Shielded by secrecy
The Bush administration has misused the state secrets privilege to stifle legal oversight of its anti-terror policies. Congress must intervene.
Of the myriad tactics the Bush administration uses to prevent oversight of its controversial anti-terror policies, none has been more successful, or more far-reaching, than the state secrets privilege. On Wednesday, the Senate considered, at long last, bipartisan legislation that would place reasonable limits on the executive branch's use of the privilege to terminate lawsuits on dubious grounds. But for some -- like my client, Khaled El-Masri, who was mistakenly kidnapped, imprisoned and tortured by the CIA -- Congress' interest, though welcome, comes too late.
The state secrets privilege, first recognized by the U.S. Supreme Court half a century ago, permits the government to block the release during litigation of information or evidence that poses a national security risk. No one seriously disputes the validity of the underlying doctrine: Litigants should not be permitted to use the discovery process to expose the identity of the next Valerie Plame.
But in recent years, the state secrets privilege has mutated from a rule of evidence into a virtual grant of immunity. This administration has invoked the privilege not to protect sensitive information but to torpedo entire lawsuits alleging grave executive misconduct -- before any requests for evidence have been made.
Khaled El-Masri's case is illustrative. El-Masri, a German citizen, was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to the CIA, then beaten, drugged and transported to a secret prison in Afghanistan for harsh interrogation. Five months after his abduction -- long after the CIA realized its mistake -- El-Masri was deposited at night on a hill in Albania.
El-Masri's ordeal received front-page media coverage throughout the world and has been the subject of criminal and intergovernmental investigations in Europe. His allegations are supported by eyewitness testimony and physical evidence. Nonetheless, when we brought suit against former CIA Director George Tenet and others seeking compensation for the brutal treatment of El-Masri, the administration insisted the case be dismissed because any litigation of the claims would reveal state secrets. The government's argument prevailed, and the Supreme Court declined to intervene.
So as the law stands, the U.S. can engage in torture, declare it a state secret and, by virtue of that designation alone, avoid any accountability for conduct that violates the Constitution and universal human rights guarantees. A broad range of executive misconduct has been shielded from judicial review under this doctrine.
