Five men claim they were subjected to extraordinary rendition, taken to a foreign country where they were imprisoned as suspected terrorists. Two of them remain in foreign jails in Morocco and Egypt. In a civil lawsuit the five brought a claim against Jeppersen Dataplan, a subsidiary of Boeing. They allege that Jeppersen Dataplan, acting in concert with the CIA, was responsible for illegally transferring them as part of the rendition program.
When the case was still at the federal trial court level, the Bush administration stepped in to assume the defense for Jeppersen Dataplan and moved to dismiss the case pursuant to state secrets protections. The trial court granted the motion to dismiss and the case moved to the Ninth Circuit Court of Appeals. The initial three judge panel reinstated the lawsuit, but rehearing before an eleven judge panel resulted in a 6-5 decision to uphold dismissal of the case. The plaintiffs then petitioned for certiorari to have the case heard by the U. S. Supreme Court.
Most of the Supreme Court’s cases are cases they choose to hear through the certiorari process. If one wants a case heard before the Supreme Court, one files a Petition for Writ of Certiorari. If the Court grants “cert”, the case will be heard. If not, the case is not heard, and the ruling of the lower court stands. The granting or denial of Petitions for Certiorari appear in the Court’s List of Orders. Very few cases are granted cert. The vast majority of cert petitions are denied. For example, in yesterday’s List of Orders, cert was granted in 1 case and denied in 198 cases. If you have an interest in seeing what a List of Orders looks like, here’s a link to yesterday’s. If you scroll down to page 10, third case down (No. 10-778) you’ll see that the Court denied cert in Mohamed, Binyam, et al v. Jeppersen Dataplan, et al.
So, why I am devoting an article to a case that, along with 197 others, was denied cert yesterday? There are two reasons.
First, I believe the mainstream media is presenting this case in a false light. You find headlines like “Supreme Court Won’t Revive Lawsuit…” In reading those articles, you’d think the Supreme Court heard the case, issued an opinion, and ruled in favor of state secrets protections. As explained above, that’s not what happened. The Court made no decision to revive or not revive the lawsuit. The only decision it made was not to hear the case.
The second reason for this piece is to open the discussion on the use of state secrets protections to quash otherwise viable civil lawsuits. The state secrets rationale has been used to establish military tribunals in lieu of federal courts for disposition of alleged terrorism cases. Some may not have known that it is also used to have other cases in civil courts summarily dismissed, denying any hearing or trial on the merits of the case. Mohamed v. Jeppersen is the third such state secrets dismissal case the Supreme Court has refused to hear. What are your thoughts on the use of state secrets protection to dismiss civil cases and/or the Supreme Court’s refusal to take up the issue?
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.