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Bush’s “State Secrets” Privilege

By Leslie on October 10, 2007 at 7:23 PM in Current Affairs

German of Lebanese descent, Khaled el-Masri, alleges he was abducted, held in a CIA-run prison for months and tortured, as part of the Bush administration’s program of “extraordinary renditions.” Operatives mistook him for terrorist Khalid al-Masri.

In 2005, El-Masri filed suit against George Tenet and several private contractors for their role in his abduction. But el-Masri has been unable to gain a court hearing in the US due to the administration’s invocation of the “state secrets privilege, which allows the government to block release of any information deemed harmful to national security.”

In 2005, German Chancellor Angela Merkel said after a meeting with Secretary of State Condoleezza Rice that the Bush administration “admitted this man had been erroneously taken.” But yesterday the Supreme Court decided not to hear el-Masri’s case. The court said that trying the case would endanger national security by violating the state secrets privilege.

From Secrecy News:

If foreign terrorists set out to undermine confidence in the American legal system as an arbiter of justice, they could hardly do more damage than the Bush Administration has done by its use of the “state secrets” privilege.

Khaled el-Masri, who alleged that he was abducted and tortured by the Central Intelligence Agency, will not be permitted to argue his case in a U.S. court because the Bush Administration asserted that “state secrets” would be compromised, and the U.S. Supreme Court this week concurred, rejecting el-Masri’s appeal.

This means that even if all of el-Masri’s allegations are true, there is no legal remedy available to him. The courthouse doors are closed in the United States. That is bad law and bad policy.

It also seems to be unnecessary, since courts have long demonstrated an ability to securely handle highly classified information, and have frequently done so in espionage trials and certain other criminal cases.

Recently, a group of law professors, scholars and activists urged Congress to confront the executive branch’s use of the state secrets privilege, and to establish new constraints on the privilege.

“Congress has a duty to examine how the state secrets privilege is being invoked by the executive branch and interpreted by federal courts. There is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process,” they wrote (pdf).

“Congress possesses the constitutional authority to act, and it should do so.”

The October 4 letter, coordinated by the nonprofit Constitution Project, may be found here.