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Ruling On State Secrets Doctrine: Right Result But Flawed Reasoning
Topic: National Security Policy and Law
By Thomas R. McCarthy, Of Counsel with the law firm Wiley Rein LLP.
Legal Backgrounder, January 14, 2011, 4 pages
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WLF Legal Backgrounder

Ruling On State Secrets Doctrine: Right Result But Flawed Reasoning

By Thomas R. McCarthy
January 14, 2011 (Vol. 26 No. 1)

On September 8, 2010, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, affirmed the dismissal of the complaint of five foreign nationals alleging that Jeppesen Dataplan, Inc. ("Jeppesen") had violated the Alien Tort Statute, 28 U.S.C. sec. 1350, by assisting in their forced disappearance and torture by the CIA.  Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc).  In so doing, the court overturned a panel decision finding that the state secrets doctrine did not warrant immediate dismissal of the case.  See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).  An analysis of the case reveals that the Ninth Circuit en banc panel reached the correct result--dismissal of the case.  This is a step in the right direction given the Ninth Circuit's inconsistent track record on state secrets issues.  However, the court's failure to comprehend the constitutional magnitude of the state secrets doctrine led it to articulate an unnecessarily garbled view of the doctrine. 

The Background and Alleged Facts of Mohamed v. Jeppesen Dataplan

Plaintiffs alleged that they were apprehended, detained, and tortured as part of the CIA's extraordinary rendition program.  While individual details differed, each plaintiff alleged that he was detained in a foreign country, transferred to American custody, and flown to another foreign country for interrogation.  According to plaintiffs, Jeppesen "played an integral role" in their abductions and detentions by providing "flight planning and logistical support services to the aircraft and crew" used to transport them for interrogation.

In response to the complaint, the United States intervened and sought dismissal under the state secrets doctrine.  Then-Director of the CIA, General Michael Hayden, filed two declarations explaining that state secrets were central to the complaint's allegations and that further litigation would result in disclosures harmful to national security.1  Based on these declarations, the district court dismissed the case and entered judgment in favor of Jeppesen, finding that the very subject matter of the suit was a state secret.  Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128, 1136 (N.D. Cal. 2008).  On appeal, a three-judge panel of the Ninth Circuit reversed and remanded.  The Ninth Circuit then took the case en banc. 

The Majority Opinion. 

Judge Fisher's 6-5 opinion began by explaining that there are two applications of the state secrets doctrine.  First, the "Totten bar completely bars adjudication of claims premised on state secrets."  Id. (citing Totten v. United States).  Second, the "Reynolds privilege" is an evidentiary privilege that "excludes privileged evidence from the case and may result in dismissal of the claims."  Id. (citing United States v. Reynolds).  Totten, the majority explained, is based upon the "general principle [] that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential."  Id..  As the Supreme Court further explained in Reynolds, "‘where the very subject matter of the action' is ‘a matter of state secret,' an action may be ‘dismissed on the pleadings without ever reaching the question of evidence' because it is ‘so obvious that the action should never prevail over the privilege.'"  Id. at 1077-78 (quoting Reynolds, 345 U.S. at 11 n.26).  Thus the Totten bar "is ‘designed not merely to defeat the asserted claims, but to preclude judicial inquiry' entirely."  Id. at 1078 (quoting Tenet v. Doe, 544 U.S. 1, 7 n.4).

According to the Ninth Circuit, the Supreme Court has only applied the Totten bar in Totten itself and in Weinberger v. Catholic Action of Hawaii/Peace Education Project.  In that case, the plaintiffs sued to compel the Navy to prepare an environmental impact statement for a military facility where the Navy allegedly planned to store nuclear weapons.  454 U.S. 139, 146-47 (1981).  The Supreme Court held that the allegations were "beyond judicial scrutiny" because, "[d]ue to national security reasons, . . . the Navy can neither admit nor deny that it proposes to store nuclear weapons" at the facility.  Id.

In describing the Totten bar's scope, the Ninth Circuit rejected two attempts by plaintiffs to narrow its application.  First, the court found that the Totten bar is not limited to cases premised on a plaintiff's espionage relationship with the government, noting that Weinberger involved nuclear secrets as opposed to a covert relationship.  The court also rejected the plaintiffs' related contention that the Totten bar applies only if the plaintiff is a party to a secret agreement, again citing Weinberger and explaining that "the purpose of the bar . . . is to prevent the revelation of state secrets harmful to national security, a concern no less pressing when the plaintiffs are strangers to the espionage agreement that their litigation threatens to reveal." Mohamed, 614 F.3d at 1078-79.

The court in Mohamed next described the scope of the Reynolds privilege.  It explained that "[a] successful assertion of privilege under Reynolds will remove the privileged evidence from the litigation," and that "[u]nlike the Totten bar, a valid claim of privilege under Reynolds does not automatically require dismissal of the case."  Nevertheless, the court noted that "[i]n some instances . . . the assertion of privilege will require dismissal because it will become apparent during the Reynolds analysis that the case cannot proceed without privileged evidence, or that litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets."  Id. at 1079.

The Ninth Circuit explained that there are three steps to analyzing a claim under the Reynolds privilege.  First, the head of the agency in charge of the matter must make a formal claim of privilege.  The Government can assert the claim "prospectively, even at the pleading stage, rather than waiting for an evidentiary dispute to arise during discovery or trial."  Second, once the privilege is properly invoked, the court must make an independent evaluation of whether the privilege claim is proper and sustain the claim when "there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged."  Id. at 1080-81.

Finally, once the claim of privilege is sustained, the court must determine whether the case can proceed.  Normally, the Ninth Circuit explained, the privileged information is simply removed and the case proceeds.  However, in three situations, "the Reynolds privilege converges with the Totten bar" and requires dismissal: (1) if the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence; (2) if the privilege deprives the defendant of information that would provide a valid defense; and (3) if it is "impossible to proceed with the litigation because--privileged evidence being inseparable from non-privileged information that will be necessary to the claims or defenses--litigating the case to judgment on the merits would present an unacceptable risk of disclosing state secrets."  Id. at 1082-83.

Based on these principles, the Ninth Circuit dismissed the case pursuant to Reynolds.  It did not reject the applicability of Totten, but it nevertheless declined to adopt the district court's decision to invoke the bar.2  Applying Reynolds, the court found, after reviewing the Hayden declarations, that "at least some of the matters [the government] seeks to protect from disclosure in this litigation are valid state secrets."  The court then found that immediate dismissal was necessary because--even assuming that plaintiffs could establish a prima facie case absent the privileged evidence and that Jeppesen's defenses did not rely on that evidence--"there is no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets. . . .  [T]he facts underlying plaintiffs' claims are so infused with [state] secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets . . . ."  Id. at 1084-88.3            

The Right Answer, But a Flawed Articulation of the State Secrets Doctrine.

As a general matter, the Ninth Circuit en banc panel correctly concluded that plaintiffs' complaint should be dismissed because "the claims and defenses are so infused with state secrets that the risk of disclosing them is both apparent and inevitable."  This decision is noteworthy, not only because it corrects the contrary decision of the three-judge panel that previously heard the case, see 579 F.3d 943 (9th Cir. 2009), but also because the Ninth Circuit has failed to give state secrets their proper protection in other recent cases.  See, e.g., Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) (holding that the subject matter of litigation challenging the Terrorist Surveillance Program was not a state secret); Doe v. Tenet, 329 F.3d 1135 (9th Cir. 2003) (holding that Totten did not require dismissal of the claims based upon an alleged covert espionage agreement between two purported spies and the CIA), rev'd, 544 U.S. 1 (2005).

Although the Ninth Circuit reached the correct result here, it failed to fully comprehend the nature and contours of the state secrets doctrine.  Most notably, the court erred in failing to understand the doctrine's constitutional roots.  The court repeatedly referred to the doctrine as a "judge-made doctrine," and a "judicial construct," as if it were merely a creature of common law.  But the state secrets doctrine is in fact a manifestation of the Constitution's separation of powers, and more specifically, the Executive's Article II power over the obtaining and control of intelligence.  Indeed, the Supreme Court's decisions in United States v. Nixon, 418 U.S. 683 (1974), and Department of Navy v. Egan, 484 U.S. 518 (1988), foreclose the theory that the state secrets doctrine is merely a judicial construct.4 

In Nixon, the Court explained that the state secrets privilege provides exceptionally strong protection because it concerns "areas of Art. II duties [in which] the courts have traditionally shown the utmost deference to Presidential responsibilities."  418 U.S. at 710.  Moreover, the Nixon Court emphasized that, to the extent an executive claim of privilege "relates to the effective discharge of a President's powers, it is constitutionally based."  Id. at 711.  The Egan Court even more specifically explained that the Executive power to "classify and control" intelligence is vested in the President by Article II of the Constitution:  "The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States,'" and "[t]he authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief."  484 U.S. at 527 (citing U.S. Const., art. II, sec. 2).  Importantly, the Court emphasized that "[h]is authority to classify and control access to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and exists quite apart from any congressional grant."  Id.

That the state secrets doctrine reflects the "constitutional investment of power in the President," rather than a judicial construct, is not simply an academic matter.  Viewed properly, the doctrine--no matter its application (per Totten or Reynolds)--reflects the Constitution's defining principle: the separation of powers.  When invoked by the Executive, the doctrine results in removal of the state secrets from the litigation.  Whether the case continues to proceed or not depends solely on the centrality of the state secrets to the claims asserted.  See, e.g., El-Masri, 479 F.3d at 301 ("If a proceeding involving state secrets can be fairly litigated without resort to the privileged information, it may continue. But if the circumstances make clear that sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters, dismissal is the proper remedy."); see also Tenet, 544 U.S. at 9.  In other words, Totten and Reynolds differ (if at all) only in result. 

Understanding the constitutional footing on which the doctrine rests simplifies the state secrets analysis.  For example, once it is clear that the doctrine has properly been raised by the government, the state secrets are to be removed from the case, and the sole question for the court is the centrality of the state secrets to the litigation.  Extended debate over whether Totten or Reynolds applies, e.g., Mohamed, 614 F.3d at 1084 ("We do not find it quite so clear that the very subject matter of this case is a state secret.  Nonetheless, having conducted our own detailed analysis, we conclude that the district court reached the correct result because dismissal is warranted even under Reynolds."); id. at 1093 ("Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret."), is beside the point.5 

And because Reynolds cannot properly be viewed as a mere evidentiary privilege,6 a plaintiff's purported "need" for disclosure of the state secrets is immaterial.  Accordingly, a reviewing court should not dwell on the plaintiff's assertions of need.  See Reynolds, 345 U.S. at 11 ("[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake."); compare Mohamed, 614 F.3d at 1093 ("[W]e have tried our best to evaluate the competing claims of plaintiffs and the government.").  Nor should the "harshness" of result, id. at 1084--if the doctrine forecloses a plaintiff's claims--bear in the analysis.  As the Ninth Circuit put it in a previous case, "the results are harsh in either direction," and "the state secrets doctrine finds that the greater public good--ultimately the less harsh remedy--to be dismissal."  Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998).  Last, the concern that the doctrine's application may allow purported Executive abuses to go unchecked is not a reason to distort the doctrine.  The potential for abuse is a by-product of our constitutional design.  Morrison v. Olson, 487 U.S. 654, 710 (1988) ("A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.") (Scalia, J., dissenting).  But "[w]hile the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty."  Id.


The Ninth Circuit en banc panel properly dismissed the plaintiffs' complaint in Mohamed v. Jeppesen Dataplan because of the centrality of the state secrets to the case.  Given the Ninth Circuit's recent failures with regard to state secrets, Mohamed is a step in the right direction.  However, the court's failure to understand the doctrine's constitutional foundation unnecessarily complicates the doctrine and may leave the government (and thus the citizenry) with less than full protection of state secrets in future Ninth Circuit cases.

Thomas R. McCarthy is Of Counsel with Wiley Rein LLP.  He represented the Foundation for the Defense of Democracies as an amicus curiae in support of Jeppesen Dataplan in Mohamed v. Jeppesen Dataplan.


1. The government advised the court that General Hayden's declarations were consistent with Attorney General Holder's revised guidelines for invoking the state secrets doctrine.  See Mohamed, 614 F.3d at 1077.
Judge Bea issued a short concurrence in which he argued that the case should be dismissed pursuant to Totten.
3. In a dissent, Judge Hawkins argued that the Totten bar is inapplicable, reasoning that "Totten's logic simply cannot be stretched to encompass the claims here, as they are brought by third-party plaintiffs against non-government defendant actors for their involvement in tortious activities."  Id. at 1097.  With respect to Reynolds, the dissent argued that it is improper to apply an evidentiary privilege at the pleadings stage to dismiss entire allegations.  Id. at 1101.
4. Although some perceive Reynolds' characterization of the doctrine as a "privilege . . . well established in the law of evidence" as implicitly rejecting the doctrine's constitutional roots, the Reynolds Court declined to consider the issue of whether the Executive branch's authority to preserve state secrets was rooted in the Constitution.  See Reynolds, 345 U.S. at 6 & n.9.
5. Interestingly, under the (incorrect) view that Totten and Reynolds are in fact wholly distinct branches of the state secrets doctrine, the Ninth Circuit actually broadens Reynolds by dismissing the plaintiffs' claims in a manner akin to Totten
6. Unlike a mere evidentiary privilege, which might be subject to a balancing test or a necessity exception, the doctrine operates as an absolute rule:  "When . . . the occasion for the privilege is appropriate, . . . the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."  Reynolds, 345 U.S. at 10.

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