US State Secrets Decision

Court Grants Impunity To Covert Operations

The United States District Court for the Northern District of California held this week in the case of Mohamed v. Jeppesen Dataplan, Inc. that the state secrets doctrine bars all suits against anyone involving "allegations of covert U.S. military or CIA operations in foreign countries against foreign nationals" which the government has not admitted.

The case in question involved a private company involved in allegedly illegal rendition flights that were part of a larger CIA operation to interrogate terrorism suspects, in this case, foreign nationals.

Nationality is irrelevant, however, to the application of the state secrets doctrine. It prevents American citizens from suing anyone for conduct in connection with covert operations as well, and indeed was created in a case brought by United States soldiers whose integrity, or citizenship, was never questioned.

The result is consistent with other cases in which have asserted the state secrets privilege, such as the extraordinary rendition case of El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007). But the decision is remarkable mostly because it acknowledges a point that earlier cases addressing the states secrets privilege have not.

The Northern District of California makes clear that the state secrets privilege amounts to absolute immunity for every private and public party involved in a genuinely covert action. This contrasts strongly with the original context in which the state secrets privilege was created in the U.S. Supreme Court case of United States v. Reynolds, 345 U.S. 1 (1953)), where the privilege was used to prevent the people bringing the suit from obtaining key documents necessary to prove the case from the government itself, but not to prevent the suit itself from being brought based upon competent evidence such as their own testimony.

Unlike the much older court created doctrine established by the U.S. Supreme Court in Totten v. United States, 92 U.S. 105 (1876) (applied recently in the case of Tenet v. Doe, 544 U.S. 1 (2005)), that bars secret agents from bringing suit against the government for failure to fulfill its obligations to compensate those agents, the state secrets doctrine applies to people who did not consent in any way to entering into a situation where they would have no legal remedies.

Under the judicially created legal doctrine of "qualified immunity" for government employees and agents who have allegedly violated constitutional rights that were not clearly established at the time of the violation, the court must as part of a two step process established by the U.S. Supreme Court in Saucier v. Katz, 121 S. Ct. 2151 (2001), first rule on the question of whether an alleged act was unconstitutional or not, setting a precedent for future cases, before dismissing a claim for money damages. In a state secrets case, in contrast, the legality of the acts alleged is never resolved because the immunity blocks any consideration of the merits.

Curiously, if the plaintiff who complained of the acts of the private company working with the CIA in this case had collaborated with the intelligence service of any other government, the state secrets doctrine would not apply and the suit would probably have been allowed to go forward at this early stage of the lawsuit.