## Facts

- Five foreign nationals alleged they were victims of the CIA’s “extraordinary rendition” program and were subjected to torture or cruel, inhuman, and degrading treatment in foreign detention.
- They sued Jeppesen Dataplan, Inc., a U.S. aviation services company, alleging it knowingly provided logistical and flight-planning support for rendition flights (including flight plans, overflight clearances, hotel arrangements, and ground support).
- The complaint sought relief primarily under the Alien Tort Statute and related theories of liability for complicity in torture, enforced disappearance, and other international law violations.
- The United States intervened before Jeppesen answered and formally invoked the state secrets privilege, asserting that further litigation would risk disclosure of information harmful to national security.
- The district court dismissed at the pleading stage, concluding the action could not proceed because state secrets pervaded the case.
- A Ninth Circuit panel reversed, reasoning that the privilege is generally evidentiary and that courts should attempt to manage privileged material rather than dismiss outright.
- The Ninth Circuit reheard the case en banc and reinstated dismissal in a divided decision; the Supreme Court later denied certiorari.

## Issues

1. Whether the government’s assertion of the state secrets privilege required dismissal at the pleading stage because further litigation would create an unacceptable risk of disclosing classified information.
2. Whether, and under what conditions, an evidentiary state secrets privilege can nonetheless mandate termination of an entire action when privileged information is inseparable from the claims or defenses.
3. Whether procedural tools (e.g., in camera review, protective orders, limiting proof to public sources) could allow litigation to proceed without jeopardizing state secrets.

## Decision

- The en banc Ninth Circuit affirmed dismissal of the complaint.
- The court treated the state secrets privilege as primarily evidentiary, not a categorical bar based on topic area.
- The court held this was a rare case where privileged information was so central to litigating both liability and defenses that the suit could not proceed without an unacceptable risk of disclosure.
- The court concluded proposed procedural alternatives were not feasible because adjudication would still require probing classified details of intelligence operations, foreign cooperation, and operational aspects of the alleged rendition flights.
- The court acknowledged dismissal would deny plaintiffs a judicial forum but held separation-of-powers and national security concerns required termination of the action.

## Legal Principles

- The state secrets privilege permits the government to withhold information when there is a reasonable danger that compelled disclosure would expose matters that, in the interest of national security, should not be divulged.
- Although the privilege is generally evidentiary, dismissal may be required when privileged information is so intertwined with the claims or defenses that litigation cannot proceed without a high risk of revealing state secrets.
- Courts must give substantial weight to the Executive’s national security judgments but retain responsibility to determine whether the privilege applies and whether the case can proceed using nonprivileged evidence.
- If a defendant cannot fairly defend itself without resort to privileged evidence, and the privileged material is central to the dispute, dismissal may be warranted.

## Conclusion

The en banc Ninth Circuit held that the state secrets privilege required dismissal because adjudicating claims that a private contractor assisted CIA rendition operations would unavoidably risk disclosure of classified information central to both proof and defense, and no workable procedures could adequately protect those secrets while allowing the case to proceed.


Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc)