Hepting et al v. AT&T Corp. et al

Filing 145

RESPONSE in Support United States' Response to Plaintiffs' Memorandum of Points and Authorities in Response to Court's May 17, 2006 Minute Order filed byUnited States of America. (Attachments: # 1 Exhibit A -- El Masri Opinion (E.D.Va.))(Orleans, Renee) (Filed on 5/24/2006)

EXHIBIT A

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF VIRGINIA A l e x a n d r ia Division K H A L E D EL-MASRI, P la in tif f, v. G E O R G E TENET, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ORDER P l a in t iff in this civil suit claims to be an innocent victim of the United States' " e x t ra o r d i n a ry rendition" program 1 and seeks redress from the former Director of the Central In te llige n ce Agency (CIA), private corporations allegedly involved in the program, and unknown e m p lo ye e s of both the CIA and the private corporations. At issue is whether the assertion of the s t a t e secrets privilege by the United States is valid, and, if so, whether this privilege prevents this c a s e from proceeding. I. A . Facts 2 P l a i n t i ff Khaled El-Masri is a German citizen of Lebanese descent. His allegations begin

C a s e No. 1:05cv1417

The complaint alleges that since the early 1990s the CIA has been operating interrogation centers in countries where the United States believes legal safeguards do not constrain efforts to interrogate suspected terrorists. This practice is commonly known as "extraordinary rendition." As appropriate when considering a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., the facts recited here are derived from the complaint and assumed true. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994) (plaintiff's version of facts accepted as true at threshold dismissal stage). -12

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o n New Years Eve 2003 when he claims he was seized by Macedonian authorities while a t t e m p t in g to cross the border between Serbia and Macedonian. Following his abduction, ElM a s ri alleges the Macedonian authorities imprisoned him in a Skopje hotel room for 23 days, re fu s in g to let him contact a lawyer, a German consular officer, a translator or his wife, and in te rro ga tin g him continuously about his alleged association with Al Qaeda, an association he c o n s is te n tly denied. After thirteen days of this treatment, El-Masri alleges he commenced a h u n g e r strike to protest his detention, and he did not eat again in Macedonia. O n January 23, 2004, El-Masri claims several men in civilian clothes entered his hotel p r is o n room. They forced El-Masri to make a statement that he had not been mistreated by his c a p t o r s , and would shortly be flown back to Germany. After his captors videotaped this s t a t e m e n t , El-Masri states he was blindfolded and driven to what sounded like an airstrip a p p r o x i m a t e l y one hour from Skopje. Still blindfolded, he alleges he was led to a building where h e was beaten, stripped of his clothing, and sodomized with a foreign object. He further alleges h e was dragged naked to a corner of the room where his captors removed his blindfold only for h i m to be blinded again by a camera's flash. When he regained his sight, he claims he saw seven o r eight men dressed in black and wearing black ski masks. El-Masri contends that these men w e re members of a CIA "black renditions" team, operating pursuant to unlawful CIA policies at th e direction of defendant Tenet. These men, he alleges, dressed him in a diaper, a tracksuit and e a r m u ffs . He claims he was then blindfolded, shackled and dragged to an airplane where his c a p t o r s injected him with a sedative that rendered him nearly unconscious. In this drugged state, h e states he was secured inside the aircraft and thereafter only dimly remembers the airplane la n d in g once and taking off again before finally depositing him in a place that El-Masri knew fro m the air temperature was not Germany. Indeed, El-Masri was to discover later that he had

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b e e n flown to Kabul, Afghanistan.3 U p o n reaching Kabul, El-Masri claims he was again beaten and then placed in a small, c o l d cell. He contends this prison was a CIA-run facility known as the "Salt Pit," an abandoned b r ic k factory north of the Kabul business district. El-Masri alleges he was detained in the "Salt P i t" for the next four months, during which time he was repeatedly interrogated about his alleged a s s o c i a tio n with terrorists, including September 11 conspirators Mohammed Atta and Ramzi B i n a ls h ib h . He points out that although the prison facility was nominally run by Afghans, two of h i s interrogators identified themselves as Americans. He claims he repeatedly beseeched his c a p to rs to contact the German government on his behalf, but these requests were denied. In March, El-Masri contends he and several other inmates commenced another hunger s trik e to protest their continued confinement. After 27 days without food, El-Masri states he was b r o u gh t before two unmasked persons he believes were CIA agents in charge of the "Salt Pit." These men refused to accede to El-Masri's demands to release him, to charge him with a crime, o r to allow him to contact a German official. Although the American official denied these re q u e s ts , El-Masri contends the official conceded to El-Masri that El-Masri's detention was a m is ta k e , but that he could not agree to El-Masri's release without permission from Washington. At this point, El-Masri states he was returned to his cell where he continued his hunger strike. After ten more days without nourishment, El-Masri asserts his captors fed him forcibly by

In his complaint, El-Masri alleges that documentary evidence supports his recollection. H e claims aviation documents show that late on the evening of January 23, 2004 a Boeing b u s in e s s jet owned by defendant Premier Executive Transport Services, Inc. (PETS) and operated b y defendant Aero Contractors Limited (ACL) flew from Skopje, Macedonia to Kabul, A fgh a n is ta n with a brief stop in Baghdad, Iraq. This documentary evidence is attached to the

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plaintiff's memorandum of points and authorities in opposition to the United States' motion to dismiss. -3-

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in s e rtin g tubes into his nose and his mouth through which they pumped liquid sustenance. Soon t h e r e a ft e r , El-Masri states he was given canned food and books to read. El-Masri alleges that his h u n g e r strike had a deleterious effect on his health; he lost sixty pounds over the course of his d e te n tio n . E l -M a s ri contends that the CIA had determined soon after his arrival in Afghanistan that t h e y were detaining an innocent man. Further, he contends that Tenet knew this fact by April 2 0 0 4 and that Secretary of State Condoleeza Rice knew by early May that El-Masri was the v i c t im of mistaken identity.4 Nonetheless, El-Masri says he remained imprisoned in Kabul until M a y 28, 2004, after which he was flown in a private jet, again blindfolded, from Kabul to A l b a n ia , where he was deposited by his captors on the side of an abandoned road. With the a s s i s t a n c e of Albanian authorities, El-Masri eventually made his way back to his home in G e rm a n y only to find that his wife and four children, believing he had abandoned them, had left G e r m a n y to live in Lebanon. El-Masri asserts that he remains deeply traumatized by his a b d u ctio n and treatment during his detention. B . Proceedings T h e complaint in this case was filed on December 6, 2005, naming the following d e fe n d a n ts : (1) former Director of the CIA George Tenet, (2) certain unknown agents of the CIA ( J o h n Does 1-10) (3) PETS, (4) ACL, (5) Keeler and Tate Management (KTM),5 (6) and certain

El-Masri also intimates that the German government was aware of his captivity. In a d d itio n to his American interrogators, El-Masri describes meeting a German speaker who i d e n t ifi e d himself only as "Sam." "Sam" asked El-Masri many of the same questions as his A m e ric a n interrogators, but ultimately informed him that he would be released only if he agreed n e v e r to discuss what had happened over the last five months.

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According to El-Masri, the aircraft used in his transfer from Macedonia to Afghanistan was sold by PETS to KTM on or about November 14, 2004, shortly after reports of the aircraft's -4-

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u n k n o w n employees of the defendant corporations (John Does 11-20). Tenet is sued in his in d iv id u a l capacity for authorizing the unknown CIA agents' actions with actual or constructive k n o w le d g e that such actions were illegal, and John Does 1-10 are sued for their actual p a rtic ip a tio n in El-Masri's treatment. El-Masri sues the American corporations PETS, ACL and K T M , as well as their employees, for their participation in the CIA's "extraordinary rendition" th a t victimized El-Masri. El-Masri contends that these corporate defendants are liable for a u t h o r iz i n g the use of aircraft they owned or operated for the transfer of suspected terrorists to d e t e n t io n facilities despite the corporate defendants' knowledge that the suspected terrorists, in c l u d in g El-Masri, would be detained incommunicado, tortured and subjected to other cruel tre a tm e n t. El-Masri asserts three separate causes of action. The first claim is brought against Tenet a n d the unknown CIA agents pursuant to the cause of action recognized by the Supreme Court in B i v e n s v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), fo r violations of El-Masri's Fifth Amendment right to due process. Specifically, El-Masri c o n te n d s that Tenet and John Does 1-10 violated the Due Process Clause's prohibition against a n yo n e acting under color of U.S. law (1) to subject any person held in U.S. custody to treatment th a t "shocks the conscience," or (2) to deprive any person of liberty in the absence of legal p ro c e s s . El-Masri's second cause of action is brought against all defendants pursuant to the A lie n Tort Statute (ATS) for violations of international legal norms prohibiting prolonged

involvement in the "extraordinary rendition" program. El-Masri contends that this transfer was fraudulent because it was done to avoid potential liability for PETS' acts. El-Masri contends that KTM is the successor to PETS, carrying on the same business and operations and utilizing the same personnel and assets as PETS. -5-

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a rb itra ry detention.6 Likewise, El-Masri's final cause of action is brought pursuant to the ATS fo r each defendant's violation of international legal norms prohibiting cruel, inhuman, or d e g ra d i n g treatment. O n March 8, 2006, the United States filed a statement of interest and a formal claim of the s ta te secrets privilege. In support of its formal claim of privilege the United States submitted b o th an unclassified and a classified ex parte declaration of the Director of the CIA (DCI). T h e r e a f te r , on March 13, 2006, the United States moved to intervene in the suit pursuant to Rule 2 4 (a ), Fed.R.Civ.P. in order to protect its interests in preserving its state secrets. The motion was gran te d on March 21, 2006. El-Masri v. Tenet, Case No. 1:05cv1417 (E.D.Va. March 21, 2006). Concurrent with the motion to intervene, the United States moved for dismissal or for summary j u d g m e n t on the ground that maintenance of the suit would invariably lead to disclosure of its s ta te secrets. The parties presented oral argument on this motion on May 12, 2006. II. T h e United States' dismissal motion and the plaintiff's opposition raise important t h r e s h o l d issues, the resolution of which requires a two step analysis. First, it is necessary to d e te rm in e whether the United States' assertion of the state secrets privilege is valid in this case. If not, the inquiry is over and the United States' dismissal motion must be denied. On the other h a n d , if the assertion of the privilege is valid, then the second step in the analysis requires

Codified at 28 U.S.C. § 1350, the ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The Supreme Court in Sosa v. Alvarez Machain, 542 U.S. 692 (2004), has interpreted this statute as providing district courts jurisdiction over civil suits brought by aliens for violations of a limited set of well-recognized norms of international law. Id. at 724. The Supreme Court did not identify precisely which well-recognized norms of international law are actionable under the ATS. -6-

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d ete rm in in g whether dismissal is required or whether the case may nonetheless proceed in some fa s h i o n that adequately safeguards any state secrets. A. D e te rm in i n g whether the state secrets privilege has been validly asserted requires an u n d e r s t a n d i n g of the nature and purpose of the privilege and of who may assert it. The state s e c r e t s privilege is an evidentiary privilege derived from the President's constitutional authority o v e r the conduct of this country's diplomatic and military affairs and therefore belongs e x c lu s iv e ly to the Executive Branch. See United States v. Reynolds, 345 U.S. 1., 7-8 (1953). As s u c h , it must be formally asserted by the head of the Executive Branch agency with control over th e state secrets at issue, and then only after that person has personally considered the matter. See id. If validly asserted the state secrets privilege permits the government to "block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security." Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C.Cir. 1983). More particularly, "the various harms, a ga in s t which protection is sought by invocation of the privilege, include impairment of the n a tio n 's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and d i s ru p tio n of diplomatic relations with foreign governments." In re Under Seal, 945 F.2d 1285, 1 2 8 7 n.2 (4th Cir. 1991) (quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C.Cir.1983)); see also S t e r lin g v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005). Given the vitally important purposes it s e r v e s , it is clear that while the state secrets privilege is commonly referred to as "evidentiary" in n a t u r e , it is in fact a privilege of the highest dignity and significance. A s noted, the privilege belongs solely to the Executive Branch and must be formally a s s e rte d by the head of the Executive Branch agency with responsibility for, and control over, the s ta te secrets involved. Once it is determined that the appropriate officer has invoked the

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p riv ile ge , the next step in the judicial inquiry into the validity of the assertion is to determine w h e th e r the information for which the privilege is claimed qualifies as a state secret. Importantly, c o u rts must not blindly accept the Executive Branch's assertion to this effect, but must instead in d e p e n d e n tly and carefully determine whether, in the circumstances, the claimed secrets deserve th e protection of the privilege. Reynolds, 345 U.S. at 10. This determination requires a court to c o n s id e r whether "a responsive answer . . . or an explanation of why it cannot be answered might b e dangerous because injurious disclosure could result." Sterling, 416 F.3d at 343 (quoting R e y n o ld s , 345 U.S. at 9). In other words, this part of the inquiry focuses on whether the United S t a t e s has made an adequate showing that disclosure of claimed privileged material would injure n a tio n a l security. H o w searching the judicial inquiry must be depends on the particular circumstances of the c a s e , for it is well-settled that the depth of a court's inquiry increases relative to the adverse p a rty's need for the information the government seeks to protect. Reynolds, 345 U.S. at 11; S te r lin g , 416 F.3d at 343. If the information is peripheral to the adverse party's claims, the c o u r t' s inquiry need not be as searching as it must be in cases where the claimed state secrets are a t the core of the suit. In those cases where the claimed state secrets are at the core of the suit a n d the operation of the privilege may defeat valid claims, courts must carefully scrutinize the a s s e r t io n of the privilege lest it be used by the government to shield "material not strictly n e c e s s a ry to prevent injury to national security." Ellsberg, 709 F.2d at 58. But, in undertaking th i s inquiry, courts must also bear in mind the Executive Branch's preeminent authority over m i li ta r y and diplomatic matters and its greater expertise relative to the judicial branch in

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p r e d i c t in g the effect of a particular disclosure on national security.7 Accordingly, the judiciary m u s t accept the executive branch's assertion of the privilege whenever its independent inquiry d i s c lo s e s a "reasonable danger that compulsion of the evidence will expose military matters w h i c h , in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10 (e m p h a s is added). Importantly, once the court is satisfied that any disclosure of the putative s e c re ts "might have a deleterious effect on national security, `the claim of the privilege will be a c c e p t e d without requiring further disclosure.'" Id. (quoting Reynolds, 345 U.S. at 9). Finally, it is important to note that, unlike other privileges, the state secrets privilege is a b s o l u t e and therefore once a court is satisfied that the claim is validly asserted, the privilege is n o t subject to a judicial balancing of the various interests at stake. 8 Thus, the adverse party's n e e d for privileged information affects only the depth of the judicial inquiry into the validity of t h e assertion and not the strength of the privilege itself, for "even the most compelling necessity c a n n o t overcome the claim of privilege if the court is ultimately satisfied that military secrets are a t stake." Reynolds, 345 U.S. at 11. G i v e n these governing principles, there is no doubt that the state secrets privilege is v a l i d l y asserted here. To begin with, the privilege has been formally asserted by the appropriate

See United States v. Nixon, 418 U.S. 683, 710 (1974) (claims of privilege for military or d i p l o m a t i c secrets "traditionally shown the utmost deference."); see also C. & S. Air Lines v. W a te r m a n S.S. Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief a n d as the Nation's organ for foreign affairs, has available intelligence services whose reports are n o t and ought not to be published to the world. It would be intolerable that courts, without the re le v a n t information, should review and perhaps nullify actions of the Executive taken on i n f o r m a t i o n properly held secret."). S e e In re Under Seal, 945 F2d 1285, 1288 (4th Cir. 1991) ("the privilege is absolute w h e n properly invoked"); United States v. Halkin, 690 F.2d 977, 990 (D.C.Cir. 1982) ("[S]ecrets o f state--matters the revelation of which reasonably could be seen as a threat to the military or d i p l o m a t i c interests of the nation--are absolutely privileged from disclosure in the courts.").
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E x ec u tiv e Branch official, the DCI, who has done so by submitting an ex parte classified d e c l a r a t i o n labeled "JUDGE'S EYES ONLY," and also an unclassified declaration for the public r e c o r d . The latter document states in general terms that damage to the national security could re s u lt if the defendants in this case were required to admit or deny El-Masri's allegations. The fo rm e r is a detailed explanation of the facts and reasons underlying the assertion of the privilege. It is, of course, inappropriate to reveal here the substance of the DCI's classified ex parte d e c l a ra tio n , for to do so would compromise "the very thing the privilege is designed to protect." Reynolds, 345 U.S. at 8. It is enough to note here that the substance of El-Masri's publicly a v a ila b le complaint alleges a clandestine intelligence program, and the means and methods the fo r e ign intelligence services of this and other countries used to carry out the program. And, as th e public declaration makes pellucidly clear, any admission or denial of these allegations by d e fe n d a n t s in this case would reveal the means and methods employed pursuant to this c la n d e s tin e program and such a revelation would present a grave risk of injury to national s e c u rity. This conclusion finds firm support in the details disclosed in the DCI's classified ex p a r t e declaration. Plaintiff's argument that government officials' public affirmation of the existence of a re n d itio n program 9 undercuts the claim of privilege misses the critical distinction between a g e n e r a l admission that a rendition program exists, and the admission or denial of the specific fa c ts at issue in this case. A general admission provides no details as to the means and methods

See Declaration of Stephen Macpherson Watt in Support of Plaintiff's Opposition to the United States' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Watt Decl.") Exh. A. -10-

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e m p lo ye d in these renditions, or the persons, companies or governments involved.10 Nor is the go v e rn m e n t 's assertion of the privilege here intended to protect from disclosure this general in fo rm a tio n . Instead, the government seeks to protect from disclosure the operational details of th e extraordinary rendition program, and these details are validly claimed as state secrets. Accordingly, El-Masri's argument that generalized public admissions somehow undercut the g o v e r n m e n t 's right to protect the specific details of the "extraordinary rendition" program are u n a v a ilin g. N o r is the strength of the government's privilege somehow diminished by either ElM a s ri's complaint or the numerous media, government or other reports discussing renditions, o ft e n relying largely on El-Masri's allegations.11 It is self-evident that a private party's a lle ga tio n s purporting to reveal the conduct of the United States' intelligence services overseas a re entirely different from the official admission or denial of those allegations. Furthermore, n e ith e r the United States' claim of privilege, nor a judicial acceptance of that claim is tantamount t o an admission that El-Masri's factual allegations are true. The applicability of the state secrets p r iv i le ge is wholly independent of the truth or falsity of the complaint's allegations. While a p u b lic admission of the alleged facts would obviously reveal sensitive means and methods of the c o u n t ry's intelligence operations, a denial of the alleged facts would also be damaging, as it may r a i s e an inference of veracity in those cases where the government does not deny similarly

This distinction between the general and the particular is exemplified by Secretary of S t a te Rice's public comments concerning El-Masri's claims in which she affirmed the existence o f the program but declined to comment on the specific facts alleged by El-Masri. See Watt Decl.

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Exh. B. Although not revealing any details about the program, she did say in response to a question about El-Masri's allegations that "when and if mistakes are made, we work very hard to rectify them." Id.
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See generally id. -11-

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s e n s i tiv e allegations but asserts the state secrets privilege instead. For this reason, the CIA has a p p ro p ria te ly adopted the policy of neither admitting nor denying allegations regarding the m e an s , methods, persons, entities or countries used in its foreign intelligence operations. In light o f this sensible policy, and on the basis of the DCI's public and classified ex parte declarations, th e Court finds the United States' privilege is validly asserted in this case. B. If a court finds that the state secrets privilege has been validly asserted, it must then d e te rm i n e whether the case must be dismissed to prevent public disclosure of those secrets, or w h e t h e r special procedural mechanisms may be adequate to prevent disclosure of the state s e c re ts . Resolution of this issue will depend on the centrality of the privileged material to the c la im s or defenses asserted by either party. As the Fourth Circuit has recently put it, "when the v e r y subject of the litigation is itself a state secret," and where there is "no way [the] case could b e tried without compromising sensitive military secrets, a district court may properly dismiss the p l a in t iff's case." Sterling, 416 F.3d at 347-48 (quoting Fitzgerald v. Penthouse Int'l., Ltd., 776 F . 2 d 1236, 1243 (4th Cir. 1985)) (internal quotations omitted). Thus, while it is well-settled that " d is m i s s a l is appropriate only when no amount of effort and care on the part of the court and the p a rtie s will safeguard privileged material," it is equally well-settled that "where the very question o n which a case turns is itself a state secret, or the circumstances make clear that sensitive m ilita ry secrets will be so central to the subject matter of the litigation that any attempt to proceed w ill threaten disclosure of the privileged matters, dismissal is the appropriate remedy." Id. at 348 ( in t e r n a l quotations and citations omitted). In sum, the question is whether El-Masri's claims c o u ld be fairly litigated without disclosure of the state secrets absolutely protected by the United S t a te s ' privilege.

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In the instant case, this question is easily answered in the negative. To succeed on his c la im s , El-Masri would have to prove that he was abducted, detained, and subjected to cruel and d e g ra d i n g treatment, all as part of the United States' extraordinary rendition program.12 As noted a b o v e, any answer to the complaint by the defendants risks the disclosure of specific details about th e rendition argument. See Rule 8(b), Fed.R.Civ.P. ("A party shall state in short and plain terms th e party's defenses to each claim asserted and shall admit or deny the averments upon which the a d v e rs e party relies."). These threshold answers alone would reveal considerable detail about the C IA 's highly classified overseas programs and operations. F in a lly, the fact that any answer to the complaint would potentially disclose information p r o t e c te d by the privilege refutes El-Masri's argument that special procedures short of dismissal w o u ld be adequate to protect the government's validly asserted privilege. To be sure, special p ro c e d u re s , such as clearing defense counsel for access to classified information and the a p p lic a tio n of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3, could be, and in d e e d have been, used effectively in appropriate circumstances in other cases. These are not a p p r o p r ia t e circumstances. Such procedures are plainly ineffective where, as here, the entire aim o f the suit is to prove the existence of state secrets. As the Fourth Circuit recognized in Sterling, w h e r e "the whole object of the suit and of the discovery is to establish a fact that is a state secret" s p e c i a l procedures are inadequate. 416 F.3d at 348. Precisely this is the case here. Further, even

For purposes of the present analysis it is appropriate to assume that El-Masri has stated a cognizable claim; the strength or weakness of his legal claims is immaterial to the resolution of the state secrets privilege dismissal motion. It is nonetheless worth noting that El-Masri's legal claims are novel and might well be vulnerable to dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.P., quite apart from the application of the state secrets privilege. See generally Scott J. Borrowman, Sosa v. Alvarez-Machain and Abu Ghraib ­ Civil Remedies for Victims of Extraterritorial Torts by U.S. Military Personnel and Civilian Contractors, 2005 B.Y.U.L.Rev. 371 (2005). -13-

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a s s u m i n g some mechanism might be used to avoid disclosure of state secrets in the answer, it is c l e a r that the use of special procedures during discovery and trial would be wholly inadequate to p re s e rv e the United States' privilege. The Fourth Circuit also addressed this point in Sterling w h e r e it noted that: S u c h procedures, whatever they might be, still entail considerable risk. Inadvertent disclosure during the course of a trial ­ or even in camera ­ is p r e c i s e l y the sort of risk that Reynolds attempts to avoid. At best, special a c c o m m o d a t i o n s give rise to added opportunity for leaked information. At worst, th a t information would become public, placing covert agents and intelligence s o u rc e s alike at grave personal risk. S te r lin g , 416 F.3d 338. Thus, while dismissal of the complaint deprives El-Masri of an American j u d i c i a l forum for vindicating his claims, well-established and controlling legal principles require th a t in the present circumstances, El-Masri's private interests must give way to the national in te re s t in preserving state secrets. The United States' motion to dismiss must therefore be gra n te d . C. T h e United States' dismissal motion also argues that the recently reaffirmed so-called T o tte n bar renders this case non-justiciable. See Tenet v. Doe, 125 S.Ct. 1230, 1237 (2005). This a rgu m e n t is problematic in certain respects, but in the end need not be reached. The Totten bar is quite distinct from the state secrets privilege; it is not a privilege or a r u l e of evidence; it is instead a rule of non-justiciability that deprives courts of their ability to h e a r "suits against the Government based on covert espionage agreements" even in the absence of a formal claim of privilege. Id. at 1233. It is properly invoked only in those cases "where success d e p e n d s upon the existence of [a] secret espionage relationship with the government," or where th e government cannot openly "admit or deny [a] fact that [is] central to the suit." Id. at 1236-37.

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In Totten, the Supreme Court forbade the suit of a self-proclaimed Civil War secret agent a tte m p tin g to enforce the secret espionage agreement he claimed he had negotiated with President Lin c o ln on the ground that "public policy forbids the maintenance of any suit in a court of justice, th e trial of which would inevitably lead to the disclosure of matters which the law itself regards a s confidential." See Totten v. United States, 92 U.S. 105, 107 (1876). See also Weinberger v. C a t h o lic Action of Ha./Peace Ed. Project, 454 U.S. 139, 146-47 (1981) (holding that whether the N a v y had complied with the National Environmental Policy Act (NEPA) with respect to its s to ra ge of nuclear materials was "beyond judicial scrutiny"). In Tenet, the Supreme Court a p p lie d the Totten bar to a suit brought by former Soviet double agents seeking to enforce their a gre e m e n t with the CIA, but made clear that the bar was not limited to contract actions, but a p p lie s whenever a party's "success depends upon the existence of [a] secret espionage re la tio n s h i p with the government." Tenet, 125 S.Ct. at 1236. It is debatable whether the Totten bar would apply to the present case. It is true that ElM a s ri's allegations here concern the existence of several "secret espionage relationships" b e t w e e n the United States and both certain foreign governments and the corporate defendants, b u t it is also true that El-Masri himself was not a party to any of these secret espionage a g re e m e n t s or relationships. There is, therefore, some doubt whether Totten speaks to the c irc u m s ta n c e s at bar. In any event, because the valid assertion of the state secrets privilege p r e s e n t s an adequate and independent ground for dismissal of this case, it is unnecessary to reach a n d decide the applicability of the Totten bar to the facts of this case.

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Case 1:05-cv-01417-TSE-TRJ

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D. It is important to emphasize that the result reached here is required by settled, controlling l a w . It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri's c o m p l a in t . Nor does this ruling comment or rule in any way on the truth or falsity of his factual a lle ga tio n s ; they may be true or false, in whole or in part. Further, it is also important that n o th in g in this ruling should be taken as a sign of judicial approval or disapproval of rendition p ro gra m s ; it is not intended to do either. In times of war, our country, chiefly through the E x e c u t iv e Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable a n d patriotic Americans are still free to disagree about the propriety and efficacy of those e x c e p tio n a l steps. But what this decision holds is that these steps are not proper grist for the j u d i c i a l mill where, as here, state secrets are at the center of the suit and the privilege is validly in v o k e d . Finally, it is worth noting that putting aside all the legal issues, if El-Masri's allegations a r e true or essentially true, then all fair-minded people, including those who believe that state s e c r e t s must be protected, that this lawsuit cannot proceed, and that renditions are a necessary s te p to take in this war, must also agree that El-Masri has suffered injuries as a result of our c o u n t ry's mistake and deserves a remedy. Yet, it is also clear from the result reached here that th e only sources of that remedy must be the Executive Branch or the Legislative Branch, not the J u d ic ia l Branch. A c co rd in gly, and for the reasons stated from the bench, It is hereby ORDERED that the United States' claim of the state secrets privilege is V A L ID . It is further ORDERED that given the application of the privilege to this case, the United

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S ta te s ' motion to dismiss must be, and hereby is, GRANTED. The Clerk is directed to send a copy of this Order to all counsel of record and to place this matter among the ended causes.

Alexandria, Virginia May 12, 2006

_ _ /s / _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ T.S. Ellis, III United States District Judge

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