Mohamed V. Jeppesen Dataplan, Inc.: The Ninth Circuit Sends the Totten Bar Flying Away on the Jeppesen Airplane

I. INTRODUCTION In the en bane decision of Mohamed v. Jeppesen Dataplan, Inc. ("Jeppesen"), the United States Court of Appeals for the Ninth Circuit ruled that the Reynolds privilege iteration of the state secrets doctrine precluded the suits of several alleged victims of the government's infamous "extraordinary rendition"1 program from proceeding against Jeppesen Dataplan, Inc. ("Jeppesen"). Jeppesen allegedly had been complicit with the federal government in the program by providing transportation and logistical support that allowed the plaintiffs to be moved clandestinely to foreign countries, where they were subjected to torture.2 The state secrets doctrine is an evidentiary privilege that the federal government is permitted to invoke in the interest of national security where disclosure of sensitive information during the course of litigation "might compromise or embarrass our government in its public duties" or be detrimental to the public welfare.3 The Supreme Court has created two distinct iterations of the doctrine - the Totten bar and the Reynolds privilege.4 Where a court determines that the stronger iteration of the doctrine - the Totten bar - applies, the lawsuit at issue must categorically be dismissed.5 Where the weaker iteration of the doctrine - the Reynolds privilege - applies, the lawsuit at issue might need to be dismissed in some circumstances, but in other circumstances the litigation may proceed forward, with the sensitive information simply being kept out of the record.6 Although the doctrinal existence of the state secrets doctrine is obviously controversial given that it can prevent litigants from receiving judicial redress for wrongs perpetrated against them, this Note does not focus on the advisability of the doctrine, although plenty of prior scholarly commentary has criticized the doctrine and suggested the need for its reformation.7 This Note also does not focus on whether the Ninth Circuit was justified in applying the state secrets doctrine based on the facts at issue in Jeppesen. Such a critique would be very difficult. Because the choice about whether to apply the state secrets doctrine is generally premised on evidence that is never publicly disclosed,8 it is often nearly impossible for a thirdparty observer to assess whether a court properly dismissed a suit where the doctrine was invoked. Instead, this Note argues that the Jeppesen court, having chosen to apply the state secrets doctrine, applied it in a fashion that was clearly out of harmony with relevant Supreme Court state secrets doctrine precedent. This relevant precedent recognizes that there are two, distinct iterations of the state secrets doctrine: the more robust Totten bar and the weaker Reynolds privilege. Although the Ninth Circuit's Jeppesen opinion, which applied the Reynolds privilege, stated that it recognized the independent viability of the Totten bar, Jeppesen functionally - although only implicitly - abolished that bar because the court's justifications for using the Reynolds privilege instead of the Totten bar are likely to apply in nearly all cases that implicate the state secrets doctrine. Consequently, lower courts are likely to read Jeppesen as a mandate to always apply the Reynolds privilege, effectively abolishing the Totten bar. II. FACTS AND PROCEDURAL HISTORY The five plaintiffs in Jeppesen alleged that they were victims of the United States government's "extraordinary rendition" program.9 The plaintiffs claimed that the government had apprehended them because of their suspected terrorist activities and transferred them to foreign countries where they could be tortured and interrogated using methods prohibited in the United States.10 The first of the plaintiffs, Ahmed Agiza ("Agiza") was an Egyptian national. He claimed that he was apprehended while in Europe, given over to American authorities, and then flown to Egypt and placed into a "squalid, windowless, and frigid cell" where he endured tortures such as "severe[] and repeated[] beat[ings]" and "electric shock through electrodes attached to his ear lobes, nipples and genitals. …