Khaled El-Masri, a German citizen, was flown at the request of the United States to Afghanistan, where he says he was tortured by the CIA (in a case of mistaken identity) for four months. Maher Arar, a Canadian citizen, was seized in New York and dispatched by U.S. officials to Syria, where he was apparently tortured regularly for almost a year. Binyam Mohammed says he was taken into custody in Karachi and brutally interrogated for two years in Pakistan and Morocco and then at the notorious CIA-run "Dark Prison" in Kabul, Afghanistan.
Each of these men later filed a civil lawsuit protesting his experience in the U.S. government's "extraordinary rendition" program. Yet not one has been allowed his day in court. Instead, the cases were summarily dismissed.
In each instance, the government invoked what's known as the "state secrets privilege," arguing that the lawsuit must not be allowed to proceed because it would require the disclosure of vitally sensitive classified information.
Until now, courts have been overwhelmingly accommodating of this claim. The Bush administration asserted the privilege dozens of times -- far more than any of its predecessors -- and was not once required to turn over material it claimed was secret. "Private interests," noted the judge in El-Masri's case as he tossed it out, "must give way to the national interest."
Next week, however, the judiciary has another chance to declare its independence. On Monday, a three-judge panel of the U.S. 9th Circuit Court of Appeals will be asked to reinstate Mohammed's case (brought with four others) against Jeppesen DataPlan Inc., the San Jose-based company that helped arrange rendition flights.
We hope the judges will have the courage to stand up to the government. Better yet, we hope the Obama administration lawyers will show up in court Monday and reject the approach of the previous administration, letting the case go forward. If a man credibly claims to have been snatched from his home and family and tortured by or with the acquiescence of the government, he deserves a fair and impartial reckoning in court. Besides, the government's assertions about the damage that could ensue should be viewed skeptically. The history of the privilege suggests that the government may use it not so much to protect national security as to prevent its own illegal or embarrassing misadventures from coming to light.
There are ways to balance the government's legitimate security interests against plaintiffs' right to press their cases. Judges could, for instance, take a more active role in scrutinizing the claims of secrecy, examining the controversial evidence in private. Or they could agree to hold back certain pieces of sensitive information without dismissing entire cases. But what's clear is that the government should not be permitted to kidnap and torture and then simply declare those heinous activities to be "state secrets" and off-limits for discussion.