The U.S. 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.  The “state secrets doctrine” encompasses two applications of this principle.

One principle completely bars adjudication of claims premised on state secrets where the “very subject matter” of a lawsuit is a matter of state secret (the “Totten bar”).  Totten v. United States, 92 U.S. 105, 107, 23 L.Ed. 605 (1876); Tenet v. Doe, 544 U.S. 1, 7 n. 4, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005) (Totten bar precludes judicial inquiry); 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); Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007); Hepting v. AT & T Corp., 439 F.Supp.2d 974, 993 (N.D.Cal. 2006); Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).

The other principle is a common law evidentiary privilege (“the Reynolds privilege”) that the U.S. Government may assert to prevent discovery of secret evidence when disclosure would threaten national security.  United States v. Reynolds, 345 U.S. 1, 10, 11, n. 26, 73 S.Ct. 528, 97 L.Ed. 727 (1953).  Invocation of this privilege requires a court to undertake a three-step analysis: (1) ascertain that the head of the government department which has control over the matter made a formal claim of privilege in sufficient detail based on actual personal consideration of the matter; (2) make an independent determination of whether the information is privileged (but “classified” information is not necessarily automatically covered under the privilege); and (3) consider whether or how the case should proceed 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.  Mohamed, et al., v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080, 1082 (9th Cir. 2010).  Within the Reynolds framework, the litigation can proceed so long as the plaintiff can prove the essential facts of his claims without resort to privileged evidence, and the invocation of the privilege does not deprive the defendant of information that would otherwise give the defendant a valid defense.  But if the unavailability of privileged evidence prevents the defendant from establishing a valid defense, the court must dismiss the case.  Id., at 1083.

In the recent Jeppesen Dataplan case, plaintiffs brought a lawsuit under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), against Jeppesen Dataplan, Inc. (“Jeppesen”), a wholly owned subsidiary of the Boeing Company.  Plaintiffs alleged that Jeppesen provided flight and logistical support services to the U.S. Government’s extraordinary rendition program that allegedly transported terrorism suspects for interrogation to overseas locations.  The plaintiffs alleged various causes of action, including that Jeppesen actively participated in forcible and arbitrary abduction of suspects, conspired in their torture and other cruel, inhuman, or degrading treatment in violation of international law.  The Court found that publicly available evidence established that Jeppesen did provide logistical support services, and therefore, the Totten bar did not apply.   The court proceeded to conduct a Reynolds privilege analysis.  The court found that claims and possible defenses were so infused with state secrets that the risk of disclosing them was both apparent and inevitable.  Dismissal under these circumstances was granted because even partial disclosure of the existence and even some aspects of the extraordinary rendition program would risk grave harm to national security.  Id., at 1089.

For further information, please contact:  Nicholas P. Connon, Managing Partner and Chair of the Middle East Practice Group; Tel:  +1.626.638.1757; e-mail: nconnon@connonwood.com