Torture and Public Policy: Mohamed v. Jeppesen Dataplan, Inc., Allows “Extraordinary Rendition” Victims to Litigate Around State Secrets Doctrine

I. INTRODUCTION In Mohamed v. Jeppesen Dataplan, Inc.} the Ninth Circuit examined the state secrets doctrine as it relates to the War on Terror. The plaintiffs, alleged victims of the Central Intelligence Agency's ("CIA") "extraordinary rendition" program, sued the private corporation providing logistical support for plaintiffs' so-called "torture flights" - shuttling prisoners from their home countries to CIA "black site" prisons and other locations. The government intervened before an answer had been filed and claimed that the case must be dismissed on the pleadings as its very subject matter is a state secret barred by Totten v. United States.2 Although the district court agreed, the ruling was appealed and reversed by a unanimous three- judge panel.3 On appeal, the court declined the government's invitation to extend the harsh Totten bar on all judicial remedies whenever a state secret is implicated. Instead, it adopted the flexible evidentiary framework presented in United States v. Reynolds* allowing the case to continue on remand as long as evidence that is truly a state secret is not indispensable to a prima facie case or to a valid defense.5 The Mohamed ruling will allow litigation to continue, for now, on evidence amassed by the plaintiffs from publicly available sources.6 The problem with this outcome is that although it is favorable to these litigants who admittedly have public sources, the next set of alleged victims to torture may not be as lucky. This standard, in tandem with an earlier Ninth Circuit case, thus creates a perverse incentive for the government to curb all disclosures to the public in order to insure their own immunity. 7 II. FACTS AND PROCEDURAL HISTORY A. Factual Background 1. Allegations of torture All five plaintiffs allege torture, forced disappearances, and secret incommunicado detention performed by U.S. agents or foreign governments in concert with the CIA.8 a. Plaintiff Mohamed, an Ethiopian citizen and legal resident of the United Kingdom, alleged that he was flown to Morocco, severely beaten, and had his bones routinely broken.9 Interrogators allegedly cut him with a scalpel from head to toe, "including his penis," and then poured "hot stinging liquid" into the wounds.10 He was then transferred to a CIA "dark prison," further tortured, deprived of food, and for twenty-four hours a day kept in near-darkness and subjected to loud noises like the screams of women and children.11 Mohamed spent the next five years at Guantanamo. During the pendency of this appeal he was released to the United Kingdom without being charged.12 b. Plaintiff Britel, an "Italian citizen of Moroccan origin," was transferred to American custody after his arrest for immigration law violations in Pakistan.13 Britel alleged that he was beaten, deprived of food and sleep, and threatened with "sexual torture, including sodomy with a bottle and castration."14 He was released, then detained again, coerced into signing a false confession, convicted, and sentenced to serve fifteen years in a Moroccan prison.15 c. Plaintiff Agiza, an Egyptian citizen seeking asylum in Sweden, alleged that he was captured by Swedish authorities and handed over to U.S. agents who flew him to Egypt.16 He was there "severely and repeatedly beaten" for five weeks while in a "squalid, windowless, and frigid cell."17 He was also placed on a wet mattress, with electrodes on his "ear lobes, nipples and genitals," and partially electrocuted.18 Agiza spent two and a half years in detention before being provided with a trial before a military court, convicted, and sentenced to fifteen years in an Egyptian prison.19 d. Plaintiff Bashmilah, a Yemeni citizen, was in Jordan visiting his infirm mother when he was detained by the Jordanian government.20 They allegedly physically and psychologically abused him, transferred him to U.S. agents who flew him to Afghanistan, and placed him in solitary confinement in twenty-four-hour darkness. …