Mohamed et al. v. Jeppesen Dataplan, Inc.

Mohamed et al. v Jeppesen Dataplan, Inc. is a lawsuit, filed by the American Civil Liberties Union(ACLU) on May 30, 2005, on behalf of persons alleged to have been subjected to extraordinary rendition and extrajudicial detention by the Central Intelligence Agency. Jeppesen Dataplan, a subsidiary of Boeing, provided logistical services to the CIA flights. Filed in the U.S. District Court for the Northern District of California, it was dismissed after a government invocation of the state secrets privilege, as with el-Masri v. Tenet. In September 2008, the ACLU petitioned the U.S. Court of Appeals for the Ninth Circuit to restore the suit, and argument began in February 2009. The New York Times editorialized, on the appeal, not to the merits of the plaintiffs' case, but that this was one of several cases that put the Obama administration into an important political choice: allow it to go to trial, under the campaign policies of transparencies, or continue the wide interpretation of the state secrets privilege asserted by the George W. Bush Administration. The Obama Administration, however, initially agreed with some of the state secrets aspects.

On April 28, 2009, the Ninth Circuit reactivated the trial, ruling "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."

This action does not examine whether there was probable cause for the detentions; it focuses on the lack of process and the treatment of the prisoners in detention.

The suit

In the action, citing the Alien Torts Statute as its first principle, the initial plaintiffs were:

• Binyam Ahmed Mohammad, an Ethiopian citizen, arrested in Pakistan, was flown to Morocco where he alleges to have been seized in July 2002 and taken to interrogated under torture, for 18 months, by Moroccan intelligence; in July 2004 taken to two CIA facilities, one in Afghanistan and tortured again; and was, at the time of the filing, detained at Guantanamo Bay detention camp.
• Abou Elkassim Britel, an Italian citizen was detained, in Pakistan, by CIA and Pakistani personnel, and then the CIA from Pakistan to Morocco. In Morocco, he was tortured by Moroccan intelligence agents and remains in custody.
• Ahmed Agiza, an Egyptian citizen, was seized in Sweden in December 2001, and flown, by the CIA, where he was imprisoned at the time of the filing where he still remains imprisoned. He states he was tortured.

Subsequently, two additional plaintiffs were added:

• Mohamed Farag Ahmad Bashmilah, a citizen of Yemen, taken into custody in Jordan, and given to CIA personnel who took him to a facility in Afghanistan, holding him there for 6 months. He was then flown to another unknown site in April 2004, held for over a year, and then flown to Yemen in May 2005, held for another 9 months, and released in Yemen. He states he was tortured.
• Bisher al-Rawi, a citizen of Iraq and permanent resident in the U.K., was detained by, in November 2002, by local intelligence in Gambia, questioned there by CIA and Gambian personnel for two weeks, then flown to Afghanistan where he was held for two months. He was then flown to Guantanamo on February 7, 2003, but then returned to the U.K. on March 30; no charges were ever filed against him.

Its main legal basis was the Alien Torts Claims Act, although many of the more recent cases, beginning with Filartiga v. Pena-Irala, were not dealing with contractors or agencies of the U.S. government, merely defendants in the U.S. or with assets there.

Reversal of lower court dismissal

The Ninth Circuit Court based its ruling on two threads of the state secrets privilege, Totten v. United States and United States v. Reynolds.

Totten argument

Totten "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."

The court ruled that Totten did not apply, as there was no evidentiary need to go into the details of the secret agreement between Jeppesen and the government. According to the Court, "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 countries to which the U.S. transported them, "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 could have been invoked had Jeppesen been suing the government

Reynolds argument

The government claim that Reynolds requires that "even if the subject matter of this suit is not a state secret, it still must be dismissed at the outset... view, Reynolds applies to secret information..." was rejected. The Court held that Reynolds allowed for "excising secret evidence on an item-by-item basis, rather than foreclosing litigation altogether at the outset."