Too much cloak and swagger

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.

In the El-Masri case, it’s hard to imagine any legitimate basis for the government’s blanket invocation of the state secrets privilege. For one thing, the actions of the U.S. government agents who allegedly abducted and abused El-Masri would have been illegal. For another, the “extraordinary renditions” program isn’t a secret: The president has acknowledged it.

Finally, El-Masri’s case has received extensive media coverage, and many elements of his story have already been thoroughly investigated and corroborated by European officials. The German government took up El-Masri’s cause, and though the U.S. government has never officially acknowledged his abduction and mistreatment, German Chancellor Angela Merkel says that Condoleezza Rice privately admitted to her that El-Masri had indeed been mistakenly detained by U.S. agents.

So it’s a little hard to see what state secrets would have been endangered by allowing El-Masri’s case to proceed. If, in the course of litigation, the government believed that specific requests for concrete evidence risked exposing sensitive national security information, it could always seek to invoke the state secrets privilege on a narrow, item-by-item basis. That’s the way the privilege is supposed to be used.

But this administration is in love with secrecy. Maybe it’s because the Bush White House has shown a distinct lack of interest in hewing to the letter of the law, which tends to make the release of any and all details decidedly inconvenient.

Last week, for instance, saw another round of “I’ve Got a Secret” over allegations that top Justice Department officials signed off on classified 2005 memos that cleared the CIA to use harsh interrogation techniques, including simulated drowning. Not a surprise in and of itself -- but this happened after Congress passed legislation prohibiting all U.S. personnel from using torture or other forms of cruel, inhumane or degrading treatment.

White House officials insist that the secret 2005 memos don’t authorize any interrogation techniques prohibited by Congress, but refuse -- for national security reasons, naturally! -- to describe the techniques the memos do authorize, or explain what techniques are off-limits under their definition of torture, or even release the classified memos to the relevant (and properly cleared) congressional oversight committee chairs.

As White House spokesperson Dana Perino explained to reporters: “The legal opinion of the United States is that we do not torture. . . . It’s a very complicated legal matter . . . it’s appropriate that applications of the laws and techniques are kept secret. And I don’t think that providing those to the American public would serve them well.”

Congress may beg to differ, but for the White House, the logic of secrecy is circular but clear: We can’t tell you what we’re doing because it’s a secret. But everything we’re doing is legal. Prove it? We’d be happy to, but unfortunately, the proof is also a secret.

Summing up the White House’s philosophy, blogger and Yale Law professor Jack Balkin puts it best: “I could tell you why what I’m doing is legal, but then I’d have to shoot you.”


Rosa Brooks’ weekly column will now run on Thursdays.