Supreme injustice

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To appreciate the backwardness of the state secrets doctrine (which Congress should revamp), consider the following hypothetical:

President Bush is searching for a sacrificial lamb to entice Iran into freezing or abandoning its nuclear weapons program. Iran's Supreme Leader identifies a vocal critic of Iran's theocracy who is a United States citizen with growing support from courageous Iranian dissidents. Accordingly, at the instruction of Mr. Bush, Central Intelligence Agency operatives kidnap the United States citizen for delivery to Iran's notoriously brutal Revolutionary Guards. He is imprisoned and tortured for two years before earning release by promising to cease speaking against Iran's mullahs.

Upon returning to the United States, he sues the CIA's operatives for damages, alleging violations of the Fourth Amendment's prohibition of unreasonable seizures, the Fifth Amendment's protection of liberty, and the Eighth Amendment's prohibition of cruel and unusual punishment. The government moves to dismiss the complaint under the state secrets doctrine, which was initially fashioned by the United States Supreme Court in Totten v. United States (1875). Generally speaking, the doctrine requires the dismissal of any suit where the plaintiffs proof would require disclosing classified information.

The motion to dismiss is granted because the kidnapped and tortured U.S. citizen would need to prove the identities of covert CIA operatives and the understanding between Mr. Bush and Iran's Supreme Leader that he would be delivered into the mercies of the Revolutionary Guard.

Injustice rejoices. The rule of law has been turned on its head. The government has been encouraged to flout the Constitution.

The hypothetical bears a troublesome resemblance to the cases of Mahar Arar and Khaled al-Masri. The former, a Canadian citizen wrongly suspected of terrorist ties, was dispatched from Kennedy International Airport to Jordan and then Syria with the complicity of the CIA. Mr. Arar was imprisoned and tortured by Syrian authorities before his release.

The Canadian government apologized for its ill-starred collaboration in Mr. Arar's torture and paid compensation. In contrast, his suit against U.S. officials for alleged constitutional wrongdoing was dismissed under the state secrets doctrine. Ditto for the suit initiated by Khaled al-Masri, a German citizen kidnapped by CIA operatives in Macedonia, dispatched to Afghanistan, imprisoned, and subject to abusive interrogation. Mr. al-Masri was ultimately dropped into Albania without charge or accusation.

Congress should revamp the state secrets doctrine to stop its medieval results. The Classified Information Procedures Act of 1980 (CIPA), applicable in criminal prosecutions, should provide the guidepost. Under CIPA, if a fair defense would require the disclosure of classified information, the government is permitted to substitute an unclassified summary to the accused. If the summary is inadequate to mounting a fair defense to the criminal charges, the government must either drop the prosecution or disclose the classified documents.

The state secrets doctrine, applicable in civil suits, should be modeled on CIPA. If the suit would require discovery or proof of classified information, the government should be permitted to disclose an unclassified summary as a substitute. If the summary does not permit the plaintiff a fair opportunity to prove his case, the government should be required to choose between either accepting a default judgment (assuming other elements of the plaintiff's claim are proven), or disclosing the classified information.

Forcing that choice is fair. State secrets purport to protect the entire nation. If the government relies on state secrets to frustrate an individual's otherwise well-founded claim for damages, it should be required to pay the monetary loss to the plaintiff. Eminent domain works the same way. If the government takes property for a public use, the owner is entitled to just compensation.

The state secrets doctrine was ill-born in Totten. The claimant alleged a breach of contract by the United States in failing to pay for spying on the Confederacy. The Supreme Court dismissed the suit because the spying agreement carried an implied requirement of required perpetual secrecy as to its existence: "The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed. Both employer and agent must have understood that the lips of the other were to be forever sealed respecting the relation of either to the matter. This condition of engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent."

Totten on its facts was tolerable. No constitutional wrongdoing was alleged. The relation between the spy and the government was consensual. And Totten left the government with an incentive to honor its contracts. To welch on promises would drive away would-be spies or escalate contract prices.

Totten, however, has been torn from its roots by ill-reasoned court decisions that shield alarming constitutional transgressions from legal accountability. Congress should not tarry in correcting these judicial misadventures.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.