19 May 2006

Judicial Cowardice

A U.S. District Court has denied a remedy to a man whose rights were violated by the CIA not because his rights weren't violated, but because the CIA did it.

A federal judge yesterday threw out the case of a German citizen who says he was wrongfully imprisoned by the CIA, ruling that Khaled al-Masri's lawsuit poses a "grave risk" of damage to national security by exposing government secrets.

U.S. District Judge T.S. Ellis III in Alexandria acknowledged that Masri "has suffered injuries" if his allegations are true and that he "deserves a remedy." Sources have said Masri was held by the CIA for five months in Afghanistan because of mistaken identity. Masri says he was beaten, sodomized and repeatedly questioned about alleged terrorist ties.

But Ellis said the remedy cannot be found in the courts. Masri's "private interests must give way to the national interest in preserving state secrets,'' the judge wrote in dismissing the lawsuit filed last year against former CIA director George J. Tenet and 10 unnamed CIA officials.

In all likelihood, the allegations are true.

German investigators have confirmed most of Masri's allegations . . . . In December, a senior Bush administration official traveling with Secretary of State Condoleezza Rice said U.S. officials had told the Germans that Masri was released because the intelligence was insufficient to justify his detention.

I don't recall any anti-snitching exceptions in the Bill of Rights. Indeed, the Court's didn't acknowledge any such government immunity until the 1950s.

Created in the 1950s, [the State Secrets Privilege] allows the government to urge courts to dismiss cases on the grounds of damage to foreign policy or national security. . . . Last year, for example, the government won dismissal of a lawsuit by a Canadian citizen who claimed that he was taken to Syria by U.S. officials for detention and was tortured.

If our judicial system won't remedy cases of torture committed by our own government, our system of government is a criminal enterprise.


From Slate:

[W]hile the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. . . .

Traditionally, this privilege was most often used to prevent plaintiffs from getting a hold of very specific, sensitive evidence in an ongoing lawsuit; it was seldom invoked to dismiss entire cases. . . .

[I]n el-Masri and other similar lawsuits—almost all of which involve important challenges to the government's conduct since Sept. 11—the administration has been routinely asserting the privilege to dismiss the suits in their entirety. . . . the administration is now well on its way to transforming it from a narrow evidentiary privilege into something that looks like a doctrine of broad government immunity. . . . courts have examined the documents' underlying claims of state secrecy fewer than one-third of the times it has been invoked. And . . . courts have only actually rejected the assertion of the privilege four times since 1953.

It is one thing to say that a case must be brought under seal and with proceedings closed when national security is at stake. It is another to use state secrets doctrines to deny a plaintiff a remedy entirely. The reality is that the government can not be trusted to invoke it responsibly.

Indeed, United States v. Reynolds, the Supreme Court decision first recognizing the legitimacy of a state secrets privilege, is also apparently an object lesson in how the privilege can be misused. Decided in 1953 at the height of the Cold War, Reynolds was brought by the widows of three civilians who died when the Air Force plane they were on crashed. The widows sued the Air Force for negligently maintaining the aircraft and tried to obtain accident reports from the government to further their suit. Unfortunately for the widows, in addition to their husbands, the plane was also carrying secret electronic equipment. Citing the presence of this top-secret equipment, the government refused to turn over the documents, claiming that doing so would jeopardize national security. The Supreme Court upheld the government's refusal, and the state secrets privilege was born.

As it turns out, the documents didn't really back up the Air Force's claims. In 2000, the children of the original plaintiffs got hold of the reports their mothers had sought when the documents became declassified. Nothing in these documents appeared to bear at all on national security. They were, however, filled with evidence of negligence, all of which was nicely summarized by the Air Force's straightforward conclusion that "the aircraft is not considered to have been safe for flight."

Democrats need to craft a better solution to the state secrets problem than the Courts have when they take power.

The example used in the Slate story was of a janitor who slipped and fell over uranium at the Manhatten Project and was denied discovery of the contents of what he fell over, or perhaps even had his case dismissed. Does it really make sense to leave a legitimately aggrieved person, who very likely was privy to all sorts of confidential information unrelated to his case, out there with every reason to blab what he knows? If you are going to keep secrets, you have to be prepared to treat people who encounter them fairly, or you won't have secrets very long.

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