Monday, March 12, 2007

El Masri Looses - State Secret Privelage Run Amuck

On March 2, 2007, the Fourth Circuit upheld the dismissal of a law suit that had been filed against the government by Khaled El Masri, the German who was an innocent victim of the shameful and illegal U.S. extraordinary rendition program. The case was dismissed because the Court accepted the Government's argument that if the case were allowed to proceed there would be a risk of exposing "State secrets." ACLU Executive Director Romero summed it up well,

“Regrettably, today’s decision allows CIA officials to disregard the law with impunity by making it virtually impossible to challenge their actions in court,” said ACLU Executive Director Anthony D. Romero. “With today’s ruling, the state secrets doctrine has become a shield that covers even the most blatant abuses of power.”

You can download the decision here or go to this link for the case.

You probably remember El Masri from his 60 Minutes appearance or countless news articles detailing the months of abuse to which he was subjected, all because the CIA didn't check its facts.

The ACLU lawsuit charges former CIA director George Tenet, other CIA officials and U.S.-based aviation corporations with violations of United States and universal human rights laws. El-Masri was on vacation in Macedonia when he was kidnapped, abused and rendered to a CIA-run “black site” in Afghanistan. After several months of confinement in squalid conditions, he was flown from Afghanistan and abandoned on a hill in Albania with no explanation, never having been charged with a crime.

He has been a free man ever since but one tormented by his experience. And he can't get justice because that would supposedly harm national security. What a joke. As his attorneys point out

To date, El-Masri’s case has been described in literally hundreds of newspaper articles and television news programs – many of them relying on sources within the U.S. government. It has been the subject of numerous investigations and reports by intergovernmental bodies, including the European Parliament. Most recently, prosecutors in El-Masri’s adopted country of Germany formally requested indictments against 13 CIA agents and contractors for their role in his kidnapping, abuse, and detention.

. . . . . . . . . . .

“Today the appeals court gave the CIA complete immunity for even its most shameful conduct," said ACLU attorney Ben Wizner, who argued El-Masri’s case before the Fourth Circuit last November. "Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured."

The ACLU has not yet announced whether it will appeal the case to the Supreme Court. I hope they do and bring an end to this type of ridiculous use of a State Secrets privilege.

These state secret cases go way back in our history. In analyzing them the courts make the Government jump through some minor hoops but when all is said and done they revolve around deference.

A court is obliged to honor the Executive’s assertion of the privilege if it is satisfied "from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10. In assessing the risk that such a disclosure might pose to national security, a court is obliged to accord the "utmost deference" to the responsibilities of the executive branch. Nixon, 418 U.S. at 710. Such deference is appropriate not only for constitutional reasons, but also practical ones: the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information. In the related context of confidentiality classification decisions, we have observed that "[t]he courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area." United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972).

Applying those principles and precedents from similar cases to El Masri the court concluded

In light of these decisions, we must reject El-Masri’s view that the existence of public reports concerning his alleged rendition (and the CIA’s rendition program in general) should have saved his Complaint from dismissal. Even if we assume, arguendo, that the state secrets privilege does not apply to the information that media outlets have published concerning those topics, dismissal of his Complaint would nonetheless be proper because the public information does not include the facts that are central to litigating his action. Rather, those central facts — the CIA means and methods that form the subject matter of El-Masri’s claim — remain state secrets. Consequently, pursuant to the standards that El-Masri has acknowledged as controlling, the district court did not err in dismissing his Complaint at the pleading stage.

These are real tough cases for any plaintiff and I would not venture a guess on how the Supreme Court would rule. But the injustice here is so great it might be a good vehicle to get the Supreme Court to reconsider this area of the law and rein in what appear to be clear Executive branch abuses. Unfortunately El Masri's challenge is made all the more difficult because the trial and appellate courts saw fit to defer to the government's state secret claims. Why any court would give this government the benefit of the doubt on any national security type argument in a case involving abuses of human rights and basic standards of decency is beyond me.

(As an aside, I was only ever involved in one case before the 4th Circuit. I was working for a Federal agency and the question was, as in Masri's case, the appropriate degree of deference the court should grant to an Agency. In our case it involved the interpretation of our organic act. Although we had won in the District Court we lost on appeal. I sure wish we had been given the same deference given in the Masri case. Of course, my case didn't involve state secrets.)

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