone 13133 (1765)) (emphasis added). Thus it was “ ‘the central judgment of the Framers of the Constitution’ ” that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (quoting Mistretta v. United States , 488 U.S. 361, 380 (1989)).

[13] Unlike Totten, the Reynolds framework accommodates these division-of-powers concerns by upholding the President’s secrecy interests without categorically immunizing the CIA or its partners from judicial scrutiny. The structural elements in the Constitution, including the principles of separation of powers and judicial review, therefore strongly favor a narrow construction of the blunt Totten doctrine and a broad construction of the more precise Reynolds privilege. Accordingly, we conclude that if a lawsuit is not predicated on the existence of a secret agreement between the plaintiff and the government, Totten does not apply, and the subject matter of the suit is not a state secret. Here, plaintiffs have not sued the government to enforce an alleged secret agreement between themselves and the Executive Branch. The subject matter of this action therefore is not a state secret, and the case should not have been dismissed at the outset.

C. Reynolds and the Evidentiary Privilege

The government argues that even if the subject matter of this suit is not a state secret, it still must be dismissed at the outset according to the Reynolds framework because, in its view, Reynolds applies to secret information and, here,

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“[p]rivileged information would be essential for plaintiffs to

make out a prima facie case on, and to prove, their claims.”

See also Unclassified Hayden Decl. (because “[d]isclosure of

the information covered by this privilege assertion reasonably

could be expected to” harm national security, “the informa-

tion should be excluded from any use in this case” (emphasis

added)). We reject this argument because it misconstrues the

object of the state secrets doctrine within the

Reynolds

framework—Reynolds applies to evidence, not information.

y14The Supreme Court could not be more clear that “the privilege which protects military and state secrets” is a privilege within “the law of evidence,” just like the “analogous privilege, the privilege against self-incrimination.” Reynolds, 345 U.S. at 7-8. It specifically prevents the “compulsion of . . . evidence,” the introduction of which “will expose military matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10 (emphasis added).

[15] Outside the extremely narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Indeed, to conclude that Reynolds, like Totten, applies to prevent the litigation of allegations, rather than simply discovery of evidence, would be to destroy the distinction between the two versions of the doctrine. According to Reynolds, therefore, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.

[16] To be sure, a court may determine that evidence is subject to the Reynolds privilege because it contains secret information; nevertheless, the privilege applies to prevent discovery of the evidence itself and not litigation of the truth or falsity of the information that might be contained within it. As the Supreme Court has explained with respect to the attorney-

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client privilege, for example, invocation of that privilege does not create a “zone of silence” around the contents of privileged communications. Upjohn Co. v. United States, 449 U.S. 383, 388 (1981). “The privilege only protects disclosure of [the] communications [themselves]; it does not protect disclosure of the underlying facts,” so long as the underlying facts can be proven without resort to the privileged materials. Id. at 395.

Other privileges within the law of evidence demonstrate the same common sense principle. The “analogous” Fifth Amendment privilege against self-incrimination, Reynolds, 345 U.S. at 8, for instance, “ ‘may be asserted . . . to resist compelled explicit or implicit disclosures of incriminating information,’ ” United States v. Hubbell , 530 U.S. 27, 34 n.8 (2000) (quoting Doe v. United States , 487 U.S. 201, 212 (1988)). Once the privilege is properly invoked, the court cannot compel the testimony. Id. But a witness’s valid assertion of the privilege does not immunize him from prosecution for the underlying crime, as though the state were precluded by virtue of the privilege from litigating the facts contained within the excluded testimony. It goes without saying that the privilege applies only to the testimony itself, and not to the underlying facts, and that the state therefore may later prosecute the witness for the crimes in question, just “ ‘with[ ] evidence from another source.’ ” Id. (quoting Doe, 487 U.S. at 212).

[17] Because the Reynolds privilege, like any other evidentiary privilege, “ ‘extends only to [evidence] and not to facts,’ ” Upjohn, 449 U.S. at 395-96 (quoting Philadelphia v. Westinghouse Elec. Corp. , 205 F. Supp. 830, 831 (E.D. Pa. 1962)), it cannot be invoked to prevent a litigant from persuading a jury of the truth or falsity of an allegation by reference to non-privileged evidence, regardless whether privileged evidence might also be probative of the truth or falsity of the allegation.

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[18] As we have previously explained, therefore, the effect of the government’s successful invocation of the Reynolds privilege “ ‘is simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ” Al-Haramain, 507 F.3d at 1204 (emphasis added) (quoting Ellsberg, 709 F.2d at 64); see also Kasza, 133 F.3d at 1166 (“[B]y invoking the privilege over particular evidence, the evidence is completely removed from the case. The plaintiff’s case then goes forward based on evidence not covered by the privilege.” (citing Reynolds, 345 U.S. at 11)). 6 Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant. See Kasza, 133 F.3d at 1166.

D. The Freedom of Information Act

Finally, we address when evidence is “secret” within the meaning of the privilege. The government turns to Freedom of Information Act (“FOIA”) cases for the proposition that privileged evidence is any evidence containing “classified” information, which remains “secret” unless and until such

6There is one important difference between the unavailability of evidence under ordinary circumstances as against within the state secrets context. Ordinarily the unavailability of privileged evidence would prevent both plaintiffs and defendants from relying on that evidence to prove their cases. In the state secrets context, however, if the unavailability of privileged evidence prevents the defendant from establishing an otherwise available and valid defense, the court must dismiss the case. See Kasza, 133 F.3d at 1166 (if the privilege deprives “the defendant of information that would otherwise give the defendant a valid defense,” the case must be dismissed). In this way, the doctrine ensures protection of state secrets by requiring dismissal where defendants would otherwise have strong incentive to improperly disclose state secrets known to them during trial. It also ensures that defendants, like Jeppesen, are not penalized by the government’s invocation of the privilege.

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information has been “officially disclosed” by a high ranking government official. See Fitzgibbon v. CIA , 911 F.2d 755 (D.C. Cir. 1990); Afshar v. Dep’t of State , 702 F.2d 1125 (D.C. Cir. 1983); Phillippi v. CIA , 655 F.2d 1325 (D.C. Cir. 1981); Alfred A. Knopf, Inc. v. Colby , 509 F.2d 1362, 1370 (4th Cir. 1975). According to the government, because there has been no official disclosure or declassification of relevant classified information in this case, any materials containing classified information are necessarily subject to suppression under the privilege.

[19] We find the government’s resort to FOIA case law unpersuasive because the FOIA statutory framework takes for granted that “classified” matters relating to national defense and foreign policy are, by virtue of being classified, categorically exempt from disclosures that would otherwise be required under the Act. See 5 U.S.C. § 552(b)(1)(A)-(B) (exempting from disclosure under FOIA all “matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order”).

[20] The state secrets privilege operates according to no such assumption—in fact, Reynolds makes clear that “classified” cannot be equated with “secret” within the meaning of the doctrine. If the simple fact that information is classified were enough to bring evidence containing that information within the scope of the privilege, then the entire state secrets inquiry—from determining which matters are secret to which disclosures pose a threat to national security—would fall exclusively to the Executive Branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” Reynolds, 345 U.S. at 8-10. A rule that categorically equated “classified” matters with “secret” matters would, for example, perversely encourage the President to classify politically

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embarrassing information simply to place it beyond the reach of judicial process. 7 It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.

Common sense confirms this conclusion. The government could not seriously argue, for example, that the Pentagon

7Abuse of the Nation’s information classification system is not unheard of. Former U.S. Solicitor General Erwin Griswold, who argued the government’s case in the Pentagon Papers matter, later explained in a Washington Post editorial that “[i]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.” Erwin N. Griswold, Secrets Not Worth Keeping: the Courts and Classified Information , Wash. Post, Feb. 15, 1989, at A25.
Former Attorney General Herbert Brownell similarly complained in a 1953 letter to President Eisenhower that classification procedures were then “so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.” Letter from Attorney General Herbert Brownell to President Dwight Eisenhower (June 15,1953) (quoted in Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 145 (2001)).
Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that “this accident occurred to a military plane which had gone aloft to test secret electronic equipment,” and that “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.” 345 U.S. at 10. In 1996, however, the “secret” accident report involved in that case was declassified. A review of the report revealed, not “details of any secret project the plane was involved in,” but “[i]nstead, . . . a horror story of incompetence, bungling, and tragic error.” Garry Wills, Why the Government Can Legally Lie , 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.

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Papers remained “secret” and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise “officially disclose” the content of the papers. See New York Times Co. v. United States , 403 U.S. 713 (1971).

[21] It is also unsurprising that Congress would enact a more deferential scheme under FOIA than exists under the state secrets doctrine, given the substantial differences in the balance of interests involved in the two types of cases. The state secrets doctrine empowers the government to refuse disclosure of secret evidence during the course of a lawsuit that necessarily has an independent purpose apart from disclosure. Plaintiffs here, for example, seek redress against Jeppesen for its alleged complicity in their alleged torture at the hands of foreign agents. Their interest in discovery of all relevant evidence is substantial: “The very essence of civil liberty . . . consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,” and “[o]ne of the first duties of government is to afford that protection.” Marbury, 5 U.S. (1 Cranch) at 163. Disclosure of any evidence containing classified information, but ultimately not subject to the state secrets privilege, would be appropriate only as necessary for plaintiffs to obtain the protection of the laws.

[22] By contrast, FOIA entails litigation for the sole and independent purpose of obtaining disclosure of classified information. See 5 U.S.C. § 552(a)(4)(B); see also, e.g. , Knopf, 509 F.2d at 1370 (addressing the court’s authority under FOIA to order the disclosure of classified information for publication in a book). While “an informed citizenry [is] vital to the functioning of a democratic society,” Dep’t of Interior v. Klamath Water Users Protective Ass’n , 532 U.S. 1, 16 (2001) (internal quotations omitted), we think the balance of interests will more often tilt in favor of the Executive when disclosure is the primary end in itself. FOIA therefore

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predictably entails greater deference to the national classification system than does the state secrets doctrine.

Given these two relevant differences, the government’s invocation of FOIA case law is unpersuasive in the state secrets context. Any argument that the contents of any evidence are and remain categorically secret for purposes of the privilege unless and until the government says otherwise is meritless.

E. Conclusion

The government finally urges us to affirm according to Reynolds because, in its view, there is “no possibility” that plaintiffs can establish a prima facie case, or that Jeppesen can defend itself, “without using privileged evidence.” We are unpersuaded because acceding to the government’s request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered.

[23] This case is before us on appeal from a Rule 12(b)(6) motion to dismiss. Jeppesen has not filed an answer to the complaint, and discovery has not yet begun. It is well settled that when a federal court reviews the grant of a Rule 12 motion to dismiss, “its task is necessarily a limited one.” Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). That limited task “is not [to determine] whether a plaintiff will ultimately prevail,” id., but instead only whether the complaint “state[s] a claim upon which relief can be granted,” Fed. R. Civ. Pro. 12(b)(6). Plaintiffs here have stated a claim on which relief can be granted and therefore should have an opportunity to present evidence in support of their allegations, without regard for the likelihood of ultimate success. See Scheuer, 416 U.S. at 236 (a district court acts “prematurely” and “erroneously” when it dismisses a well-pleaded complaint, thereby

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“preclud[ing] any opportunity for the plaintiffs” to establish their case “by subsequent proof”); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, — (2007) (“[A] well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.’ ” (quoting Scheuer, 416 U.S. at 236)).

This limited inquiry—a long-standing feature of the Fed-

eral Rules of Civil Procedure—serves a sensible judicial pur-

pose. We simply cannot resolve whether the

Reynolds

evidentiary privilege applies without (1) an actual request for

discovery of specific evidence, (2) an explanation from plain-

tiffs of their need for the evidence, and (3) a formal invoca-

tion of the privilege by the government with respect to that

evidence, explaining why it must remain confidential. See

Reynolds, 345 U.S. at 8-9 (“the principles which control the

application of the privilege” require a “formal claim of privi-

lege” by the government with respect to the challenged evi-

dence); id. at 10-11 (the court must consider the litigants’

“showing of necessity” for the evidence in determining

whether “the occasion for invoking the privilege is appropri-

ate”). Nor can we determine whether the parties will be able

to establish their cases without use of privileged evidence

without also knowing what non-privileged evidence they will

marshal. See Crater Corp. v. Lucent Techs., Inc. , 423 F.3d

1260, 1267-68 (Fed. Cir. 2005) (“deciding the impact of the

government’s assertion of the state secrets privilege” before

the record is “adequately developed” puts “the cart before the

horse”). Thus neither the Federal Rules nor Reynolds would

permit us to dismiss this case at the pleadings stage on the

basis of an evidentiary privilege that must be invoked during

discovery or at trial.

Our decision to remand also has the additional benefit of conforming with “the general rule . . . that a federal appellate court does not consider an issue not passed on below,” and will allow the district court to apply Reynolds in the first instance. See Singleton v. Wulff , 428 U.S. 106, 120 (1976); see also Johnson v. California, 543 U.S. 499, 515 (2005) (cit-

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ing Consol. Rail Corp. v. Gottshall , 512 U.S. 532, 557-58 (1994) (reversing and remanding for the lower court to apply the correct legal standard in the first instance)).

[24] On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.

REVERSED and REMANDED.

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 1128

539 FEDERAL SUPPLEMENT, 2d SERIES

so, the present complaint will be dismissed.
,

ability to protect that interest, and (4) the applicant’s interest must not be adequately represented by the existing parties in the lawsuit. Fed.Rules Civ.Proc.Rule 24(a), 28 U.S.C.A.

Binyam MOHAMED, et al., Plaintiffs,
v.
JEPPESEN DATAPLAN, INC., Defendant.
No. C07–02798 JW.
United States District Court, N.D. California,
San Jose Division.
Feb. 13, 2008. Background: Foreign nationals who had allegedly been unlawfully apprehended, transported, imprisoned, interrogated and, in some instances, tortured in the Central Intelligence Agency’s (CIA) ‘‘extraordinary rendition’’ program brought action under the Alien Tort Statute (ATS) against company alleged to have taken part in the program. Government moved to intervene and to dismiss or for summary judgment. Holdings: The District Court, James Ware, J., held that: (1) government was entitled to intervene
as of right, and (2) court lacked subject matter jurisdic-
tion. Motions granted.
1. Federal Civil Procedure O314.1 To intervene in a lawsuit as a matter
of right, a non-party must satisfy four requirements: (1) the application for intervention must be timely, (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action, (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s

2. Federal Civil Procedure O338 United States government was enti-
tled to intervene as of right in foreign nationals’ action, under the Alien Tort Statute (ATS), against company alleged to have participated in Central Intelligence Agency’s (CIA) ‘‘extraordinary rendition’’ program; government’s motion was timely, it had an important interest, since the action involved activities allegedly overseen by the CIA, and that interest could not be adequately represented by defendant company, since that company could not assert the state secrets privilege on behalf of the government. 28 U.S.C.A. § 1350; Fed.Rules Civ.Proc.Rule 24(a), 28 U.S.C.A.
3. Witnesses O216(1) The state secrets privilege may be
asserted by the government when there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.
4. Witnesses O216(1) Invocation of the state secrets privi-
lege requires court to consider (1) whether the procedural requirements for invoking the privilege have been satisfied, (2) whether the information is privileged, and (3) whether or how the case should proceed in light of the privilege claim.
5. Witnesses O216(1) To assert the state secrets privilege,
government must make 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.

MOHAMED v. JEPPESEN DATAPLAN, INC.
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6. Witnesses O216(1)
Public declaration of the Director of the Central Intelligence Agency (CIA), in which he formally asserted the military and state secrets privilege, satisfied all of the procedural requirements for invocation of the privilege.
7. Witnesses O216(1)
Foreign nationals’ action, under the Alien Tort Statute (ATS), against company alleged to have participated in Central Intelligence Agency’s (CIA) ‘‘extraordinary rendition’’ program, involved allegations about conduct by the CIA and was thus properly the subject of government’s state secrets privilege; allegations implicated national security interests of the United States. 28 U.S.C.A. § 1350.
8. Constitutional Law O2551
Court defers to the Executive Branch on matters of foreign policy and national security.
9. Witnesses O216(1)
Invocation of states secret privilege is a categorical bar to a lawsuit (1) if the very subject matter of the action is a state secret, (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case, or (3) if invocation of the privilege deprives a defendant of information necessary to raise a valid defense.
10. Federal Courts O13
Issues involved in foreign nationals’ action, under the Alien Tort Statute (ATS), against company alleged to have participated in Central Intelligence Agency’s (CIA) ‘‘extraordinary rendition’’ program, were non-justiciable, such that district court lacked subject matter jurisdiction; the very subject matter of the case was a state secret. 28 U.S.C.A. § 1350; Fed. Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A.

Ann Brick, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, CA, Benjamin Elihu Wizner, Jameel Jaffer, Steven R. Shapiro, Steven M. Watt, American Civil Liberities Union Foundation, New York, NY, Clive Stafford Smith, Zachary Philip Katznelson, Reprieve, England, UK, Hope R. Metcalf, National Litigation Project, New Haven, CT, for Plaintiffs.
Daniel Paul Collins, Henry Weissman, Munger Tolles & Olson LLP, Joseph Scott Klapach, Attorney at Law, Los Angeles, CA, for Defendant.
ORDER GRANTING THE UNITED STATES’ MOTION TO INTERVENE AND GRANTING THE UNITED STATES’ MOTION TO DISMISS WITH PREJUDICE
JAMES WARE, District Judge.
I. INTRODUCTION
This lawsuit was filed by Plaintiffs, who are foreign nationals, for damages inflicted upon them in a so-called ‘‘rendition’’ program operated under the auspices of the United States Government. Plaintiffs allege that under the program they were unlawfully apprehended, transported, imprisoned, interrogated and in some instances tortured—all under the direction of the United States. Defendant, Jeppesen Dataplan, Inc., is a domestic corporation with its headquarters in San Jose, California. Defendant is being sued for its alleged participation in the program. Plaintiffs are proceeding under the Alien Tort Statute, 28 U.S.C. § 1350, which gives the District Courts original jurisdiction to hear actions that allege tortious conduct committed against aliens in violation of the law of nations or a treaty of the United States. The United States seeks to intervene in the action, to assert the ‘‘state secrets’’ privilege, and on that basis,

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to move the Court for dismissal of the action or alternatively for summary judgment.
The Court conducted a hearing on February 5, 2008. The Court finds good cause to allow the United States to intervene. Having reviewed the allegations of the Complaint and the showing made by the United States, including a classified declaration, the Motion to Dismiss is GRANTED.
II. BACKGROUND
In a First Amended Complaint filed on August 1, 2007, Plaintiffs 1 make the following allegations against Defendant Jeppesen:
Plaintiffs Mohamed, Britel, Agiza, Bashmilah, and al-Rawi were victims of an unlawful program devised and developed by the Central Intelligence Agency. Commonly known as ‘‘extraordinary rendition,’’ the program involves the clandestine apprehension and transfer of persons suspected of involvement in terrorist activities to secret detention and interrogation facilities in countries outside the United States, utilizing methods impermissible under United States and international law. (First Amended Complaint ¶ 13, hereafter, ‘‘FAC,’’ Docket Item No. 27.) Each Plaintiff’s experience is as follows:
Binyam Mohamed is an Ethiopian citizen. At the time of his unlawful rendition, Mohamed was a legal resident of the United Kingdom. (FAC ¶ 22.) On April 10, 2002, Mohamed was arrested in Karachi, Pakistan and turned over to agents of the U.S. Federal Bureau of Investigation and the CIA. After four months of interrogation, during which time he was refused access to a lawyer, CIA agents blindfolded him, strapped
1. Plaintiffs are Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag

him to the seat of a plane, and flew him to Rabat, Morocco. (FAC ¶ 3.) For the next eighteen months, Mohamed was secretly detained, interrogated, and tortured by agents of the Moroccan intelligence services. On January 21, 2004, he was taken by agents of the CIA and flown to the secret U.S. detention facility known as the ‘‘Dark Prison,’’ in Kabul, Afghanistan. There, Mohamed was subjected to several more months of detention, interrogation, and torture by U.S. intelligence agents before being transferred to Bagram Air Base outside Kabul. In September 2004, Mohamed was transferred to the Naval Station at Guant´anamo Bay, Cuba where he remains. (FAC ¶ 4.)
Abou Elkassim Britel is an Italian citizen. At the time of his unlawful rendition, he was an Italian citizen working in Pakistan. (FAC ¶ 23.) On March 10, 2002, Bristel was apprehended by Pakistani police in Lahore, Pakistan. After two months of interrogation, during which time his repeated requests to speak with the Italian consulate were denied, he was turned over to CIA agents who blindfolded him, strapped him to the seat of a plane, and flew him to Rabat, Morocco. (FAC ¶ 5.) For more than eight months, Britel was secretly detained, interrogated, and tortured by agents of the Moroccan intelligence services until he was released without charges in February 2003. In May 2003, he was arrested by Moroccan authorities while attempting to return to Italy. In the same month, Britel was sentenced to fifteen years in prison for his alleged involvement in terroristrelated activities. His sentence was subsequently reduced to nine years on
Ahmad Bashmilah, and Bisher al-Rawi.

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appeal. (FAC ¶ 6.) Britel is currently imprisoned at the Ain Bourja prison in Morocco. (FAC ¶ 23.)
Ahmed Agiza is an Egyptian citizen. At the time of his unlawful rendition, Agiza, together with his wife and five young children, was living in Sweden, where the family had applied for political asylum and permanent residence. (FAC ¶ 24.) On December 18, 2001, Agiza was secretly apprehended by Swedish security police, handed over to agents of the CIA who blindfolded him, strapped him to the seat of a plane, and flew him to Cairo. There, he was turned over to agents of the Egyptian intelligence services who detained, interrogated, and tortured him. (FAC ¶ 7.) For the first five weeks after his arrival in Egypt, Agiza was detained incommunicado. During this time and for about ten weeks, he was repeatedly and severely tortured and denied meaningful access to consular officials, family members, and lawyers. In April 2004, following trial before a military tribunal, Agiza was convicted and sentenced to twenty-five years in prison for membership in an organization banned under Egyptian law. The sentence has since been reduced to fifteen years. (FAC ¶ 8.) Agiza is currently imprisoned in the Tora prison complex in Egypt. (FAC ¶ 24.)
Mohamed Farag Ahmad Bashmilah is a Yemeni citizen. At the time of his unlawful rendition, Bashmilah, together with his wife, was visiting Jordan to assist his mother in obtaining medical care. (FAC ¶ 25.) On or about October 21, 2003, Bashmilah was taken into custody by the Jordanian General Intelligence Department while he was visiting Jordan. After being interrogated under torture for many days, Bashmilah was handed over, by the Jordanian government, to CIA agents who blindfolded him, strapped him to the seat of a plane,

and flew him to Kabul, Afghanistan. (FAC ¶ 9.) For the next nineteen months, Bashmilah was held incommunicado by the U.S. government. For about six months, Bashmilah was secretly detained, interrogated, and tortured by U.S. intelligence agents at Bagram Air Base in Afghanistan. Toward the end of April 2004, Bashmilah was again transferred to another detention facility in an unknown country. In this CIA ‘‘black site,’’ Bashmilah was subjected to more than a year of interrogation, torture, and detention. On May 5, 2005, he was again ‘‘prepared’’ for flight by a CIA team. This time he was returned to Yemen, where he was detained for about nine months before being released. (FAC ¶ 10.) Bashmilah currently resides in Yemen. (FAC ¶ 25.)
Bisher al-Rawi is an Iraqi citizen and a British permanent resident. At the time of his unlawful rendition, al-Rawi, together with his elder brother and his business associates, was traveling to the Republic of the Gambia, Africa, to establish a peanut processing business. (FAC ¶ 26.) On November 8, 2002, alRawi was apprehended by Gambian intelligence agents at the Banjul airport in the Republic of The Gambia. He was detained and questioned for two weeks by Gambian officials and agents of the CIA. CIA agents then blindfolded him, strapped him to the seat of a plane, and flew him to Kabul, Afghanistan. (FAC ¶ 11.) In Afghanistan, al-Rawi was detained for two weeks at the secret U.S.run detention facility known as the ‘‘Dark Prison’’ before being transferred to the Bagram Air Base for two more months of detention and interrogation. While in U.S. custody, al-Rawi was physically and psychologically tortured and otherwise abused before he was flown to Guant´anamo on February 7, 2003. On March 30, 2007, al-Rawi was

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539 FEDERAL SUPPLEMENT, 2d SERIES

released from Guant´anamo and returned to his home in England, were he currently resides. No charges have ever been brought against him. (FAC ¶ 12.)
The program described above has been carried out by the CIA, with the assistance of U.S.-based corporations, such as Jeppesen, who have provided the aircraft, flight crews, and the flight and logistical support necessary for hundreds of international flights. (FAC ¶ 13.)
Jeppesen is a corporation with headquarters in San Jose, California. Jeppesen provides an aviation and logistical and travel service operating under the trade name Jeppesen International Trip Planning. Jeppesen is a wholly owned subsidiary of Jeppesen Sanderson, a corporation with headquarters in Englewood, Colorado. Jeppesen Sanderson, in turn, is a wholly owned subsidiary of Boeing Company. (FAC ¶ 27.)
Jeppesen has provided direct and substantial services to the United States for its ‘‘extraordinary rendition.’’ (FAC ¶ 2.) In providing its services to the CIA, Jeppesen knew or reasonably should have known that Plaintiffs would be subjected to forced disappearance, detention, and torture in countries where such practices are routine. According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that at an internal company meeting, a senior Jeppesen official stated: ‘‘We do all of the extraordinary rendition flights—you know, the torture flights.

Let’s face it, some of these flights end up that way.’’ Jane Mayer, Outsourced: The CIA’s Travel Agent, The New Yorker, Oct. 30, 2006. (FAC ¶ 16.)
On the basis of the allegations outlined above, Plaintiffs allege two causes of action: (1) Alien Tort Statute: Forced Disappearance; and (2) Alien Tort Statute: Torture and Other Cruel, Inhuman, or Degrading Treatment.
Presently before the Court are the United States’ Motion to Intervene 2 and the United States’ Motion to Dismiss, or in the Alternative, for Summary Judgment.3
III. DISCUSSION
The United States seeks to intervene in this case and to assert state secrets privilege on behalf of itself and Jeppesen, filing separate motions as to each issue. In support of its motions, the United States filed a public declaration of General Michael V. Hayden, USAF, who is currently serving as director of the CIA.4 The Court has also reviewed, in camera and ex parte, a classified declaration of General Hayden. Upon review of the public and classified declarations, the Court proceeds to address each of the United States’ motions in turn.5
A. The United States’ Motion to Intervene
The United States moves to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a). (Motion to Intervene at 3.)
Rule 24(a) provides:

2. (hereafter, ‘‘Motion to Intervene,’’ Docket Item No. 42.)
3. (hereafter, ‘‘Motion Re State Secrets,’’ Docket Item No. 43.)
4. (Motion Re State Secrets, Formal Claim of State Secrets and Statutory Privileges by Gen-

eral Michael V. Hayden, USAF, Director of the Central Intelligence Agency, hereafter, ‘‘Public Hayden Decl.’’)
5. In this Order, the Court refers only to the contents of General Hayden’s publicly filed declaration.

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[1] On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
To intervene as a matter of right, a nonparty must satisfy four requirements: ‘‘(1) the application for intervention must be timely; (2) the applicant must have a ‘significantly protectable’ interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by the existing parties in the lawsuit.’’ Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir.2001). The Ninth Circuit has liberally construed Rule 24(a) in favor of potential intervenors. Id. at 818.
[2] The United States has satisfied all of the requirements for intervention. First, the motion by the United States is timely. Second, the motion was filed early in the litigation, and was earlier preceded by a Statement of Interest, informing the Court that the United States was considering whether to intervene. (See Docket Item No. 34.) Third, the United States has an important interest in this action because it involves activities allegedly overseen by the CIA; it is the nature and extent of these activities over which the United States seeks to assert state secrets

privilege. (See Motion Re State Secrets.) If the United States were not allowed to intervene, its interest in maintaining state secrets could be harmed. Finally, the United States is not adequately represented by Jeppesen because Jeppesen cannot assert state secrets privilege on behalf of the government. The privilege belongs to the government alone and cannot be asserted by private citizens. United States v. Reynolds, 345 U.S. 1, 7–8, 73 S.Ct. 528, 97 L.Ed. 727 (1953).
In addition, neither party opposes the intervention of the United States in this action. (See Docket Item Nos. 48, 51.) Accordingly, the Court GRANTS the United States’ Motion to Intervene.
B. The United States’ Invocation of State Secrets Privilege and Motion to Dismiss
The United States has interposed a claim of state secrets privilege and moves to dismiss the lawsuit on that ground. (Motion Re State Secrets at 6, 9, 16.)
[3, 4] State secrets privilege is a common law evidentiary privilege of constitutional significance that the government may assert when ‘‘there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S.Ct. 528. Invocation of state secrets privilege requires a court to undertake a three-step analysis: 6 (1) the court must ‘‘ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied,’’ El–Masri v. U.S., 479 F.3d 296, 304 (4th Cir.2007); see also Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528; (2) the court must make an independent determination of whether the infor-

6. The Ninth Circuit’s recent decision in Al– Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190, 1202 (9th Cir.2007), adopted

this three-step analysis, which was first articulated in El–Masri, 479 F.3d at 304.

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539 FEDERAL SUPPLEMENT, 2d SERIES

mation is privileged, El–Masri, 479 F.3d at 304; and (3) the court must consider whether or how the case should proceed in light of the privilege claim. Id. The Court proceeds to conduct the above analysis in this case.
1. The Government has complied with the procedures for invoking the privilege.
[5] To assert state secrets privilege, the government must make ‘‘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.’’ Reynolds, 345 U.S. at 7– 8, 73 S.Ct. 528.
[6] General Hayden is the head of the CIA, which is the department that Plaintiffs allege has control over the ‘‘extraordinary rendition’’ program. (Public Hayden Decl. ¶ 1; FAC ¶¶ 3–13.) In his public declaration, General Hayden states, ‘‘The purpose of this declaration is to formally assert, in my capacity as the Director of the Central Intelligence Agency, the military and state secrets privilege.’’ (Public Hayden Decl. ¶ 3.) The Court finds that the public declaration satisfies all of the procedural requirements for invocation of the state secrets privilege.
2. State secrets privilege applies to the information which the government seeks to protect from disclosure.
After state secrets privilege has been properly asserted, a court must determine whether the privilege applies to the information the government seeks to prevent from being disclosed. See Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528.
[7, 8] Without reaching the merits of Plaintiffs’ allegations, in the First Amended Complaint, Plaintiffs make allegations against Defendant concerning the operations of the CIA overseas. (FAC ¶¶ 1–13.) Litigation over ‘‘allegations’’ about the op-

erations of the CIA overseas implicates national security interests of the United States, entitling the United States to invoke state secrets privilege. The court defers ‘‘to the Executive [Branch] on matters of foreign policy and national security.’’ Al–Haramain, 507 F.3d at 1203. Moreover, the Court has read the classified Declaration of General Hayden. In light of the Supreme Court’s warning not to disclose ‘‘the very thing the privilege is designed to protect,’’ the Court does not give an analysis of the classified document. Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528. The Court finds that inasmuch as the case involves ‘‘allegations’’ about the conduct by the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege.
3. Whether this case may proceed in the face of the invocation of state secrets privilege.
[9] Once state secrets privilege is invoked, the Court should consider whether the case may proceed under that circumstance. The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case; and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense. Since the Court finds that the very subject matter of this case is a state secret, the Court does not reach the other circumstances.
The issue of whether ‘‘subject matter’’ of a case is a state secret is a threshold determination. Al–Haramain, 507 F.3d at 1201. If the ‘‘very subject matter of the action’’ is a state secret, then the action is non-justiciable and ‘‘the court should dismiss the plaintiff’s action based solely on

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the invocation of state secrets privilege.’’ Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.1998); Al–Haramain, 507 F.3d at 1200.
The ‘‘subject matter’’ of an action is not the same as the ‘‘facts necessary to litigate the case.’’ Al–Haramain, 507 F.3d at 1201; but see El–Masri, 479 F.3d at 308. Courts have found the ‘‘very subject matter’’ of a case to be a state secret when the case involved classified weapons or other devices, or when the case involved covert operations by agencies of the United States in foreign countries. See Hepting v. AT & T Corp., 439 F.Supp.2d 974, 993 (N.D.Cal.2006) (citing exemplary cases). For example, in Kasza, the Ninth Circuit found that the ‘‘subject matter’’ of a case was a state secret because the information was at the core of the plaintiff’s claim such that any further proceeding in the case jeopardized national security. The court reasoned:
Not only does the state secrets privilege bar Frost from establishing her prima facie case on any of her eleven claims, but any further proceeding in this matter would jeopardize national security. No protective procedure can salvage Frost’s suit. Therefore, as the very subject matter of Frost’s action is a state secret, we agree with the district court that her action must be dismissed.
Kasza, 133 F.3d at 1170.
[10] The government contends that the very ‘‘subject matter’’ of this case is a state secret because the disclosure of the information covered by its privilege assertions reasonably could be expected to cause serious damage to the national security and foreign relations of this country. (Motion Re State Secrets at 16.) For example, in his publicly filed declaration, General Hayden states:
First, this lawsuit puts at issue whether or not Jeppesen assisted the CIA with any of the alleged detention and interro-

gationTTTT Disclosure of information that would tend to confirm or deny whether or not Jeppesen provided such assistance—even if such confirmations or denial come from a private party alleged to have cooperated with the United States and not the United States itself—would cause exponentially grave damage to the national security by disclosing whether or not the CIA utilizes particular sources and methods and, thus, revealing to foreign adversaries information about the CIA’s intelligence capabilities or lack thereof.
TTT Second, this lawsuit puts at issues whether or not the CIA cooperated with particular foreign governments in the conduct of alleged clandestine intelligence activities. Adducing evidence that would tend to confirm or deny such allegations would result in extremely grave damage to the foreign relations and foreign activities of the United States.
(Public Hayden Decl. ¶¶ 22, 23.) The Court’s review of General Hayden’s public and classified declarations confirm that proceeding with this case would jeopardize national security and foreign relations and that no protective procedure can salvage this case. Thus, the Court finds that the issues involved in this case are non-justiciable because the very subject matter of the case is a state secret.
Plaintiffs contend that the very ‘‘subject matter’’ of this case is not a state secret because publically made statements about the United States’ detention and interrogation program show an intention to engage in a public discourse about the program. (Plaintiffs’ Opposition to the United States’ Motion to Dismiss at 25, 28.) Plaintiffs further contend that these public statements mean the program is not a ‘‘black box’’ program, the very existence of which

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is secret. (Id.) Plaintiffs rely on Al–Haramain,7 where the Ninth Circuit found that the ‘‘subject matter’’ of a case involving a National Security Agency wiretapping program was not a state secret because elements of the program had been disclosed to the public. 507 F.3d at 1201. Al– Haramain is distinguishable from the facts alleged in this case. The Court’s review of General Hayden’s public and classified declarations cause it to have concern that any further proceedings in this case would elicit facts which might tend to confirm or refute as of yet undisclosed state secrets.
In sum, at the core of Plaintiffs’ case against Defendant Jeppesen are ‘‘allegations’’ of covert U.S. military or CIA operations in foreign countries against foreign nationals-clearly a subject matter which is a state secret. Accordingly, pursuant to 28 U.S.C. § 1331 and Federal Rule of Civil Procedure 12(b)(1), the United States’ Motion to Dismiss is GRANTED with prejudice on the ground that the Court lacks subject matter jurisdiction.
IV. CONCLUSION
This non-justiciable dismissal is limited to the legal effect of the United States’ invocation of state secrets privilege; it is not an indication as to whether Plaintiffs have standing or whether they are entitled to recover under the Alien Tort Statute.
The Court GRANTS the United States’ Motion to Intervene and GRANTS the United States’ Motion to Dismiss on the ground that the very subject matter of the

case is a state secret. The Court DISMISSES this case with prejudice.
,
In re WASHINGTON MUTUAL OVERDRAFT PROTECTION
LITIGATION,
This action relates to: All Actions.
Case No. CV 03–2566 ABC (RCx).
United States District Court, C.D. California.
March 17, 2008. Background: Consumers filed consolidated class action complaint, asserting that lender’s overdraft limit feature on automated teller machine (ATM) and debit cards violated Truth in Lending Act (TILA), Home Owners’ Loan Act (HOLA), and California laws governing unfair and deceptive trade practices, unjust enrichment, and Consumer Legal Remedies Act (CLRA). The District Court for the Central District of California, 2004 WL 5046210, dismissed action. Consumers appealed. The United States Court of Appeals for the Ninth Circuit, 201 Fed.Appx. 409, affirmed in part, reversed in part, and remanded. On remand, lender moved for summary judgment and to dismiss on preemption grounds. Holdings: The District Court, Audrey B. Collins, J., held that:

7. Plaintiffs also rely on Hepting, 439 F.Supp.2d 974. In Hepting, the Court conducted an analysis as to whether an asserted state secret was actually ‘‘secret’’ in the sense that it had not been publically disclosed by any reliable source. Id. at 990. However, this approach is not fully supported by the

Ninth Circuit’s later decision in Al–Haramain, where the Court focused on disclosures made by the holder of the privilege, which is the government, as opposed disclosures made by any reliable source. See 507 F.3d at 1197– 1200.

 
 Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 1 of 14
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:07−cv−02798−JW

Mohamed et al v. Jeppesen Dataplan, Inc. Assigned to: Hon. James Ware Referred to: Hon. Richard Seeborg Case in other court: 9th Circuit Court of Appeals, 08−15693
Supreme Court, 10−00778 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 05/30/2007 Date Terminated: 02/13/2008 Jury Demand: Plaintiff Nature of Suit: 360 P.I.: Other Jurisdiction: Federal Question

Binyam Mohamed

represented by Ann Brick American Civil Liberties Union Foundation of Northern California Inc. 39 Drumm Street San Francisco, CA 94111 415/621−2493 Fax: 415−255−8437 Email: abrick@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Elihu Wizner , American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−519−7860 Fax: 212−549−2651 Email: bwizner@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clive Stafford Smith Reprieve Post Office Box 52742 London, England, UK EC4P 4WS 4402073534640 Fax: 4402073534641 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hope R Metcalf National Litigation Project−Allard K. Lowenstein International Human Rights Clinic Yale Law School 127 Wall Street New Haven, CT 06520 203−432−9404 Fax: 230−432−9128 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer , American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−519−7814 Fax: 212−549−2651

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 2 of 14

Email: jjaffer@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven R Shapiro American Civil Liberities Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Fax: 212−549−2651 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Watt , American Civil Liberties Union 125 Broad Street Floor 18 New York, NY 10004 212−519−7870 Fax: 212−549−2651 Email: swatt@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zachary Philip Katznelson Reprieve PO Box 52742 London, England, UK EC4P 4WS 4402073534640 Fax: 4402073534641 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexa Rebecca Kolbi−Molinas American Civil Liberties Union 125 Broad Street Floor 18 New York, NY 10004 212−519−7845 Fax: 212−549−2651 Email: akolbi−molinas@aclu.org TERMINATED: 12/20/2007 ATTORNEY TO BE NOTICED

Plaintiff Abou Elkassim Britel

represented by Ann Brick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Elihu Wizner , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clive Stafford Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hope R Metcalf (See above for address)

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 3 of 14

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven R Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Watt , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Zachary Philip Katznelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexa Rebecca Kolbi−Molinas (See above for address) TERMINATED: 12/20/2007 ATTORNEY TO BE NOTICED

Plaintiff Ahmed Agiza

represented by Ann Brick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Elihu Wizner , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Clive Stafford Smith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hope R Metcalf (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jameel Jaffer , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven R Shapiro (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven M. Watt , (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 4 of 14

Zachary Philip Katznelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexa Rebecca Kolbi−Molinas (See above for address) TERMINATED: 12/20/2007 ATTORNEY TO BE NOTICED

Plaintiff Bisher Al−Rawi

represented by Alexa Rebecca Kolbi−Molinas (See above for address) TERMINATED: 12/20/2007 ATTORNEY TO BE NOTICED

Benjamin Elihu Wizner American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−519−7860 Fax: 212−549−2651 Email: bwizner@aclu.org ATTORNEY TO BE NOTICED

Steven M. Watt American Civil Liberties Union 125 Broad Street Floor 18 New York, NY 10004 212−519−7870 Fax: 212−549−2651 Email: swatt@aclu.org ATTORNEY TO BE NOTICED

Plaintiff Mohamed Farag Ahmad Bashmilah

represented by Alexa Rebecca Kolbi−Molinas (See above for address) TERMINATED: 12/20/2007 ATTORNEY TO BE NOTICED

Benjamin Elihu Wizner (See above for address) ATTORNEY TO BE NOTICED

Margaret Lockwood Satterthwaite , International Human Rights Clinic Washington Square Legal Services, Inc. NYU School of Law 245 Sullivan Street New York, NY 10012 212−998−6657 Fax: 212−995−4031 Email: satterth@juris.law.nyu.edu ATTORNEY TO BE NOTICED

Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED

V.

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 5 of 14

Defendant Jeppesen Dataplan, Inc.

represented by Daniel Paul Collins Munger Tolles &Olson 355 So Grand Ave Ste 3500 Los Angeles, CA 90071−1560 (213) 683−9100 Email: Daniel.Collins@mto.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Weissman Munger Tolles &Olson LLP 355 South Grand Avenue 35th Floor Los Angeles, CA 90071 213−683−9100 Fax: 213−687−3702 ATTORNEY TO BE NOTICED

Joseph Scott Klapach Attorney at Law 8200 Wilshire Boulevard, Suite 300 Beverly Hills, CA 90211−2328 310−525−3724 Fax: 310−728−1779 Email: joseph@klapachlaw.com ATTORNEY TO BE NOTICED

Interested Party United States of America

represented by Michael Patrick Abate US Department of Justice 20 Massachusetts Ave. NW Washington, DC 20001 202−616−8209 Fax: 202−616−8470 Email: michael.abate@usdoj.gov TERMINATED: 05/14/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

W. Scott Simpson U.S. Department of Justice Room 7210 Post Office Box 883 Washington, VA 20044 202−514−3495 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/30/2007
05/30/2007

# Docket Text
1 COMPLAINT (Summons Issued); jury demand; against Jeppesen Dataplan, Inc. ( Filing fee $ 350, receipt number 3461006889). Filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). Additional attachment(s) added on 6/8/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
2 Certification of Interested Parties or Entities (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 6 of 14

05/30/2007 05/30/2007 05/30/2007 05/30/2007
05/30/2007 05/30/2007 05/30/2007 05/30/2007 05/30/2007 05/30/2007 05/30/2007 05/30/2007 05/30/2007 06/07/2007

3 Application for Admission of Attorney Steven Watt Pro Hac Vice ( Filing fee $ 210, receipt number 34611006811.) filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
4 Application for Admission of Attorney Steven R. Shapiro Pro Hac Vice ( Filing fee $ 210, receipt number 3461186812) filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
5 Application for Admission of Attorney Jameel Jaffer Pro Hac Vice ( Filing fee $ 210, receipt number 346110860) filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
6 Application for Admission of Attorney Clive Stafford Smith Pro Hac Vice ( Filing fee $ 210, receipt number 34611006814) filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
7 Application for Admission of Attorney Hope R. Metcalf Pro Hac Vice ( Filing fee $ 210, receipt number 34611006410) filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
Received (Proposed) Order Granting Pro Hac Vice for Attorney Hope R. Metcalf re ( 7 ) ( Filing fee $ 210, receipt number 3461100641.) by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
Received (Proposed) Order Granting Pro Hac Vice for Attorney Clive Stafford Smith re ( 6 ) ( Filing fee $ 210, receipt number 3461100681.) by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
Received Proposed) Order Granting Pro Hac Vice for Attorney ameel Jaffer re 5 ( Filing fee $ 210, receipt number 346110860.) by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
Received (Proposed) Order Granting Pro Hac Vice for Attorney Steven R. Shapiro re 4 ( Filing fee $ 210, receipt number 346118681.) by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
Received (Proposed) Order Granting Pro Hac Vice for attorney Steven Watt re 3 ( Filing fee $ 210, receipt number 3461100681.) by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
8 ADR SCHEDULING ORDER: Case Management Statement due by 9/5/2007. Case Management Conference set for 9/12/2007 02:30 PM. (bw, COURT STAFF) (Filed on 5/30/2007) Additional attachment(s) added on 6/4/2007 (bw, COURT STAFF). (Entered: 05/30/2007)
Summons Issued as to Jeppesen Dataplan, Inc.. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
CASE DESIGNATED for Electronic Filing. (bw, COURT STAFF) (Filed on 5/30/2007) (Entered: 05/30/2007)
9 Summons Returned Unexecuted by Abou Elkassim (bw, COURT STAFF) (Filed on 6/7/2007) (Entered: 06/07/2007)

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 7 of 14

06/07/2007 06/13/2007 06/13/2007 06/13/2007 06/13/2007 06/13/2007 06/18/2007
06/18/2007
06/22/2007 06/25/2007 06/26/2007 06/26/2007 06/26/2007
06/26/2007 06/26/2007
06/27/2007 06/27/2007
06/28/2007

Summons Issued as to Jeppesen Dataplan, Inc. (bw, COURT STAFF) (Filed on 6/7/2007) (Entered: 06/08/2007)
10 ORDER by Judge Richard Seeborg granting 3 Motion for Pro Hac Vice. (rssec, COURT STAFF) (Filed on 6/13/2007) (Entered: 06/13/2007)
11 ORDER by Judge Richard Seeborg granting 4 Motion for Pro Hac Vice. (rssec, COURT STAFF) (Filed on 6/13/2007) (Entered: 06/13/2007)
12 ORDER by Judge Richard Seeborg granting 5 Motion for Pro Hac Vice (rssec, COURT STAFF) (Filed on 6/13/2007) (Entered: 06/13/2007)
13 ORDER by Judge Richard Seeborg granting 6 Motion for Pro Hac Vice (rssec, COURT STAFF) (Filed on 6/13/2007) (Entered: 06/13/2007)
14 ORDER by Judge Richard Seeborg granting 7 Motion for Pro Hac Vice (rssec, COURT STAFF) (Filed on 6/13/2007) (Entered: 06/13/2007)
15 Application for Admission of Attorney Alexa Kolbi−Molinas in Pro Hac Vice ( Filing fee $ 210, receipt number 34611007478) filed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 6/18/2007) Additional attachment(s) added on 6/20/2007 (bw, COURT STAFF). (Entered: 06/20/2007)
Received (Proposed) Order Granting Application for Admission of Attorney Alexa Kolbi−Molinas Pro Hac Vice re 15 ( Filing fee $ 210, receipt number 34611007478.) by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (bw, COURT STAFF) (Filed on 6/18/2007) (Entered: 06/20/2007)
16 ORDER by Judge Richard Seeborg granting 15 Motion for Pro Hac Vice. (rssec, COURT STAFF) (Filed on 6/22/2007) (Entered: 06/22/2007)
17 SUMMONS Returned Executed by Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. Jeppesen Dataplan, Inc. served on 6/11/2007, answer due 7/2/2007. (Brick, Ann) (Filed on 6/25/2007) (Entered: 06/25/2007)
18 NOTICE of Appearance by Daniel Paul Collins for Defendant Jeppesen DataPlan, Inc. (Collins, Daniel) (Filed on 6/26/2007) (Entered: 06/26/2007)
19 Declination to Proceed Before a U.S. Magistrate Judge by Jeppesen Dataplan, Inc. and Request for Reassignment to a United States District Judge. (Collins, Daniel) (Filed on 6/26/2007) (Entered: 06/26/2007)
20 *** FILED IN ERROR *** please see 22 amended Certification of Interested Entities or Persons (Collins, Daniel) (Filed on 6/26/2007) Text modified on 6/27/2007 to conform to document caption post by counsel (bw, COURT STAFF). Modified text on 6/27/2007 (cv, COURT STAFF). (Entered: 06/26/2007)
21 STIPULATION Under Local Rule 6−1(a) Extending the Time to Respond to the Complaint by Jeppesen Dataplan, Inc.. (Collins, Daniel) (Filed on 6/26/2007) (Entered: 06/26/2007)
22 AMENDED Interested Entities or Persons Pursuant to Local rule 3−16 Daniel Paul Collins (Collins, Daniel) (Filed on 6/26/2007) text modified on 6/27/2007 to conform to document caption post by counsel (bw, COURT STAFF). Modified text on 6/27/2007, amendment of 20 (cv, COURT STAFF). (Entered: 06/26/2007)
23 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (mpb, COURT STAFF) (Filed on 6/27/2007) Additional attachment(s) added on 6/27/2007 (mpb, COURT STAFF). (Entered: 06/27/2007)
24 ORDER REASSIGNING CASE. Case reassigned to District Judge James Ware for all further proceedings and Magistrate Richard Seeborg remains the Referral Judge in this case. Signed by the Executive Committee on 6/27/07. (srm, COURT STAFF) (Filed on 6/27/2007) (Entered: 06/27/2007)
25 CLERK'S NOTICE Case Management Statement due by 9/14/2007. Case Management Conference set for 9/24/2007 10:00 AM Courtroom 8, 4th floor, San Jose before Hon. James Ware. (ecg, COURT STAFF) (Filed on 6/28/2007) (Entered: 06/28/2007)

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 8 of 14

08/01/2007
08/01/2007
08/03/2007 08/07/2007 08/08/2007 08/14/2007
09/04/2007 09/06/2007 09/06/2007 09/06/2007 09/06/2007
09/06/2007 09/11/2007
09/11/2007
09/11/2007

26 *** FILED IN ERROR. PLEASE SEE DOCKET 27 First Amended Complaint . *** against Jeppesen Dataplan, Inc. Filed byBisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Abou Elkassim Britel, Ahmed Agiza, Binyam Mohamed. (Wizner, Benjamin) (Filed on 8/1/2007) Modified on 8/1/2007 (ewn, COURT STAFF). Modified text on 8/8/2007 (cv, COURT STAFF). (Entered: 08/01/2007)
27 FIRST AMENDED COMPLAINT correction of docket 26 against Jeppesen Dataplan, Inc.. Filed by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Wizner, Benjamin) (Filed on 8/1/2007) Modified text on 8/8/2007 (cv, COURT STAFF). (Entered: 08/01/2007)
29 MOTION for leave to appear in Pro Hac Vice Margaret L. Satterthwaite (Filing fee $ 210.) filed by Mohamed Farag Ahmad Bashmilah. (cv, COURT STAFF) (Filed on 8/3/2007) (Entered: 08/11/2007)
28 STIPULATION and [Proposed] Order re: schedule by Jeppesen Dataplan, Inc.. (Collins, Daniel) (Filed on 8/7/2007) Modified text on 8/8/2007 (cv, COURT STAFF). (Entered: 08/07/2007)
30 ORDER by Judge James Ware granting 29 Motion for Pro Hac Vice Margaret L. Satterthwaite (cv, COURT STAFF) (Filed on 8/8/2007) (Entered: 08/11/2007)
31 STIPULATION AND ORDER Granting Briefing Schedule on Anticipated Motion to Dismiss. The Court VACATES the 9/24/2007 Case Management Conference re 28 Stipulation filed by Jeppesen Dataplan, Inc. Please see Order for further specifics. Motion Hearing set for 12/10/2007 09:00 AM in Courtroom 8, 4th Floor, San Jose before Hon. James Ware. Signed by Judge James Ware on 8/13/2007. (ecg, COURT STAFF) (Filed on 8/14/2007) Modified text on 8/16/2007 (ecg, COURT STAFF). (Entered: 08/14/2007)
32 Letter from ACLU. (Watt, Steven) (Filed on 9/4/2007) (Entered: 09/04/2007)
33 NOTICE of Appearance by Michael Patrick Abate on behalf of United States of America (Abate, Michael) (Filed on 9/6/2007) (Entered: 09/06/2007)
34 NOTICE by United States of America of Statement of Interest (Abate, Michael) (Filed on 9/6/2007) (Entered: 09/06/2007)
35 MOTION for Extension of Time to File Answer re 27 Amended Complaint, in Light of U.S. Statement of Interest, filed by Jeppesen Dataplan, Inc.. (Collins, Daniel) (Filed on 9/6/2007) (Entered: 09/06/2007)
36 Declaration in Support of 35 MOTION for Extension of Time to File Answer re 27 Amended Complaint, in Light of U.S. Statement of Interest, Declaration of Daniel P. Collins, filed byJeppesen Dataplan, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Related document(s) 35 ) (Collins, Daniel) (Filed on 9/6/2007) (Entered: 09/06/2007)
37 Proposed Order re 35 MOTION for Extension of Time to File Answer re 27 Amended Complaint, in Light of U.S. Statement of Interest, by Jeppesen Dataplan, Inc.. (Collins, Daniel) (Filed on 9/6/2007) (Entered: 09/06/2007)
38 Memorandum in Opposition to United States' Request for a Stay and 35 Defendant's Motion to Change Time filed by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Wizner, Benjamin) (Filed on 9/11/2007) Modified on 9/20/2007,(counsel failed to properly link to motion). (cv, COURT STAFF). (Entered: 09/11/2007)
39 Declaration of Ben Wizner in Support of 38 Memorandum in Opposition, to United States' Request for a Stay and Defendant's Motion to Change Time filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Related document(s) 38 ) (Wizner, Benjamin) (Filed on 9/11/2007) (Entered: 09/11/2007)
40 Proposed Order Denying United States' Request for a Stay and Defendant's 35 Motion to Change Time by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Wizner, Benjamin)

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 9 of 14

09/11/2007 10/19/2007 10/19/2007
10/22/2007 10/22/2007 11/01/2007 11/02/2007 11/27/2007 12/05/2007 12/14/2007
12/14/2007 12/14/2007

(Filed on 9/11/2007) Modified on 9/20/2007,(counsel failed to properly link to motion). (cv, COURT STAFF). (Entered: 09/11/2007)
41 ORDER by Judge James Ware granting 35 Motion for Extension of Time to Answer re 35 MOTION for Extension of Time to File Answer re 27 Amended Complaint, in Light of U.S. Statement of Interest,. (ecg, COURT STAFF) (Filed on 9/11/2007) (Entered: 09/11/2007)
42 MOTION to Intervene filed by United States of America. Motion Hearing set for 2/4/2008 09:00 AM in Courtroom 8, 4th Floor, San Jose. (Abate, Michael) (Filed on 10/19/2007) (Entered: 10/19/2007)
43 MOTION to Dismiss or, in the alternative, MOTION for Summary Judgment filed by United States of America. Motion Hearing set for 2/4/2008 09:00 AM in Courtroom 8, 4th Floor, San Jose. (Attachments: # 1 Formal Claim of State Secrets and Statutory Privileges# 2 Notice of Lodging of Classified In Camera, Ex Parte Declaration)(Abate, Michael) (Filed on 10/19/2007) (Entered: 10/19/2007)
44 Proposed Order re 42 MOTION to Intervene by United States of America. (Abate, Michael) (Filed on 10/22/2007) (Entered: 10/22/2007)
45 Proposed Order re 43 MOTION to Dismiss or, in the alternative MOTION for Summary Judgment by United States of America. (Abate, Michael) (Filed on 10/22/2007) (Entered: 10/22/2007)
46 STIPULATION and [Proposed] Order Re: Briefing Schedule on Motion to Intervene and Motion to Dismiss by United States of America. (Abate, Michael) (Filed on 11/1/2007) (Entered: 11/01/2007)
47 STIPULATION AND ORDER to Extend Briefing Schedule on Motion to Intervene and Motion to Dismiss re 46 Stipulation filed by United States of America. Signed by Judge James Ware on 11/2/2007. (ecg, COURT STAFF) (Filed on 11/2/2007) (Entered: 11/02/2007)
48 Statement of Non−Opposition re 43 MOTION to Dismiss or, in the alternative MOTION for Summary Judgment, 42 MOTION to Intervene filed byJeppesen Dataplan, Inc.. (Related document(s) 43 , 42 ) (Collins, Daniel) (Filed on 11/27/2007) (Entered: 11/27/2007)
49 MOTION for Leave to File Excess Pages filed by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Proposed Order Stipulation and proposed order)(Wizner, Benjamin) (Filed on 12/5/2007) (Entered: 12/05/2007)
50 Memorandum in Opposition to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment re 43 filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Proposed Order)(Wizner, Benjamin) (Filed on 12/14/2007) Modified on 1/14/2008 (cfe, Court Staff). (Entered: 12/14/2007)
51 RESPONSE to United States' Motion to Intervenere 42 by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Wizner, Benjamin) (Filed on 12/14/2007) Modified on 1/14/2008 (cfe, Court Staff). (Entered: 12/14/2007)
52 Declaration of Anna Wigenmark in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B Part 1, # 3 Exhibit Exhibit B part 2, # 4 Exhibit Exhibit B part 3, # 5 Exhibit Exhibit C, # 6 Exhibit Exhibit D part 1, # 7 Exhibit Exhibit D part 2, # 8 Exhibit Exhibit D part 3, # 9 Exhibit Exhibit D part 4, # 10 Exhibit Exhibit D part 5, # 11 Exhibit Exhibit D part 6, # 12 Exhibit Exhibit D part 7, # 13 Exhibit Exhibit E part 1, # 14 Exhibit Exhibit E part 2, # 15 Exhibit Exhibit E part 3, # 16 Exhibit Exhibit E part 4, # 17 Exhibit Exhibit E part 5, # 18 Exhibit Exhibit E part 6, # 19 Exhibit Exhibit F part 1, # 20 Exhibit Exhibit F part 2, # 21 Exhibit Exhibit G, # 22 Exhibit Exhibit H, # 23 Exhibit Exhibit I, # 24 Exhibit Exhibit J)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered:

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 10 of 14

12/14/2007 12/14/2007
12/14/2007 12/14/2007 12/14/2007 12/14/2007

12/14/2007)
53 Declaration of Mohamed Farag Ahmad Bashmilah in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)
54 Declaration of Steven Watt in Support of 50 Memorandum in Opposition, to United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C part 1, # 4 Exhibit C part 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L part 1, # 14 Exhibit L part 2, # 15 Exhibit M part 1, # 16 Exhibit M part 2, # 17 Exhibit N, # 18 Exhibit O, # 19 Exhibit P, # 20 Exhibit Q part 1, # 21 Exhibit Q part 2, # 22 Exhibit R, # 23 Exhibit S part a1i, # 24 Exhibit S part a1ii, # 25 Exhibit S part a1iii, # 26 Exhibit S part a2i, # 27 Exhibit a2ii, # 28 Exhibit S part b1i, # 29 Exhibit S part b1ii, # 30 Exhibit S part b1iii, # 31 Exhibit S part b2i, # 32 Exhibit S part b2ii, # 33 Exhibit S part b2iii, # 34 Exhibit S part b3i, # 35 Exhibit S part b3ii, # 36 Exhibit T part 1, # 37 Exhibit T part 2, # 38 Exhibit T part 3, # 39 Exhibit T part 4, # 40 Exhibit T part 5, # 41 Exhibit T part 6, # 42 Exhibit T part 7, # 43 Exhibit U, # 44 Exhibit V, # 45 Exhibit W part 1, # 46 Exhibit W part 2, # 47 Exhibit W part 3, # 48 Exhibit W part 4, # 49 Exhibit X, # 50 Exhibit Y, # 51 Exhibit Z, # 52 Exhibit AA, # 53 Exhibit BB, # 54 Exhibit CC, # 55 Exhibit DD, # 56 Exhibit EE part 1, # 57 Exhibit EE part 2, # 58 Exhibit EE part 3, # 59 Exhibit FF, # 60 Exhibit GG, # 61 Exhibit HH)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)
55 Declaration of Margaret Satterthwaite in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit A and B, # 2 Exhibit C and D, # 3 Exhibit E, # 4 Exhibit F and G, # 5 Exhibit H and I, # 6 Exhibit J − O, # 7 Exhibit P and Q, # 8 Exhibit R and S, # 9 Exhibit Table of Contents)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)
56 Declaration of Bisher Al−Rawi in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit A − K)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)
57 Declaration of Abou Elkassim Britel in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit A − C)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)
58 Declaration of Clive Stafford−Smith in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Attachments: # 1 Exhibit A − F)(Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)

Case: 5:07-cv-02798-JW As of: 11/10/2013 05:13 PM PST 11 of 14

12/14/2007
12/17/2007 12/20/2007 12/20/2007 12/20/2007 01/07/2008 01/08/2008 01/18/2008 01/18/2008 01/25/2008 02/06/2008
02/13/2008 02/13/2008 03/14/2008
03/14/2008

59 Declaration of Sean Belcher in Support of 50 Memorandum in Opposition, to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed byAbou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Related document(s) 50 ) (Wizner, Benjamin) (Filed on 12/14/2007) (Entered: 12/14/2007)
60 MOTION to Withdraw as Attorney for Plaintiffs filed by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. (Kolbi−Molinas, Alexa) (Filed on 12/17/2007) (Entered: 12/17/2007)
61 ORDER by Judge James Ware granting 60 Motion to Withdraw as Attorney. (jwlc1, COURT STAFF) (Filed on 12/20/2007) (Entered: 12/20/2007)
62 ORDER granting 49 Motion for Leave to File Excess Pages; ORDER SETTING CASE MANAGEMENT CONFERENCE by Judge James Ware (jwlc1, COURT STAFF) (Filed on 12/20/2007) (Entered: 12/20/2007)
Set Deadlines/Hearings: purusant to 62 Order Granting Enlargment of Pages; Setting Case Management Conference. Case Management Conference set for 1/7/2008 10:00 AM Courtroom 8, 4th Floor, San Jose before Hon. James Ware. (ecg, COURT STAFF) (Filed on 12/20/2007) (Entered: 12/20/2007)
63 Minute Entry: Initial Case Management Conference held on 1/7/2008 before James Ware (Date Filed: 1/7/2008). Motion Hearing re 42 , 43 set for 2/5/2008 01:00 PM in Courtroom 8, 4th Floor, San Jose. (Court Reporter Irene Rodriguez/Not Reported.) (ecg, COURT STAFF) (Date Filed: 1/7/2008) (Entered: 01/07/2008)
64 ORDER Following Case Management Conference on 1/7/2008. Motion Hearing set for 2/5/2008 09:00 AM in Courtroom 8, 4th Floor, San Jose. Please see Order for further specifics. Signed by Judge James Ware on 1/7/2008. (ecg, COURT STAFF) (Filed on 1/8/2008) (Entered: 01/08/2008)
65 Consent MOTION for Leave to File Excess Pages filed by United States of America. (Attachments: # 1 Stipulation)(Abate, Michael) (Filed on 1/18/2008) (Entered: 01/18/2008)
66 Reply to Opposition re 43 MOTION to Dismiss or, in the alternative MOTION for Summary Judgment filed byUnited States of America. (Abate, Michael) (Filed on 1/18/2008) (Entered: 01/18/2008)
67 ORDER Granting 65 Motion for Leave to File Excess Pages. Signed by Judge James Ware on 1/25/2008. (ecg, COURT STAFF) (Filed on 1/25/2008) (Entered: 01/25/2008)
68 Minute Entry: Motion Hearing held on 2/5/2007 before Judge James Ware (Date Filed: 2/6/2008) re 43 MOTION to Dismiss or, in the alternative MOTION for Summary Judgment filed by United States of America, 42 MOTION to Intervene filed by United States of America. The Court took the matter under submission after oral argument. The Court to issue further order on motion. (Court Reporter Jana Ridenour.) (ecg, COURT STAFF) (Date Filed: 2/6/2008) (Entered: 02/06/2008)
69 ORDER by Judge James Ware granting 42 Motion to Intervene; granting 43 Motion to Dismiss; finding as moot 43 Motion for Summary Judgment (jwlc2, COURT STAFF) (Filed on 2/13/2008) (Entered: 02/13/2008)
70 JUDGMENT. Signed by Judge James Ware on 02/13/08. (jwlc2, COURT STAFF) (Filed on 2/13/2008) (Entered: 02/13/2008)
71 NOTICE OF APPEAL as to 70 Judgment, 69 Order on Motion to Intervene, Order on Motion to Dismiss, Order on Motion for Summary Judgment by Abou Elkassim Britel, Bisher Al−Rawi, Mohamed Farag Ahmad Bashmilah, Ahmed Agiza, Binyam Mohamed. Filing fee $ 455, receipt number 54611002788. (cv, COURT STAFF) (Filed on 3/14/2008) (cv, COURT STAFF). (Entered: 03/14/2008)
72 Representation Statement (cv, COURT STAFF) (Filed on 3/14/2008) (cv, COURT STAFF). (Entered: 03/14/2008)

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03/21/2008 03/26/2008 03/27/2008 04/04/2008 07/21/2008 07/23/2008 07/24/2008 09/03/2008 01/13/2009 01/13/2009
04/28/2009 05/07/2009
05/14/2009 05/22/2009
06/12/2009

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 71 Notice of Appeal, (cv, COURT STAFF) (Filed on 3/21/2008) (Entered: 03/21/2008)
74 TRANSCRIPT of Proceedings held on 2/5/08 before Judge James Ware. Court Reporter: Jana L. Ridenour.. (srm, COURT STAFF) (Filed on 3/26/2008) (Entered: 03/28/2008)
73 TRANSCRIPT DESIGNATION for proceedings held on 2/5/08 before Judge James Ware. (srm, COURT STAFF) (Filed on 3/27/2008) (Entered: 03/27/2008)
75 USCA Case Number 08−15693 9th Circuit Court of Appeals for 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza. (cv, COURT STAFF) (Filed on 4/4/2008) (Entered: 04/04/2008)
76 ORDER of USCA as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (srm, COURT STAFF) (Filed on 7/21/2008) (Entered: 07/24/2008)
78 ORDER of USCA as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (srm, COURT STAFF) (Filed on 7/23/2008) (Entered: 07/24/2008)
77 Certificate of Record Mailed to USCA re appeal 71 Notice of Appeal. (srm, COURT STAFF) (Filed on 7/24/2008) (Entered: 07/24/2008)
79 ORDER of USCA as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (cv, COURT STAFF) (Filed on 9/3/2008) (Entered: 09/04/2008)
80 ORDER of USCA as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (cv, COURT STAFF) (Filed on 1/13/2009) (Entered: 01/15/2009)
81 *** DUPLICATE DOCKET ENTRY *** please see 80 ORDER of USCA as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (cv, COURT STAFF) (Filed on 1/13/2009) Modified on 11/3/2010 (cv, COURT STAFF). (Entered: 01/15/2009)
82 USCA OPINION as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza. REVERSED and REMANDED. (cv, COURT STAFF) (Filed on 4/28/2009) (Entered: 04/28/2009)
83 ORDER SETTING CASE MANAGEMENT CONFERENCE IN LIGHT OF NINTH CIRCUIT REMAND. Joint Case Management Conference statement due 6/12/2009. Further Case Management Conference set for 6/22/2009 10:00 AM in Courtroom 8, 4th Floor, San Jose before Hon. James Ware. Signed by Judge James Ware on 5/7/2009. (ecg, COURT STAFF) (Filed on 5/7/2009) (Entered: 05/07/2009)
84 NOTICE of Substitution of Counsel by W. Scott Simpson for United States of America in place of Michael P. Abate in this Court. Mr Abate continues to represent the United States in the Court of Appeals. (Simpson, W.) (Filed on 5/14/2009) Modified on 5/14/2009 (cv, COURT STAFF). (Entered: 05/14/2009)
85 STIPULATION and [Proposed] order re 83 CASE MANAGEMENT CONFERENCE. related document 82 Order by United States of America. (Simpson, W.) (Filed on 5/22/2009) Modified on 5/22/2009 (cv, COURT STAFF). Modified text on 6/2/2009,to conform with document posted by counsel (cv, COURT STAFF). Modified text on 6/2/2009, request from court. (cv, COURT STAFF). (Entered: 05/22/2009)
86 CASE MANAGEMENT STATEMENT (JOINT) filed by United States of America. (Attachments: # 1 United States Petition for Rehearing or Rehearing En Banc, # 2 Jeppesen Dataplan Petition for Rehearing and Rehearing En Banc)(Simpson, W.) (Filed on 6/12/2009) (Entered: 06/12/2009)

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06/17/2009 10/27/2009 10/27/2009 11/05/2009
11/13/2009 12/01/2009 09/08/2010
11/02/2010 11/02/2010

87 ORDER VACATING CASE MANAGEMENT CONFERENCE re 86 Case Management Statement, 85 Stipulation. The case management conference set for 6/22/2009 is VACATED. The Court will set a new conference date once a final decision is issued by the Ninth Circuit. Signed by Judge James Ware on 6/16/2009. (ecg, COURT STAFF) (Filed on 6/17/2009) (Entered: 06/17/2009)
88 Filed order (ALEX KOZINSKI) En banc oral argument will take place during the week of December 14, 2009, in San Francisco, California. The date and time will be determined by separate order. For further information or special requests regarding scheduling, please contact Deputy Clerk Paul Keller at paul_keller@ca9.uscourts.gov or (415) 355−8026. Within seven days from the date of this order, the parties shall forward to the Clerk of Court thirty additional paper copies of the original briefs and excerpts of record. re 71 Notice of Appeal, : (cv, COURT STAFF) (Filed on 10/27/2009) (Entered: 10/29/2009)
89 ORDER of USCA for PUBLICATION (KOZINSKI, Chief Judge) Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35−3. The three−judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Judges Reinhardt, McKeown, Gould, By bee, Milan D. Smith, Jr. and Ikuta did not participate in the deliberations or vote in this case. 7109126 (RP) Modified on 10/29/2009 (cv, COURT STAFF). (Entered: 10/29/2009)
90 ORDER of USCA as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza The motion for leave to file a replacement en banc brief is granted. The United States must file it by November 13, 2009, and it may not exceed 14,000 words. If the United States files a replacement brief, appellants may file a replacement reply brief, which need not be limited to the arguments in their original reply. Any such brief must be filed by November 27, 2009, and may not exceed 10,000 words. (cv, COURT STAFF) (Filed on 11/5/2009) (Entered: 11/12/2009)
91 Filed order (ALEX KOZINSKI)Oral argument in this en banc case will be held at 10:00 a.m. on Tuesday, December 15, 2009, in Courtroom One of the James R. re 71 Notice of Appeal, : (cv, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)
92 Filed order (ALEX KOZINSKI)Electronic Frontier Foundation (EFF) motion for leave to file an amicus brief is granted and the Clerk is ordered to file the brief it submitted with its motion. EFF must submit an additional 30 paper copies of the brief within seven days.(cv, COURT STAFF) (Filed on 12/1/2009) (Entered: 12/03/2009)
93 OPINION of USCA FILED (ALEX KOZINSKI, MARY M. SCHROEDER, WILLIAM C. CANBY, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, RAYMOND C. FISHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN and CARLOS T. BEA) AFFIRMED. THE GOVERNMENT SHALL BEAR ALL PARTIES COSTS ON APPEAL. Judge: AK, Judge: MMS, Judge: WCC, Judge: MDH Dissenting, Judge: SRT, Judge: RCF Authoring, Judge: RAP, Judge: RCT, Judge: JBR, Judge: CMC, Judge: CTB Concurring. FILED AND ENTERED JUDGMENT as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (cv, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/15/2010)
94 MANDATE of USCA The judgment of this Court, entered 9/8/10 93 OPINION from USCA, takes effect this date. This Constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the FRAP. as to 71 Notice of Appeal, filed by Binyam Mohamed, Mohamed Farag Ahmad Bashmilah, Bisher Al−Rawi, Abou Elkassim Britel, Ahmed Agiza (cv, COURT STAFF) (Filed on 11/2/2010) (Entered: 11/02/2010)
95 CLERKS Letter Spreading Mandate to Counsel (cv, COURT STAFF) (Filed on 11/2/2010) (Entered: 11/02/2010)

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12/17/2010

96 Received notice from the Supreme Court: petition for certiorari filed on 12/07/2010. Supreme Court Number 10−778 (cv, COURT STAFF) (Filed on 12/17/2010) (Entered: 12/17/2010)

 
 2442

131 SUPREME COURT REPORTER

1

4

Donald Ray BAILEY, Jr., petitioner, v. VIRGINIA. No. 10–7906. May 16, 2011.

Gene E. AVILES, petitioner, v. Angel MEDINA, Warden, et al. No. 10–8003. May 16, 2011.

Petition for writ of certiorari to the Supreme Court of Virginia denied.
,

Case below, Aviles v. Archuletta, 389 Fed.Appx. 853.
Petition for writ of certiorari to the United States Court of Appeals for the Tenth Circuit denied.

2
Binyam MOHAMED, et al., petitioners, v. JEPPESEN DATAPLAN, INC., et al. No. 10–778. May 16, 2011.
Case below, 614 F.3d 1070. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.
Justice KAGAN took no part in the consideration or decision of this petition.

,
5
Charles Franklin MURDOCH, Jr., petitioner, v. Roy CASTRO, Warden, et al. No. 10–809. May 16, 2011.
Case below, 609 F.3d 983. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.

,

,

3
Andrew Quinton HERNANDEZ, petitioner, v. CALIFORNIA. No. 10–7990. May 16, 2011.
Case below, 2010 WL 2857045. Petition for writ of certiorari to the Court of Appeal of California, Fifth Appellate District, denied.

6
UNITED STATES and California, ex rel. Katherine R. O’Connell, et al., petitioners, v. CHAPMAN UNIVERSITY. No. 10–810. May 16, 2011.
Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.

,

,

 
 992

563 FEDERAL REPORTER, 3d SERIES

ulated to bypass the Rule 60(b)(6) standards so the trial court could reach and resolve the merits of the motion to amend the complaint. The parties do not raise Rule 60(b) on appeal.
We hold that the district court did not abuse its discretion when it denied Appellants’ second request for leave to amend the complaint because the proposed amendment would have been futile. The proposed second amended complaint pled one cause of action for ‘‘intentional interference with economic relations and prospective economic advantage.’’ The Supreme Court of Oregon has held that the elements of such a claim are: (1) the existence of a professional or business relationship (which could include, e.g., a contract or a prospective economic advantage); (2) intentional interference with that relationship or advantage; (3) by a third party; (4) accomplished through improper means or for an improper purpose; (5) a causal effect between the interference and the harm to the relationship or prospective advantage; and (6) damages. Allen v. Hall, 328 Or. 276, 974 P.2d 199, 202 (1999). We have held that when a claim of tortious interference with business relationships is brought as a result of constitutionally-protected speech, the claim is subject to the same First Amendment requirements that govern actions for defamation. Unelko Corp., 912 F.2d at 1058.
[12, 13] Appellants’ claim in the proposed second amended complaint is based on Martino’s statements in segment three of the broadcast where he urged his listeners to not buy Polaris products. We hold that Martino’s statements in segment three of the broadcast are nonactionable opinion protected by the First Amendment. Based on the ‘‘totality of the circumstances’’ test, Martino’s reliance on the facts as recited by Feroglia was reasonable and the specific context of the radio broad-

cast indicates that Martino was expressing his opinion and not a factual assertion. Accordingly, Appellants cannot state a claim for intentional interference with economic relations and prospective economic advantage because protected speech cannot be the basis for such a claim. Unelko Corp., 912 F.2d at 1058. Moreover, Appellants’ allegations regarding Martino’s ‘‘improper purpose’’ fail to state a cognizable claim for intentional interference, as, given the nature of Martino’s consumer advocacy talk radio program, they show that he acted consistently with the ‘‘pursuit of [his] own business purposes as [he] saw them,’’ Top Service Body Shop, Inc. v. Allstate Ins. Co., 283 Or. 201, 582 P.2d 1365, 1372 (1978). As such, Appellants’ proposed amendment to the complaint is futile.
III. CONCLUSION For the foregoing reasons, the judgment
of the district court is affirmed. AFFIRMED.
,
Binyam MOHAMED; Abou Elkassim Britel; Ahmed Agiza; Mohamed Farag Ahmad Bashmilah; Bisher Al– Rawi, Plaintiffs–Appellants, v. JEPPESEN DATAPLAN, INC., Defendant–Appellee,

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 563 F.3d 992 (9th Cir. 2009)

993

United States of America, Intervenor–Appellee.
No. 08–15693.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 9, 2009.
Filed April 28, 2009. Background: Foreign nationals who allegedly had been transferred in secret to foreign countries for detention and interrogation pursuant to ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA) brought action under Alien Tort Statute (ATS) against company alleged to have taken part in program. The United States District Court for the Northern District of California, James Ware, J., 539 F.Supp.2d 1128, granted government’s motions to intervene and to dismiss. Foreign nationals appealed. Holdings: The Court of Appeals, Hawkins, Circuit Judge, held that: (1) suit was not barred under state secrets
doctrine pursuant to Totten; (2) suit was not barred under state secrets
doctrine pursuant to Reynolds; (3) fact that certain documents had been
classified did not compel finding that documents were subject to state secrets privilege; and (4) Court of Appeals could not affirm grant of motion to dismiss on ground that there was ‘‘no possibility’’ that foreign nationals could establish prima facie case without using privileged information. Reversed and remanded.
1. Federal Civil Procedure O1832 The limited inquiry under the rule
governing motions to dismiss for failure to state a claim precludes prospective consideration of hypothetical evidence. Fed. Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.

2. Federal Courts O794 In reviewing a dismissal for failure to
state a claim, the Court of Appeals construes the complaint in the light most favorable to the plaintiffs, taking all their allegations as true and drawing all reasonable inferences from the complaint in their favor. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
3. Federal Courts O776, 870.1 The Court of Appeals reviews de novo
the interpretation and application of the state secrets privilege and reviews for clear error the district court’s underlying factual findings.
4. Federal Civil Procedure O1741.5 Under the Totten principle, a suit
predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings because the very subject matter of the suit is secret.
5. Privileged Communications and Confidentiality O360
Application of the Reynolds evidentiary privilege, which prevents only discovery of secret evidence when disclosure would threaten national security, involves a formula of compromise in which the court must weigh the circumstances of the case and the interests of the plaintiff against the danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.
6. Constitutional Law O2572 Privileged Communications and Confidentiality O360 While a court should defer to the Ex-
ecutive on matters of foreign policy and national security in determining whether to apply the Reynolds evidentiary privilege, which prevents discovery of secret evidence when disclosure would threaten

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563 FEDERAL REPORTER, 3d SERIES

national security, judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.
7. Privileged Communications and Confidentiality O360
In determining whether to apply the Reynolds evidentiary privilege, which prevents discovery of secret evidence when disclosure would threaten national security, a court must undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies.
8. Privileged Communications and Confidentiality O360
Once a court determines a claim of privilege under Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, is legitimate, even the most compelling personal necessity cannot overcome it.
9. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 Successful invocation of the Reynolds
privilege, which prevents discovery of secret evidence when disclosure would threaten national security, does not necessarily require dismissal of the entire suit; instead, invocation of the privilege requires simply that the evidence is unavailable, as though a witness had died or a document had been destroyed, and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.
10. Federal Civil Procedure O1741.5 Within the framework of Reynolds,
which prevents discovery of secret evidence when disclosure would threaten national security, litigation can proceed so long as: (1) the plaintiffs can prove the essential facts of their claims without resort to privileged evidence, and (2) invocation of the privilege does not deprive the defendant of information that would otherwise give the defendant a valid defense.

11. Privileged Communications and Confidentiality O360
Where a plaintiff’s need for evidence is strong, a claim of privilege under Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that the privilege applies.
12. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 If a lawsuit is not predicated on the
existence of a secret agreement between the plaintiff and the government, the Totten principle, that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings, does not apply, and the subject matter of the suit is not a state secret.
13. Federal Civil Procedure O1741.5 Foreign nationals’ suit under Alien
Tort Statute (ATS), alleging that private company took part in ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA), was not barred under state secrets doctrine pursuant to Totten, which requires dismissal of suit predicated on existence of secret agreement between a plaintiff and the government, since foreign nationals had not sued government to enforce any alleged secret agreement between themselves and Executive Branch. 28 U.S.C.A. § 1350.
14. Federal Civil Procedure O1741.5 Foreign nationals’ suit under Alien
Tort Statute (ATS), alleging that private company took part in ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA), was not barred under state secrets doctrine pursuant to Reynolds, which prevents discovery of se-

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 563 F.3d 992 (9th Cir. 2009)

995

cret evidence when disclosure would threaten national security, despite government’s argument that privileged information would be essential for foreign nationals to prove their claims, inasmuch as Reynolds applied to evidence, not information. 28 U.S.C.A. § 1350.
15. Privileged Communications and Confidentiality O360
Under Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.
16. Privileged Communications and Confidentiality O360
Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, only protects disclosure of the communications themselves; it does not protect disclosure of the underlying facts, so long as the underlying facts can be proven without resort to the privileged materials.
17. Witnesses O297(1) The Fifth Amendment privilege
against self-incrimination may be asserted to resist compelled explicit or implicit disclosures of incriminating information. U.S.C.A. Const.Amend. 5.
18. Witnesses O297(1) Once the Fifth Amendment privilege
against self-incrimination is properly invoked, the court cannot compel the testimony. U.S.C.A. Const.Amend. 5.
19. Privileged Communications and Confidentiality O360
Because the privilege of Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, like any other evidentiary privilege, extends only to evidence and not

to facts, it cannot be invoked to prevent a litigant from persuading a jury of the truth or falsity of an allegation by reference to non-privileged evidence, regardless whether privileged evidence might also be probative of the truth or falsity of the allegation.
20. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 The effect of the government’s suc-
cessful invocation of Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, is simply that the evidence is unavailable, as though a witness had died or a document had been destroyed, and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.
21. Federal Civil Procedure O1741.5 Within the framework of Reynolds,
which prevents discovery of secret evidence when disclosure would threaten national security, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant.
22. Privileged Communications and Confidentiality O360
Fact that certain documents pertaining to ‘‘extraordinary rendition’’ program allegedly operated by Central Intelligence Agency (CIA) had been classified by government did not compel finding that documents were secret and thus subject to state secrets privilege, in action by foreign nationals under Alien Tort Statute (ATS). 28 U.S.C.A. § 1350.
23. Privileged Communications and Confidentiality O360
While classification of a document by the government may be a strong indication

996

563 FEDERAL REPORTER, 3d SERIES

of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the state secrets privilege.
24. Federal Courts O762 Court of Appeals could not affirm
grant of government’s motion to dismiss, for failure to state claim, foreign nationals’ Alien Tort Statute (ATS) action, alleging that private company participated in ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA), on ground that there was ‘‘no possibility’’ that foreign nationals could establish prima facie case, or that company could defend itself, without using evidence subject to state secrets privilege, inasmuch as Court of Appeals could not prospectively evaluate hypothetical claims of privilege that government had not yet raised and district court had not yet considered. 28 U.S.C.A. § 1350; Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
25. Federal Courts O763.1 When a federal court reviews the
grant of a motion to dismiss for failure to state a claim, its task is necessarily a limited one; that limited task is not to determine whether a plaintiff will ultimately prevail, but instead only whether the complaint states a claim upon which relief can be granted. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.

partment of Justice, Washington, D.C., for Intervenor–Appellee.
Andrew G. McBride, Wiley Rein, LLP, Washington, D.C., for Amicus The Foundation for the Defense of Democracies in Support of Appellees Supporting Affirmance.
Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amici Washington Legal Foundation and Allied Educational Foundation.
William J. Aceves, California Western School of Law, San Diego, CA, for Amici Redress and The International Commission of Jurists.
Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, CA, for Amici Professors of Constitutional Law, Federal Jurisdiction, and Foreign Relations Law.
Jean–Paul Jassy, Bostwick & Jassy, Los Angeles, CA, for Amici Professors William G. Weaver and Robert M. Pallitto.
James M. Ringer, Clifford Change US, New York, NY, for Amici Commonwealth Lawyers Association and Justice.
Barbara Moses, David J. Stankiewicz, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, New York, NY; Aziz Huq, Jonathan Hafetz, Brennan Center for Justice, NYU School of Law, New York, NY, for Amicus Former United States Diplomats.

Ben Wizner, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs–Appellants.
Daniel P. Collins, Munger, Tolles & Olson, Los Angeles, CA, for Defendant–Appellee.
Douglas N. Letter and Michael P. Abate, Civil Division, United States De-

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:07–CV–02798–JW.
Before MARY M. SCHROEDER, WILLIAM C. CANBY, JR. and MICHAEL DALY HAWKINS, Circuit Judges.

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 563 F.3d 992 (9th Cir. 2009)

997

OPINION
HAWKINS, Circuit Judge:
Plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher Al– Rawi (‘‘plaintiffs’’), appeal the dismissal of this action, brought under the Alien Tort Statute, 28 U.S.C. § 1350, against Jeppesen Dataplan, Inc. (‘‘Jeppesen’’), a wholly owned subsidiary of the Boeing Company. Before Jeppesen filed an answer to the complaint, the United States intervened, asserting that the state secrets privilege required dismissal of the entire action on the pleadings. The district court agreed and dismissed the complaint. On appeal, plaintiffs argue the district court misapplied the state secrets doctrine and erred in dismissing the complaint.
[1] Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.
I. BACKGROUND
A. Factual Background
[2] At this stage in the litigation, we ‘‘construe the complaint in the light most favorable to the plaintiff[s], taking all [their] 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).
1. The Extraordinary Rendition Program
Plaintiffs allege that the United States Central Intelligence Agency (‘‘CIA’’), working in concert with other government agencies and officials of foreign governments, operated an ‘‘extraordinary rendi-

tion 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 United States government ‘‘to employ interrogation methods that would [otherwise have been] prohibited under federal or international law.’’
Citing publicly available evidence, plaintiffs, all foreign nationals, claim they were each processed through the extraordinary rendition program.
Plaintiff Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, transferred to American custody, and flown to Egypt. In Egypt, 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 fifteen years in Egyptian prison. According to plaintiffs, ‘‘[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.’’
Plaintiff Britel, a forty-year-old Italian citizen of Moroccan origin, was arrested and detained in Pakistan on immigration charges. After several months in Pakistani detention, Britel was transferred to the custody of American officials. These officials dressed Britel in a diaper and overalls, and shackled and blindfolded him for a flight to Morocco. Once in Morocco, he was detained incommunicado by Moroccan security services at the Temara prison. There, he was beaten, deprived of sleep and food, and threatened with sexual tor-

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ture, including sodomy with a bottle and castration. After being released and redetained, Britel was coerced into signing a false confession, convicted of terrorism-related charges, and sentenced to fifteen years in Moroccan prison.
Plaintiff Mohamed, a twenty-eight-yearold Ethiopian citizen and legal resident of the United Kingdom, was arrested in Karachi, Pakistan, on immigration charges. Mohamed was flown to Morocco under similar conditions, where he was transferred to the custody of Moroccan security agents. Moroccan authorities subjected Mohamed to ‘‘severe physical and psychological torture,’’ including routinely beating him and breaking his bones. Authorities also cut him with a scalpel all over his body, including on his penis, and poured ‘‘hot stinging liquid’’ into the open wounds. He was also blindfolded and handcuffed while being made ‘‘to listen to extremely loud music day and night.’’ After eighteen months in Moroccan custody, Mohamed was transferred back to American custody and flown to Afghanistan. There he was detained in a CIA ‘‘dark prison’’ where he underwent further torture, including being kept in ‘‘near permanent darkness’’ and subjected to loud noise, such as the screams of women and children, for twenty-four hours per day. His captors also deprived him of food. Eventually, Mohamed was transferred to the 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.
Plaintiff al-Rawi, a thirty-nine-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 was placed in a diaper, overalls, and shackles and placed on an airplane, where he was flown to Afghanistan. Detained in the same ‘‘dark prison’’ as Mohamed, loud noises were

played twenty-four hours per day to deprive him of sleep. Al–Rawi 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 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 Bashmilah, a thirty-nine-yearold Yemeni citizen, 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 ‘‘subject to severe physical and psychological abuse,’’ Bashmilah was given over to agents of the United States government, who flew him to Afghanistan in similar fashion as the other plaintiffs. Once in Afghanistan, Bashmilah was placed in solitary confinement, in twentyfour-hour darkness, where he was deprived of sleep and shackled in painful positions. He was subsequently moved to another cell where he was held in twentyfour-hour light and loud noise. Depressed by his conditions, Bashmilah attempted suicide three times. Later, Bashmilah 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 twentyfour-hour light. Bashmilah 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 Involvement in the Rendition Program
According to plaintiffs, publicly available evidence establishes that Jeppesen provid-

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ed flight planning and logistical support services to the aircraft and crew on all of the flights transporting the five plaintiffs among their various locations of detention and torture. According to the complaint, ‘‘Jeppesen played an integral role in the forced’’ abductions and detentions. It ‘‘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.’’ Jeppesen furthermore 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’’ at the hands of U.S. and foreign government officials.1
B. Procedural Background
Plaintiffs brought suit under the Alien Tort Statute, 28 U.S.C. § 1350, claiming that Jeppesen is directly liable in damages for (1) actively participating in their forcible and arbitrary abduction, and (2) conspiring in their torture and other cruel, inhuman, or degrading treatment, in violation of customary international law cognizable under the Alien Tort Statute.
In the alternative, plaintiffs assert that Jeppesen is liable for aiding and abetting agents of the United States, Morocco, Egypt, and Jordan in subjecting them to torture and other cruel, inhuman, or degrading treatment because Jeppesen knew or should have known that the passengers of each flight for which it provided logistical support services were being subjected

to such treatment by agents of those countries. They further allege in the alternative that Jeppesen demonstrated reckless disregard as to whether the passengers of each flight for which it provided logistical support services were being subjected to torture and other cruel, inhuman, or degrading treatment.
Before Jeppesen answered the complaint, the United States government intervened, asserting the state secrets privilege and, on that basis, moved for dismissal. 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 asserts that ‘‘[d]isclosure 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.’’
The district court granted the motions both to intervene and to dismiss, explaining:
The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case; and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense.

1. Plaintiffs cite, among other things, the sworn declaration of Sean Belcher, a former Jeppesen employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, ‘‘ ‘We do all the extraordinary rendition flights,’ ’’ which he also referred to as ‘‘ ‘the torture flights’ ’’ or ‘‘spook flights.’’ Belcher

stated that ‘‘there were some employees who were not comfortable with that aspect of Jeppesen’s business’’ because they knew ‘‘ ‘some of these flights end up’ ’’ with the passengers being tortured. He stated that Overby had explained, ‘‘ ‘that’s just the way it is, we’re doing them’ ’’ because ‘‘the rendition flights paid very well.’’

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In its view, ‘‘inasmuch as the case involves ‘allegations’ about the conduct by the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege.’’ Moreover, ‘‘at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals—clearly a subject matter which is a state secret.’’ Holding that ‘‘the very subject matter of this case is a state secret,’’ the district court expressly declined to reach whether invocation of the privilege would deprive plaintiffs of evidence necessary to establish a prima facie case or Jeppesen of evidence necessary to mount a valid defense. Plaintiffs timely appealed.
II. STANDARD OF REVIEW
[3] We review de novo the interpretation and application of the state secrets privilege 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. DISCUSSION
A. Overview
[4] Two parallel strands of the state secrets doctrine have emerged from its relatively thin history. Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875), perhaps the earliest case to turn on state secrets in any form, stands for the proposition that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings because the ‘‘very subject matter’’ of the suit is secret.

In that case, William Lloyd’s estate brought suit against the government to recover compensation for services that Lloyd had allegedly rendered as a spy during the Civil War. Id. at 105. Lloyd claimed to have performed on the contract, but not to have received full payment for his services according to the terms of the agreement. Id. at 106.
Dismissing the case on the pleadings, the Supreme Court observed that the secrecy of the parties’ relationship was a ‘‘condition of the engagement’’ and ‘‘[b]oth employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter.’’ Id. This condition of secrecy, the Court reasoned, is ‘‘implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations.’’ Id. ‘‘The publicity produced by an action’’ to enforce the conditions of any such agreement, moreover, ‘‘would itself be a breach of a contract of that kind, and thus defeat a recovery.’’ Id. Because ‘‘the existence of a contract of that kind is itself a fact not to be disclosed,’’ id. at 107, ‘‘the very subject matter of the action TTT [is] a matter of state secret,’’ and the action must therefore be ‘‘dismissed on the pleadings without ever reaching the question of evidence,’’ United States v. Reynolds, 345 U.S. 1, 11 n. 26, 73 S.Ct. 528, 97 L.Ed. 727 (1953) (citing Totten ).2
[5–8] In contrast with the Totten bar, the Reynolds evidentiary privilege prevents only discovery of secret evidence when disclosure would threaten national security. See Reynolds, 345 U.S. 1, 73 S.Ct. 528.3 Application of the Reynolds

2. The courts of appeals have generally interpreted the Totten bar as a rule of non-justiciability. See, e.g., Wilson v. Libby, 535 F.3d 697, 710 (D.C.Cir.2008) (discussing the ‘‘the justiciability doctrine of Totten v. United States ’’); Am. Civil Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 650 n. 2 (6th Cir.2007) (the Totten rule is a ‘‘rule of non-

justiciability’’); Al–Haramain, 507 F.3d at 1197 (the Totten rule is ‘‘a rule of non-justiciability, akin to a political question’’).
3. The evidentiary version of the privilege appeared for the first time in this Nation during Aaron Burr’s 1807 trial for treason, where the district court considered entry of a letter as-

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privilege involves a ‘‘formula of compromise’’ in which the court must weigh ‘‘the circumstances of the case’’ and the interests of the plaintiff against the ‘‘danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.’’ Id. at 9–10, 73 S.Ct. 528. While the court should ‘‘defer to the Executive on matters of foreign policy and national security’’ in making this determination, Al–Haramain, 507 F.3d at 1203, ‘‘[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers,’’ Reynolds, 345 U.S. at 9–10, 73 S.Ct. 528. The court must therefore undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies. Once the court determines a claim of privilege is legitimate, however, ‘‘even the most compelling [personal] necessity cannot overcome’’ it. Reynolds, 345 U.S. at 11, 73 S.Ct. 528.
[9, 10] Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires ‘‘ ‘simply that the evidence is unavailable, as though a witness had died[or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ’’ Al–Haramain, 507 F.3d at 1204 (quoting Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C.Cir.1983)). Within the Reynolds framework, the ‘‘litigation can proceed,’’ therefore, so long as (1) ‘‘the plaintiffs can prove ‘the essential facts’ of their claims ‘without resort to [privileged evidence],’ ’’ id. (quoting Reynolds, 345 U.S. at 11, 73 S.Ct. 528), and (2) invocation of the privi-

lege does not deprive ‘‘the defendant of information that would otherwise give the defendant a valid defense,’’ Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).
B. Totten and the Subject Matter of the Lawsuit
Jeppesen, and to a lesser degree the government, argue that Totten’s categorical bar prevents litigation of this case altogether because it, like the suit in Totten, is predicated on the existence of an alleged secret agreement with the government. Neither Totten’s facts nor its logic supports that conclusion.
In the first place, not all of plaintiffs’ theories of liability require proof of a relationship between Jeppesen and the government. Their claims, for example, that Jeppesen acted with reckless disregard for whether the passengers it helped transport would be tortured by agents of the United States, Morocco, Egypt, and Jordan, do not necessarily require establishing that the United States operated an extraordinary rendition program, much less that Jeppesen entered into a secret agreement with the government to assist in such a program. These claims require proof only that Jeppesen provided support for the flights on which the five plaintiffs were flown with actual or imputed knowledge that the passengers would be tortured at their destinations.
Totten also does not bar any of plaintiffs’ other causes of action because its plain language requires they (not Jeppesen) have an ‘‘agreement’’ or ‘‘contract’’ with

serted by the government to contain a ‘‘matter which ought not to be disclosed.’’ United States v. Burr, 25 F. Cas. 30, 37 (C.C.D.Va. 1807). While the court acknowledged that ‘‘there may be matter, the production of which the court would not require,’’ it concluded that ‘‘[t]here is certainly nothing be-

fore the court which shows that the letter in question contains any matter the disclosure of which would endanger the public safety’’ and permitted entry of the letter. Id; see also Reynolds, 73 S.Ct. at 532 (‘‘[The Reynolds ] formula received authoritative expression in this country as early as the Burr trial.’’).

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the government, and an ‘‘underst[anding]’’ that ‘‘the lips of the other were to be for ever sealed respecting the relation.’’ Totten, 92 U.S. at 106. Only then would ‘‘[t]he secrecy which such contracts impose preclude[ ] any action for their enforcement.’’ Id. On facts similar to those in Totten itself, Tenet v. Doe, 544 U.S. 1, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005), recently confirmed that Totten prohibits only suits that would necessarily reveal ‘‘the plaintiff’s [secret] relationship with the Government.’’ Id. at 10, 125 S.Ct. 1230 (emphasis added).
While it is conceivable, therefore, that the government could assert a Totten argument against Jeppesen if sued by Jeppesen to enforce an alleged clandestine contract between Jeppesen and the government, Totten has no bearing here, where third-party plaintiffs (not Jeppesen) seek compensation from Jeppesen (not the government) for tortious detention and torture (not unpaid espionage services). Totten’s logic simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities.4 Nothing the plaintiffs have done

supports a conclusion that their ‘‘lips [are] to be for ever sealed respecting’’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery. See Totten, 92 U.S. at 106.
Neither does any Ninth Circuit or Supreme Court case law indicate that the ‘‘very subject matter’’ of any other kind of lawsuit is a state secret, apart from the limited factual context of Totten itself. The Supreme Court’s ‘‘very subject matter’’ language appeared in a footnote in Reynolds, where the Court simply characterized ‘‘the very subject matter of the [Totten lawsuit], a contract to perform espionage, [as] a matter of state secret.’’ Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528. That brief passage did not signal a deliberate expansion of Totten’s uncompromising dismissal rule beyond secret agreements with the government, and we decline to adopt that expansion here.5 Tenet leaves no doubt that the ‘‘sweeping holding in Totten ’’ applies only to suits ‘‘where success depends on the existence of [the plaintiff’s] secret espionage relationship with the Government,’’ and that the state secrets privilege does not otherwise ‘‘provide the absolute protection’’ from suit available exclusively under ‘‘the Totten

4. See Terkel v. AT & T Corp., 441 F.Supp.2d 899, 907 (N.D.Ill.2006) (refusing to apply Totten because ‘‘the plaintiffs in this case were not parties to the alleged contract nor did they agree to its terms; rather, they claim that the performance of an alleged contract entered into by others would violate their statutory rights’’); ACLU v. Nat’l Sec. Agency, 438 F.Supp.2d 754, 763 (E.D.Mich.2006) (refusing to apply Totten because it ‘‘applies [only] to actions where there is a secret espionage relationship between the Plaintiff and the Government’’), vacated on other grounds, 493 F.3d 644 (6th Cir.2007).
5. The government’s argument that Kasza, 133 F.3d 1159, has already recognized that the subject matter of a lawsuit is a state secret outside the Totten context any time secret information ‘‘is at the core’’ of the plaintiff’s

claims, is wrong. In that case, we affirmed dismissal according to the Reynolds evidentiary framework because, after the privilege had been asserted with respect to evidence during discovery, we concluded that ‘‘the state secrets privilege bar[s the plaintiff] from establishing her prima facie case on any of her eleven claims,’’ and that ‘‘[n]o protective procedure can salvage [the plaintiff]’s suit.’’ 133 F.3d at 1170. Kasza’s off-handed ‘‘very subject matter’’ comment thus appears to be superfluous dictum. Indeed, we have already clarified that Kasza does no more than ‘‘confirm that some cases are, indeed, non-justiciable as a consequence of the very subject matter of the action being a state secret,’’ and that it otherwise ‘‘provides scant guidance’’ for applying the state secrets privilege. Al–Haramain, 507 F.3d at 1200.

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rule.’’ Tenet, 544 U.S. at 8–9, 11, 125 S.Ct. 1230.
This narrow construction of the Totten ‘‘very subject matter’’ bar heeds the Supreme Court’s warning that ‘‘ ‘occasion[s] for constitutional confrontation between the [executive and judicial] branches,’ should be avoided whenever possible.’’ Cheney v. United States Dist. Court for Dist. of Columbia, 542 U.S. 367, 389, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting United States v. Nixon, 418 U.S. 683, 692, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).
At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it ‘‘involves ‘allegations’ about [secret] conduct by the CIA.’’ This sweeping characterization of the ‘‘very subject matter’’ bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.
We reject this interpretation of the ‘‘very subject matter’’ concept, not only because it is unsupported by the case law, but because it forces an unnecessary zerosum decision between the Judiciary’s constitutional duty ‘‘to say what the law is,’’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and the Executive’s constitutional duty ‘‘to preserve the national security,’’ United States v. Valenzuela–Bernal, 458 U.S. 858, 880, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). We simply need not place the ‘‘coequal branches of the Government’’ on an all-or-nothing ‘‘col-

lision course.’’ Cheney, 542 U.S. at 389, 124 S.Ct. 2576.
To be sure, all Presidential ‘‘claims of confidentiality and autonomy TTT push[ ] to the fore difficult questions of separation of powers and checks and balances.’’ Cheney, 542 U.S. at 389, 124 S.Ct. 2576. Here, as in all such cases, ‘‘[t]he Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.’’ Id. But in the state secrets context, the difficulty of that task and the violence of the collision are both substantially less extreme within the Reynolds evidentiary framework, when both branches are made to engage in a ‘‘formula of compromise,’’ 345 U.S. at 10, 73 S.Ct. 528, rather than by application of the winnertakes-all Totten rule.
[11] Within the Reynolds’s framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance ‘‘the circumstances of the case’’ and the plaintiff’s ‘‘showing of necessity’’ for the evidence against the ‘‘danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.’’ Id. 10–11, 73 S.Ct. 528. Where a plaintiff’s need for the evidence is ‘‘strong TTT, the claim of privilege should not be lightly accepted,’’ but ‘‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied’’ that the privilege applies. Id. at 11, 73 S.Ct. 528.
By excising secret evidence on an itemby-item basis, rather than foreclosing litigation altogether at the outset, however, Reynolds recognizes that the Executive’s national security prerogatives are not the only weighty constitutional values at stake: while ‘‘[s]ecurity depends upon a sophisticated intelligence apparatus,’’ it ‘‘subsists, too, in fidelity to freedom’s first principles

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[including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.’’ Boumediene v. Bush, ––– U.S. ––––, 128 S.Ct. 2229, 2277, 171 L.Ed.2d 41 (2008). The Constitution ‘‘ ‘protects us from our own best intentions,’ ’’ in other words, by ‘‘ ‘divid[ing] power TTT among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.’ ’’ Printz v. United States, 521 U.S. 898, 933, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (quoting New York v. United States, 505 U.S. 144, 187, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)).
Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this Nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘‘ ‘gross and notorious TTT act of despotism.’ ’’ Hamdi v. Rumsfeld, 542 U.S. 507, 556, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131–33 (1765)). But ‘‘ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ’’ Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131–33 (1765)) (emphasis added). Thus it was ‘‘ ‘the central judgment of the Framers of the Constitution’ ’’ that ‘‘[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.’’ Id. at 536, 124 S.Ct. 2633 (quoting Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)).

[12, 13] Unlike Totten, the Reynolds framework accommodates these divisionof-powers concerns by upholding the President’s secrecy interests without categorically immunizing the CIA or its partners from judicial scrutiny. The structural elements in the Constitution, including the principles of separation of powers and judicial review, therefore strongly favor a narrow construction of the blunt Totten doctrine and a broad construction of the more precise Reynolds privilege. Accordingly, we conclude that if a lawsuit is not predicated on the existence of a secret agreement between the plaintiff and the government, Totten does not apply, and the subject matter of the suit is not a state secret. Here, plaintiffs have not sued the government to enforce an alleged secret agreement between themselves and the Executive Branch. The subject matter of this action therefore is not a state secret, and the case should not have been dismissed at the outset.
C. Reynolds and the Evidentiary Privilege
[14] The government argues that even if the subject matter of this suit is not a state secret, it still must be dismissed at the outset according to the Reynolds framework because, in its view, Reynolds applies to secret information and, here, ‘‘[p]rivileged information would be essential for plaintiffs to make out a prima facie case on, and to prove, their claims.’’ See also Unclassified Hayden Decl. (because ‘‘[d]isclosure of the information covered by this privilege assertion reasonably could be expected to’’ harm national security, ‘‘the information should be excluded from any use in this case’’ (emphasis added)). We reject this argument because it misconstrues the object of the state secrets doctrine within the Reynolds framework—Reynolds applies to evidence, not information.

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The Supreme Court could not be more clear that ‘‘the privilege which protects military and state secrets’’ is a privilege within ‘‘the law of evidence,’’ just like the ‘‘analogous privilege, the privilege against self-incrimination.’’ Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528. It specifically prevents the ‘‘compulsion of TTT evidence,’’ the introduction of which ‘‘will expose military matters which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S.Ct. 528 (emphasis added).
[15] Outside the extremely narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Indeed, to conclude that Reynolds, like Totten, applies to prevent the litigation of allegations, rather than simply discovery of evidence, would be to destroy the distinction between the two versions of the doctrine. According to Reynolds, therefore, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.
[16] To be sure, a court may determine that evidence is subject to the Reynolds privilege because it contains secret information; nevertheless, the privilege applies to prevent discovery of the evidence itself and not litigation of the truth or falsity of the information that might be contained within it. As the Supreme Court has explained with respect to the attorney-client privilege, for example, invocation of that privilege does not create a ‘‘zone of silence’’ around the contents of privileged communications. Upjohn Co. v. United States, 449 U.S. 383, 388, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). ‘‘The privilege only protects disclosure of [the] communica-

tions [themselves]; it does not protect disclosure of the underlying facts,’’ so long as the underlying facts can be proven without resort to the privileged materials. Id. at 395, 101 S.Ct. 677.
[17, 18] Other privileges within the law of evidence demonstrate the same common sense principle. The ‘‘analogous’’ Fifth Amendment privilege against self-incrimination, Reynolds, 345 U.S. at 8, 73 S.Ct. 528, for instance, ‘‘ ‘may be asserted TTT to resist compelled explicit or implicit disclosures of incriminating information,’ ’’ United States v. Hubbell, 530 U.S. 27, 34 n. 8, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (quoting Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988)). Once the privilege is properly invoked, the court cannot compel the testimony. Id. But a witness’s valid assertion of the privilege does not immunize him from prosecution for the underlying crime, as though the state were precluded by virtue of the privilege from litigating the facts contained within the excluded testimony. It goes without saying that the privilege applies only to the testimony itself, and not to the underlying facts, and that the state therefore may later prosecute the witness for the crimes in question, just ‘‘ ‘with[ ] evidence from another source.’ ’’ Id. (quoting Doe, 487 U.S. at 212, 108 S.Ct. 2341).
[19] Because the Reynolds privilege, like any other evidentiary privilege, ‘‘ ‘extends only to [evidence] and not to facts,’ ’’ Upjohn, 449 U.S. at 395–96, 101 S.Ct. 677 (quoting Philadelphia v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D.Pa. 1962)), it cannot be invoked to prevent a litigant from persuading a jury of the truth or falsity of an allegation by reference to non-privileged evidence, regardless whether privileged evidence might also be probative of the truth or falsity of the allegation.

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[20, 21] As we have previously explained, therefore, the effect of the government’s successful invocation of the Reynolds privilege ‘‘ ‘is simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ’’ Al–Haramain, 507 F.3d at 1204 (emphasis added) (quoting Ellsberg, 709 F.2d at 64); see also Kasza, 133 F.3d at 1166 (‘‘[B]y invoking the privilege over particular evidence, the evidence is completely removed from the case. The plaintiff’s case then goes forward based on evidence not covered by the privilege.’’ (citing Reynolds, 345 U.S. at 11, 73 S.Ct. 528)).6 Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant. See Kasza, 133 F.3d at 1166.
D. The Freedom of Information Act
[22] Finally, we address when evidence is ‘‘secret’’ within the meaning of the privilege. The government turns to Freedom of Information Act (‘‘FOIA’’) cases for the proposition that privileged evidence is any evidence containing ‘‘classified’’ information, which remains ‘‘secret’’ unless and until such information has been ‘‘officially disclosed’’ by a high ranking government official. See Fitzgibbon v. CIA, 911 F.2d 755 (D.C.Cir.1990); Afshar v. Dep’t of

State, 702 F.2d 1125 (D.C.Cir.1983); Phillippi v. CIA, 655 F.2d 1325 (D.C.Cir.1981); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir.1975). According to the government, because there has been no official disclosure or declassification of relevant classified information in this case, any materials containing classified information are necessarily subject to suppression under the privilege.
We find the government’s resort to FOIA case law unpersuasive because the FOIA statutory framework takes for granted that ‘‘classified’’ matters relating to national defense and foreign policy are, by virtue of being classified, categorically exempt from disclosures that would otherwise be required under the Act. See 5 U.S.C. § 552(b)(1)(A)-(B) (exempting from disclosure under FOIA all ‘‘matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order’’).
[23] The state secrets privilege operates according to no such assumption—in fact, Reynolds makes clear that ‘‘classified’’ cannot be equated with ‘‘secret’’ within the meaning of the doctrine. If the simple fact that information is classified were enough to bring evidence containing that information within the scope of the privilege, then the entire state secrets inquiry—from determining which matters

6. There is one important difference between the unavailability of evidence under ordinary circumstances as against within the state secrets context. Ordinarily the unavailability of privileged evidence would prevent both plaintiffs and defendants from relying on that evidence to prove their cases. In the state secrets context, however, if the unavailability of privileged evidence prevents the defendant from establishing an otherwise available and valid defense, the court must dismiss the case. See Kasza, 133 F.3d at 1166 (if the privilege

deprives ‘‘the defendant of information that would otherwise give the defendant a valid defense,’’ the case must be dismissed). In this way, the doctrine ensures protection of state secrets by requiring dismissal where defendants would otherwise have strong incentive to improperly disclose state secrets known to them during trial. It also ensures that defendants, like Jeppesen, are not penalized by the government’s invocation of the privilege.

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 563 F.3d 992 (9th Cir. 2009)

1007

are secret to which disclosures pose a threat to national security—would fall exclusively to the Executive Branch, in plain contravention of the Supreme Court’s admonition that ‘‘[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers’’ without ‘‘lead[ing] to intolerable abuses.’’ Reynolds, 345 U.S. at 8–10, 73 S.Ct. 528. A rule that categorically equated ‘‘classified’’ matters with ‘‘secret’’ matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process.7 It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.
Common sense confirms this conclusion. The government could not seriously argue, for example, that the Pentagon Papers

remained ‘‘secret’’ and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise ‘‘officially disclose’’ the content of the papers. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
It is also unsurprising that Congress would enact a more deferential scheme under FOIA than exists under the state secrets doctrine, given the substantial differences in the balance of interests involved in the two types of cases. The state secrets doctrine empowers the government to refuse disclosure of secret evidence during the course of a lawsuit that necessarily has an independent purpose apart from disclosure. Plaintiffs here, for example, seek redress against Jeppesen for its alleged complicity in their alleged torture at the hands of foreign agents. Their interest in discovery of all relevant

7. Abuse of the Nation’s information classification system is not unheard of. Former U.S. Solicitor General Erwin Griswold, who argued the government’s case in the Pentagon Papers matter, later explained in a Washington Post editorial that ‘‘[i]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.’’ Erwin N. Griswold, Secrets Not Worth Keeping: the Courts and Classified Information, Wash. Post, Feb. 15, 1989, at A25.
Former Attorney General Herbert Brownell similarly complained in a 1953 letter to President Eisenhower that classification procedures were then ‘‘so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.’’ Letter from Attorney General Herbert Brownell to President Dwight Eisenhower (June 15,1953) (quoted in Ken-

neth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 145 (2001)). Even in Reynolds, avoidance of embarrassment—not preservation of state secrets— appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that ‘‘this accident occurred to a military plane which had gone aloft to test secret electronic equipment,’’ and that ‘‘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.’’ 345 U.S. at 10, 73 S.Ct. 528. In 1996, however, the ‘‘secret’’ accident report involved in that case was declassified. A review of the report revealed, not ‘‘details of any secret project the plane was involved in,’’ but ‘‘[i]nstead, TTT a horror story of incompetence, bungling, and tragic error.’’ Garry Wills, Why the Government Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.

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evidence is substantial: ‘‘The very essence of civil liberty TTT consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,’’ and ‘‘[o]ne of the first duties of government is to afford that protection.’’ Marbury, 5 U.S. (1 Cranch) at 163. Disclosure of any evidence containing classified information, but ultimately not subject to the state secrets privilege, would be appropriate only as necessary for plaintiffs to obtain the protection of the laws.
By contrast, FOIA entails litigation for the sole and independent purpose of obtaining disclosure of classified information. See 5 U.S.C. § 552(a)(4)(B); see also, e.g., Knopf, 509 F.2d at 1370 (addressing the court’s authority under FOIA to order the disclosure of classified information for publication in a book). While ‘‘an informed citizenry [is] vital to the functioning of a democratic society,’’ Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 16, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotations omitted), we think the balance of interests will more often tilt in favor of the Executive when disclosure is the primary end in itself. FOIA therefore predictably entails greater deference to the national classification system than does the state secrets doctrine.
Given these two relevant differences, the government’s invocation of FOIA case law is unpersuasive in the state secrets context. Any argument that the contents of any evidence are and remain categorically secret for purposes of the privilege unless and until the government says otherwise is meritless.
E. Conclusion
[24] The government finally urges us to affirm according to Reynolds because, in its view, there is ‘‘no possibility’’ that plaintiffs can establish a prima facie case, or that Jeppesen can defend itself, ‘‘without using privileged evidence.’’ We are

unpersuaded because acceding to the government’s request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered.
[25] This case is before us on appeal from a Rule 12(b)(6) motion to dismiss. Jeppesen has not filed an answer to the complaint, and discovery has not yet begun. It is well settled that when a federal court reviews the grant of a Rule 12 motion to dismiss, ‘‘its task is necessarily a limited one.’’ Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). That limited task ‘‘is not [to determine] whether a plaintiff will ultimately prevail,’’ id., but instead only whether the complaint ‘‘state[s] a claim upon which relief can be granted,’’ Fed. R. Civ. Pro. 12(b)(6). Plaintiffs here have stated a claim on which relief can be granted and therefore should have an opportunity to present evidence in support of their allegations, without regard for the likelihood of ultimate success. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683 (a district court acts ‘‘prematurely’’ and ‘‘erroneously’’ when it dismisses a well-pleaded complaint, thereby ‘‘preclud[ing] any opportunity for the plaintiffs’’ to establish their case ‘‘by subsequent proof’’); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929,—(2007) (‘‘[A] well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.’ ’’ (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683)).
This limited inquiry—a long-standing feature of the Federal Rules of Civil Procedure—serves a sensible judicial purpose. We simply cannot resolve whether the Reynolds evidentiary privilege applies without (1) an actual request for discovery

ALCALA v. HOLDER
Cite as 563 F.3d 1009 (9th Cir. 2009)

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of specific evidence, (2) an explanation from plaintiffs of their need for the evidence, and (3) a formal invocation of the privilege by the government with respect to that evidence, explaining why it must remain confidential. See Reynolds, 345 U.S. at 8–9, 73 S.Ct. 528 (‘‘the principles which control the application of the privilege’’ require a ‘‘formal claim of privilege’’ by the government with respect to the challenged evidence); id. at 10–11, 73 S.Ct. 528 (the court must consider the litigants’ ‘‘showing of necessity’’ for the evidence in determining whether ‘‘the occasion for invoking the privilege is appropriate’’). Nor can we determine whether the parties will be able to establish their cases without use of privileged evidence without also knowing what non-privileged evidence they will marshal. See Crater Corp. v. Lucent Techs., Inc., 423 F.3d 1260, 1267–68 (Fed. Cir.2005) (‘‘deciding the impact of the government’s assertion of the state secrets privilege’’ before the record is ‘‘adequately developed’’ puts ‘‘the cart before the horse’’). Thus neither the Federal Rules nor Reynolds would permit us to dismiss this case at the pleadings stage on the basis of an evidentiary privilege that must be invoked during discovery or at trial.
Our decision to remand also has the additional benefit of conforming with ‘‘the general rule TTT that a federal appellate court does not consider an issue not passed on below,’’ and will allow the district court to apply Reynolds in the first instance. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Johnson v. California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (citing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 557–58, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (reversing and remanding for the lower court to apply the correct legal standard in the first instance)).
On remand, the government must assert the privilege with respect to secret evi-

dence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.
REVERSED and REMANDED.
,
Joel ALCALA, Petitioner, v.
Eric H. HOLDER, Attorney General, Respondent.
Joel Alcala, Petitioner, v.
Eric H. Holder, Attorney General, Respondent.
Nos. 04–70983, 04–72295.
United States Court of Appeals, Ninth Circuit.
Argued Nov. 8, 2007. Submitted April 21, 2009.
Filed April 28, 2009. Background: Alien, a native and citizen of Mexico, petitioned for review of orders of the Board of Immigration Appeals affirming immigration judge’s (IJ) grant of the government’s motion to dismiss removal proceedings so the government could reinstate a prior, expedited order of removal against alien, and denying alien’s motion to reopen the dismissed removal proceedings, 2004 WL 1398715.

 
 MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 579 F.3d 943 (9th Cir. 2009)

943

For the foregoing reasons, we affirm the judgment of the bankruptcy court.

the basis of a fictitious expense not incurred by a debtor.

MAGNUSON, District Judge, dissenting.
When unsecured creditor eCAST and the bankruptcy Trustee objected to the confirmation of Washburn’s proposed Chapter 13 plan in this case, section 1325(b) prohibited the bankruptcy court from confirming that plan ‘‘unless, as of the effective date of the plan TTT the plan provides that all of the debtor’s projected disposable income TTT beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.’’ 11 U.S.C. § 1325(b)(2)(B). Because Washburn’s plan did not provide that all of his projected disposable income would go to pay unsecured creditors, I believe that the Bankruptcy Court’s decision affirming the plan should be reversed.
As the majority acknowledges, there is a split of authority as to the proper reading of the dense and confusingly written Bankruptcy Code with respect to the deduction at issue here. The majority contends that the so-called ‘‘plain language approach’’ requires the Court to define section 707(b)(2)(A)(ii)(I)’s ‘‘applicable monthly expense amounts’’ differently from that section’s ‘‘actual monthly expenses.’’ I agree with the Ninth Circuit Court of Appeals, however, that the ‘‘statutory language, plainly read’’ mandates a different result. In re Ransom, 577 F.3d 1026, 1030, 2009 WL 2477609, at * 4 (9th Cir.2009) (quoting In re Ransom, 380 B.R. 799, 806 n. 18 (9th Cir.BAP2007)). Using this approach,
a debtor [is not allowed] to deduct an ‘‘ownership cost’’ (as opposed to an ‘‘operating cost’’) that the debtor does not have. An ‘‘ownership cost’’ is not an ‘‘expense’’—either actual or applicable— if it does not exist, period. Ironic it would be indeed to diminish payments to unsecured creditors in this context on

Id. Only this approach comports with Con-
gress’s intent in enacting the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (‘‘BAPCPA’’), Pub.L. No. 109–8, 119 Stat. 23, 202–03. The reforms enacted were intended ‘‘to ensure that debtors repay creditors the maximum they can afford.’’ H.R. Rep. 109–31(I), at 1, reprinted in 2005 U.S.C.C.A.N. 88, 89; see also supra at 8–9 (citing In re Frederickson, 545 F.3d 652, 657–58 (8th Cir.2008)). Here, Washburn’s projected disposable income is $471 per month greater than his plan suggests it is. Over the life of the plan, his unsecured creditors will receive more than $28,000 less than they are entitled to receive. Allowing a debtor to avoid paying more than $28,000 to his unsecured creditors flies in the face of all Congress intended to accomplish with BAPCPA.
Accordingly, I dissent.
,
Binyam MOHAMED; Abou Elkassim Britel; Ahmed Agiza; Mohamed Farag Ahmad Bashmilah; Bisher Al– Rawi, Plaintiffs–Appellants,
v.
JEPPESEN DATAPLAN, INC., Defendant–Appellee,

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United States of America, Intervenor–Appellee.
No. 08–15693.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 9, 2009.
Filed April 28, 2009.
Amended Aug. 31, 2009. Background: Foreign nationals who allegedly had been transferred in secret to foreign countries for detention and interrogation pursuant to ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA) brought action under Alien Tort Statute (ATS) against company alleged to have taken part in program. The United States District Court for the Northern District of California, James Ware, J., 539 F.Supp.2d 1128, granted government’s motions to intervene and to dismiss. Foreign nationals appealed. Holdings: The Court of Appeals, Hawkins, Circuit Judge, held that: (1) suit was not barred under state secrets
doctrine pursuant to Totten; (2) suit was not barred under state secrets
doctrine pursuant to Reynolds; (3) fact that certain documents had been
classified did not compel finding that documents were subject to state secrets privilege; and (4) Court of Appeals could not affirm grant of motion to dismiss on ground that there was ‘‘no possibility’’ that foreign nationals could establish prima facie case without using privileged information. Reversed and remanded. Opinion, 563 F.3d 992, amended and superseded.
1. Federal Civil Procedure O1832 The limited inquiry under the rule
governing motions to dismiss for failure to state a claim precludes prospective consid-

eration of hypothetical evidence. Fed. Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
2. Federal Courts O794 In reviewing a dismissal for failure to
state a claim, the Court of Appeals construes the complaint in the light most favorable to the plaintiffs, taking all their allegations as true and drawing all reasonable inferences from the complaint in their favor. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
3. Federal Courts O776, 870.1 The Court of Appeals reviews de novo
the interpretation and application of the state secrets privilege and reviews for clear error the district court’s underlying factual findings.
4. Federal Civil Procedure O1741.5 Under the Totten principle, a suit
predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings because the very subject matter of the suit is secret.
5. Privileged Communications and Confidentiality O360
Application of the Reynolds evidentiary privilege, which prevents only discovery of secret evidence when disclosure would threaten national security, involves a formula of compromise in which the court must weigh the circumstances of the case and the interests of the plaintiff against the danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.
6. Constitutional Law O2572 Privileged Communications and Confidentiality O360 While a court should defer to the Ex-
ecutive on matters of foreign policy and national security in determining whether to apply the Reynolds evidentiary privi-

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 579 F.3d 943 (9th Cir. 2009)

945

lege, which prevents discovery of secret evidence when disclosure would threaten national security, judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.
7. Privileged Communications and Confidentiality O360
In determining whether to apply the Reynolds evidentiary privilege, which prevents discovery of secret evidence when disclosure would threaten national security, a court must undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies.
8. Privileged Communications and Confidentiality O360
Once a court determines a claim of privilege under Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, is legitimate, even the most compelling personal necessity cannot overcome it.
9. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 Successful invocation of the Reynolds
privilege, which prevents discovery of secret evidence when disclosure would threaten national security, does not necessarily require dismissal of the entire suit; instead, invocation of the privilege requires simply that the evidence is unavailable, as though a witness had died or a document had been destroyed, and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.
10. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 Within the framework of Reynolds,
which prevents discovery of secret evidence when disclosure would threaten national security, litigation can proceed so long as: (1) the plaintiffs can prove the essential facts of their claims without re-

sort to privileged evidence, and (2) invocation of the privilege does not deprive the defendant of information that would otherwise give the defendant a valid defense.
11. Privileged Communications and Confidentiality O360
Where a plaintiff’s need for evidence is strong, a claim of privilege under Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that the privilege applies.
12. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 If a lawsuit is not predicated on the
existence of a secret agreement between the plaintiff and the government, the Totten principle, that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be dismissed on the pleadings, does not apply, and the subject matter of the suit is not a state secret.
13. Federal Civil Procedure O1741.5 Foreign nationals’ suit under Alien
Tort Statute (ATS), alleging that private company took part in ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA), was not barred under state secrets doctrine pursuant to Totten, which requires dismissal of suit predicated on existence of secret agreement between a plaintiff and the government, since foreign nationals had not sued government to enforce any alleged secret agreement between themselves and Executive Branch. 28 U.S.C.A. § 1350.
14. Federal Civil Procedure O1741.5 Foreign nationals’ suit under Alien
Tort Statute (ATS), alleging that private company took part in ‘‘extraordinary rendition’’ program operated by Central Intel-

946

579 FEDERAL REPORTER, 3d SERIES

ligence Agency (CIA), was not barred under state secrets doctrine pursuant to Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, despite government’s argument that privileged information would be essential for foreign nationals to prove their claims, inasmuch as Reynolds applied to evidence, not information. 28 U.S.C.A. § 1350.
15. Privileged Communications and Confidentiality O360
Under Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.
16. Privileged Communications and Confidentiality O360
Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, only protects disclosure of the communications themselves; it does not protect disclosure of the underlying facts, so long as the underlying facts can be proven without resort to the privileged materials.
17. Witnesses O297(1) The Fifth Amendment privilege
against self-incrimination may be asserted to resist compelled explicit or implicit disclosures of incriminating information. U.S.C.A. Const.Amend. 5.
18. Witnesses O297(1) Once the Fifth Amendment privilege
against self-incrimination is properly invoked, the court cannot compel the testimony. U.S.C.A. Const.Amend. 5.
19. Privileged Communications and Confidentiality O360
Because the privilege of Reynolds, which prevents discovery of secret evi-

dence when disclosure would threaten national security, like any other evidentiary privilege, extends only to evidence and not to facts, it cannot be invoked to prevent a litigant from persuading a jury of the truth or falsity of an allegation by reference to non-privileged evidence, regardless whether privileged evidence might also be probative of the truth or falsity of the allegation.
20. Federal Civil Procedure O1741.5
Privileged Communications and Confidentiality O360
The effect of the government’s successful invocation of Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, is simply that the evidence is unavailable, as though a witness had died or a document had been destroyed, and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.
21. Federal Civil Procedure O1741.5
Within the framework of Reynolds, which prevents discovery of secret evidence when disclosure would threaten national security, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant.
22. Privileged Communications and Confidentiality O360
Fact that certain documents pertaining to ‘‘extraordinary rendition’’ program allegedly operated by Central Intelligence Agency (CIA) had been classified by government did not compel finding that documents were secret and thus subject to state secrets privilege, in action by foreign nationals under Alien Tort Statute (ATS). 28 U.S.C.A. § 1350.

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 579 F.3d 943 (9th Cir. 2009)

947

23. Privileged Communications and Confidentiality O360
While classification of a document by the government may be a strong indication of secrecy as a practical matter, courts must independently evaluate each claim of privilege to determine whether it implicates ‘‘secrets’’ within the meaning of the state secrets doctrine.
24. Federal Courts O947 Court of Appeals could not affirm
grant of government’s motion to dismiss, for failure to state claim, foreign nationals’ Alien Tort Statute (ATS) action, alleging that private company participated in ‘‘extraordinary rendition’’ program operated by Central Intelligence Agency (CIA), on ground that there was ‘‘no possibility’’ that foreign nationals could establish prima facie case, or that company could defend itself, without using evidence subject to state secrets privilege, inasmuch as Court of Appeals could not prospectively evaluate hypothetical claims of privilege that government had not yet raised and district court had not yet considered and thus trial court was to consider the issue on remand. 28 U.S.C.A. § 1350; Fed.Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.
25. Federal Courts O763.1 When a federal court reviews the
grant of a motion to dismiss for failure to state a claim, its task is necessarily a limited one; that limited task is not to determine whether a plaintiff will ultimately prevail, but instead only whether the complaint states a claim upon which relief can be granted. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.

Daniel P. Collins, Munger, Tolles & Olson, Los Angeles, CA, for Defendant–Appellee.
Douglas N. Letter and Michael P. Abate, Civil Division, United States Department of Justice, Washington, D.C., for Intervenor–Appellee.
Andrew G. McBride, Wiley Rein, LLP, Washington, D.C., for Amicus The Foundation for the Defense of Democracies in Support of Appellees Supporting Affirmance.
Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amici Washington Legal Foundation and Allied Educational Foundation.
William J. Aceves, California Western School of Law, San Diego, CA, for Amici Redress and The International Commission of Jurists.
Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, CA, for Amici Professors of Constitutional Law, Federal Jurisdiction, and Foreign Relations Law.
Jean–Paul Jassy, Bostwick & Jassy, Los Angeles, CA, for Amici Professors William G. Weaver and Robert M. Pallitto.
James M. Ringer, Clifford Change US, New York, NY, for Amici Commonwealth Lawyers Association and Justice.
David J. Stankiewicz, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, New York, NY, for Amicus Former United States Diplomats.
Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:07–CV–02798–JW.

Ben Wizner, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs–Appellants.

Before MARY M. SCHROEDER, WILLIAM C. CANBY, JR. and MICHAEL DALY HAWKINS, Circuit Judges.

948

579 FEDERAL REPORTER, 3d SERIES

ORDER
The Opinion filed April 28, 2009, slip op. 4919, is hereby amended as follows:
On page 4944, lines 2–6:
¢It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege.$ is replaced with
¢It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must independently evaluate each claim of privilege to determine whether it implicates ‘‘secrets’’ within the meaning of the doctrine.8/$
Footnote reads as follows:
Reynolds left open the possibility that, in undertaking this evaluation, a court may determine that some evidence is so sensitive that it should uphold a claim of privilege without examining the evidence in chambers. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528 (‘‘[W]e will not go so far as to say that the court may automatically require complete disclosure to the judge before the claim of privilege will be accepted in any case.’’). We are satisfied, however, that no such showing has been made in this case at this stage in the litigation. Indeed, the government has readily made available, for in camera inspection, the classified declarations that form the basis of the present claim of privilege.$
On page 4947, lines 27–30:
¢Thus neither the Federal Rules nor Reynolds would permit us to dismiss this case at the pleadings stage on the basis of an evidentiary privilege that must be invoked during discovery or at trial. $ is replaced with
¢Thus neither the Federal Rules nor Reynolds would permit us to dismiss this case for ‘‘failure to state a claim upon which relief can be granted,’’ Fed. R. Civ.

Pro. 12(b)(6), on the basis of an evidentiary privilege relevant, not to the sufficiency of the complaint, but only to the sufficiency of evidence later available to substantiate the complaint.9/$
Footnote reads as follows:
¢While the government styled its motion below as a ‘‘Motion to Dismiss or, in the Alternative, for Summary Judgment,’’ the district court did not grant summary judgment, but rather dismissal—and it could not have done otherwise. A party is entitled to summary judgment only if ‘‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.’’ Fed. R. Civ. Pro. 56(c). Here, because Jeppesen has not even answered the complaint, it is uncertain which allegations are in dispute, much less which disputes might raise genuine issues of material fact.
The procedural posture of this case thus differs fundamentally from that in Kasza, which involved a grant of summary judgment. See Frost v. Perry, 919 F.Supp. 1459, 1465–67 (D.Nev.1996), aff’d sub nom Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998) (granting summary judgment because ‘‘the privilege, as invoked, covered various items of discovery requested by Plaintiffs,’’ including ‘‘various photographic exhibits’’ and ‘‘under seal TTT affidavits,’’ and therefore ‘‘Plaintiffs have failed to establish a genuine issue as to any material fact without running afoul of the military and state secrets privilege’’).$
Defendant–Appellee’s Petition for Rehearing and Rehearing En Banc, filed June 12, 2009, and Intervenor–Appellee’s Petition for Rehearing or Rehearing En Banc, filed June 12, 2009, remain pending before this court.

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 579 F.3d 943 (9th Cir. 2009)

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Future petitions for rehearing or rehearing en banc from this Order will not be entertained.
OPINION
HAWKINS, Circuit Judge:
Plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher alRawi (‘‘plaintiffs’’), appeal the dismissal of this action, brought under the Alien Tort Statute, 28 U.S.C. § 1350, against Jeppesen Dataplan, Inc. (‘‘Jeppesen’’), a wholly owned subsidiary of the Boeing Company. Before Jeppesen filed an answer to the complaint, the United States intervened, asserting that the state secrets privilege required dismissal of the entire action on the pleadings. The district court agreed and dismissed the complaint. On appeal, plaintiffs argue the district court misapplied the state secrets doctrine and erred in dismissing the complaint.
[1] Concluding that the subject matter of this lawsuit is not a state secret because it is not predicated on the existence of a secret agreement between plaintiffs and the Executive, and recognizing that our limited inquiry under Federal Rule of Civil Procedure 12(b)(6) precludes prospective consideration of hypothetical evidence, we reverse and remand.
I. BACKGROUND
A. Factual Background
[2] At this stage in the litigation, we ‘‘construe the complaint in the light most favorable to the plaintiff[s], taking all [their] 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).
1. The Extraordinary Rendition Program
Plaintiffs allege that the United States 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 United States government ‘‘to employ interrogation methods that would [otherwise have been] prohibited under federal or international law.’’
Citing publicly available evidence, plaintiffs, all foreign nationals, claim they were each processed through the extraordinary rendition program.
Plaintiff Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, transferred to American custody, and flown to Egypt. In Egypt, 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 fifteen years in Egyptian prison. According to plaintiffs, ‘‘[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.’’
Plaintiff Britel, a forty-year-old Italian citizen of Moroccan origin, was arrested and detained in Pakistan on immigration charges. After several months in Pakistani detention, Britel was transferred to the custody of American officials. These officials dressed Britel in a diaper and overalls, and shackled and blindfolded him for a flight to Morocco. Once in Morocco, he

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was detained incommunicado by Moroccan security services at the Temara prison. There, he was beaten, deprived of sleep and food, and threatened with sexual torture, including sodomy with a bottle and castration. After being released and redetained, Britel was coerced into signing a false confession, convicted of terrorism-related charges, and sentenced to fifteen years in Moroccan prison.
Plaintiff Mohamed, a twenty-eight-yearold Ethiopian citizen and legal resident of the United Kingdom, was arrested in Karachi, Pakistan, on immigration charges. Mohamed was flown to Morocco under similar conditions, where he was transferred to the custody of Moroccan security agents. Moroccan authorities subjected Mohamed to ‘‘severe physical and psychological torture,’’ including routinely beating him and breaking his bones. Authorities also cut him with a scalpel all over his body, including on his penis, and poured ‘‘hot stinging liquid’’ into the open wounds. He was also blindfolded and handcuffed while being made ‘‘to listen to extremely loud music day and night.’’ After eighteen months in Moroccan custody, Mohamed was transferred back to American custody and flown to Afghanistan. There he was detained in a CIA ‘‘dark prison’’ where he underwent further torture, including being kept in ‘‘near permanent darkness’’ and subjected to loud noise, such as the screams of women and children, for twenty-four hours per day. His captors also deprived him of food. Eventually, Mohamed was transferred to the 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.
Plaintiff al-Rawi, a thirty-nine-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 was placed in

a diaper, overalls, and shackles and placed on an airplane, where he was flown to Afghanistan. Detained in the same ‘‘dark prison’’ as Mohamed, loud noises were played twenty-four hours per day to deprive him of sleep. Al–Rawi 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 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 Bashmilah, a thirty-nine-yearold Yemeni citizen, 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 ‘‘subject to severe physical and psychological abuse,’’ Bashmilah was given over to agents of the United States government, who flew him to Afghanistan in similar fashion as the other plaintiffs. Once in Afghanistan, Bashmilah was placed in solitary confinement, in twentyfour-hour darkness, where he was deprived of sleep and shackled in painful positions. He was subsequently moved to another cell where he was held in twentyfour-hour light and loud noise. Depressed by his conditions, Bashmilah attempted suicide three times. Later, Bashmilah 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 twentyfour-hour light. Bashmilah was transferred once more to Yemen, where he was tried and convicted of a trivial crime, sentenced to time served abroad, and released.

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2. Jeppesen’s Involvement in the Rendition Program
According to plaintiffs, publicly available evidence establishes that Jeppesen provided flight planning and logistical support services to the aircraft and crew on all of the flights transporting the five plaintiffs among their various locations of detention and torture. According to the complaint, ‘‘Jeppesen played an integral role in the forced’’ abductions and detentions. It ‘‘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.’’ Jeppesen furthermore 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’’ at the hands of U.S. and foreign government officials.1
B. Procedural Background
Plaintiffs brought suit under the Alien Tort Statute, 28 U.S.C. § 1350, claiming that Jeppesen is directly liable in damages for (1) actively participating in their forcible and arbitrary abduction, and (2) conspiring in their torture and other cruel, inhuman, or degrading treatment, in violation of customary international law cognizable under the Alien Tort Statute.
In the alternative, plaintiffs assert that Jeppesen is liable for aiding and abetting agents of the United States, Morocco, Egypt, and Jordan in subjecting them to torture and other cruel, inhuman, or de-

grading treatment because Jeppesen knew or should have known that the passengers of each flight for which it provided logistical support services were being subjected to such treatment by agents of those countries. They further allege in the alternative that Jeppesen demonstrated reckless disregard as to whether the passengers of each flight for which it provided logistical support services were being subjected to torture and other cruel, inhuman, or degrading treatment.
Before Jeppesen answered the complaint, the United States government intervened, asserting the state secrets privilege and, on that basis, moved for dismissal. 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 asserts that ‘‘[d]isclosure 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.’’
The district court granted the motions both to intervene and to dismiss, explaining:
The invocation of states secret privilege is a categorical bar to a lawsuit under the following circumstances: (1) if the very subject matter of the action is a state secret; (2) if the invocation of the privilege deprives a plaintiff of evidence necessary to prove a prima facie case;

1. Plaintiffs cite, among other things, the sworn declaration of Sean Belcher, a former Jeppesen employee, who stated that the director of Jeppesen International Trip Planning Services, Bob Overby, had told him, ‘‘ ‘We do all the extraordinary rendition flights,’ ’’ which he also referred to as ‘‘ ‘the torture flights’ ’’ or ‘‘spook flights.’’ Belcher

stated that ‘‘there were some employees who were not comfortable with that aspect of Jeppesen’s business’’ because they knew ‘‘ ‘some of these flights end up’ ’’ with the passengers being tortured. He stated that Overby had explained, ‘‘ ‘that’s just the way it is, we’re doing them’ ’’ because ‘‘the rendition flights paid very well.’’

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and (3) if the invocation of the privilege deprives a defendant of information necessary to raise a valid defense.
In its view, ‘‘inasmuch as the case involves ‘allegations’ about the conduct by the CIA, the privilege is invoked to protect information which is properly the subject of state secrets privilege.’’ Moreover, ‘‘at the core of Plaintiffs’ case against Defendant Jeppesen are ‘allegations’ of covert U.S. military or CIA operations in foreign countries against foreign nationals—clearly a subject matter which is a state secret.’’ Holding that ‘‘the very subject matter of this case is a state secret,’’ the district court expressly declined to reach whether invocation of the privilege would deprive plaintiffs of evidence necessary to establish a prima facie case or Jeppesen of evidence necessary to mount a valid defense. Plaintiffs timely appealed.
II. STANDARD OF REVIEW
[3] We review de novo the interpretation and application of the state secrets privilege 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. DISCUSSION
A. Overview
[4] Two parallel strands of the state secrets doctrine have emerged from its relatively thin history. Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875), perhaps the earliest case to turn on state secrets in any form, stands for the proposition that a suit predicated on the existence and content of a secret agreement between a plaintiff and the government must be

dismissed on the pleadings because the ‘‘very subject matter’’ of the suit is secret. In that case, William Lloyd’s estate brought suit against the government to recover compensation for services that Lloyd had allegedly rendered as a spy during the Civil War. Id. at 105. Lloyd claimed to have performed on the contract, but not to have received full payment for his services according to the terms of the agreement. Id. at 106.
Dismissing the case on the pleadings, the Supreme Court observed that the secrecy of the parties’ relationship was a ‘‘condition of the engagement’’ and ‘‘[b]oth employer and agent must have understood that the lips of the other were to be for ever sealed respecting the relation of either to the matter.’’ Id. This condition of secrecy, the Court reasoned, is ‘‘implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations.’’ Id. ‘‘The publicity produced by an action’’ to enforce the conditions of any such agreement, moreover, ‘‘would itself be a breach of a contract of that kind, and thus defeat a recovery.’’ Id. Because ‘‘the existence of a contract of that kind is itself a fact not to be disclosed,’’ id. at 107, ‘‘the very subject matter of the action TTT [is] a matter of state secret,’’ and the action must therefore be ‘‘dismissed on the pleadings without ever reaching the question of evidence,’’ United States v. Reynolds, 345 U.S. 1, 11 n. 26, 73 S.Ct. 528, 97 L.Ed. 727 (1953) (citing Totten).2
[5–8] In contrast with the Totten bar, the Reynolds evidentiary privilege prevents only discovery of secret evidence

2. The courts of appeals have generally interpreted the Totten bar as a rule of non-justiciability. See, e.g., Wilson v. Libby, 535 F.3d 697, 710 (D.C.Cir.2008) (discussing the ‘‘the justiciability doctrine of Totten v. United States ’’); Am. Civil Liberties Union v. Nat’l

Sec. Agency, 493 F.3d 644, 650 n. 2 (6th Cir.2007) (the Totten rule is a ‘‘rule of nonjusticiability’’); Al–Haramain, 507 F.3d at 1197 (the Totten rule is ‘‘a rule of nonjusticiability, akin to a political question’’).

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when disclosure would threaten national security. See Reynolds, 345 U.S. 1, 73 S.Ct. 528.3 Application of the Reynolds privilege involves a ‘‘formula of compromise’’ in which the court must weigh ‘‘the circumstances of the case’’ and the interests of the plaintiff against the ‘‘danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.’’ Id. at 9–10, 73 S.Ct. 528. While the court should ‘‘defer to the Executive on matters of foreign policy and national security’’ in making this determination, Al–Haramain, 507 F.3d at 1203, ‘‘[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers,’’ Reynolds, 345 U.S. at 9–10, 73 S.Ct. 528. The court must therefore undertake an independent evaluation of the claim of privilege to ensure the privilege properly applies. Once the court determines a claim of privilege is legitimate, however, ‘‘even the most compelling [personal] necessity cannot overcome’’ it. Reynolds, 345 U.S. at 11, 73 S.Ct. 528.
[9, 10] Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires ‘‘ ‘simply that the evidence is unavailable, as though a witness had died[or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ’’ Al–Haramain, 507 F.3d at 1204 (quoting Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C.Cir.1983)). Within the Reynolds framework, the ‘‘litigation can proceed,’’

therefore, so long as (1) ‘‘the plaintiffs can prove ‘the essential facts’ of their claims ‘without resort to [privileged evidence],’ ’’ id. (quoting Reynolds, 345 U.S. at 11, 73 S.Ct. 528), and (2) invocation of the privilege does not deprive ‘‘the defendant of information that would otherwise give the defendant a valid defense,’’ Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).
B. Totten and the Subject Matter of the Lawsuit
Jeppesen, and to a lesser degree the government, argue that Totten’s categorical bar prevents litigation of this case altogether because it, like the suit in Totten, is predicated on the existence of an alleged secret agreement with the government. Neither Totten’s facts nor its logic supports that conclusion.
In the first place, not all of plaintiffs’ theories of liability require proof of a relationship between Jeppesen and the government. Their claims, for example, that Jeppesen acted with reckless disregard for whether the passengers it helped transport would be tortured by agents of the United States, Morocco, Egypt, and Jordan, do not necessarily require establishing that the United States operated an extraordinary rendition program, much less that Jeppesen entered into a secret agreement with the government to assist in such a program. These claims require proof only that Jeppesen provided support for the flights on which the five plaintiffs were flown with actual or imputed knowl-

3. The evidentiary version of the privilege appeared for the first time in this Nation during Aaron Burr’s 1807 trial for treason, where the district court considered entry of a letter asserted by the government to contain a ‘‘matter which ought not to be disclosed.’’ United States v. Burr, 25 F.Cas. 30, 37 (C.C.D.Va. 1807). While the court acknowledged that ‘‘there may be matter, the production of

which the court would not require,’’ it concluded that ‘‘[t]here is certainly nothing before the court which shows that the letter in question contains any matter the disclosure of which would endanger the public safety’’ and permitted entry of the letter. Id; see also Reynolds, 73 S.Ct. at 532 (‘‘[The Reynolds] formula received authoritative expression in this country as early as the Burr trial.’’).

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edge that the passengers would be tortured at their destinations.
Totten also does not bar any of plaintiffs’ other causes of action because its plain language requires they (not Jeppesen) have an ‘‘agreement’’ or ‘‘contract’’ with the government, and an ‘‘underst[anding]’’ that ‘‘the lips of the other were to be for ever sealed respecting the relation.’’ Totten, 92 U.S. at 106. Only then would ‘‘[t]he secrecy which such contracts impose preclude[ ] any action for their enforcement.’’ Id. On facts similar to those in Totten itself, Tenet v. Doe, 544 U.S. 1, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005), recently confirmed that Totten prohibits only suits that would necessarily reveal ‘‘the plaintiff’s [secret] relationship with the Government.’’ Id. at 10, 125 S.Ct. 1230 (emphasis added).
While it is conceivable, therefore, that the government could assert a Totten argument against Jeppesen if sued by Jeppesen to enforce an alleged clandestine contract between Jeppesen and the government, Totten has no bearing here, where third-party plaintiffs (not Jeppesen) seek compensation from Jeppesen (not the government) for tortious detention and torture (not unpaid espionage services).

Totten’s logic simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities.4 Nothing the plaintiffs have done supports a conclusion that their ‘‘lips [are] to be for ever sealed respecting’’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery. See Totten, 92 U.S. at 106.
Neither does any Ninth Circuit or Supreme Court case law indicate that the ‘‘very subject matter’’ of any other kind of lawsuit is a state secret, apart from the limited factual context of Totten itself. The Supreme Court’s ‘‘very subject matter’’ language appeared in a footnote in Reynolds, where the Court simply characterized ‘‘the very subject matter of the [Totten lawsuit], a contract to perform espionage, [as] a matter of state secret.’’ Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528. That brief passage did not signal a deliberate expansion of Totten’s uncompromising dismissal rule beyond secret agreements with the government, and we decline to adopt that expansion here.5 Tenet leaves no doubt that the ‘‘sweeping holding in Totten ’’ applies only to suits ‘‘where

4. See Terkel v. AT & T Corp., 441 F.Supp.2d 899, 907 (N.D.Ill.2006) (refusing to apply Totten because ‘‘the plaintiffs in this case were not parties to the alleged contract nor did they agree to its terms; rather, they claim that the performance of an alleged contract entered into by others would violate their statutory rights’’); ACLU v. Nat’l Sec. Agency, 438 F.Supp.2d 754, 763 (E.D.Mich.2006) (refusing to apply Totten because it ‘‘applies [only] to actions where there is a secret espionage relationship between the Plaintiff and the Government’’), vacated on other grounds, 493 F.3d 644 (6th Cir.2007).
5. The government’s argument that Kasza, 133 F.3d 1159, has already recognized that the subject matter of a lawsuit is a state secret outside the Totten context any time secret information ‘‘is at the core’’ of the plaintiff’s

claims, is wrong. In that case, we affirmed dismissal according to the Reynolds evidentiary framework because, after the privilege had been asserted with respect to evidence during discovery, we concluded that ‘‘the state secrets privilege bar[s the plaintiff] from establishing her prima facie case on any of her eleven claims,’’ and that ‘‘[n]o protective procedure can salvage [the plaintiff]’s suit.’’ 133 F.3d at 1170. Kasza’s off-handed ‘‘very subject matter’’ comment thus appears to be superfluous dictum. Indeed, we have already clarified that Kasza does no more than ‘‘confirm that some cases are, indeed, non-justiciable as a consequence of the very subject matter of the action being a state secret,’’ and that it otherwise ‘‘provides scant guidance’’ for applying the state secrets privilege. Al–Haramain, 507 F.3d at 1200.

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success depends on the existence of [the plaintiff’s] secret espionage relationship with the Government,’’ and that the state secrets privilege does not otherwise ‘‘provide the absolute protection’’ from suit available exclusively under ‘‘the Totten rule.’’ Tenet, 544 U.S. at 8–9, 11, 125 S.Ct. 1230.
This narrow construction of the Totten ‘‘very subject matter’’ bar heeds the Supreme Court’s warning that ‘‘ ‘occasion[s] for constitutional confrontation between the [executive and judicial] branches,’ should be avoided whenever possible.’’ Cheney v. United States Dist. Court for Dist. of Columbia, 542 U.S. 367, 389, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting United States v. Nixon, 418 U.S. 683, 692, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).
At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it ‘‘involves ‘allegations’ about [secret] conduct by the CIA.’’ This sweeping characterization of the ‘‘very subject matter’’ bar has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.
We reject this interpretation of the ‘‘very subject matter’’ concept, not only because it is unsupported by the case law, but because it forces an unnecessary zerosum decision between the Judiciary’s constitutional duty ‘‘to say what the law is,’’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and the Execu-

tive’s constitutional duty ‘‘to preserve the national security,’’ United States v. Valenzuela–Bernal, 458 U.S. 858, 880, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). We simply need not place the ‘‘co-equal branches of the Government’’ on an all-or-nothing ‘‘collision course.’’ Cheney, 542 U.S. at 389, 124 S.Ct. 2576.
To be sure, all Presidential ‘‘claims of confidentiality and autonomy TTT push[ ] to the fore difficult questions of separation of powers and checks and balances.’’ Cheney, 542 U.S. at 389, 124 S.Ct. 2576. Here, as in all such cases, ‘‘[t]he Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.’’ Id. But in the state secrets context, the difficulty of that task and the violence of the collision are both substantially less extreme within the Reynolds evidentiary framework, when both branches are made to engage in a ‘‘formula of compromise,’’ 345 U.S. at 10, 73 S.Ct. 528, rather than by application of the winnertakes-all Totten rule.
[11] Within the Reynolds’s framework, the President’s interest in keeping state secrets secret is, of course, still protected: the court must balance ‘‘the circumstances of the case’’ and the plaintiff’s ‘‘showing of necessity’’ for the evidence against the ‘‘danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged.’’ Id. 10–11, 73 S.Ct. 528. Where a plaintiff’s need for the evidence is ‘‘strong TTT, the claim of privilege should not be lightly accepted,’’ but ‘‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied’’ that the privilege applies. Id. at 11, 73 S.Ct. 528.
By excising secret evidence on an itemby-item basis, rather than foreclosing litigation altogether at the outset, however,

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Reynolds recognizes that the Executive’s national security prerogatives are not the only weighty constitutional values at stake: while ‘‘[s]ecurity depends upon a sophisticated intelligence apparatus,’’ it ‘‘subsists, too, in fidelity to freedom’s first principles [including] freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.’’ Boumediene v. Bush, ––– U.S. ––––, 128 S.Ct. 2229, 2277, 171 L.Ed.2d 41 (2008). The Constitution ‘‘ ‘protects us from our own best intentions,’ ’’ in other words, by ‘‘ ‘divid[ing] power TTT among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.’ ’’ Printz v. United States, 521 U.S. 898, 933, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (quoting New York v. United States, 505 U.S. 144, 187, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)).
Separation-of-powers concerns take on an especially important role in the context of secret Executive conduct. As the Founders of this Nation knew well, arbitrary imprisonment and torture under any circumstance is a ‘‘ ‘gross and notorious TTT act of despotism.’ ’’ Hamdi v. Rumsfeld, 542 U.S. 507, 556, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131–33 (1765)). But ‘‘ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ’’ Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131–33 (1765)) (emphasis added). Thus it was ‘‘ ‘the central judgment of the Framers of the Constitution’ ’’ that ‘‘[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties

are at stake.’’ Id. at 536, 124 S.Ct. 2633 (quoting Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)).
[12, 13] Unlike Totten, the Reynolds framework accommodates these divisionof-powers concerns by upholding the President’s secrecy interests without categorically immunizing the CIA or its partners from judicial scrutiny. The structural elements in the Constitution, including the principles of separation of powers and judicial review, therefore strongly favor a narrow construction of the blunt Totten doctrine and a broad construction of the more precise Reynolds privilege. Accordingly, we conclude that if a lawsuit is not predicated on the existence of a secret agreement between the plaintiff and the government, Totten does not apply, and the subject matter of the suit is not a state secret. Here, plaintiffs have not sued the government to enforce an alleged secret agreement between themselves and the Executive Branch. The subject matter of this action therefore is not a state secret, and the case should not have been dismissed at the outset.
C. Reynolds and the Evidentiary Privilege
[14] The government argues that even if the subject matter of this suit is not a state secret, it still must be dismissed at the outset according to the Reynolds framework because, in its view, Reynolds applies to secret information and, here, ‘‘[p]rivileged information would be essential for plaintiffs to make out a prima facie case on, and to prove, their claims.’’ See also Unclassified Hayden Decl. (because ‘‘[d]isclosure of the information covered by this privilege assertion reasonably could be expected to’’ harm national security, ‘‘the information should be excluded from any use in this case’’ (emphasis add-

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ed)). We reject this argument because it misconstrues the object of the state secrets doctrine within the Reynolds framework—Reynolds applies to evidence, not information.
The Supreme Court could not be more clear that ‘‘the privilege which protects military and state secrets’’ is a privilege within ‘‘the law of evidence,’’ just like the ‘‘analogous privilege, the privilege against self-incrimination.’’ Reynolds, 345 U.S. at 7–8, 73 S.Ct. 528. It specifically prevents the ‘‘compulsion of TTT evidence,’’ the introduction of which ‘‘will expose military matters which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S.Ct. 528 (emphasis added).
[15] Outside the extremely narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Indeed, to conclude that Reynolds, like Totten, applies to prevent the litigation of allegations, rather than simply discovery of evidence, would be to destroy the distinction between the two versions of the doctrine. According to Reynolds, therefore, the question is not which facts are secret and may not be alleged and put to the jury’s consideration for a verdict; it is only which evidence is secret and may not be disclosed in the course of a public trial.
[16] To be sure, a court may determine that evidence is subject to the Reynolds privilege because it contains secret information; nevertheless, the privilege applies to prevent discovery of the evidence itself and not litigation of the truth or falsity of the information that might be contained within it. As the Supreme Court has explained with respect to the attorney-client privilege, for example, invocation of that privilege does not create a ‘‘zone of si-

lence’’ around the contents of privileged communications. Upjohn Co. v. United States, 449 U.S. 383, 388, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). ‘‘The privilege only protects disclosure of [the] communications [themselves]; it does not protect disclosure of the underlying facts,’’ so long as the underlying facts can be proven without resort to the privileged materials. Id. at 395, 101 S.Ct. 677.
[17, 18] Other privileges within the law of evidence demonstrate the same common sense principle. The ‘‘analogous’’ Fifth Amendment privilege against self-incrimination, Reynolds, 345 U.S. at 8, 73 S.Ct. 528, for instance, ‘‘ ‘may be asserted TTT to resist compelled explicit or implicit disclosures of incriminating information,’ ’’ United States v. Hubbell, 530 U.S. 27, 34 n. 8, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000) (quoting Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988)). Once the privilege is properly invoked, the court cannot compel the testimony. Id. But a witness’s valid assertion of the privilege does not immunize him from prosecution for the underlying crime, as though the state were precluded by virtue of the privilege from litigating the facts contained within the excluded testimony. It goes without saying that the privilege applies only to the testimony itself, and not to the underlying facts, and that the state therefore may later prosecute the witness for the crimes in question, just ‘‘ ‘with[ ] evidence from another source.’ ’’ Id. (quoting Doe, 487 U.S. at 212, 108 S.Ct. 2341).
[19] Because the Reynolds privilege, like any other evidentiary privilege, ‘‘ ‘extends only to [evidence] and not to facts,’ ’’ Upjohn, 449 U.S. at 395–96, 101 S.Ct. 677 (quoting Philadelphia v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D.Pa. 1962)), it cannot be invoked to prevent a litigant from persuading a jury of the truth

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or falsity of an allegation by reference to non-privileged evidence, regardless whether privileged evidence might also be probative of the truth or falsity of the allegation.
[20, 21] As we have previously explained, therefore, the effect of the government’s successful invocation of the Reynolds privilege ‘‘ ‘is simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ’’ Al–Haramain, 507 F.3d at 1204 (emphasis added) (quoting Ellsberg, 709 F.2d at 64); see also Kasza, 133 F.3d at 1166 (‘‘[B]y invoking the privilege over particular evidence, the evidence is completely removed from the case. The plaintiff’s case then goes forward based on evidence not covered by the privilege.’’ (citing Reynolds, 345 U.S. at 11, 73 S.Ct. 528)).6 Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise be available to the defendant. See Kasza, 133 F.3d at 1166.
D. The Freedom of Information Act
[22] Finally, we address when evidence is ‘‘secret’’ within the meaning of the privilege. The government turns to Freedom of Information Act (‘‘FOIA’’) cases for the proposition that privileged evidence is any evidence containing ‘‘classified’’ informa-

tion, which remains ‘‘secret’’ unless and until such information has been ‘‘officially disclosed’’ by a high ranking government official. See Fitzgibbon v. CIA, 911 F.2d 755 (D.C.Cir.1990); Afshar v. Dep’t of State, 702 F.2d 1125 (D.C.Cir.1983); Phillippi v. CIA, 655 F.2d 1325 (D.C.Cir.1981); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir.1975). According to the government, because there has been no official disclosure or declassification of relevant classified information in this case, any materials containing classified information are necessarily subject to suppression under the privilege.
We find the government’s resort to FOIA case law unpersuasive because the FOIA statutory framework takes for granted that ‘‘classified’’ matters relating to national defense and foreign policy are, by virtue of being classified, categorically exempt from disclosures that would otherwise be required under the Act. See 5 U.S.C. § 552(b)(1)(A)-(B) (exempting from disclosure under FOIA all ‘‘matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order’’).
[23] The state secrets privilege operates according to no such assumption—in fact, Reynolds makes clear that ‘‘classified’’ cannot be equated with ‘‘secret’’ within the meaning of the doctrine. If the

6. There is one important difference between the unavailability of evidence under ordinary circumstances as against within the state secrets context. Ordinarily the unavailability of privileged evidence would prevent both plaintiffs and defendants from relying on that evidence to prove their cases. In the state secrets context, however, if the unavailability of privileged evidence prevents the defendant from establishing an otherwise available and valid defense, the court must dismiss the case. See Kasza, 133 F.3d at 1166 (if the privilege

deprives ‘‘the defendant of information that would otherwise give the defendant a valid defense,’’ the case must be dismissed). In this way, the doctrine ensures protection of state secrets by requiring dismissal where defendants would otherwise have strong incentive to improperly disclose state secrets known to them during trial. It also ensures that defendants, like Jeppesen, are not penalized by the government’s invocation of the privilege.

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 579 F.3d 943 (9th Cir. 2009)

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simple fact that information is classified were enough to bring evidence containing that information within the scope of the privilege, then the entire state secrets inquiry—from determining which matters are secret to which disclosures pose a threat to national security—would fall exclusively to the Executive Branch, in plain contravention of the Supreme Court’s admonition that ‘‘[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers’’ without ‘‘lead[ing] to intolerable abuses.’’ Reynolds, 345 U.S. at 8–10, 73 S.Ct. 528. A rule that categorically equated ‘‘classified’’ matters with ‘‘secret’’ matters would, for example, perversely encourage the President to classify politically embarrassing

information simply to place it beyond the reach of judicial process.7 It follows that, while classification may be a strong indication of secrecy as a practical matter, courts must independently evaluate each claim of privilege to determine whether it implicates ‘‘secrets’’ within the meaning of the doctrine.8
Common sense confirms this conclusion. The government could not seriously argue, for example, that the Pentagon Papers remained ‘‘secret’’ and therefore subject to the state secrets privilege even after having been published in The New York Times, simply because the government itself refused to declassify or otherwise ‘‘officially disclose’’ the content of the papers. See New York Times Co. v. United States,

7. Abuse of the Nation’s information classification system is not unheard of. Former U.S. Solicitor General Erwin Griswold, who argued the government’s case in the Pentagon Papers matter, later explained in a Washington Post editorial that ‘‘[i]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.’’ Erwin N. Griswold, Secrets Not Worth Keeping: the Courts and Classified Information, Wash. Post, Feb. 15, 1989, at A25.
Former Attorney General Herbert Brownell similarly complained in a 1953 letter to President Eisenhower that classification procedures were then ‘‘so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrong-doing under the guise of protecting national security.’’ Letter from Attorney General Herbert Brownell to President Dwight Eisenhower (June 15,1953) (quoted in Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 145 (2001)). Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that ‘‘this accident occurred to a military plane which

had gone aloft to test secret electronic equipment,’’ and that ‘‘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.’’ 345 U.S. at 10, 73 S.Ct. 528. In 1996, however, the ‘‘secret’’ accident report involved in that case was declassified. A review of the report revealed, not ‘‘details of any secret project the plane was involved in,’’ but ‘‘[i]nstead, TTT a horror story of incompetence, bungling, and tragic error.’’ Garry Wills, Why the Government Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.
8. Reynolds left open the possibility that, in undertaking this evaluation, a court may determine that some evidence is so sensitive that it should uphold a claim of privilege without examining the evidence in chambers. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528 (‘‘[W]e will not go so far as to say that the court may automatically require complete disclosure to the judge before the claim of privilege will be accepted in any case.’’). We are satisfied, however, that no such showing has been made in this case at this stage in the litigation. Indeed, the government has readily made available, for in camera inspection, the classified declarations that form the basis of the present claim of privilege.

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403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
It is also unsurprising that Congress would enact a more deferential scheme under FOIA than exists under the state secrets doctrine, given the substantial differences in the balance of interests involved in the two types of cases. The state secrets doctrine empowers the government to refuse disclosure of secret evidence during the course of a lawsuit that necessarily has an independent purpose apart from disclosure. Plaintiffs here, for example, seek redress against Jeppesen for its alleged complicity in their alleged torture at the hands of foreign agents. Their interest in discovery of all relevant evidence is substantial: ‘‘The very essence of civil liberty TTT consists in the right of every individual to claim the protection of the laws, whenever he receives an injury,’’ and ‘‘[o]ne of the first duties of government is to afford that protection.’’ Marbury, 5 U.S. (1 Cranch) at 163. Disclosure of any evidence containing classified information, but ultimately not subject to the state secrets privilege, would be appropriate only as necessary for plaintiffs to obtain the protection of the laws.
By contrast, FOIA entails litigation for the sole and independent purpose of obtaining disclosure of classified information. See 5 U.S.C. § 552(a)(4)(B); see also, e.g., Knopf, 509 F.2d at 1370 (addressing the court’s authority under FOIA to order the disclosure of classified information for publication in a book). While ‘‘an informed citizenry [is] vital to the functioning of a democratic society,’’ Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 16, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotations omitted), we think the balance of interests will more often tilt in favor of the Executive when disclosure is the primary end in itself. FOIA therefore predictably entails greater

deference to the national classification system than does the state secrets doctrine.
Given these two relevant differences, the government’s invocation of FOIA case law is unpersuasive in the state secrets context. Any argument that the contents of any evidence are and remain categorically secret for purposes of the privilege unless and until the government says otherwise is meritless.
E. Conclusion
[24] The government finally urges us to affirm according to Reynolds because, in its view, there is ‘‘no possibility’’ that plaintiffs can establish a prima facie case, or that Jeppesen can defend itself, ‘‘without using privileged evidence.’’ We are unpersuaded because acceding to the government’s request would require us to ignore well-established principles of civil procedure. At this stage in the litigation, we simply cannot prospectively evaluate hypothetical claims of privilege that the government has not yet raised and the district court has not yet considered.
[25] This case is before us on appeal from a Rule 12(b)(6) motion to dismiss. Jeppesen has not filed an answer to the complaint, and discovery has not yet begun. It is well settled that when a federal court reviews the grant of a Rule 12 motion to dismiss, ‘‘its task is necessarily a limited one.’’ Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). That limited task ‘‘is not [to determine] whether a plaintiff will ultimately prevail,’’ id., but instead only whether the complaint ‘‘state[s] a claim upon which relief can be granted,’’ Fed. R. Civ. Pro. 12(b)(6). Plaintiffs here have stated a claim on which relief can be granted and therefore should have an opportunity to present evidence in support of their allegations, without regard for the likelihood of ultimate success. See Scheuer, 416 U.S. at

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 579 F.3d 943 (9th Cir. 2009)

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236, 94 S.Ct. 1683 (a district court acts ‘‘prematurely’’ and ‘‘erroneously’’ when it dismisses a well-pleaded complaint, thereby ‘‘preclud[ing] any opportunity for the plaintiffs’’ to establish their case ‘‘by subsequent proof’’); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929,—(2007) (‘‘[A] well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.’ ’’ (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683)).
This limited inquiry—a long-standing feature of the Federal Rules of Civil Procedure—serves a sensible judicial purpose. We simply cannot resolve whether the Reynolds evidentiary privilege applies without (1) an actual request for discovery of specific evidence, (2) an explanation from plaintiffs of their need for the evidence, and (3) a formal invocation of the privilege by the government with respect to that evidence, explaining why it must remain confidential. See Reynolds, 345 U.S. at 8–9, 73 S.Ct. 528 (‘‘the principles which control the application of the privilege’’ require a ‘‘formal claim of privilege’’ by the government with respect to the challenged evidence); id. at 10–11, 73 S.Ct. 528 (the court must consider the litigants’ ‘‘showing of necessity’’ for the evidence in determining whether ‘‘the occasion for invoking the privilege is appropriate’’). Nor can we determine whether the parties will

be able to establish their cases without use of privileged evidence without also knowing what non-privileged evidence they will marshal. See Crater Corp. v. Lucent Techs., Inc., 423 F.3d 1260, 1267–68 (Fed. Cir.2005) (‘‘deciding the impact of the government’s assertion of the state secrets privilege’’ before the record is ‘‘adequately developed’’ puts ‘‘the cart before the horse’’). Thus neither the Federal Rules nor Reynolds would permit us to dismiss this case for ‘‘failure to state a claim upon which relief can be granted,’’ Fed. R. Civ. Pro. 12(b)(6), on the basis of an evidentiary privilege relevant, not to the sufficiency of the complaint, but only to the sufficiency of evidence later available to substantiate the complaint.9
Our decision to remand also has the additional benefit of conforming with ‘‘the general rule TTT that a federal appellate court does not consider an issue not passed on below,’’ and will allow the district court to apply Reynolds in the first instance. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Johnson v. California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (citing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 557–58, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (reversing and remanding for the lower court to apply the correct legal standard in the first instance)).

9. While the government styled its motion below as a ‘‘Motion to Dismiss or, in the Alternative, for Summary Judgment,’’ the district court did not grant summary judgment, but rather dismissal—and it could not have done otherwise. A party is entitled to summary judgment only if ‘‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.’’ Fed. R. Civ. Pro. 56(c). Here, because Jeppesen has not even answered the complaint, it is uncertain which allegations are in dispute, much less which disputes might raise genuine issues of material fact.

The procedural posture of this case thus differs fundamentally from that in Kasza, which involved a grant of summary judgment. See Frost v. Perry, 919 F.Supp. 1459, 1465–67 (D.Nev.1996), aff’d sub nom Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998) (granting summary judgment because ‘‘the privilege, as invoked, covered various items of discovery requested by Plaintiffs,’’ including ‘‘various photographic exhibits’’ and ‘‘under seal TTT affidavits,’’ and therefore ‘‘Plaintiffs have failed to establish a genuine issue as to any material fact without running afoul of the military and state secrets privilege’’).

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On remand, the government must assert the privilege with respect to secret evidence (not classified information), and the district court must determine what evidence is privileged and whether any such evidence is indispensable either to plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.
REVERSED and REMANDED.
,
UNITED STATES of America, Plaintiff–Appellee, v.
Phillip William GEORGE, Defendant–Appellant.
No. 08–30339.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 2, 2009.
Aug. 25, 2009. Background: Defendant was convicted, by conditional guilty plea, of failure to register as sex offender, in violation of Sex Offender Registration and Notification Act (SORNA), by the United States District Court for the Eastern District of Washington, Wm. Fremming Nielson, J. Defendant appealed. Holdings: The Court of Appeals, Thompson, Senior Circuit Judge, held that: (1) in matter of first impression, conviction
was not invalidated by Washington’s failure to implement SORNA; (2) SORNA’s registration requirement was not outside Congress’ Commerce Clause powers; and (3) SORNA’s registration requirement did not violate Ex Post Facto Clause. Affirmed.

1. Mental Health O469(2), 469.5
Although SORNA required implementation by each state, Washington’s failure to implement SORNA prior to defendant’s conviction for violating SORNA by failing to register as sex offender after traveling in interstate commerce did not invalidate his conviction, since SORNA’s direct federal law registration requirements for all sex offenders, regardless of when they were convicted, were not subject to any deferral of effectiveness based on states’ three-year grace period for implementation, but rather, federal requirements took effect when SORNA was enacted, and defendant was required to register as sex offender based on his plea agreement to sex offense even before SORNA’s enactment. 18 U.S.C.A. § 2250; Sex Offender Registration and Notification Act, §§ 113, 124(a), 125(a), 42 U.S.C.A. §§ 16913, 16924(a), 16925(a).
2. Statutes O255
Absent clear direction by Congress to the contrary, a law takes effect on the date of its enactment.
3. Commerce O82.20
Mental Health O433(2)
SORNA’s registration requirements for sex offenders who were either convicted of federal sex offense or had moved in interstate commerce were reasonably aimed at regulating persons or things in interstate commerce and use of channels of interstate commerce, and thus SORNA’s registration requirements were not outside of Congress’ Commerce Clause powers as challenged by defendant convicted of violating SORNA by failing to register as sex offender based both on his federal conviction as sex offender and on his travel in interstate commerce. U.S.C.A. Const. Art. 1, § 8, cl. 3; 18 U.S.C.A. § 2250; Sex Offender Registration and Notification Act, § 113, 42 U.S.C.A. § 16913.

 
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The judgment of the district court is opinion shall not be cited as precedent by

AFFIRMED.

or to any court of the Ninth Circuit.

,
1
Patrick O. OJO, Attorney, on behalf of himself and all others similarly situated, Plaintiff–Appellant,
v.
FARMERS GROUP, INC.; Fire Underwriters Association; Fire Insurance Exchange; Farmers Underwriters Association; Farmers Insurance Exchange, Defendants–Appellees.
No. 06–55522.
United States Court of Appeals, Ninth Circuit.
Oct. 26, 2009.
James A. Francis, Esquire, Francis & Mailman, Philadelphia, PA, Andrew S. Friedman, Bonnett Fairbourn Friedman & Balint PC, Phoenix, AZ, Barrett Stephen Litt, Esquire, Litt, Estuar, Harrison & Kitson, LLP, Los Angeles, CA, J. Andrew Meyer, Esquire, James Hoyer Newcomer & Smiljanich, Tampa, FL, John J. Stoia, Jr., Esquire, Coughlin Stoia Geller Rudman & Robbins, LLP, San Diego, CA, Sanford Svetcov, Coughlin Stoia Geller Rudman & Robbins, LLP, San Francisco, CA, for Plaintiff–Appellant.
Harriet S. Posner, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, Andrew L. Sandler, Esquire, Skadden Arps Slate Meagher & Flom, LLP, Washington, DC, for Defendants–Appellees.
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35–3. The three-judge panel

,
2
Binyam MOHAMED; Abou Elkassim Britel; Ahmed Agiza; Mohamed Farag Ahmad Bashmilah; Bisher Al– Rawi, Plaintiffs–Appellants,
v. JEPPESEN DATAPLAN, INC.,
Defendant–Appellee,
United States of America, Intervenor–Appellee.
No. 08–15693.
United States Court of Appeals, Ninth Circuit.
Oct. 27, 2009.
Steven M. Watt, Benjamin Elihu Wizner, ACLU–American Civil Liberties Union Foundation, New York, NY, Julia Harumi Mass, ACLU–American Civil Liberties Union Foundation, San Francisco, CA, for Plaintiffs–Appellants.
Douglas Neal Letter, Esquire, U.S. Department of Justice, Washington, DC, for Intervenor–Appellee.
Daniel Paul Collins, Henry Weissmann, Munger, Tolles & Olson LLP, Los Angeles, CA, for Defendant–Appellee.
Barbara Moses, Esquire, David J. Stankiewicz, Esquire, Morvillo Abramowitz Grand Iason Anello & Bohrer, PC, New York, NY, Jonathan Hafetz, Esquire, Aziz Huq, Esquire, New York, NY, for Former United States Diplomats.

STORMANS, INC. v. SELECKY
Cite as 586 F.3d 1109 (9th Cir. 2009)

1109

Jean–Paul Jassy, Gary L. Bostwick, Bostwick & Jassy LLP, Los Angeles, CA, for William G. Weaver, Robert Pallitto.
James M. Ringer, Esquire, New York, NY, for Commonwealth Lawyers Association, Justice.
William J. Aceves, Esquire, California Western School of Law, San Diego, CA, for Redress, International Commission of Jurists.
Andrew G. McBride, Esquire, Wiley Rein LLP, Washington, DC, for The Foundation for the Defense of Democracies.
Richard Abbott Samp, Chief Counsel, Washington Legal Foundation, Washington, DC, for Washington Legal Foundation, Allied Educational Foundation.
ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35–3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
Judges REINHARDT, McKEOWN, GOULD, BYBEE, MILAN D. SMITH, JR. and IKUTA did not participate in the deliberations or vote in this case.
,
STORMANS, INC., doing business as Ralph’s Thriftway; Rhonda Mesler; Margo Thelen, Plaintiffs–Appellees,
v. Mary SELECKY, Secretary of the
Washington State Department of Health; Laurie Jinkins, Assistant Secretary of Washington Health Systems Quality Assurance; George Roe; Susan Thiel Boyer; Dan Connolly; Gary

Harris; Vandana Slatter; Rebecca Hille; Rosemarie Duffy, Members of the Washington Board of Pharmacy; Ellis Casson; Deborah Sious Cano– Lee; Jerry Hebert; Shawn Murinko, Commissioners for the Washington Human Rights Commission; Mark Brenman, Executive Director of the Washington Human Rights Commission; Yvonne Lopez Morton acting Commissioner of the Human Rights Commission of the State of Washington, Defendants–Appellants,
and
Judith Billings; Rhiannon Andreini; Jeffrey Schouten; Molly Harmon; Catherine Rosman; Emily Schmidt; Tami Garrard, Defendant-intervenors.
Stormans, Inc., doing business as Ralph’s Thriftway; Rhonda Mesler; Margo Thelen, Plaintiffs–Appellees,
v.
Mary Selecky, Secretary of the Washington State Department of Health; Laurie Jinkins, Assistant Secretary of Washington Health Systems Quality Assurance; George Roe; Susan Thiel Boyer; Dan Connolly; Gary Harris; Vandana Slatter; Rebecca Hille; Rosemarie Duffy, Members of the Washington Board of Pharmacy; Ellis Casson; Deborah Sious Cano–Lee; Jerry Hebert; Shawn Murinko, Commissioners for the Washington Human Rights Commission; Mark Brenman, Executive Director of the Washington Human Rights Commission, Defendants,
and
Yvonne Lopez Morton, acting Commissioner of the Human Rights Commission of the State of Washington, Defendant–Appellant,

 
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614 FEDERAL REPORTER, 3d SERIES

ed in the statute.’’ (internal quotation marks omitted)).
Rosenfeld disagrees with the arbitrator’s interpretation of California law, but he has not demonstrated that the arbitrator exceeded his powers.
Conclusion We hold that the parties agreed to arbitration under the rules provided by the CAA. We hold, further, that Rosenfeld has shown no basis for vacatur of the arbitrator’s award under the CAA. AFFIRMED.
,
Binyam MOHAMED; Abou Elkassim Britel; Ahmed Agiza; Mohamed Farag Ahmad Bashmilah; Bisher Al– Rawi, Plaintiffs–Appellants, v. JEPPESEN DATAPLAN, INC., Defendant–Appellee,
United States of America, Intervenor–Appellee. No. 08–15693.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc Dec. 15, 2009. Filed Sept. 8, 2010.
Background: Foreign nationals who were allegedly transferred in secret to other countries for detention and interrogation pursuant to Central Intelligence Agency’s (CIA) extraordinary rendition program brought action under Alien Tort Statute against company that purportedly assisted in program. The United States District Court for the Northern District of California, James Ware, J., 539 F.Supp.2d 1128, entered order granting government’s mo-

tions to intervene and to dismiss, and foreign nationals appealed. The Court of Appeals, Michael Daly Hawkins, Circuit Judge, 579 F.3d 943, entered order reversing and remanding, and rehearing was ordered.
Holding: On rehearing en banc, the Court of Appeals, Fisher, Circuit Judge, held that foreign nationals’ action would be dismissed pursuant to state secrets privilege under Reynolds.
Affirmed.
Bea, Circuit Judge, filed concurring opinion.
Michael Daly Hawkins, Circuit Judge, filed dissenting opinion in which, Schroeder, Canby, Thomas, and Paez, Circuit Judges, joined.
1. Federal Courts O776, 870.1 Court of Appeals reviews de novo the
interpretation and application of the state secrets doctrine, and reviews for clear error the district court’s underlying factual findings.
2. Federal Civil Procedure O1741.5 The Totten bar requires dismissal of
cases in which the very subject matter of the action is a matter of state secret.
3. Privileged Communications and Confidentiality O360
The state secrets doctrine encompasses a privilege against revealing military or state secrets, a privilege that is well established in the law of evidence.
4. Privileged Communications and Confidentiality O360
The state secrets privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party.

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 614 F.3d 1070 (9th Cir. 2010)

1071

5. Privileged Communications and Confidentiality O360
The state secrets privilege may be raised with respect to discovery requests seeking information the government contends is privileged.
6. Privileged Communications and Confidentiality O360
The government may raise the state secrets privilege to prevent the disclosure of privileged information in a responsive pleading.
7. Privileged Communications and Confidentiality O360
The government may assert a state secrets privilege claim prospectively, even at the pleading stage, rather than waiting for an evidentiary dispute to arise during discovery or trial.
8. Privileged Communications and Confidentiality O360
When the state secrets privilege has been properly invoked, the court must make an independent determination whether the information is privileged; the court must sustain a claim of privilege when it is satisfied, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose matters which, in the interest of national security, should not be divulged.
9. Privileged Communications and Confidentiality O360
An executive decision to classify information is alone insufficient to establish that the information is privileged under the state secrets doctrine.
10. Privileged Communications and Confidentiality O360
When a court sustains a claim of state secrets privilege, it must then resolve how the matter should proceed in light of the successful privilege claim; the court must assess whether it is feasible for the litiga-

tion to proceed without the protected evidence and, if so, how.
11. Privileged Communications and Confidentiality O360
When the government successfully invokes the state secrets privilege, the evidence is completely removed from the case; however, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.
12. Federal Civil Procedure O1741.5 If a plaintiff cannot prove the prima
facie elements of her claim with nonprivileged evidence after the government invokes the state secrets privilege, then the court may dismiss the claim as it would with any plaintiff who cannot prove her case.
13. Federal Civil Procedure O2481 If the state secrets privilege deprives
the defendant of information that would otherwise give the defendant a valid defense to the claim, then the court may grant summary judgment to the defendant.
14. Federal Civil Procedure O1741.5 A case may be dismissed after the
government invokes the state secrets privilege when, even if the claims and defenses might theoretically be established without relying on privileged evidence, it would be impossible to proceed with the litigation because, privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses, litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.
15. Federal Civil Procedure O1741.5 Privileged Communications and Confidentiality O360 Foreign nationals’ action under Alien
Tort Statute against company that alleged-

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614 FEDERAL REPORTER, 3d SERIES

ly assisted in Central Intelligence Agency’s (CIA) extraordinary rendition program would be dismissed pursuant to state secrets privilege under Reynolds; information concerning whether company assisted CIA with clandestine intelligence activities involved valid state secrets, and there was no feasible way to litigate company’s alleged liability without creating unjustifiable risk of divulging such secrets, since facts underlying foreign nationals’ claims were so infused with state secrets that risk of disclosing them was both apparent and inevitable. 28 U.S.C.A. § 1350.
Steven M. Watt, Ben Wizner (argued), Jameel Jaffer and Steven R. Shapiro, American Civil Liberties Union Foundation, New York, New York; Ann Brick and Julia Harumi Mass, American Civil Liberties Union Foundation of Northern California, San Francisco, California; Paul Hoffman, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Venice, California; Hope Metcalf, National Litigation Project, Allard K. Lowenstein International Human Rights Clinic, Yale Law School, New Haven, Connecticut, for the plaintiffsappellants.
Clive Stafford–Smith and Zachary KatzNelson, Reprieve, London, England, for plaintiff-appellant Binyam Mohamed.
Margaret L. Satterthwaite and Amna Akbar, International Human Rights Clinic, Washington Square Legal Services, Inc., New York, New York, for plaintiff-appellant Mohamed Farag Ahmad Bashmilah.
Daniel P. Collins (argued), Paul J. Watford, Mark R. Yohalem and Henry Weissmann, Munger, Tolles & Olson LLP, Los Angeles, California, for defendant-appellee Jeppesen Dataplan, Inc.
Ian Heath Gershengorn, Michael F. Hertz, Joseph P. Russoniello, Douglas N. Letter (argued), Sharon Swingle and Mi-

chael P. Abate, United States Department of Justice, Washington, D.C., for intervenor-appellee United States of America.
Gary Bostwick and Jean–Paul Jassy, Bostwick & Jassy LLP, Los Angeles, California, for amici curiae Professors William G. Weaver and Robert M. Pallitto.
Barbara Moses and David J. Stankiewicz, Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., New York, New York; Aziz Huq and Jonathan Hafetz, Brennan Center for Justice at NYU School of Law, New York, New York, for amici curiae former United States diplomats.
Wiliam J. Aceves, California Western School of Law, San Diego, California; Gerald Staberock and Carlos Lopez, International Commission of Jurists, Geneva, Switzerland; Carla Ferstman, Lorna McGregor and Lucy Moxham, REDRESS, London, United Kingdom; Denna R. Hurwitz, Human Rights Program, University of Virginia School of Law, Charlottesville, Virginia, for amici curiae REDRESS and the International Commission of Jurists.
Stephen I. Vladeck, American University Washington College of Law, Washington, D.C.; Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman, San Francisco, California, for amici curiae professors of constitutional law, federal jurisdiction and foreign relations law.
Andrew G. McBride, Thomas R. McCarthy and Stephen J. Obermeier, Wiley Rein LLP, Washington, D.C., for amicus curiae Foundation for the Defense of Democracies.
Daniel J. Popeo and Richard A. Samp, Washington Legal Foundation, Washington, D.C., for amici curiae Washington Legal Foundation and Allied Educational Foundation.
Richard R. Wiebe, Law Office of Richard R. Wiebe, San Francisco, California; Cindy A. Cohn, Lee Tien, Kurt Opsahl,

MOHAMED v. JEPPESEN DATAPLAN, INC.
Cite as 614 F.3d 1070 (9th Cir. 2010)

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Kevin S. Bankston, Corynne McSherry and James S. Tyre, Electronic Frontier Foundation, San Francisco, California, for amicus curiae Electronic Frontier Foundation.
James M. Ringer, Clifford Chance US LLP, New York, New York, for amici curiae Commonwealth Lawyers Association and Justice.
Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. 5:07–CV–02798–JW.
Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, WILLIAM C. CANBY, HAWKINS, SIDNEY R. THOMAS, RAYMOND C. FISHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN and CARLOS T. BEA, Circuit Judges.
Opinion by Judge FISHER; Concurrence by Judge BEA; Dissent by Judge MICHAEL DALY HAWKINS.
OPINION
FISHER, Circuit Judge.
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 reluc-

tantly 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 [their] 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.’’

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Relying 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, ‘‘[v]irtually 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 redetained, Britel says he was coerced into signing a false confession, convicted of ter-

rorism-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

1. Mohamed’s allegations have been discussed in other litigation in both the United States and the United Kingdom. See Mohammed v. Obama, 689 F.Supp.2d 38 (D.D.C.2009); R

(Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs, [2010] EWCA (Civ) 65 (decision of the United Kingdom Court of Appeal).

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airplane, 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 ‘‘subject[ed] 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

2. Among the materials plaintiffs filed in opposition to the government’s motion to dismiss is a former Jeppesen employee’s declaration,

which plaintiffs assert demonstrates this knowledge. See Dissent at 1095 n.3.

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United 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 ‘‘[d]isclosure 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 this 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

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U.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 Oba-

ma succeeded George W. Bush as Presi-

dent of the United States. On September

23, 2009, the Obama administration an-

nounced new policies for invoking the state

secrets privilege, effective October 1, 2009,

in a memorandum from the Attorney Gen-

eral. See Memorandum from the Attorney

Gen. to the Heads of Executive Dep’ts and

Agencies on Policies and Procedures Gov-

erning 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, Unclas-

sified Br. for U.S. on Reh’g En Banc

(‘‘U.S. Br.’’) 3.

II. STANDARD OF REVIEW
[1] 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

3. Were this a criminal case, the state secrets doctrine would apply more narrowly. See El– Masri v. United States, 479 F.3d 296, 313 n. 7 (4th Cir.2007) (‘‘[T]he Executive’s authority to

protect [state secrets] is much broader in civil matters than in criminal prosecutions.’’); see also Reynolds, 345 U.S. at 12, 73 S.Ct. 528.

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action 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 Totten 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, TTT 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
[2] 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 plaintiff’s 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 cases 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

4. Tenet also made clear that application of the Totten bar does not require a formal assertion of the state secrets privilege by the government that meets the procedural requirements explained in Reynolds and discussed below.

See Tenet, 544 U.S. at 8–9, 125 S.Ct. 1230 (applying the Totten bar); Doe v. Tenet, 329 F.3d 1135, 1151–52 (9th Cir.2003) (underlying appellate decision noting that no formal assertion had yet been filed).

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that 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 cases 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
[3] 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 Air Force’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,

5. The two applications of the doctrine remain distinct; Reynolds ‘‘in no way signaled [a]

retreat from Totten’s broader holding.’’ Tenet, 544 U.S. at 9, 125 S.Ct. 1230.

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73 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 privilegedTTTT 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
[4] 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 ‘‘[t]here 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.
[5, 6] 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

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v. 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).
[7] 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 (‘‘[D]ismissal 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, 416 F.3d 338, 344

(4th Cir.2005) (‘‘Courts are not required to play with fire and chance further disclosure—inadvertent, mistaken, or even intentional—that would defeat the very purpose for which the privilege exists.’’). The showing the government must make to prevail on a claim of state secrets privilege may be especially difficult when attempted before any request for specific information or evidence has actually been made, but foreclosing the government from even trying to make that showing would be inconsistent with the need to protect state secrets.
2. The Court’s Independent Evaluation of the Claim of Privilege
[8] When the privilege has been properly invoked, ‘‘we must make an independent determination whether the information is privileged.’’ Al–Haramain, 507 F.3d at 1202. The court must sustain a claim of privilege when it is satisfied, ‘‘from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose TTT matters which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S.Ct. 528. If this standard is met, the evidence is absolutely privileged, irrespective of the plaintiffs’ countervailing need for it. See id. at 11, 73 S.Ct. 528 (‘‘[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’’); Halkin, 690 F.2d at 990.
This step in the Reynolds analysis ‘‘places on the court a special burden to assure itself that an appropriate balance is struck between protecting national security matters and preserving an open court system.’’ Al–Haramain, 507 F.3d at 1203. In evaluating the need for secrecy, ‘‘we acknowledge the need to defer to the Executive on matters of foreign policy and

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national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.’’ Id. But ‘‘the state secrets doctrine does not represent a surrender of judicial control over access to the courts.’’ El–Masri, 479 F.3d at 312. Rather, ‘‘to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the courts continue critically to examine instances of its invocation.’’ Ellsberg, 709 F.2d at 58. ‘‘We take very seriously our obligation to review the[government’s claims] with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege,’’ Al–Haramain, 507 F.3d at 1203, though we must ‘‘do so without forcing a disclosure of the very thing the privilege is designed to protectTTTT Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.’’ Reynolds, 345 U.S. at 8, 73 S.Ct. 528.
[9] We do not offer a detailed definition of what constitutes a state secret. The Supreme Court in Reynolds found it sufficient to say that the privilege covers ‘‘matters which, in the interest of national security, should not be divulged.’’ Id. at 10, 73 S.Ct. 528. We do note, however, that an executive decision to classify information is insufficient to establish that the information is privileged. See Ellsberg, 709 F.2d at 57 (‘‘[T]he privilege may not be used to shield any material not strictly necessary to prevent injury to national security.’’). Although classification may be an indication of the need for secrecy, treating it as conclusive would trivialize the court’s role, which the Supreme Court has clearly admonished ‘‘cannot be abdicated to the caprice of executive officers.’’ Reynolds, 345 U.S. at 9–10, 73 S.Ct. 528.

3. How Should the Matter Proceed?
[10] When a court sustains a claim of privilege, it must then resolve ‘‘ ‘how the matter should proceed in light of the successful privilege claim.’ ’’ Al–Haramain, 507 F.3d at 1202 (quoting El–Masri, 479 F.3d at 304). The court must assess whether it is feasible for the litigation to proceed without the protected evidence and, if so, how.
[11] When the government successfully invokes the state secrets privilege, ‘‘the evidence is completely removed from the case.’’ Kasza, 133 F.3d at 1166. ‘‘ ‘[W]henever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.’ ’’ Id. (quoting Ellsberg, 709 F.2d at 57). However, there will be occasions when, as a practical matter, secret and nonsecret information cannot be separated. In some cases, therefore, ‘‘it is appropriate that the courts restrict the parties’ access not only to evidence which itself risks the disclosure of a state secret, but also those pieces of evidence or areas of questioning which press so closely upon highly sensitive material that they create a high risk of inadvertent or indirect disclosures.’’ Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1143–44 (5th Cir.1992); see also Kasza, 133 F.3d at 1166 (‘‘[I]f seemingly innocuous information is part of a TTT mosaic, the state secrets privilege may be invoked to bar its disclosure and the court cannot order the government to disentangle this information from other [i.e., secret] information.’’).
Ordinarily, simply excluding or otherwise walling off the privileged information may suffice to protect the state secrets and ‘‘ ‘the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ ’’ Al–Haramain, 507 F.3d at 1204 (quoting Ellsberg, 709 F.2d at 64); see, e.g., Webster v. Doe, 486 U.S. 592, 604–05, 108 S.Ct. 2047, 100 L.Ed.2d 632

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(1988) (permitting case to continue without privileged evidence); Reynolds, 345 U.S. at 11–12, 73 S.Ct. 528 (same).
In some instances, however, application of the privilege may require dismissal of the action. When this point is reached, the Reynolds privilege converges with the Totten bar, because both require dismissal. There are three circumstances when the Reynolds privilege would justify terminating a case.
[12, 13] First, if ‘‘the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case.’’ Kasza, 133 F.3d at 1166; see also Ellsberg, 709 F.2d at 65. Second, ‘‘ ‘if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim, then the court may grant summary judgment to the defendant.’ ’’ Kasza, 133 F.3d at 1166 (quoting Bareford, 973 F.2d at 1141); accord In re Sealed Case, 494 F.3d 139, 153 (D.C.Cir.2007); see also, e.g., Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004).
[14] Third, and relevant here, even if the claims and defenses might theoretically be established without relying on privileged evidence, it may be impossible to proceed with the litigation because—privileged evidence being inseparable from nonprivileged information that will be necessary to the claims or defenses—litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets. See, e.g., In re Sealed Case, 494 F.3d at 153 (‘‘If the district court determines that the subject matter of a case is so sensitive that there is no way it can be litigated without risking national secrets, then the case must be dismissed.’’); El–Masri, 479 F.3d at 308 (‘‘[A] proceeding in which the state secrets privilege is successfully interposed must

be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information’s disclosure.’’); Bareford, 973 F.2d at 1144 (‘‘We are compelled to conclude that the trial of this case would inevitably lead to a significant risk that highly sensitive information concerning this defense system would be disclosed.’’); Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1241–42 (4th Cir.1985) (‘‘[I]n some circumstances sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters.’’); Farnsworth Cannon, 635 F.2d at 281 (dismissing the action at the outset because ‘‘any attempt on the part of the plaintiff to establish a prima facie case would so threaten disclosure of state secrets that the overriding interest of the United States and the preservation of its state secrets precludes any further attempt to pursue this litigation’’); id. at 279–80 (Phillips, J., specially concurring and dissenting from the three-judge panel decision) (concluding that ‘‘litigation should be entirely foreclosed at the outset by dismissal of the action’’ if it appears that ‘‘the danger of inadvertent compromise of the protected state secrets outweighs the public and private interests in attempting formally to resolve the dispute while honoring the privilege’’). As we shall explain, this circumstance exists here and requires dismissal.
IV. APPLICATION
We therefore turn to the application of the state secrets doctrine in this case. The government contends that plaintiffs’ lawsuit should be dismissed, whether under the Totten bar or the Reynolds privilege, because ‘‘state secrets are so central to this case that permitting further proceeding[s] would create an intolerable risk of disclosure that would jeopardize nation-

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al security.’’ U.S. Br. 13.6 Plaintiffs argue that the Totten bar does not apply and that, even if the government is entitled to some protection under the Reynolds privilege, at least some claims survive. The district court appears to have dismissed the action under the Totten bar, making a ‘‘threshold determination’’ that ‘‘the very subject matter of the case is a state secret.’’ Having dismissed on that basis, the district court did not address whether application of the Reynolds privilege would require dismissal.
We do not find it quite so clear that the very subject matter of this case is a state secret. Nonetheless, having conducted our own detailed analysis, we conclude that the district court reached the correct result because dismissal is warranted even under Reynolds. Recognizing the serious consequences to plaintiffs of dismissal, we explain our ruling so far as possible within the considerable constraints imposed on us by the state secrets doctrine itself.
A. The Totten Bar
The categorical, ‘‘absolute protection [the Court] found necessary in enunciating the Totten rule’’ is appropriate only in narrow circumstances. Tenet, 544 U.S. at 11, 125 S.Ct. 1230. The Totten bar applies only when the ‘‘very subject matter’’ of the action is a state secret—i.e., when it is ‘‘obvious’’ without conducting the detailed analysis required by Reynolds ‘‘that the action [c]ould never prevail over the privilege.’’ Reynolds, 345 U.S. at 11 n.26, 73 S.Ct. 528. The Court has applied the Totten bar on just three occasions, involving two different kinds of state secrets: In

Tenet and Totten the Court applied the Totten bar to ‘‘the distinct class of cases that depend upon clandestine spy relationships,’’ see Tenet, 544 U.S. at 9–10, 125 S.Ct. 1230; Totten, 92 U.S. at 107, and in Weinberger the Court applied the Totten bar to a case that depended on whether the Navy proposed to store nuclear weapons at a particular facility, see Weinberger, 454 U.S. at 146–47, 102 S.Ct. 197. Although the Court has not limited the Totten bar to cases premised on secret espionage agreements or the location of nuclear weapons, neither has it offered much guidance on when the Totten bar applies beyond these limited circumstances. Because the Totten bar is rarely applied and not clearly defined, because it is a judgemade doctrine with extremely harsh consequences and because conducting a more detailed analysis will tend to improve the accuracy, transparency and legitimacy of the proceedings, district courts presented with disputes about state secrets should ordinarily undertake a detailed Reynolds analysis before deciding whether dismissal on the pleadings is justified.
Here, some of plaintiffs’ claims might well fall within the Totten bar. In particular, their allegations that Jeppesen conspired with agents of the United States in plaintiffs’ forced disappearance, torture and degrading treatment are premised on the existence of an alleged covert relationship between Jeppesen and the government—a matter that the Fourth Circuit has concluded is ‘‘practically indistinguishable from that categorically barred by Totten and Tenet.’’ El–Masri, 479 F.3d at 309.7 On the other hand, allegations based

6. The government’s classified briefing and supporting declarations provide more specific support for the government’s state secrets contentions. This information is crucial to our decision. See El–Masri, 479 F.3d at 312.
7. We do not decide whether any of plaintiffs’ claims are cognizable under the Alien Tort

Statute (‘‘ATS’’). But assuming that the conspiracy claims are cognizable, they require proof of an agreement. See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 260 (2d Cir.2009) (holding that conspiracy liability under the ATS would require either an ‘‘agreement’’ or ‘‘ ‘a criminal

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on plaintiffs’ theory that Jeppesen should be liable simply for what it ‘‘should have known’’ about the alleged unlawful extraordinary rendition program while participating in it are not so obviously tied to proof of a secret agreement between Jeppesen and the government.

judicial review, fulfilling our obligation under Reynolds ‘‘to review the [government’s claim] with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege.’’ Al–Haramain, 507 F.3d at 1203.8

We do not resolve the difficult question of precisely which claims may be barred under Totten because application of the Reynolds privilege leads us to conclude that this litigation cannot proceed further. We rely on the Reynolds privilege rather than the Totten bar for several reasons. First, the government has asserted the Reynolds privilege along with the Totten bar, inviting the further inquiry Reynolds requires and presenting a record that compels dismissal even on this alternate ground. Second, we have discretion to affirm on any basis supported by the record. See Thigpen v. Roberts, 468 U.S. 27, 29–30, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984); Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir.2008). Third, resolving this case under Reynolds avoids difficult questions about the precise scope of the Totten bar and permits us to conduct a searching

B. The Reynolds Privilege
[15] There is no dispute that the government has complied with Reynolds ’ procedural requirements for invoking the state secrets privilege by filing General Hayden’s formal claim of privilege in his public declaration.9 We therefore focus on the second and third steps in the Reynolds analysis: First, whether and to what extent the matters the government contends must be kept secret are in fact matters of state secret; and second, if they are, whether the action can be litigated without relying on evidence that would necessarily reveal those secrets or press so closely upon them as to create an unjustifiable risk that they would be revealed. In doing so, we explain our decision as much as we can without compromising the secrets we are required to protect.

intention to participate in a common criminal design’ ’’) (quoting Prosecutor v. Tadic, Case No. IT–94–1–A, Appeal Judgment, ¶ 206 (July 15, 1999)); Cabello v. Fernandez–Larios, 402 F.3d 1148, 1159 (11th Cir.2005) (holding that conspiracy liability under the ATS requires proof that ‘‘two or more persons agreed to commit a wrongful act’’). Plaintiffs’ allegations confirm that their conspiracy claims depend on proof of a covert relationship. See, e.g., First Am. Compl. ¶ 255 (‘‘Jeppesen entered into an agreement with agents of the United States to unlawfully render Plaintiffs to secret detention in Morocco, Egypt, and Afghanistan.’’); id.¶ 262 (‘‘Defendant entered into an agreement with agents of the United States to provide flight and logistical support services to aircraft and crew used in the extraordinary rendition program to unlawfully render Plaintiffs to detention and interroga-

tion in Morocco, Egypt, and Afghanistan, where they would be subjected to acts of torture and other cruel, inhuman or degrading treatment.’’).
8. This skepticism is all the more justified in cases that allege serious government wrongdoing. Such allegations heighten the risk that government officials may be motivated to invoke the state secrets doctrine not only by their obligation to protect national security but also by a desire to protect themselves or their associates from scrutiny.
9. As previously noted, the government filed declarations meeting the procedural requirements for the Reynolds privilege even though such declarations are not strictly necessary to support a Totten claim. See Tenet, 544 U.S. at 11, 125 S.Ct. 1230.

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1. Whether and to What Extent the Evidence Is Privileged
The government asserts the state secrets privilege over four categories of evidence. In particular, the government contends that neither it nor Jeppesen should be compelled, through a responsive pleading, discovery responses or otherwise, to disclose: ‘‘[1] information that would tend to confirm or deny whether Jeppesen or any other private entity assisted the CIA with clandestine intelligence activities; [2] information about whether any foreign government cooperated with the CIA in clandestine intelligence activities; [3] information about the scope or operation of the CIA terrorist detention and interrogation program; [or 4] any other information concerning CIA clandestine intelligence operations that would tend to reveal intelligence activities, sources, or methods.’’ U.S. Br. 7–8. These indisputably are matters that the state secrets privilege may cover. See, e.g., Tenet, 544 U.S. at 11, 125 S.Ct. 1230 (emphasizing the ‘‘absolute protection’’ the state secrets doctrine affords against revealing espionage relationships); CIA v. Sims, 471 U.S. 159, 175, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (‘‘Even a small chance that some court will order disclosure of a source’s identity could well impair intelligence gathering and cause sources to ‘close up like a clam.’ ’’); In re Sealed Case, 494 F.3d at 152 (prohibiting ‘‘all discussion of intelligence sources, capabilities, and the like’’); Al–Haramain, 507 F.3d at 1204 (applying the privilege to ‘‘the means, sources and methods of intelligence gathering’’); Ellsberg, 709 F.2d at 57 (applying the privilege to the ‘‘disclosure of intelligence-gathering methods or capabilities’’).
We have thoroughly and critically reviewed the government’s public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are

valid state secrets, ‘‘which, in the interest of national security, should not be divulged.’’ Reynolds, 345 U.S. at 10, 73 S.Ct. 528. The government’s classified disclosures to the court are persuasive that compelled or inadvertent disclosure of such information in the course of litigation would seriously harm legitimate national security interests. In fact, every judge who has reviewed the government’s formal, classified claim of privilege in this case agrees that in this sense the claim of privilege is proper, although we have different views as to the scope of the privilege and its impact on plaintiffs’ case. The plaintiffs themselves ‘‘do not dispute that, during the course of litigation, there may well be relevant evidence that may be properly withheld pursuant to the privilege.’’ Br. of Plaintiffs–Appellants 26. See El–Masri, 479 F.3d at 308–13 (affirming the dismissal of a case involving essentially the same types of claims on the basis of the states secrets doctrine).
We are precluded from explaining precisely which matters the privilege covers lest we jeopardize the secrets we are bound to protect. See Black, 62 F.3d at 1119 (‘‘Care in protecting state secrets is necessary not only during a court’s review of the evidence, but in its subsequent treatment of the question in any holding; a properly phrased opinion should not strip the veil from state secrets even if ambiguity results in a loss of focus and clarity.’’). We can say, however, that the secrets fall within one or more of the four categories identified by the government and that we have independently and critically confirmed that their disclosure could be expected to cause significant harm to national security.
2. Effect on the Proceedings
Having determined that the privilege applies, we next determine whether the case must be dismissed under the Reyn-

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olds privilege.10 We have thoroughly considered plaintiffs’ claims, several possible defenses and the prospective path of this litigation. We also have carefully and skeptically reviewed the government’s classified submissions, which include supplemental information not presented to the district court. We rely heavily on these submissions, which describe the state secrets implicated here, the harm to national security that the government believes would result from explicit or implicit disclosure and the reasons why, in the government’s view, further litigation would risk that disclosure.
Given plaintiffs’ extensive submission of public documents and the stage of the litigation, we do not rely on the first two circumstances in which the Reynolds priv-

ilege requires dismissal—that is, whether plaintiffs could prove a prima facie case without privileged evidence, or whether the privilege deprives Jeppesen of evidence that would otherwise give it a valid defense to plaintiffs’ claims. See Kasza, 133 F.3d at 1166; supra Part III.B.3.11 Instead, we assume without deciding that plaintiffs’ prima facie case and Jeppesen’s defenses may not inevitably depend on privileged evidence. Proceeding on that assumption, we hold that dismissal is nonetheless required under Reynolds because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets. See El–Masri, 479 F.3d at 312 (coming to the same conclusion in a related and comparable case), cert. denied, 552 U.S. 947, 128 S.Ct. 373, 169 L.Ed.2d 258 (2007).12

10. As noted earlier, the district court did not conduct a detailed analysis of plaintiffs’ several claims because it concluded that the subject matter of the entire case is a state secret and therefore dismissed under the Totten bar. One option, vigorously urged by the dissent, would be to remand to the district court for that court to conduct a more detailed analysis in the first instance. As the case has developed during these en banc proceedings, however, we find remand unnecessary because our own Reynolds analysis persuades us that the litigation cannot proceed. Although it would have been preferable for the district court to conduct this analysis first, we now have had to do it ourselves and it makes no sense to suspend our own judgment that— given the record before us and the nature of plaintiffs’ claims—this case realistically cannot be litigated against Jeppesen without compromising state secrets. There is thus no point, and much risk, in remanding to the district court to go through the Reynolds analysis as the dissent would prefer. We accept and respect the principles that motivate the dissent, but those principles do not justify prolonging the process here.
11. As noted before, see supra n. 7 and related text, at least some of plaintiffs’ claims would require proof of an agreement or covert relationship between the government and Jeppesen. These claims might well be barred under Totten and certainly would fall even under a

Reynolds analysis. The dissent, however, suggests that plaintiffs could establish a prima facie case for at least two of their claims without relying on privileged evidence and perhaps without any discovery at all—namely, that Jeppesen recklessly provided flight and logistical support for rendition flights while it knew or should have known its support was being used for forced disappearance and torture. See Dissent Appendix. Although our holding does not require us to resolve this question, we are not so sure. Plaintiffs’ reliance on information set forth in the dissent’s Appendix would have to overcome evidentiary and other obstacles, such as hearsay problems and the fact that the vast majority of the media reports cited as putting Jeppesen on notice were published after Jeppesen’s services were alleged to have occurred. In any event, our own analysis under the third aspect of Reynolds persuades us these ‘‘knew or should have known’’ claims must be dismissed as well.
12. In El–Masri, the Supreme Court declined to review the Fourth Circuit’s dismissal of similar claims against the various United States government and corporate actors alleged to be more directly responsible for the rendition and interrogation programs at issue here. Nothing in the Supreme Court’s state secrets jurisprudence suggests that plaintiffs’ claims here, against an alleged provider of

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We reach this conclusion because all seven of plaintiffs’ claims, even if taken as true, describe Jeppesen as providing logistical support in a broad, complex process, certain aspects of which, the government has persuaded us, are absolutely protected by the state secrets privilege. Notwithstanding that some information about that process has become public, Jeppesen’s alleged role and its attendant liability cannot be isolated from aspects that are secret and protected. Because the facts underlying plaintiffs’ claims are so infused with these secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets, even if plaintiffs could make a prima facie case on one or more claims with nonprivileged evidence. See Kasza, 133 F.3d at 1170; Black, 62 F.3d at 1118 (‘‘[P]roof of ‘the factual allegations in the Amended Complaint are so tied to the privileged information that further litigation will constitute an undue threat that privileged information will be disclosed.’ ’’) (quoting and affirming the district court); Bareford, 973 F.2d at 1144 (‘‘[T]he danger

that witnesses might divulge some privileged material during cross-examination is great because the privileged and non-privileged material are inextricably linked. We are compelled to conclude that the trial of this case would inevitably lead to a significant risk that highly sensitive information concerning this defense system would be disclosed.’’); Fitzgerald, 776 F.2d at 1243 (‘‘In examining witnesses with personal knowledge of relevant military secrets, the parties would have every incentive to probe dangerously close to the state secrets themselves. In these circumstances, state secrets could be compromised even without direct disclosure by a witness.’’); Farnsworth Cannon, 635 F.2d at 281 (‘‘[T]he plaintiff and its lawyers would have every incentive to probe as close to the core secrets as the trial judge would permit. Such probing in open court would inevitably be revealing. It is evident that any attempt on the part of the plaintiff to establish a prima facie case would so threaten disclosure of state secrets that the overriding interest of the United States and the preservation of its state

logistical support to those programs, should proceed where claims against the government and corporate actors who plaintiffs allege were primarily responsible failed.
As the dissent correctly notes, we have previously disapproved of El–Masri for conflating the Totten bar’s ‘‘very subject matter’’ inquiry with the Reynolds privilege. See Al– Haramain, 507 F.3d at 1201. We adhere to that approach today by maintaining a distinction between the Totten bar on the one hand and the Reynolds privilege on the other. See Tenet, 544 U.S. at 9, 125 S.Ct. 1230 (explaining that Reynolds ‘‘in no way signaled our retreat from Totten ’s broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden’’). Maintaining that distinction, how ever, does not mean that the Reynolds privilege can never be raised prospectively or result in a dismissal at the pleading stage. As we explained in Al–Haramain (as do we in the text), the Totten bar and the Reynolds privi-

lege form a ‘‘continuum of analysis.’’ 507 F.3d at 1201. A case may fall outside the Totten bar because its ‘‘very subject matter’’ is not a state secret, and yet it may become clear in conducting a Reynolds analysis that plaintiffs cannot establish a prima facie case, that defendants are deprived of a valid defense or that the case cannot be litigated without presenting either a certainty or an unacceptable risk of revealing state secrets. When that point is reached, including, if applicable, at the pleading stage, dismissal is appropriate under the Reynolds privilege. Notwithstanding its erroneous conflation of the Totten bar and the Reynolds privilege, we rely on El–Masri because it properly concluded—with respect to allegations comparable to those here—that ‘‘virtually any conceivable response to [plaintiffs’] allegations would disclose privileged information,’’ and, therefore, that the action could not be litigated ‘‘without threatening the disclosure’’ of state secrets. El–Masri, 479 F.3d at 308, 310.

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secrets precludes any further attempt to pursue this litigation.’’); see also In re Sealed Case, 494 F.3d at 152–54 (acknowledging the appropriateness of dismissal when unprivileged and privileged matters are so entwined that the risk of disclosure of privileged material is unacceptably high, although concluding that the case before the court did not fall within that category).
Here, further litigation presents an unacceptable risk of disclosure of state secrets no matter what legal or factual theories Jeppesen would choose to advance during a defense. Whether or not Jeppesen provided logistical support in connection with the extraordinary rendition and interrogation programs, there is precious little Jeppesen could say about its relevant conduct and knowledge without revealing information about how the United States government does or does not conduct covert operations. Our conclusion holds no matter what protective procedures the district court might employ. Adversarial litigation, including pretrial discovery of documents and witnesses and the presentation of documents and testimony at trial, is inherently complex and unpredictable. Although district courts are well equipped to wall off isolated secrets from disclosure, the challenge is exponentially greater in exceptional cases like this one, where the relevant secrets are difficult or impossible to isolate and even efforts to define a boundary between privileged and unprivileged evidence would risk disclosure by implication. In these rare circumstances, the risk of disclosure that further proceedings would create cannot be averted through the use of devices such as protective orders or restrictions on testimony.
Dismissal at the pleading stage under Reynolds is a drastic result and should not be readily granted. We are not persuaded, however, by the dissent’s views that the state secrets privilege can never be ‘‘asserted during the pleading stage to ex-

cise entire allegations,’’ or that the government must be required ‘‘to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit.’’ Dissent at 1094, 1097.
A case may fall outside the Totten bar and yet it may become clear during the Reynolds analysis that dismissal is required at the outset. See Al–Haramain, 507 F.3d at 1201 (explaining that the Totten bar and the Reynolds privilege form a ‘‘continuum of analysis,’’ and that in some cases ‘‘the suit itself may not be barred because of its subject matter and yet ultimately, the state secrets privilege may nonetheless preclude the case from proceeding to the merits,’’ even without ‘‘await[ing] preliminary discovery’’). Here, our detailed Reynolds analysis reveals that the claims and possible defenses are so infused with state secrets that the risk of disclosing them is both apparent and inevitable. Dismissal under these circumstances, like dismissal under the Totten bar, reflects the 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, and respecting which it will not allow the confidence to be violated.’’ Totten, 92 U.S. at 107.
* * *
Although we are necessarily precluded from explaining precisely why this case cannot be litigated without risking disclosure of state secrets, or the nature of the harm to national security that we are convinced would result from further litigation, we are able to offer a few observations.
First, we recognize that plaintiffs have proffered hundreds of pages of publicly available documents, many catalogued in the dissent’s Appendix, that they say corroborate some of their allegations con-

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cerning Jeppesen’s alleged participation in aspects of the extraordinary rendition program. As the government has acknowledged, its claim of privilege does not extend to public documents. Accordingly, we do not hold that any of the documents plaintiffs have submitted are subject to the privilege; rather, we conclude that even assuming plaintiffs could establish their entire case solely through nonprivileged evidence—unlikely as that may be— any effort by Jeppesen to defend would unjustifiably risk disclosure of state secrets. Cf. El–Masri, 479 F.3d at 309 (concluding that ‘‘virtually any conceivable response [by government defendants to claims based on factual allegations materially identical to this case’s] TTT would disclose privileged information’’).
Second, we do not hold that the existence of the extraordinary rendition program is itself a state secret. The program has been publicly acknowledged by numerous government officials including the President of the United States. Even if its mere existence may once have been a ‘‘matter[ ] which, in the interest of national security, should not be divulged,’’ it is not a state secret now. Reynolds, 345 U.S. at 10, 73 S.Ct. 528; cf. Al–Haramain, 507 F.3d at 1193 (concluding ‘‘[i]n light of extensive government disclosures’’ that a warrantless wiretapping program was not a matter of state secret). Nonetheless, partial disclosure of the existence and even some aspects of the extraordinary rendition program does not preclude other details from remaining state secrets if their disclosure would risk grave harm to national security. See Al–Haramain, 507 F.3d at 1203 (concluding that some undisclosed details of the wiretapping program were entitled to protection under the state secrets privilege); Halkin, 690 F.2d at 994 (‘‘We reject, as we have previously, the theory that ‘because some information about the project ostensibly is now in the public domain, nothing about the project in

which the appellants have expressed an interest can properly remain classified’ or otherwise privileged from disclosure.’’ (quoting Military Audit Project v. Casey, 656 F.2d 724, 752(D.C.Cir.1981))); see also Bareford, 973 F.2d at 1144 (explaining that in some circumstances, ‘‘disclosure of information by government officials can be prejudicial to government interests, even if the information has already been divulged from non-government sources’’).
Third, we acknowledge the government’s certification at oral argument that its assertion of the state secrets privilege comports with the revised standards set forth in the current administration’s September 23, 2009 memorandum, adopted several years after the government first invoked the privilege in this case. Those standards require the responsible agency to show that ‘‘assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense or foreign relations.’’ Holder Memo, supra, at 1. They also mandate that the Department of Justice ‘‘will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.’’ Id. at 2. That certification here is consistent with our independent conclusion, having reviewed the government’s public and classified declarations, that the government is not invoking the privilege to avoid embarrassment or to escape scrutiny of its recent controversial transfer and interrogation policies, rather than to protect legitimate national security concerns.

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V. OTHER REMEDIES
Our holding today is not intended to foreclose—or to pre-judge—possible nonjudicial relief, should it be warranted for any of the plaintiffs. Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs in this action, our decision forecloses at least one set of judicial remedies, and deprives them of the opportunity to prove their alleged mistreatment and obtain damages. At a structural level, terminating the case eliminates further judicial review in this civil litigation, one important check on alleged abuse by government officials and putative contractors. Other remedies may partially mitigate these concerns, however, although we recognize each of these options brings with it its own set of concerns and uncertainties.
First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the

secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II. See Mochizuki v. United States, 43 Fed.Cl. 97 (1999).13
Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch.14 ‘‘The power of the Congress to conduct investigations is inherent in the legislative process.’’ Watkins v. United States, 354 U.S. 178, 187, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); accord Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). ‘‘Congress unquestionably has TTT broad authority to investigate, to inform the public, and, ultimately, to legislate against suspected corruption and abuse of power in the Executive Branch.’’ Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 498, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (Powell, J., concurring); see also Branzburg v. Hayes, 408 U.S. 665, 741, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (Stewart, J., dissenting) (‘‘We have long recognized the value of the role played by legislative investigationsTTTT’’).
Third, Congress also has the power to enact private bills. See Nixon v. Fitzgerald, 457 U.S. 731, 762 n. 5, 102 S.Ct. 2690,

13. Other governments have committed to doing this. See, e.g., Prime Minister David Cameron, A Statement Given by the Prime Minister to the House of Commons on the Treatment of Terror Suspects (July 6, 2010), http://www.number10.gov.uk/news/ statements-and-articles/2010/07/statement-ondetainees–52943 (‘‘[W]e are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation.’’).
14. In addition, Congress has constituted independent investigatory bodies within the exec-

utive branch. See, e.g., 50 U.S.C. § 403q (establishing the Office of Inspector General in the Central Intelligence Agency ‘‘to initiate and conduct independently inspections, investigations, and audits relating to programs and operations of the Agency’’); see also Office of Inspector General, Central Intelligence Agency, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003), May 7, 2004 (partially redacted), available at http://graphics8. nytimes.com/packages/pdf/politics/20090825– DETAIN/2004CIAIG.pdf.

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73 L.Ed.2d 349 (1982) (Burger, C.J., concurring) (‘‘For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.’’); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 n.9, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (‘‘Private bills in Congress are still common, and were even more so in the days before establishment of the Claims Court.’’); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 431, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (‘‘Congress continues to employ private legislation to provide remedies in individual cases of hardship.’’). Because as a general matter the federal courts are better equipped to handle claims, see Kosak v. United States, 465 U.S. 848, 867–69, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984) (Stevens, J., dissenting), Congress can refer the case to the Court of Federal Claims to make a recommendation before deciding whether to enact a private bill, see 28 U.S.C. § 1492; see also Banfi Prods. Corp. v. United States, 40 Fed.Cl. 107, 109 (1997), although Congress alone will make the ultimate decision. When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.15
Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine ‘‘compels the subordination of appellants’

interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for TTT violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.’’ Halkin v. Helms, 690 F.2d at 1001 (footnote omitted).
VI. CONCLUSION
We, like the dissent, emphasize that it should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case. Nonetheless, there are such cases—not just those subject to Totten’s per se rule, but those where the mandate for dismissal is apparent even under the more searching examination required by Reynolds. This is one of those rare cases.
For all the reasons the dissent articulates—including the impact on human rights, the importance of constitutional protections and the constraints of a judgemade doctrine—we do not reach our decision lightly or without close and skeptical scrutiny of the record and the government’s case for secrecy and dismissal. We expect our decision today to inform district courts that Totten has its limits, that every effort should be made to parse claims to salvage a case like this using the Reynolds approach, that the standards for peremptory dismissal are very high and it is the

15. Proceedings in the Court of Federal Claims following congressional referral may pose some of the same problems that require dismissal here—the Court of Federal Claims must avoid disclosure of state secrets too. The referral proceedings might be less problematic than this lawsuit, however, because, for example, the question of third-party liability would not be the focus: a private bill addresses compensation by the government, not by third parties. In addition, Congress might tailor its referral to protect state secrets, by,

for example, requiring the Court of Federal Claims to make its recommendation based solely on the plaintiffs’ own testimony and nonprivileged documents in the public domain. Moreover, Congress presumably possesses the power to restrict application of the state secrets privilege in the referral proceedings. Cf. Al–Haramain, 507 F.3d at 1205–06 (remanding to the district court to consider whether the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1806(f), preempts the state secrets privilege).

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district court’s role to use its fact-finding and other tools to full advantage before it concludes that the rare step of dismissal is justified. We also acknowledge that this case presents a painful conflict between human rights and national security. As judges, we have tried our best to evaluate the competing claims of plaintiffs and the government and resolve that conflict according to the principles governing the state secrets doctrine set forth by the United States Supreme Court.
For the reasons stated, we hold that the government’s valid assertion of the state secrets privilege warrants dismissal of the litigation, and affirm the judgment of the district court.16 The government shall bear all parties’ costs on appeal.
AFFIRMED.
BEA, Circuit Judge, concurring:
I concur with Judge Fisher’s well-reasoned opinion and join fully in his result. I also concur with Judge Fisher’s analysis with respect to United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). I write separately only because I would decide this case under Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1876).
The Totten bar requires our courts to dismiss cases ‘‘where 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. In this case, every claim in the Plaintiffs’ complaint is based on the allegation that officials of the United States government arrested and detained Plaintiffs and subjected them to specific interrogation techniques. Those alleged facts, not

merely Jeppesen’s role in such activities, are a matter of state secret.
MICHAEL DALY HAWKINS, Circuit Judge, with whom Judges SCHROEDER, CANBY, THOMAS, and PAEZ, Circuit Judges, join, dissenting:
A Flawed Procedure
I agree with my colleagues in the majority that United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), is a rule of evidence, requiring courts to undertake a careful review of evidence that might support a claim or defense to determine whether either could be made without resort to legitimate state secrets. I part company concerning when and where that review should take place.
The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint. Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret. Within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is itself indispensable to establishing either the truth of the plaintiffs’ allegations or a valid defense that would otherwise be available to the defendant. See, e.g., Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.1998).
This is important, because an approach that focuses on specific evidence after issues are joined has the benefit of confining the operation of the state secrets doctrine so that it will sweep no more broadly than

16. We do not share the dissent’s confidence that the present proceedings come within Federal Rule of Civil Procedure 12(b)(6). Dissent 1093–95, 1097. Reynolds necessarily entails consideration of materials outside the pleadings: at minimum, the Reynolds analysis

requires the court to review the government’s formal claim of privilege. That fact alone calls into question reliance on Rule 12(b)(6). See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001).

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clearly necessary. The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law. This case now presents a classic illustration. Plaintiffs have alleged facts, which must be taken as true for purposes of a motion to dismiss, that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute. They have alleged in detail Jeppesen’s complicity or recklessness in participating in these violations. The government intervened, and asserted that the suit would endanger state secrets. The majority opinion here accepts that threshold objection by the government, so Plaintiffs’ attempt to prove their case in court is simply cut off. They are not even allowed to attempt to prove their case by the use of nonsecret evidence in their own hands or in the hands of third parties.
It is true that, judicial construct though it is, the state secrets doctrine has become

embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets.1 When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit. An official certification that evidence is truly a state secret will be more focused if the head of a department must certify that specific evidence sought in the course of litigation is

1. Abuse of the Nation’s information classification system is not unheard of. Former U.S. Solicitor General Erwin Griswold, who argued the government’s case in the Pentagon Papers matter, later explained in a Washington Post editorial that ‘‘[i]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.’’ Erwin N. Griswold, Secrets Not Worth Keeping: the Courts and Classified Information, Wash. Post, Feb. 15, 1989, at A25.
Former Attorney General Herbert Brownell similarly complained in a 1953 letter to President Eisenhower that classification procedures were then ‘‘so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.’’ Letter from Attorney General Herbert Brownell to President Dwight Eisenhower (June

15, 1953) (quoted in Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 145 (2001)).
Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that ‘‘this accident occurred to a military plane which had gone aloft to test secret electronic equipment,’’ and that ‘‘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.’’ 345 U.S. at 10, 73 S.Ct. 528. In 1996, however, the ‘‘secret’’ accident report involved in that case was declassified. A review of the report revealed, not ‘‘details of any secret project the plane was involved in,’’ but ‘‘[i]nstead, TTT a horror story of incompetence, bungling, and tragic error.’’ Garry Wills, Why the Government Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.

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truly a secret and cannot be revealed without danger to overriding, essential government interests. And when responsive pleading is complete and discovery under way, judgments as to whether secret material is essential to Plaintiffs’ case or Jeppesen’s defense can be made more accurately.
By refusing to examine the voluminous public record materials submitted by Plaintiffs in support of their claims,2 and by failing to undertake an analysis of Jeppesen’s ability to defend against those claims, the district court forced every judge of the court of appeals to undertake that effort. This was no small undertaking. Materials the government considers top secret had to be moved securely back and forth across the country and made available in a ‘‘cone of silence’’ environment to first the three-judge panel assigned the case and then the twenty-seven active judges of this court to evaluate whether the case merited en banc consideration. This quite literally put the cart before the horse, depriving a reviewing court of a record upon which its traditional review function could be carried out.3 This is more than a matter of convenience. Making factual determinations is the par-

ticular province of trial courts and for sound reason: they are good at it. Not directing the district court to do that work sends exactly the wrong message in the handling of these critical and sensitive cases. Finding remand ‘‘unnecessary,’’ as the majority does here, [Maj. Op. at 1087, n.10], not only rewards district courts for failing to do their job, but ensures that future appeals courts will have to do that job for them.4
This is an appeal from a Rule 12 dismissal, which means that the district court was required to assume that the wellpleaded allegations of the complaint are true, and that we ‘‘construe the complaint in the light most favorable to the plaintiff[s].’’ Doe v. United States, 419 F.3d 1058, 1062 (9th Cir.2005). The majority minimizes the importance of these requirements by gratuitously attaching ‘‘allegedly’’ to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its own officials as ‘‘torture flights.’’5 Instead, the majority assumes that even if Plaintiffs’ prima facie

2. A summary of the some 1,800 pages of that information appears as an Appendix to this dissent.

courts might compel the disclosure of documents legitimately covered by the state secrets privilege.

3. In another context, the Supreme Court has pointed out the structural problems created when appellate courts are presented with undeveloped records. Johnson v. Jones, 515 U.S. 304, 309, 316–17, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995).
4. I have confidence in the ability of district judges to make such determinations, and in the process of handling information which the government considers secret. Dismissing this suit out of fear of ‘‘compelled or inadvertent disclosure’’ of secret information during the course of litigation, [Maj. Op. at 1086], assumes that the government might make mistakes in what it produces, or that district

5. According to the sworn declaration of former Jeppesen employee Sean Belcher, the Director of Jeppesen International Trip Planning Services, Bob Overby, told him, ‘‘ ‘We do all the extraordinary rendition flights,’ ’’ which he also referred to as ‘‘ ‘the torture flights’ ’’ or ‘‘spook flights.’’ Belcher stated that ‘‘there were some employees who were not comfortable with that aspect of Jeppesen’s business’’ because they knew ‘‘ ‘some of these flights end up’ ’’ with the passengers being tortured. He noted that Overby had explained, ‘‘ ‘that’s just the way it is, we’re doing them’ ’’ because ‘‘the rendition flights paid very well.’’

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case and Jeppesen’s defense did not depend on privileged evidence, dismissal is required ‘‘because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.’’ [Maj. Op. at 1087]. But Jeppesen has yet to answer or even to otherwise plead, so we have no idea what those defenses or assertions might be. Making assumptions about the contours of future litigation involves mere speculation, and doing so flies straight in the face of long standing principles of Rule 12 law by extending the inquiry to what might be divulged in future litigation.6
We should have remanded this matter to district court to do the Reynolds work that should have been done in the first place.
Because of this fundamental defect in the posture of this matter, the remainder of the dissent focuses on the scope of the

state secrets privilege rather than its application to speculative facts.
The Totten Bar
While it chooses not to apply it, the majority correctly recites the general interpretation of the non-justiciability bar of Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1876).7 However, its definition of Totten’s scope—applying to ‘‘any case in which ‘the very subject matter of the action’ is ‘a matter of state secret’ ’’ [Maj. Op. at 1078]—and the concurrence’s fullblown embrace of its application here merit response.
Courts have applied the Totten bar in one of two scenarios: (1) The plaintiff is party to a secret agreement with the government;8 or (2) The plaintiff sues to solicit information from the government on a ‘‘state secret’’ matter.9 See Weinberger v.

6. See 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 2010) (Rule 12(b)(6) inquiries are ‘‘essentially TTT limited to the content of the complaint’’); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (listing permissible evidence to consider in a 12(b)(6) motion, with no mention of prospective evidence, and with emphasis on an examination of the ‘‘underlying facts’’); Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090, 1096 (9th Cir.2008) (the court may consider in a 12(b)(6) motion ‘‘only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice’’) (citing Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899–900 (9th Cir.2007)).
7. See, e.g., Wilson v.Libby, 535 F.3d 697, 710 (D.C.Cir.2008) (discussing ‘‘the justiciability doctrine of Totten v. United States ’’); Am. Civil Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644, 650 n. 2 (6th Cir.2007) (the Totten rule is a ‘‘rule of non-justiciability’’); Al–Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir.2007) (the Totten rule is

‘‘a rule of non-justiciability, akin to a political question’’).
8. Totten itself involved the estate of a former Civil War spy seeking compensation. 92 U.S. 105, 23 L.Ed. 605. See also Tenet v. Doe, 544 U.S. 1, 10, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (suit against CIA director for failure to provide financial compensation for Cold War services).
9. This category of Totten-bar cases is distinct from those involving a plaintiff’s attempt to solicit information from the government via the Freedom of Information Act (FOIA). Weinberger, which has a FOIA element, was decided on FOIA grounds and Totten grounds, and relevant here is the Totten-related decision. See Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 146, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981). The FOIA cases are easily distinguishable. The FOIA cases entail litigation for the sole and independent purpose of obtaining disclosure of classified information. See 5 U.S.C. § 552(a)(4)(B); see also, e.g., Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975) (addressing the court’s authority under FOIA to order the disclosure of classified information for publication in a book). While

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Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 146, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981) (Totten bar applies to suit against the United States Navy for failure to file an environmental impact statement regarding a ‘‘nuclear capable’’ facility where Navy would have to admit or deny proposed storage of nuclear weapons at the facility). More generally, the Totten bar has been applied to suits against the government, and never to a plaintiff’s suit against a third-party/non-governmental entity.
Here, the ‘‘very subject matter’’ of this lawsuit is Jeppesen’s involvement in an overseas detention program. Plaintiffs are neither parties to a secret agreement with the government, nor are they attempting, as the result of this lawsuit, to solicit information from the government on a ‘‘state secret’’ matter. Rather, they are attempting to remedy ‘‘widespread violations of individual constitutional rights’’ occurring in a program whose existence has been made public. See Hepting v. AT & T, 439 F.Supp.2d 974, 993 (N.D.Cal.2006).
Totten ’s logic simply cannot be stretched to encompass the claims here, as they are brought by third-party plaintiffs against non-government defendant actors for their involvement in tortious activities.10 Nothing Plaintiffs have done sup-

ports a conclusion that their ‘‘lips [are] to be for ever sealed respecting’’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery. See Totten, 92 U.S. at 106.
Instead of ‘‘avoid[ing] difficult questions about the precise scope of the Totten bar’’ [Maj. Op. at 1085], the majority ought to have found the Totten bar inapplicable, and rejected the district court’s analysis.11 Totten cannot and does not apply to Plaintiffs’ claims.
The Reynolds Evidentiary Privilege
The majority correctly describes Reynolds as a rule of evidence, which only the government may assert. [Maj. at 1080– 81]. However, Reynolds cannot, as the majority contends, be asserted during the pleading stage to excise entire allegations.
The majority argues that because pleadings can serve as evidence, see Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir.1996); Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir.1980), the state secrets privilege ‘‘may be asserted at any time, even at the pleading stage.’’ [Maj. Op. at 1080].
Thus, the majority argues, this court would be incorrect to conclude that neither the Federal Rules nor Reynolds would permit us to dismiss this case at the plead-

‘‘an informed citizenry [is] vital to the functioning of a democratic society,’’ Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 16, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotations omitted), the balance of interests will more often tilt in favor of the Executive when disclosure is the primary end in and of itself. FOIA therefore predictably entails greater deference to the national classification system than does the state secrets doctrine.
10. See Terkel v. AT & T Corp., 441 F.Supp.2d 899, 907 (N.D.III.2006) (refusing to apply Totten because ‘‘the plaintiffs in this case were not parties to the alleged contract nor did they agree to its terms; rather, they claim

that the performance of an alleged contract entered into by others would violate their statutory rights’’); Am. Civil Liberties Union v. Nat’l Sec. Agency, 438 F.Supp.2d 754, 763 (E.D.Mich.2006) (refusing to apply Totten because it ‘‘applies [only] to actions where there is a secret espionage relationship between the Plaintiff and the Government’’), vacated on other grounds, 493 F.3d 644 (6th Cir.2007).
11. Nor can the choice to affirm the district court under Reynolds be justified as an affirmance on ‘‘any basis supported by the record.’’ [Maj. Op. at 1085]. The result the majority seeks here, a dismissal of Plaintiffs’ case in its entirety, is not supported by the case law.

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ings stage on the basis of an evidentiary privilege that must be invoked during discovery or at trial. In the majority’s view, the privilege applies at the pleadings stage in such a manner that permits it to remove from a complaint any allegations where ‘‘secret and nonsecret information cannot be separated.’’ [Maj. Op. at 1082].
Whatever validity there may be to the idea that evidentiary privileges can apply at the pleadings stage, it is wrong to suggest that such an application would permit the removal of entire allegations resulting in out-and-out dismissal of the entire suit. Instead, the state secrets privilege operates at the pleadings stage to except from the implications of Rule 8(b)(6) the refusal to answer certain allegations, not, as the government contends, to permit the government or Jeppesen to avoid filing a responsive pleading at all. [Maj. Op. at 1085–86]. In the Fifth Amendment context, the Fourth Circuit has explained that the privilege against self-incrimination ‘‘protects an individual TTT from answering specific allegations in a complaint or filing responses to interrogatories in a civil action where the answers’’ would violate his rights under the privilege. N. River Ins. Co., Inc. v. Stefanou, 831 F.2d 484, 486–87 (4th Cir.1987). Accordingly, ‘‘when prop-

erly invoked, the fifth amendment privilege against self-incrimination TTT can avoid the operation of Rule [8(b)(6) ].’’ Id. at 487.
But a proper invocation of the privilege does not excuse a defendant from the requirement to file a responsive pleading; the obligation is to answer those allegations that can be answered and to make a specific claim of the privilege as to the rest, so the suit can move forward. Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1280, at 360 (1969)).
According to this rationale, Plaintiffs are correct that the government moving forward may assert the state secrets privilege to prevent Jeppesen from answering any allegations, where the answer would constitute evidence properly protected by the privilege. But, recognizing that the privilege may apply at the pleadings stage to prevent defendants from answering certain allegations vis-a-vis operation of Rule 8(b)(6) does not mean the privilege can be used to remove altogether certain subject matters from a lawsuit. Observing that pleadings may constitute evidence, in other words, does not transform an evidentiary privilege into an immunity doctrine.12 The

12. It is not at all clear that the Reynolds privilege can be asserted at the pleading stage, as the majority claims. [See Maj. Op. at 1080–81]. Ellsberg v.Mitchell, 709 F.2d 51, 52 (D.C.Cir.1983), on which the majority relies, involved the formal claim of state secrets privilege entered by the United States in opposition to the plaintiffs’ motion to compel discovery and, while the opinion references the government’s amended answer to the complaint in a footnote, it focuses centrally on the refusal of the defendants ‘‘to respond to any of the plaintiffs’ remaining allegations or questions’’ as presented in the plaintiffs’ submitted interrogatories. Id. at 53–54 & n.6. In Black v. United States, 62 F.3d 1115, 1117 (8th Cir.1995), on which the majority also relies, the Eighth Circuit dismissed a suit against the CIA by an electrical engineer with government security clearances at the plead-

ing stage because the main information Black sought in his complaint, which would ‘‘confirm or deny Black’s alleged contacts with government officers,’’ was the basis of Black’s claim. Without it, his suit could not go forward. Here, where Plaintiffs arguably have ample public information to proceed with their suit, we do not have such a cut-anddried case of privilege. [See Dissent App’x].
Moreover, pleadings are not considered evidence. See United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir.1995) (‘‘The government’s assertions in its pleadings are not evidence.’’); S. Pac. Co. v. Conway, 115 F.2d 746, 750 (9th Cir.1940) (‘‘[T]he office of a pleading is to state ultimate facts and not evidence of such facts.’’). If the government is seeking to excise entire allegations with the invocation of the privilege at the pleading stage, such an

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state secrets privilege, as an evidentiary privilege, is relevant not to the sufficiency of the complaint, but only to the sufficiency of evidence available to later substantiate the complaint.
Because the Reynolds privilege, like any other evidentiary privilege, ‘‘ ‘extends only to [evidence] and not to facts,’ ’’ Upjohn Co. v. United States, 449 U.S. 383, 395–96, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (quoting Philadelphia v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D.Pa.1962)), it cannot be invoked to prevent a litigant from persuading a jury of the truth or falsity of an allegation by reference to nonprivileged evidence, regardless whether privileged evidence might also be proba-

tive of the truth or falsity of the allegation.13
Reynolds and Rule 12(b)(6)
The majority claims there is ‘‘no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets,’’14 [Maj. Op. at 1087], ignoring well-established principles of civil procedure which, at this stage of the litigation, do not permit the prospective evaluation of hypothetical claims of privilege that the government has yet to raise and the district court has yet to consider.
Our task in reviewing the grant of a Rule 12 motion to dismiss ‘‘is necessarily a limited one.’’ Scheuer v. Rhodes, 416 U.S.

invocation would require an assertion that the very subject matter of the lawsuit is a state secret, and not the assertion of an evidentiary privilege. See Molerio v. FBI, 749 F.2d 815, 821 (D.C.Cir.1984) (where ‘‘the whole object of the suit and of the discovery is to establish a fact that is a state secret,’’ compliance with discovery as a whole can be ‘‘excused in gross, without the necessity of examining individual documents’’); cf. Al–Haramain, 507 F.3d at 1197 (applying Reynolds directly to evidence—a sealed document—where privilege was asserted in response to government’s accidental disclosure of documents to the plaintiffs, and declining to find ‘‘the very subject matter’’ of the suit to be a state secret). Here, while the majority declines to reach the Totten bar question, the ‘‘very subject matter’’ of this lawsuit—Jeppesen’s involvement in an overseas detention program—has been publicly acknowledged and is not a state secret.
13. Contrary to the majority’s assertion, the Reynolds privilege cannot be asserted prospectively, without an examination of the evidence on an item-by-item basis. To conclude that Reynolds, like Totten, applies to prevent the litigation of allegations, rather than simply discovery of evidence, would be to erode the distinction between the two versions of the doctrine. Moreover, the Eighth Circuit case on which the majority relies, Black, 62 F.3d at 1117, was ultimately not a prospective assertion of the Reynolds privilege. While the government asserted the privilege in response

to the plaintiff’s amended complaint, ultimately, the privilege was asserted as to one piece of information, without which the plaintiff could not proceed; he could not bring an intentional infliction of emotional distress claim against the CIA without information about any existing contacts with government officers. Id. The information on his contacts, which the plaintiff attempted to solicit via his complaint, was privileged. Id. To say Black permits the assertion of the Reynolds privilege in the pleading stage is to misstate its holding.
14. The majority cites El–Masri v. United States, 479 F.3d 296, 308–13 (4th Cir.2007), as a comparable case wherein the court found further litigation risked disclosure of state secrets and threatened grave harm to American national security. [Maj. Op. at 1087, citing El–Masri, 479 F.3d at 312]. However, noting that the Fourth Circuit appears to have ‘‘merged the concept of ‘subject matter’ with the notion of proof of a prima facie case,’’ this court in Al–Haramain expressly rejected El– Masri’s logic. 507 F.3d at 1201. In the Ninth Circuit, ‘‘the ‘subject matter’ of a lawsuit [is not necessarily] one and the same [as] the facts necessary to litigate the case.’’ Id. Accordingly, ‘‘[b]ecause the Fourth Circuit has accorded an expansive meaning to the ‘subject matter’ of an action, one that we have not adopted, El–Masri does not support dismissal based on the subject matter of the suit.’’ Id.

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232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). We are not to determine whether a particular party will ultimately prevail, but instead only whether the complaint ‘‘state[s] a claim upon which relief can be granted,’’ Fed. R. Civ. Pro. 12(b)(6). If Plaintiffs here have stated a claim on which relief can be granted, they should have an opportunity to present evidence in support of their allegations, without regard for the likelihood of ultimate success. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683 (a district court acts ‘‘prematurely’’ and ‘‘erroneously’’ when it dismisses a well-pleaded complaint, thereby ‘‘preclud[ing] any opportunity for the plaintiffs’’ to establish their case ‘‘by subsequent proof’’); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (‘‘[A] well-pleaded complaint may proceed even if it appears ‘that a recovery is very remote and unlikely.’ ’’ (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683)).
This limited inquiry—a long-standing feature of the Rules of Civil Procedure— serves a sensible judicial purpose. We simply cannot resolve whether the Reynolds evidentiary privilege applies without (1) an actual request for discovery of specific evidence, (2) an explanation from Plaintiffs of their need for the evidence, and (3) a formal invocation of the privilege by the government with respect to that evidence, explaining why it must remain

confidential. See Reynolds, 345 U.S. at 8– 9, 73 S.Ct. 528 (‘‘the principles which control the application of the privilege’’ require a ‘‘formal claim of privilege’’ by the government with respect to the challenged evidence); id. at 10–11, 73 S.Ct. 528 (the court must consider the litigants’ ‘‘showing of necessity’’ for the requested evidence in determining whether ‘‘the occasion for invoking the privilege is appropriate’’). Nor can we determine whether the parties will be able to establish their cases without use of privileged evidence without also knowing what non-privileged evidence they will marshal. See Crater Corp. v. Lucent Techs., Inc., 423 F.3d 1260, 1267– 68(Fed.Cir.2005) (‘‘deciding the impact of the government’s assertion of the state secrets privilege’’ before the record is ‘‘adequately developed’’ puts ‘‘the cart before the horse’’). Thus neither the Federal Rules nor Reynolds would permit us to dismiss this case for ‘‘failure to state a claim upon which relief can be granted,’’ Fed. R. Civ. Pro. 12(b)(6), on the basis of an evidentiary privilege relevant, not to the sufficiency of the complaint, but only to the sufficiency of evidence available to later substantiate the complaint.15
A decision to remand would have the additional benefit of conforming with ‘‘the general rule TTT that a federal appellate court does not consider an issue not passed on below,’’ and will allow the district court

15. While the government styled its motion below as a ‘‘Motion to Dismiss or, in the Alternative, for Summary Judgment,’’ the district court did not grant summary judgment, but rather dismissal—and it could not have done otherwise. A party is entitled to summary judgment only if ‘‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.’’ Fed. R. Civ. Pro. 56(c). Here, because Jeppesen has not even answered the complaint, it is uncertain which allegations are in dispute, much less which disputes might raise genuine issues of material fact.

The procedural posture of this case thus differs fundamentally from that in Kasza, which involved a grant of summary judgment. See Frost v. Perry, 919 F.Supp. 1459, 1465–67 (D.Nev.1996), aff’d sub nom. Kasza, 133 F.3d 1159 (granting summary judgment because ‘‘the privilege, as invoked, covered various items of discovery requested by Plaintiffs,’’ including ‘‘various photographic exhibits’’ and ‘‘under seal TTT affidavits,’’ and therefore ‘‘Plaintiffs have failed to establish a genuine issue as to any material fact without running afoul of the military and state secrets privilege’’).

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to apply Reynolds in the first instance. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Johnson v. California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (citing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 557–58, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (reversing and remanding for the lower court to apply the correct legal standard in the first instance)).
The majority’s analysis here is premature. This court should not determine that there is no feasible way to litigate Jeppesen’s liability without disclosing state secrets; such a determination is the district court’s to make once a responsive pleading has been filed, or discovery requests made. We should remand for the government to assert the privilege with respect to secret evidence, and for the district court to determine what evidence is privileged and whether any such evidence is indispensable either to Plaintiffs’ prima facie case or to a valid defense otherwise available to Jeppesen. Only if privileged evidence is indispensable to either party should it dismiss the complaint.
Conclusion
The majority concludes its opinion with a recommendation of alternative remedies. Not only are these remedies insufficient, but their suggestion understates the severity of the consequences to Plaintiffs from the denial of judicial relief. Suggesting, for example, that the Executive could ‘‘honor[ ] the fundamental principles of justice’’ by determining ‘‘whether plaintiffs’ claims have merit,’’ [see Maj. Op. at 1091] disregards the concept of checks and balances. Permitting the executive to police

its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered [Maj. Op. at 1091], elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enacting of ‘‘remedial legislation,’’ [Maj. Op. at 1092], leaves to the legislative branch claims which the federal courts are better equipped to handle. See Kosak v. United States, 465 U.S. 848, 867, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984) (Stevens, J., dissenting).
Arbitrary imprisonment and torture under any circumstance is a ‘‘ ‘gross and notorious TTT act of despotism.’ ’’ Hamdi v. Rumsfeld, 542 U.S. 507, 556, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131–33 (1765)). But ‘‘ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ’’ Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131–33 (1765)) (emphasis added).
I would remand to the district court to determine whether Plaintiffs can establish the prima facie elements of their claims or whether Jeppesen could defend against those claims without resort to state secrets evidence.

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