Mohamed et al v. Jeppesen DataPlan, Inc.

In a landmark case filed in May 2007, five victims of rendition, secret detention and torture sought to establish in US courts that Jeppesen DataPlan, Inc., a private company (and a subsidiary of Boeing Corporation), should be held liable for its involvement in their unlawful abduction, detention and treatment, and should therefore pay compensation for the human rights abuses suffered. The case was brought under the Alien Tort Statute, which permits non-US citizens to file complaints in US courts for violations of widely-accepted international legal norms.

Ultimately, the intervention of the US Government in the case, and the acceptance by the courts of its use of the ‘state secrets privilege’, meant that the complaint � including the� testimonies of the five torture victims and the evidence of Jeppesen’s involvement in each case � was never heard in court. This was the case despite the fact that much of the evidence submitted in support of the complaint was already in the public sphere.

With assistance from Steven Watt at the American Civil Liberties Union (a lead litigator in this case), The Rendition Project has brought together the primary legal documents in this case, including much of the testimony and evidence which was to have been submitted in support of the allegations, had the case been allowed to proceed. Click here to jump to the index of documents associated with this case.

Summary of Complaint

The basis for the Plaintiffs’ suit was the evidence that Jeppesen DataPlan, Inc., played a critical role in facilitating the CIA’s rendition programme through the provision of a range of logistical support services. These included the organisation of necessary overflight and landing rights, the filing of flight plans to relevant air traffic authorities, and � in numerous cases � submitting ‘dummy’ flight plans which disguised the true routes taken by the CIA’s aircraft. As the initial complaint alleged:

Since at least 2001, Jeppesen has provided direct and substantial services to the United States for its so-called “extraordinary rendition” program, enabling the clandestine and forcible transportation of terrorism suspects to secret overseas detention facilities where they are placed beyond the reach of law and subjected to torture and other forms of cruel, inhuman, or degrading treatment. Publicly available records demonstrate that Jeppesen facilitated more than 70 secret rendition flights over a four year period to countries where it knew or reasonably should have known that detainees are routinely tortured or otherwise abused in contravention of universally accepted legal standards.

Specifically, in relation to the Plaintiffs directly, the complaint alleged that:

In return for undisclosed fees, Jeppesen has played a critical role in the successful implementation of the extraordinary rendition program.... Among other services provided, Jeppesen prepared pre-departure flight planning services, including itinerary, route weather, and fuel plans for both aircraft used in their renditions; procured necessary landing and overflight permits for all legs of the rendition flights; and, through local agents, arranged fuel and ground handling for the aircraft; filed flight plans with national and inter-governmental air traffic control authorities; paid passenger fees for the crew; and made arrangements to secure the safety of the aircraft and crew on the ground.

According to Sean Belcher, a former employee of Jeppesen who was due to give evidence in support of the Plaintiffs, there were two employees of the company who were specifically designated to provide these services to the CIA’s programme, and the company clearly understood the purpose of the flights it was supporting. Indeed, Belcher testified that, at an internal corporate meeting, Bob Overby, the director of Jeppesen International Trip Planning Service, stated that: ‘We do all of the extraordinary rendition flights � you know, the torture flights. Let’s face it, some of these flights end up that way.’

Progression of Case

The initial complaint, filed in May 2007, was amended in August 2007 with the addition of two new plaintiffs, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi, to the three original victims: Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza.

In response to the Petitioners’ suit against Jeppesen, the US Government intervened in December 2007 as an Interested Party, claiming that the entire subject matter of the complaints fell within the remit of the doctrine of ‘state secrets privilege’. As such, the Government argued that the court could not even determine the complaints, with the actions ‘non-justiciable’ from the outset. As then-Director of the CIA, General Michael Hayden, declared to the Court, ‘disclosure 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 information should be excluded from any use in this case’.

In response, the Plaintiffs argued that significant evidence of the rendition programme, and of Jeppesen’s role within this, was already in the public domain: ‘The United States has moved to dismiss this action’, they argued, ‘in order to protect the nation from disclosure of information that the entire world already knows’. In support of their opposition to the Government’s motion to dismiss, the Plaintiffs submitted substantial amounts of victim testimony and associated evidence of their rendition, secret detention and abuse, and of the involvement of Jeppesen as a provider of support services for the rendition flights. Click here to jump to these documents.

The District Court for the Northern District of California, where the case was heard, was persuaded by the Government’s arguments, and in February 2008 granted the Motion to Dismiss. In doing so, the Court found that ‘the very subject matter of this case is a state secret’, given that ‘at the core of Plaintiffs’ case against Defendant Jeppesen are “allegations” of covert US military or CIA operations in foreign countries against foreign nationals � clearly a subject matter which is a state secret’.

The Petitioners appealed this decision in the 9th Circuit Court of Appeals, on the basis that the state secrets doctrine applied merely to evidence and should not be used to strike out the proceedings at the point of filing. It was argued that by striking out the case from the outset, the lower court had failed to give consideration to whether the case could be heard on the basis of information already in the public domain, or by adopting other measures in respect of the secret material.

This appeal was successful, with the Court of Appeals finding in April 2009 that the doctrine of ‘state secrets privilege’ could not be used to dismiss an entire suit. Indeed, the Court of Appeals argued that the logic behind the District Court’s decision is one whereby ‘the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunising the CIA and its partners from the demands and limits of the law. We reject this interpretation of� the “very subject matter” concept’. The case was sent back to the District Court, which was asked to ‘determine what evidence is privileged and whether any such evidence is indispensible either to the plaintiffs’ prima facie case or to a valid defence otherwise available to Jeppesen. Only if privileged evidence is indispensible to either party should it dismiss the complaint’.

However, before the District Court could reconsider the matter, the US Government successfully argued for the Court of Appeals to rehear the case en banc (i.e., with a full set of judges), arguing that its April 2009 judgement was ‘inconsistent with decisions of the Supreme Court, this Court, and this Court’s sister circuits on questions of exceptional importance applying the privilege [of state secrets]’.

In September 2010 the Court upheld its April 2009 judgement that ‘state secrets’ could not dismiss a case in its entirety, but also found that there was ‘no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets’. It therefore dismissed the case.

The Petitioners sought a judicial review of that decision at the U.S. Supreme Court, but that application was denied in May 2011 without any reasons being given.

Timeline

May 2007: The Petitioners filed a claim for damages against Jeppesen DataPlan, Inc. in the US District Court for the Northern District of California, representing three victims of the CIA’s rendition program, Binyam Mohamed, Abou Alkassim Britel and Ahmed Agiza.

August 2007: Two additional victims of the rendition program, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi, joined the lawsuit as plaintiffs.

December 2007: Invoking the “states secret privilege”, the US Government intervened unopposed into the proceedings. It argued that the court could not hear the claims for damages as the state secrets go to the heart of the petitions. The Petitioners challenged the Government’s ‘motion to dismiss’, claiming that knowledge of the rendition programme, and of Jeppesen’s involvements, was already in the public sphere.

February 2008: The District Court dismissed the Petitioners’ case against Jeppesen.

June 2008: The Petitioners appealed the District Court’s dismissal of the case.

February 2009: The appeal was brought before a three-judge panel of the 9th Circuit Court of Appeals. The US Government continued to argue that �the entire case should be dismissed, given that the subject matter in its entirety was a state secret.

April 2009: The 9th Circuit Court of Appeals found that the lower court was wrong in law and that the doctrine of ‘state secrets privilege’ could only be applied to specific evidence, and not to dismiss an entire suit. The case was sent back to the District Court for reconsideration.

June 2009: The Government asked the Court of Appeals to rehear the case in its full sitting of 11 judges (en banc).

October 2009: Although the Petitioners opposed this application by the US Government, the 9th Circuit Court of Appeals announced that it would hear the Government’s appeal of its April 2009 decision en banc.

September 2010: The en banc panel upheld the reasoning in the April 2009 appeal judgement, but still found against the Petitioners on the basis that there was ‘[no] feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets’. It therefore dismissed the case.

December 2010: The Petitioners sought a judicial review by the Supreme Court of the 9th Circuit Court of Appeals’ decision to dismiss the lawsuit.

May 2011: The Supreme Court denied the application for judicial review, thus bringing to a close any prospect of the case being heard in court.

Documents

Complaint
Mohamed et al v. Jeppesen DataPlan, Inc., May 2007

Amended Complaint (two further plaintiffs added)
Mohamed et al v. Jeppesen DataPlan, Inc., August 2007

Memo of Plaintiffs in Opposition to Government’s Motion to Dismiss
Mohamed et al v. Jeppesen DataPlan, Inc., December 2007

In support of their opposition to the Government’s ‘motion to dismiss’ the case, the Plaintiffs submitted a tranche of supporting declarations, victim testimony, evidence of abuse, and evidence of Jeppesen’s involvement in the CIA programme, in order to demonstrate the relevant material already in the public domain. Click here to jump to these documents.

Order Granting US Motions to Intervene, and to Dismiss with Prejudice
Mohamed et al v. Jeppesen DataPlan, Inc., February 2008

Plaintiffs’ Appeal to the Ninth Circuit Court of Appeals
Mohamed et al v. Jeppesen DataPlan, Inc., June 2008

Plaintiffs’ ‘Reply Brief’ to the Ninth Circuit Court of Appeals
Mohamed et al v. Jeppesen DataPlan, Inc., September 2008

Opinion of Ninth Circuit Court of Appeals, Upholding Plaintiffs’ Appeal
Mohamed et al v. Jeppesen DataPlan, Inc., April 2009

US Government Petition for the Court of Appeal to Rehear the Case En Banc
Mohamed et al v. Jeppesen DataPlan, Inc., June 2009

Plaintiffs’ Opposition to Government’s Petition to Rehear the Case En Banc
Mohamed et al v. Jeppesen DataPlan, Inc., July 2009

Plaintiffs’ Brief to the Ninth Circuit Court of Appeals, for the Rehearing En Banc
Mohamed et al v. Jeppesen DataPlan, Inc., December 2009

Plaintiffs’ Petition for the Supreme Court to Issue a Writ of Certiorari (Judicial Review)
Mohamed et al v. Jeppesen DataPlan, Inc., December 2010

Amicus Brief in Support of Plaintiffs’ Petition to Supreme Court
Mohamed et al v. Jeppesen DataPlan, Inc., January 2011

Supreme Court Denial of Plaintiffs’ Petition for Writ of Certiorari
Mohamed et al v. Jeppesen DataPlan, Inc., May 2011

Documents in Support of Plaintiffs’ Opposition to Government’s Motion to Dismiss (December 2007)

These documents were submitted to the District Court for the Northern District of California, in support of the Plaintiffs’ filed opposition to the US Government’s attempt to dismiss the case under the doctrine of ‘state secrets’. The declarations and attached exhibits represent the only time that evidence of the Plaintiffs’ treatment, and the involvement of Jeppesen in this, made it into the court.

The documents here include: