Binyan Mohamed v. Jeppesen Dataplan Inc

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BINYAM MOHAMED; ABOU ELKASSIM 

BRITEL; AHMED AGIZA; MOHAMED

FARAG AHMAD BASHMILAH; BISHER

AL-RAWI, No. 08-15693

Plaintiffs-Appellants,

v.  D.C. No.

5:07-CV-02798-JW

JEPPESEN DATAPLAN, INC., OPINION

Defendant-Appellee,

UNITED STATES OF AMERICA,

Intervenor-Appellee,



Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

February 9, 2009—San Francisco, California

Filed April 28, 2009

Before: Mary M. Schroeder, William C. Canby, Jr. and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

4919

4924 MOHAMED v. JEPPESEN DATAPLAN

COUNSEL

Ben Wizner, American Civil Liberties Union Foundation,

New York, New York, for Plaintiffs-Appellants.

Daniel P. Collins, Munger, Tolles & Olson, Los Angeles, Cal-

ifornia, for Defendant-Appellee.

MOHAMED v. JEPPESEN DATAPLAN 4925

Douglas N. Letter and Michael P. Abate, Civil Division,

United States Department of Justice, Washington, D.C., for

Intervenor-Appellee.

Andrew G. McBride, Wiley Rein, LLP, Washington, D.C., for

Amicus The Foundation for the Defense of Democracies in

Support of Appellees Supporting Affirmance.

Richard A. Samp, Washington Legal Foundation, Washing-

ton, D.C., for Amici Washington Legal Foundation and Allied

Educational Foundation.

William J. Aceves, California Western School of Law, San

Diego, California, for Amici Redress and The International

Commission of Jurists.

Natalie L. Bridgeman, Law Offices of Natalie L. Bridgeman,

San Francisco, California, for Amici Professors of Constitu-

tional Law, Federal Jurisdiction, and Foreign Relations Law.

Jean-Paul Jassy, Bostwick & Jassy, Los Angeles, California,

for Amici Professors William G. Weaver and Robert M. Pal-

litto.

James M. Ringer, Clifford Change US, New York, New York,

for Amici Commonwealth Lawyers Association and JUS-

TICE.

David J. Stankiewicz, Morvillo, Abramowitz, Grand, Iason,

Anello & Bohrer, New York, New York, for Amicus Former

United States Diplomats.

OPINION

HAWKINS, Circuit Judge:

Plaintiffs Binyam Mohamed, Abou Elkassim Britel, Ahmed

Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-

4926 MOHAMED v. JEPPESEN DATAPLAN

Rawi (“plaintiffs”), appeal the dismissal of this action,

brought under the Alien Tort Statute, 28 U.S.C. § 1350,

against Jeppesen Dataplan, Inc. (“Jeppesen”), a wholly owned

subsidiary of the Boeing Company. Before Jeppesen filed an

answer to the complaint, the United States intervened, assert-

ing that the state secrets privilege required dismissal of the

entire action on the pleadings. The district court agreed and

dismissed the complaint. On appeal, plaintiffs argue the dis-

trict court misapplied the state secrets doctrine and erred in

dismissing the complaint.

Concluding 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.

I. BACKGROUND

A. Factual Background

At this stage in the litigation, we “construe the complaint

in the light most favorable to the plaintiff[s], taking all [their]

allegations as true and drawing all reasonable inferences from

the complaint in [their] favor.” Doe v. United States, 419 F.3d

1058, 1062 (9th Cir. 2005).

1. The Extraordinary Rendition Program

Plaintiffs allege that the United States Central Intelligence

Agency (“CIA”), working in concert with other government

agencies and officials of foreign governments, operated an

“extraordinary rendition program” to gather intelligence by

apprehending foreign nationals suspected of involvement in

terrorist activities and transferring them in secret to foreign

countries for detention and interrogation by United States or

foreign officials. According to plaintiffs, this program has

MOHAMED v. JEPPESEN DATAPLAN 4927

allowed agents of the United States government “to employ

interrogation methods that would [otherwise have been] pro-

hibited under federal or international law.”

Citing publicly available evidence, plaintiffs, all foreign

nationals, claim they were each processed through the

extraordinary rendition program.

Plaintiff Agiza, an Egyptian national who had been seeking

asylum in Sweden, was captured by Swedish authorities,

transferred to American custody, and flown to Egypt. In

Egypt, he was held for five weeks “in a squalid, windowless,

and frigid cell,” where he was “severely and repeatedly beat-

en” and subjected to electric shock through electrodes

attached to his ear lobes, nipples, and genitals. Agiza was held

in detention for two and a half years, after which he was given

a six-hour trial before a military court, convicted, and sen-

tenced to fifteen years in Egyptian prison. According to plain-

tiffs, “[v]irtually every aspect of Agiza’s rendition, including

his torture in Egypt, has been publicly acknowledged by the

Swedish government.”

Plaintiff Britel, a forty-year-old Italian citizen of Moroccan

origin, was arrested and detained in Pakistan on immigration

charges. After several months in Pakistani detention, Britel

was transferred to the custody of American officials. These

officials dressed Britel in a diaper and overalls, and shackled

and blindfolded him for a flight to Morocco. Once in

Morocco, he was detained incommunicado by Moroccan

security services at the Temara prison. There, he was beaten,

deprived of sleep and food, and threatened with sexual tor-

ture, including sodomy with a bottle and castration. After

being released and re-detained, Britel was coerced into sign-

ing a false confession, convicted of terrorism-related charges,

and sentenced to fifteen years in Moroccan prison.

Plaintiff Mohamed, a twenty-eight-year-old Ethiopian citi-

zen and legal resident of the United Kingdom, was arrested in

4928 MOHAMED v. JEPPESEN DATAPLAN

Karachi, Pakistan, on immigration charges. Mohamed was

flown to Morocco under similar conditions, where he was

transferred to the custody of Moroccan security agents.

Moroccan authorities subjected Mohamed to “severe physical

and psychological torture,” including routinely beating him

and breaking his bones. Authorities also cut him with a scal-

pel all over his body, including on his penis, and poured “hot

stinging liquid” into the open wounds. He was also blind-

folded and handcuffed while being made “to listen to

extremely loud music day and night.” After eighteen months

in Moroccan custody, Mohamed was transferred back to

American custody and flown to Afghanistan. There he was

detained in a CIA “dark prison” where he underwent further

torture, including being kept in “near permanent darkness”

and subjected to loud noise, such as the screams of women

and children, for twenty-four hours per day. His captors also

deprived him of food. Eventually, Mohamed was transferred

to the military prison at Guantanamo Bay, Cuba, where he

remained for nearly five years. He was released and returned

to the United Kingdom during the pendency of this appeal.

Plaintiff al-Rawi, a thirty-nine-year-old Iraqi citizen and

legal resident of the United Kingdom, was arrested in Gambia

while traveling on “legitimate” business. Like the other plain-

tiffs, al-Rawi was placed in a diaper, overalls, and shackles

and placed on an airplane, where he was flown to Afghani-

stan. Detained in the same “dark prison” as Mohamed, loud

noises were played twenty-four hours per day to deprive him

of sleep. Al-Rawi was eventually transferred to Bagram Air

Base, where he was “subjected to humiliation, degradation,

and physical and psychological torture by U.S. officials,”

including being beaten, deprived of sleep, and threatened with

death. Al-Rawi was eventually transferred to Guantanamo; in

preparation for the flight, he was “shackled and handcuffed in

excruciating pain” as a result of his beatings. Al-Rawi was

eventually released from Guantanamo and returned to the

United Kingdom.

MOHAMED v. JEPPESEN DATAPLAN 4929

Plaintiff Bashmilah, a thirty-nine-year-old Yemeni citizen,

was apprehended by agents of the Jordanian government

while he was visiting Jordan to assist his ailing mother. After

a brief detention during which he was “subject to severe phys-

ical and psychological abuse,” Bashmilah was given over to

agents of the United States government, who flew him to

Afghanistan in similar fashion as the other plaintiffs. Once in

Afghanistan, Bashmilah was placed in solitary confinement,

in twenty-four-hour darkness, where he was deprived of sleep

and shackled in painful positions. He was subsequently

moved to another cell where he was held in twenty-four-hour

light and loud noise. Depressed by his conditions, Bashmilah

attempted suicide three times. Later, Bashmilah was trans-

ferred by airplane to an unknown CIA “black site” prison,

where he “suffered sensory manipulation through constant

exposure to white noise, alternating with deafeningly loud

music” and twenty-four-hour light. Bashmilah was transferred

once more to Yemen, where he was tried and convicted of a

trivial crime, sentenced to time served abroad, and released.

2. Jeppesen’s Involvement in the Rendition Program

According to plaintiffs, publicly available evidence estab-

lishes that Jeppesen provided flight planning and logistical

support services to the aircraft and crew on all of the flights

transporting the five plaintiffs among their various locations

of detention and torture. According to the complaint, “Jep-

pesen played an integral role in the forced” abductions and

detentions. It “provided direct and substantial services to the

United States for its so-called ‘extraordinary rendition’ pro-

gram,” thereby “enabling the clandestine and forcible trans-

portation of terrorism suspects to secret overseas detention

facilities.” Jeppesen furthermore provided this assistance with

actual or constructive “knowledge of the objectives of the ren-

dition program,” including knowledge that the plaintiffs

4930 MOHAMED v. JEPPESEN DATAPLAN

“would be subjected to forced disappearance, detention, and

torture” at the hands of U.S. and foreign government officials.1

B. Procedural Background

Plaintiffs brought suit under the Alien Tort Statute, 28

U.S.C. § 1350, claiming that Jeppesen is directly liable in

damages for (1) actively participating in their forcible and

arbitrary abduction, and (2) conspiring in their torture and

other cruel, inhuman, or degrading treatment, in violation of

customary international law cognizable under the Alien Tort

Statute.

In the alternative, plaintiffs assert that Jeppesen is liable for

aiding and abetting agents of the United States, Morocco,

Egypt, and Jordan in subjecting them to torture and other

cruel, inhuman, or degrading treatment because Jeppesen

knew or should have known that the passengers of each flight

for which it provided logistical support services were being

subjected to such treatment by agents of those countries. They

further allege in the alternative that Jeppesen demonstrated

reckless disregard as to whether the passengers of each flight

for which it provided logistical support services were being

subjected to torture and other cruel, inhuman, or degrading

treatment.

Before Jeppesen answered the complaint, the United States

government intervened, asserting the state secrets privilege

1

Plaintiffs cite, among other things, the sworn declaration of Sean Bel-

cher, a former Jeppesen employee, who stated that the director of Jeppesen

International Trip Planning Services, Bob Overby, had told him, “ ‘We do

all the extraordinary rendition flights,’ ” which he also referred to as “ ‘the

torture flights’ ” or “spook flights.” Belcher stated that “there were some

employees who were not comfortable with that aspect of Jeppesen’s busi-

ness” because they knew “ ‘some of these flights end up’ ” with the pas-

sengers being tortured. He stated that Overby had explained, “ ‘that’s just

the way it is, we’re doing them’ ” because “the rendition flights paid very

well.”

MOHAMED v. JEPPESEN DATAPLAN 4931

and, on that basis, moved for dismissal. Then-director of the

CIA, General Michael Hayden, filed two declarations in sup-

port of the motion to dismiss, one classified, the other

redacted and unclassified. The public declaration asserts that

“[d]isclosure of the information covered by this privilege

assertion reasonably could be expected to cause serious—and

in some instances, exceptionally grave—damage to the

national security of the United States and, therefore, the infor-

mation should be excluded from any use in this case.”

The district court granted the motions both to intervene and

to dismiss, explaining:

The invocation of states secret privilege is a categor-

ical bar to a lawsuit under the following circum-

stances: (1) if the very subject matter of the action is

a state secret; (2) if the invocation of the privilege

deprives a plaintiff of evidence necessary to prove a

prima facie case; and (3) if the invocation of the

privilege deprives a defendant of information neces-

sary to raise a valid defense.

In its view, “inasmuch as the case involves ‘allegations’ about

the conduct by the CIA, the privilege is invoked to protect

information which is properly the subject of state secrets priv-

ilege.” Moreover, “at the core of Plaintiffs’ case against

Defendant Jeppesen are ‘allegations’ of covert U.S. military

or CIA operations in foreign countries against foreign

nationals—clearly a subject matter which is a state secret.”

Holding that “the very subject matter of this case is a state

secret,” the district court expressly declined to reach whether

invocation of the privilege would deprive plaintiffs of evi-

dence necessary to establish a prima facie case or Jeppesen of

evidence necessary to mount a valid defense. Plaintiffs timely

appealed.

II. STANDARD OF REVIEW

We review de novo the interpretation and application of the

state secrets privilege and review for clear error the district

4932 MOHAMED v. JEPPESEN DATAPLAN

court’s underlying factual findings. Al-Haramain Islamic

Found., Inc. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007).

III. DISCUSSION

A. Overview

[1] Two parallel strands of the state secrets doctrine have

emerged from its relatively thin history. Totten v. United

States, 92 U.S. 105 (1875), perhaps the earliest case to turn

on state secrets in any form, stands for the proposition that a

suit predicated on the existence and content of a secret agree-

ment between a plaintiff and the government must be dis-

missed on the pleadings because the “very subject matter” of

the suit is secret. In that case, William Lloyd’s estate brought

suit against the government to recover compensation for ser-

vices that Lloyd had allegedly rendered as a spy during the

Civil War. Id. at 105. Lloyd claimed to have performed on the

contract, but not to have received full payment for his services

according to the terms of the agreement. Id. at 106.

Dismissing the case on the pleadings, the Supreme Court

observed that the secrecy of the parties’ relationship was a

“condition of the engagement” and “[b]oth employer and

agent must have understood that the lips of the other were to

be for ever sealed respecting the relation of either to the mat-

ter.” Id. This condition of secrecy, the Court reasoned, is “im-

plied in all secret employments of the government in time of

war, or upon matters affecting our foreign relations.” Id. “The

publicity produced by an action” to enforce the conditions of

any such agreement, moreover, “would itself be a breach of

a contract of that kind, and thus defeat a recovery.” Id.

Because “the existence of a contract of that kind is itself a fact

not to be disclosed,” id. at 107, “the very subject matter of the

action . . . [is] a matter of state secret,” and the action must

therefore be “dismissed on the pleadings without ever reach-

MOHAMED v. JEPPESEN DATAPLAN 4933

ing the question of evidence,” United States v. Reynolds, 345

U.S. 1, 11 n.26 (1953) (citing Totten).2

[2] In contrast with the Totten bar, the Reynolds evidentiary

privilege prevents only discovery of secret evidence when dis-

closure would threaten national security. See Reynolds, 345

U.S. 1.3 Application of the Reynolds privilege involves a

“formula of compromise” in which the court must weigh “the

circumstances of the case” and the interests of the plaintiff

against the “danger that compulsion of the evidence will

expose military matters which, in the interest of national

security, should not be divulged.” Id. at 9-10. While the court

should “defer to the Executive on matters of foreign policy

and national security” in making this determination, Al-

Haramain, 507 F.3d at 1203, “[j]udicial control over the evi-

dence in a case cannot be abdicated to the caprice of execu-

tive officers,” Reynolds, 345 U.S. at 9-10. The court must

therefore undertake an independent evaluation of the claim of

privilege to ensure the privilege properly applies. Once the

court determines a claim of privilege is legitimate, however,

“even the most compelling [personal] necessity cannot over-

come” it. Reynolds, 345 U.S. at 11.

2

The courts of appeals have generally interpreted the Totten bar as a rule

of non-justiciability. See, e.g., Wilson v. Libby, 535 F.3d 697, 710 (D.C.

Cir. 2008) (discussing the “the justiciability doctrine of Totten v. United

States”); Am. Civil Liberties Union v. Nat’l Sec. Agency, 493 F.3d 644,

650 n.2 (6th Cir. 2007) (the Totten rule is a “rule of non-justiciability”);

Al-Haramain, 507 F.3d at 1197 (the Totten rule is “a rule of non-

justiciability, akin to a political question”).

3

The evidentiary version of the privilege appeared for the first time in

this Nation during Aaron Burr’s 1807 trial for treason, where the district

court considered entry of a letter asserted by the government to contain a

“matter which ought not to be disclosed.” United States v. Burr, 25 F. Cas.

30, 37 (C.C. Va. 1807). While the court acknowledged that “there may be

matter, the production of which the court would not require,” it concluded

that “[t]here is certainly nothing before the court which shows that the let-

ter in question contains any matter the disclosure of which would endan-

ger the public safety” and permitted entry of the letter. Id; see also

Reynolds, 345 U.S. at 532 (“[The Reynolds] formula received authoritative

expression in this country as early as the Burr trial.”).

4934 MOHAMED v. JEPPESEN DATAPLAN

[3] Successful invocation of the Reynolds privilege does

not necessarily require dismissal of the entire suit. Instead,

invocation of the privilege requires “ ‘simply that the evi-

dence is unavailable, as though a witness had died [or a docu-

ment had been destroyed], and the case will proceed

accordingly, with no consequences save those resulting from

the loss of evidence.’ ” Al-Haramain, 507 F.3d at 1204 (quot-

ing Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C. Cir. 1983)).

Within the Reynolds framework, the “litigation can proceed,”

therefore, so long as (1) “the plaintiffs can prove ‘the essential

facts’ of their claims ‘without resort to [privileged evi-

dence],’ ” id. (quoting Reynolds, 345 U.S. at 11), and (2)

invocation of the privilege does not deprive “the defendant of

information that would otherwise give the defendant a valid

defense,” Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.

1998).

B. Totten and the Subject Matter of the Lawsuit

Jeppesen, and to a lesser degree the government, argue that

Totten’s categorical bar prevents litigation of this case alto-

gether because it, like the suit in Totten, is predicated on the

existence of an alleged secret agreement with the government.

Neither Totten’s facts nor its logic supports that conclusion.

[4] In the first place, not all of plaintiffs’ theories of liabil-

ity 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 the United States,

Morocco, Egypt, and Jordan, do not necessarily require estab-

lishing that the United States operated an extraordinary rendi-

tion 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 sup-

port for the flights on which the five plaintiffs were flown

with actual or imputed knowledge that the passengers would

be tortured at their destinations.

MOHAMED v. JEPPESEN DATAPLAN 4935

[5] Totten also does not bar any of plaintiffs’ other causes

of action because its plain language requires they (not Jep-

pesen) have an “agreement” or “contract” with the govern-

ment, and an “underst[anding]” that “the lips of the other

were to be for ever sealed respecting the relation.” Totten, 92

U.S. at 106. Only then would “[t]he secrecy which such con-

tracts impose preclude[ ] any action for their enforcement.”

Id. On facts similar to those in Totten itself, Tenet v. Doe, 544

U.S. 1 (2005), recently confirmed that Totten prohibits only

suits that would necessarily reveal “the plaintiff’s [secret]

relationship with the Government.” Id. at 10 (emphasis

added).

[6] While it is conceivable, therefore, that the government

could assert a Totten argument against Jeppesen if sued by

Jeppesen to enforce an alleged clandestine contract between

Jeppesen and the government, Totten has no bearing here,

where third-party plaintiffs (not Jeppesen) seek compensation

from Jeppesen (not the government) for tortious detention and

torture (not unpaid espionage services). Totten’s logic simply

cannot stretch to encompass cases brought by third-party

plaintiffs against alleged government contractors for the con-

tractors’ alleged involvement in tortious intelligence activities.4

Nothing the plaintiffs have done supports a conclusion that

their “lips [are] to be for ever sealed respecting” the claim on

which they sue, such that filing this lawsuit would in itself

defeat recovery. See Totten, 92 U.S. at 106.

4

See Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 907 (N.D. Ill. 2006)

(refusing to apply Totten because “the plaintiffs in this case were not par-

ties to the alleged contract nor did they agree to its terms; rather, they

claim that the performance of an alleged contract entered into by others

would violate their statutory rights”); ACLU v. Nat’l Sec. Agency, 438 F.

Supp. 2d 754, 763 (E.D. Mich. 2006) (refusing to apply Totten because it

“applies [only] to actions where there is a secret espionage relationship

between the Plaintiff and the Government”), vacated on other grounds,

493 F.3d 644 (6th Cir. 2007).

4936 MOHAMED v. JEPPESEN DATAPLAN

[7] Neither does any Ninth Circuit or Supreme Court case

law indicate that the “very subject matter” of any other kind

of lawsuit is a state secret, apart from the limited factual con-

text of Totten itself. The Supreme Court’s “very subject mat-

ter” language appeared in a footnote in Reynolds, where the

Court simply characterized “the very subject matter of the

[Totten lawsuit], a contract to perform espionage, [as] a mat-

ter of state secret.” Reynolds, 345 U.S. at 11 n.26. That brief

passage did not signal a deliberate expansion of Totten’s

uncompromising dismissal rule beyond secret agreements

with the government, and we decline to adopt that expansion

here.5 Tenet leaves no doubt that the “sweeping holding in

Totten” applies only to suits “where success depends on the

existence of [the plaintiff’s] secret espionage relationship with

the Government,” and that the state secrets privilege does not

otherwise “provide the absolute protection” from suit avail-

able exclusively under “the Totten rule.” Tenet, 544 U.S. at 8-

9, 11.

[8] This narrow construction of the Totten “very subject

matter” bar heeds the Supreme Court’s warning that “ ‘occa-

sion[s] for constitutional confrontation between the [executive

and judicial] branches,’ should be avoided whenever possi-

ble.” Cheney v. United States Dist. Court for Dist. of Colum-

5

The government’s argument that Kasza, 133 F.3d 1159, has already

recognized that the subject matter of a lawsuit is a state secret outside the

Totten context any time secret information “is at the core” of the plaintiff’s

claims, is wrong. In that case, we affirmed dismissal according to the

Reynolds evidentiary framework because, after the privilege had been

asserted with respect to evidence during discovery, we concluded that “the

state secrets privilege bar[s the plaintiff] from establishing her prima facie

case on any of her eleven claims,” and that “[n]o protective procedure can

salvage [the plaintiff]’s suit.” 133 F.3d at 1170. Kasza’s off-handed “very

subject matter” comment thus appears to be superfluous dictum. Indeed,

we have already clarified that Kasza does no more than “confirm that

some cases are, indeed, non-justiciable as a consequence of the very sub-

ject matter of the action being a state secret,” and that it otherwise “pro-

vides scant guidance” for applying the state secrets privilege. Al-

Haramain, 507 F.3d at 1200.

MOHAMED v. JEPPESEN DATAPLAN 4937

bia, 542 U.S. 367, 389 (2004) (quoting United States v.

Nixon, 418 U.S. 683, 692 (1974)).

At base, the government argues here that state secrets form

the subject matter of a lawsuit, and therefore require dis-

missal, any time a complaint contains allegations, the truth or

falsity of which has been classified as secret by a government

official. The district court agreed, dismissing the case exclu-

sively because it “involves ‘allegations’ about [secret] con-

duct by the CIA.” This sweeping characterization of the “very

subject matter” bar has no logical limit—it would apply

equally to suits by U.S. citizens, not just foreign nationals;

and to secret conduct committed on U.S. soil, not just abroad.

According to the government’s theory, the Judiciary should

effectively cordon off all secret government actions from judi-

cial scrutiny, immunizing the CIA and its partners from the

demands and limits of the law.

[9] We reject this interpretation of the “very subject matter”

concept, not only because it is unsupported by the case law,

but because it forces an unnecessary zero-sum decision

between the Judiciary’s constitutional duty “to say what the

law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803), and the Executive’s constitutional duty “to preserve

the national security,” United States v. Valenzuela-Bernal,

458 U.S. 858, 880 (1982). We simply need not place the “co-

equal branches of the Government” on an all-or-nothing “col-

lision course.” Cheney, 542 U.S. at 389.

[10] To be sure, all Presidential “claims of confidentiality

and autonomy . . . push[ ] to the fore difficult questions of

separation of powers and checks and balances.” Cheney, 542

U.S. at 389. Here, as in all such cases, “[t]he Judiciary is

forced into the difficult task of balancing the need for infor-

mation in a judicial proceeding and the Executive’s Article II

prerogatives.” Id. But in the state secrets context, the diffi-

culty of that task and the violence of the collision are both

substantially less extreme within the Reynolds evidentiary

4938 MOHAMED v. JEPPESEN DATAPLAN

framework, when both branches are made to engage in a “for-

mula of compromise,” 345 U.S. at 10, rather than by applica-

tion of the winner-takes-all Totten rule.

[11] Within the Reynolds’s framework, the President’s

interest in keeping state secrets secret is, of course, still pro-

tected: the court must balance “the circumstances of the case”

and the plaintiff’s “showing of necessity” for the evidence

against the “danger that compulsion of evidence will expose

matters which, in the interest of national security, should not

be divulged.” Id. 10-11. Where a plaintiff’s need for the evi-

dence is “strong . . ., the claim of privilege should not be

lightly accepted,” but “even the most compelling necessity

cannot overcome the claim of privilege if the court is ulti-

mately satisfied” that the privilege applies. Id. at 11.

[12] By excising secret evidence on an item-by-item basis,

rather than foreclosing litigation altogether at the outset, how-

ever, Reynolds recognizes that the Executive’s national secur-

ity prerogatives are not the only weighty constitutional values

at stake: while “[s]ecurity depends upon a sophisticated intel-

ligence apparatus,” it “subsists, too, in fidelity to freedom’s

first principles [including] freedom from arbitrary and unlaw-

ful restraint and the personal liberty that is secured by adher-

ence to the separation of powers.” Boumediene v. Bush, 128

S. Ct. 2229, 2277 (2008). The Constitution “ ‘protects us from

our own best intentions,’ ” in other words, by “ ‘divid[ing]

power . . . among branches of government precisely so that

we may resist the temptation to concentrate power in one

location as an expedient solution to the crisis of the day.’ ”

Printz v. United States, 521 U.S. 898, 933 (1997) (quoting

New York v. United States, 505 U.S. 144, 187 (1992)).

Separation-of-powers concerns take on an especially

important role in the context of secret Executive conduct. As

the Founders of this Nation knew well, arbitrary imprison-

ment and torture under any circumstance is a “ ‘gross and

notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542

MOHAMED v. JEPPESEN DATAPLAN 4939

U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Black-

stone 131-33 (1765)). But “ ‘confinement [and abuse] of the

person, by secretly hurrying him to [prison], where his suffer-

ings are unknown or forgotten; is a less public, a less striking,

and therefore a more dangerous engine of arbitrary govern-

ment.’ ” Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131-

33 (1765)) (emphasis added). Thus it was “ ‘the central judg-

ment of the Framers of the Constitution’ ” that “[w]hatever

power the United States Constitution envisions for the Execu-

tive in its exchanges with other nations or with enemy organi-

zations in times of conflict, it most assuredly envisions a role

for all three branches when individual liberties are at stake.”

Id. at 536 (quoting Mistretta v. United States, 488 U.S. 361,

380 (1989)).

[13] Unlike Totten, the Reynolds framework accommodates

these division-of-powers concerns by upholding the Presi-

dent’s secrecy interests without categorically immunizing the

CIA or its partners from judicial scrutiny. The structural ele-

ments in the Constitution, including the principles of separa-

tion of powers and judicial review, therefore strongly favor a

narrow construction of the blunt Totten doctrine and a broad

construction of the more precise Reynolds privilege. Accord-

ingly, we conclude that if a lawsuit is not predicated on the

existence of a secret agreement between the plaintiff and the

government, Totten does not apply, and the subject matter of

the suit is not a state secret. Here, plaintiffs have not sued the

government to enforce an alleged secret agreement between

themselves and the Executive Branch. The subject matter of

this action therefore is not a state secret, and the case should

not have been dismissed at the outset.

C. Reynolds and the Evidentiary Privilege

The government argues that even if the subject matter of

this suit is not a state secret, it still must be dismissed at the

outset according to the Reynolds framework because, in its

view, Reynolds applies to secret information and, here,

4940 MOHAMED v. JEPPESEN DATAPLAN

“[p]rivileged information would be essential for plaintiffs to

make out a prima facie case on, and to prove, their claims.”

See also Unclassified Hayden Decl. (because “[d]isclosure of

the information covered by this privilege assertion reasonably

could be expected to” harm national security, “the informa-

tion should be excluded from any use in this case” (emphasis

added)). We reject this argument because it misconstrues the

object of the state secrets doctrine within the Reynolds

framework—Reynolds applies to evidence, not information.

y14The Supreme Court could not be more clear that “the

privilege which protects military and state secrets” is a privi-

lege within “the law of evidence,” just like the “analogous

privilege, the privilege against self-incrimination.” Reynolds,

345 U.S. at 7-8. It specifically prevents the “compulsion of . .

. evidence,” the introduction of which “will expose military

matters which, in the interest of national security, should not

be divulged.” Reynolds, 345 U.S. at 10 (emphasis added).

[15] Outside the extremely narrow Totten context, the state

secrets privilege has never applied to prevent parties from liti-

gating the truth or falsity of allegations, or facts, or informa-

tion simply because the government regards the truth or

falsity of the allegations to be secret. Indeed, to conclude that

Reynolds, like Totten, applies to prevent the litigation of alle-

gations, rather than simply discovery of evidence, would be

to destroy the distinction between the two versions of the doc-

trine. According to Reynolds, therefore, the question is not

which facts are secret and may not be alleged and put to the

jury’s consideration for a verdict; it is only which evidence is

secret and may not be disclosed in the course of a public trial.

[16] To be sure, a court may determine that evidence is

subject to the Reynolds privilege because it contains secret

information; nevertheless, the privilege applies to prevent dis-

covery of the evidence itself and not litigation of the truth or

falsity of the information that might be contained within it. As

the Supreme Court has explained with respect to the attorney-

MOHAMED v. JEPPESEN DATAPLAN 4941

client privilege, for example, invocation of that privilege does

not create a “zone of silence” around the contents of privi-

leged communications. Upjohn Co. v. United States, 449 U.S.

383, 388 (1981). “The privilege only protects disclosure of

[the] communications [themselves]; it does not protect disclo-

sure of the underlying facts,” so long as the underlying facts

can be proven without resort to the privileged materials. Id. at

395.

Other privileges within the law of evidence demonstrate the

same common sense principle. The “analogous” Fifth Amend-

ment privilege against self-incrimination, Reynolds, 345 U.S.

at 8, for instance, “ ‘may be asserted . . . to resist compelled

explicit or implicit disclosures of incriminating informa-

tion,’ ” United States v. Hubbell, 530 U.S. 27, 34 n.8 (2000)

(quoting Doe v. United States, 487 U.S. 201, 212 (1988)).

Once the privilege is properly invoked, the court cannot com-

pel the testimony. Id. But a witness’s valid assertion of the

privilege does not immunize him from prosecution for the

underlying crime, as though the state were precluded by virtue

of the privilege from litigating the facts contained within the

excluded testimony. It goes without saying that the privilege

applies only to the testimony itself, and not to the underlying

facts, and that the state therefore may later prosecute the wit-

ness for the crimes in question, just “ ‘with[ ] evidence from

another source.’ ” Id. (quoting Doe, 487 U.S. at 212).

[17] Because the Reynolds privilege, like any other eviden-

tiary privilege, “ ‘extends only to [evidence] and not to

facts,’ ” Upjohn, 449 U.S. at 395-96 (quoting Philadelphia v.

Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa.

1962)), it cannot be invoked to prevent a litigant from per-

suading a jury of the truth or falsity of an allegation by refer-

ence to non-privileged evidence, regardless whether

privileged evidence might also be probative of the truth or fal-

sity of the allegation.

4942 MOHAMED v. JEPPESEN DATAPLAN

[18] As we have previously explained, therefore, the effect

of the government’s successful invocation of the Reynolds

privilege “ ‘is simply that the evidence is unavailable, as

though a witness had died [or a document had been

destroyed], and the case will proceed accordingly, with no

consequences save those resulting from the loss of evi-

dence.’ ” Al-Haramain, 507 F.3d at 1204 (emphasis added)

(quoting Ellsberg, 709 F.2d at 64); see also Kasza, 133 F.3d

at 1166 (“[B]y invoking the privilege over particular evi-

dence, the evidence is completely removed from the case. The

plaintiff’s case then goes forward based on evidence not cov-

ered by the privilege.” (citing Reynolds, 345 U.S. at 11)).6

Thus, within the Reynolds framework, dismissal is justified if

and only if specific privileged evidence is itself indispensable

to establishing either the truth of the plaintiff’s allegations or

a valid defense that would otherwise be available to the defen-

dant. See Kasza, 133 F.3d at 1166.

D. The Freedom of Information Act

Finally, we address when evidence is “secret” within the

meaning of the privilege. The government turns to Freedom

of Information Act (“FOIA”) cases for the proposition that

privileged evidence is any evidence containing “classified”

information, which remains “secret” unless and until such

6

There is one important difference between the unavailability of evi-

dence under ordinary circumstances as against within the state secrets con-

text. Ordinarily the unavailability of privileged evidence would prevent

both plaintiffs and defendants from relying on that evidence to prove their

cases. In the state secrets context, however, if the unavailability of privi-

leged evidence prevents the defendant from establishing an otherwise

available and valid defense, the court must dismiss the case. See Kasza,

133 F.3d at 1166 (if the privilege deprives “the defendant of information

that would otherwise give the defendant a valid defense,” the case must

be dismissed). In this way, the doctrine ensures protection of state secrets

by requiring dismissal where defendants would otherwise have strong

incentive to improperly disclose state secrets known to them during trial.

It also ensures that defendants, like Jeppesen, are not penalized by the

government’s invocation of the privilege.

MOHAMED v. JEPPESEN DATAPLAN 4943

information has been “officially disclosed” by a high ranking

government official. See Fitzgibbon v. CIA, 911 F.2d 755

(D.C. Cir. 1990); Afshar v. Dep’t of State, 702 F.2d 1125

(D.C. Cir. 1983); Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir.

1981); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370

(4th Cir. 1975). According to the government, because there

has been no official disclosure or declassification of relevant

classified information in this case, any materials containing

classified information are necessarily subject to suppression

under the privilege.

[19] We find the government’s resort to FOIA case law

unpersuasive because the FOIA statutory framework takes for

granted that “classified” matters relating to national defense

and foreign policy are, by virtue of being classified, categori-

cally exempt from disclosures that would otherwise be

required under the Act. See 5 U.S.C. § 552(b)(1)(A)-(B)

(exempting from disclosure under FOIA all “matters that are

specifically authorized under criteria established by an Execu-

tive order to be kept secret in the interest of national defense

or foreign policy and are in fact properly classified pursuant

to such Executive order”).

[20] The state secrets privilege operates according to no

such assumption—in fact, Reynolds makes clear that “classi-

fied” cannot be equated with “secret” within the meaning of

the doctrine. If the simple fact that information is classified

were enough to bring evidence containing that information

within the scope of the privilege, then the entire state secrets

inquiry—from determining which matters are secret to which

disclosures pose a threat to national security—would fall

exclusively to the Executive Branch, in plain contravention of

the Supreme Court’s admonition that “[j]udicial control over

the evidence in a case cannot be abdicated to the caprice of

executive officers” without “lead[ing] to intolerable abuses.”

Reynolds, 345 U.S. at 8-10. A rule that categorically equated

“classified” matters with “secret” matters would, for example,

perversely encourage the President to classify politically

4944 MOHAMED v. JEPPESEN DATAPLAN

embarrassing information simply to place it beyond the reach

of judicial process.7 It follows that, while classification may

be a strong indication of secrecy as a practical matter, courts

must undertake an independent evaluation of any evidence

sought to be excluded to determine whether its contents are

secret within the meaning of the privilege.

Common sense confirms this conclusion. The government

could not seriously argue, for example, that the Pentagon

7

Abuse of the Nation’s information classification system is not unheard

of. Former U.S. Solicitor General Erwin Griswold, who argued the gov-

ernment’s case in the Pentagon Papers matter, later explained in a Wash-

ington Post editorial that “[i]t quickly becomes apparent to any person

who has considerable experience with classified material that there is mas-

sive overclassification, and that the principal concern of the classifiers is

not with national security, but rather with governmental embarrassment of

one sort or another.” Erwin N. Griswold, Secrets Not Worth Keeping: the

Courts and Classified Information, Wash. Post, Feb. 15, 1989, at A25.

Former Attorney General Herbert Brownell similarly complained in a

1953 letter to President Eisenhower that classification procedures were

then “so broadly drawn and loosely administered as to make it possible for

government officials to cover up their own mistakes and even their wrong-

doing under the guise of protecting national security.” Letter from Attor-

ney General Herbert Brownell to President Dwight Eisenhower (June

15,1953) (quoted in Kenneth R. Mayer, With the Stroke of a Pen: Execu-

tive Orders and Presidential Power 145 (2001)).

Even in Reynolds, avoidance of embarrassment—not preservation of

state secrets—appears to have motivated the Executive’s invocation of the

privilege. There the Court credited the government’s assertion that “this

accident occurred to a military plane which had gone aloft to test secret

electronic equipment,” and that “there was a reasonable danger that the

accident investigation report would contain references to the secret elec-

tronic equipment which was the primary concern of the mission.” 345 U.S.

at 10. In 1996, however, the “secret” accident report involved in that case

was declassified. A review of the report revealed, not “details of any secret

project the plane was involved in,” but “[i]nstead, . . . a horror story of

incompetence, bungling, and tragic error.” Garry Wills, Why the Govern-

ment Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts

should be concerned to prevent a concentration of unchecked power that

would permit such abuses.

MOHAMED v. JEPPESEN DATAPLAN 4945

Papers remained “secret” and therefore subject to the state

secrets privilege even after having been published in The New

York Times, simply because the government itself refused to

declassify or otherwise “officially disclose” the content of the

papers. See New York Times Co. v. United States, 403 U.S.

713 (1971).

[21] It is also unsurprising that Congress would enact a

more deferential scheme under FOIA than exists under the

state secrets doctrine, given the substantial differences in the

balance of interests involved in the two types of cases. The

state secrets doctrine empowers the government to refuse dis-

closure of secret evidence during the course of a lawsuit that

necessarily has an independent purpose apart from disclosure.

Plaintiffs here, for example, seek redress against Jeppesen for

its alleged complicity in their alleged torture at the hands of

foreign agents. Their interest in discovery of all relevant evi-

dence is substantial: “The very essence of civil liberty . . .

consists in the right of every individual to claim the protection

of the laws, whenever he receives an injury,” and “[o]ne of

the first duties of government is to afford that protection.”

Marbury, 5 U.S. (1 Cranch) at 163. Disclosure of any evi-

dence containing classified information, but ultimately not

subject to the state secrets privilege, would be appropriate

only as necessary for plaintiffs to obtain the protection of the

laws.

[22] By contrast, FOIA entails litigation for the sole and

independent purpose of obtaining disclosure of classified

information. See 5 U.S.C. § 552(a)(4)(B); see also, e.g.,

Knopf, 509 F.2d at 1370 (addressing the court’s authority

under FOIA to order the disclosure of classified information

for publication in a book). While “an informed citizenry [is]

vital to the functioning of a democratic society,” Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S.

1, 16 (2001) (internal quotations omitted), we think the bal-

ance of interests will more often tilt in favor of the Executive

when disclosure is the primary end in itself. FOIA therefore

4946 MOHAMED v. JEPPESEN DATAPLAN

predictably entails greater deference to the national classifica-

tion system than does the state secrets doctrine.

Given these two relevant differences, the government’s

invocation of FOIA case law is unpersuasive in the state

secrets context. Any argument that the contents of any evi-

dence are and remain categorically secret for purposes of the

privilege unless and until the government says otherwise is

meritless.

E. Conclusion

The government finally urges us to affirm according to

Reynolds because, in its view, there is “no possibility” that

plaintiffs can establish a prima facie case, or that Jeppesen

can defend itself, “without using privileged evidence.” We are

unpersuaded because acceding to the government’s request

would require us to ignore well-established principles of civil

procedure. At this stage in the litigation, we simply cannot

prospectively evaluate hypothetical claims of privilege that

the government has not yet raised and the district court has

not yet considered.

[23] This case is before us on appeal from a Rule 12(b)(6)

motion to dismiss. Jeppesen has not filed an answer to the

complaint, and discovery has not yet begun. It is well settled

that when a federal court reviews the grant of a Rule 12

motion to dismiss, “its task is necessarily a limited one.” Sch-

euer v. Rhodes, 416 U.S. 232, 236 (1974). That limited task

“is not [to determine] whether a plaintiff will ultimately pre-

vail,” id., but instead only whether the complaint “state[s] a

claim upon which relief can be granted,” Fed. R. Civ. Pro.

12(b)(6). Plaintiffs here have stated a claim on which relief

can be granted and therefore should have an opportunity to

present evidence in support of their allegations, without

regard for the likelihood of ultimate success. See Scheuer, 416

U.S. at 236 (a district court acts “prematurely” and “errone-

ously” when it dismisses a well-pleaded complaint, thereby

MOHAMED v. JEPPESEN DATAPLAN 4947

“preclud[ing] any opportunity for the plaintiffs” to establish

their case “by subsequent proof”); see also Bell Atl. Corp. v.

Twombly, 550 U.S. 544, — (2007) (“[A] well-pleaded com-

plaint may proceed even if it appears ‘that a recovery is very

remote and unlikely.’ ” (quoting Scheuer, 416 U.S. at 236)).

This limited inquiry—a long-standing feature of the Fed-

eral Rules of Civil Procedure—serves a sensible judicial pur-

pose. We simply cannot resolve whether the Reynolds

evidentiary privilege applies without (1) an actual request for

discovery of specific evidence, (2) an explanation from plain-

tiffs of their need for the evidence, and (3) a formal invoca-

tion of the privilege by the government with respect to that

evidence, explaining why it must remain confidential. See

Reynolds, 345 U.S. at 8-9 (“the principles which control the

application of the privilege” require a “formal claim of privi-

lege” by the government with respect to the challenged evi-

dence); id. at 10-11 (the court must consider the litigants’

“showing of necessity” for the evidence in determining

whether “the occasion for invoking the privilege is appropri-

ate”). Nor can we determine whether the parties will be able

to establish their cases without use of privileged evidence

without also knowing what non-privileged evidence they will

marshal. See Crater Corp. v. Lucent Techs., Inc., 423 F.3d

1260, 1267-68 (Fed. Cir. 2005) (“deciding the impact of the

government’s assertion of the state secrets privilege” before

the record is “adequately developed” puts “the cart before the

horse”). Thus neither the Federal Rules nor Reynolds would

permit us to dismiss this case at the pleadings stage on the

basis of an evidentiary privilege that must be invoked during

discovery or at trial.

Our decision to remand also has the additional benefit of

conforming with “the general rule . . . that a federal appellate

court does not consider an issue not passed on below,” and

will allow the district court to apply Reynolds in the first

instance. See Singleton v. Wulff, 428 U.S. 106, 120 (1976);

see also Johnson v. California, 543 U.S. 499, 515 (2005) (cit-

4948 MOHAMED v. JEPPESEN DATAPLAN

ing Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 557-58

(1994) (reversing and remanding for the lower court to apply

the correct legal standard in the first instance)).

[24] On remand, the government must assert the privilege

with respect to secret evidence (not classified information),

and the district court must determine what evidence is privi-

leged and whether any such evidence is indispensable either

to plaintiffs’ prima facie case or to a valid defense otherwise

available to Jeppesen. Only if privileged evidence is indis-

pensable to either party should it dismiss the complaint.

REVERSED and REMANDED.