Shielded by secrecy

Ben Wizner is a staff attorney in the national legal department of the American Civil Liberties Union.

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.

The State Secrets Protection Act, introduced by Sens. Edward Kennedy and Arlen Specter, would prohibit the dismissal of cases prior to discovery. The legislation would require courts to examine the actual classified evidence instead of dismissing suits on the sole basis of affidavits submitted by the perpetrators themselves. It also would allow courts to compel the government to produce unclassified substitutes for privileged evidence and, if the government refuses, to resolve the issue in favor of the plaintiff.

These overdue amendments cannot resurrect El-Masri’s case, but they can ensure that other pending cases are not unjustly terminated.


Last week, I was in court in San Jose on behalf of five other torture victims who were transported by the CIA to secret U.S. facilities overseas or to regimes notorious for abuse of prisoners. Our suit charged that a Boeing Co. subsidiary, Jeppesen Dataplan Inc., provided flight planning and logistical support with full knowledge that it was profiting from what one senior company official openly described as “torture flights.”

Our case was supported by abundant corroborating evidence, including a sworn affidavit from a former company employee and flight records that confirm our clients’ accounts and Jeppesen’s involvement. Nevertheless, the administration again demanded that the case be dismissed. It claimed that confirming in court what the entire world already knows -- that our plaintiffs were in CIA custody -- would somehow reveal state secrets.

On Wednesday -- the very day the Senate held its first hearing on state secrets -- the court acceded and dismissed the case.

The administration has openly discussed the CIA’s detention and interrogation of other prisoners, of course, most notably the six Guantanamo detainees charged this week with capital murder. In the administration’s view, such activities are a state secret when deployed to hold government officials accountable but not when needed to prosecute and execute an alleged terrorist.

Under a system built on respect for the rule of law, the government should have no privilege to violate our most fundamental legal rights and values. Congress should enact the State Secrets Protection Act as a first step toward restoring the role of the judiciary as a crucial check on executive abuse of power.