614 F.3d 1070 (9th Cir. 2010), 08-15693, Mohamed v. Jeppesen Dataplan, Inc.

Docket Nº:08-15693.
Citation:614 F.3d 1070
Opinion Judge:FISHER, Circuit Judge.
Party Name: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.
Attorney: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 S...
Judge Panel: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 J...
Case Date:September 08, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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614 F.3d 1070 (9th Cir. 2010)

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.

September 8, 2010

Argued and Submitted En Banc Dec. 15, 2009.

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[Copyrighted Material Omitted]

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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 plaintiffs-appellants.

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 Michael 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,

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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 U.S. 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 reluctantly 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 re-detained, Britel says he was coerced into signing a false confession, convicted of terrorism-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...

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