Score one more for the White House, which may keep its secrets to the bitter end.
On Tuesday, the Supreme Court refused to take up the case of El-Masri vs. United States. Khaled El-Masri, a German citizen, alleged that he was abducted in Macedonia by CIA agents and illegally "rendered" to Afghanistan, where he was interrogated and tortured for months -- until the CIA realized they had accidentally abducted the wrong guy (they were looking for shadowy terrorist Khalid al-Masri, of the Al Qaeda cell that organized the 9/11 attacks, not the unshadowy Khaled El-Masri, used-car salesman and father of five). When they figured out their embarrassing error, they dumped El-Masri unceremoniously on a deserted road in rural Albania.
After nearly five months of secret detention, El-Masri was understandably ticked off. He went to court to seek redress but was rebuffed by the conservative U.S. 4th Circuit Court of Appeals in Richmond, Va., which accepted the government's argument that state secrets might be jeopardized if the case were allowed to move forward. And this week, the Supreme Court declined to overrule the lower court.
This was convenient for an administration obsessed with secrecy, but it lets stand an unfortunate judicial ratification of a very dangerous idea: that government officials can ignore the law with impunity, then stop lawsuits by simply asserting that a court case would jeopardize national security.
The so-called state secrets privilege started as a relatively narrow evidentiary privilege. In U.S. vs. Reynolds, a 1953 case, the Supreme Court allowed the Air Force to refuse to turn over classified accident reports to the relatives of three men who died when a military plane crashed, accepting the government's assertion that the reports contained details about secret electronic equipment on the plane and that their release would jeopardize national security. (The government's assertion was fallacious, it turned out. Years later, the declassified reports revealed nothing more than negligent aircraft maintenance.)
Still, there's nothing wrong with a narrow state secrets privilege. In principle, the government has a legitimate need to keep certain information out of the public domain. Think nuclear weapons activation codes, details on covert agents, etc.
But there's a big difference between citing the privilege to prevent specific bits of legitimately classified information from getting out and using the privilege to hide government actions that are illegal in and of themselves.
