This is the first of two columns on the Bush administration’s abuse of the “state’s secrets” doctrine.
Since so many American youngsters are left behind in their knowledge of Supreme Court history, the constitutional clarity and courage of the late Justice Wiley Rutledge is unknown to them. But one of his former clerks, John Paul Stevens, now himself a Supreme Court Justice, has quoted Justice Rutledge on due process being our greatest protection against unbridled power. Yet on Oct. 9, Justice Stevens was silent when once more the Bush administration used the club of “state secrets” to prevent a case from even being heard.
Appealing to our court of finality, a German citizen, Khaled el-Masri, was asking for damages after having been abducted by the CIA in 2004 to a secret prison in Afghanistan, where he was beaten and tortured repeatedly for five months. He was suddenly released because, as German Chancellor Angela Merkel says Condoleezza Rice told her, the CIA had kidnapped the wrong man as a suspected terrorist. (We haven’t even said we’re sorry.) Mr. el-Masri’s ordeal — from which he is far from recovered psychologically — is widely known in Europe and elsewhere in the world. It has further shamed the United States for its CIA “renditions,” again recently approved by the president.
Yet, when the American Civil Liberties Union took Mr. el-Masri’s case to the Supreme Court, not even the four justices necessary to have his case reviewed, including Justice Stevens, said a word. The court cut Mr. el-Masri off from any chance of justice in this country, which, as the president keeps pledging, adheres to all U.S laws and international treaties. (He omits those steamrolled by the CIA in this criminal kidnapping.) Our highest court bowed low to the Bush administration’s invoking of the “state secrets” privilege. It warned this land’s national security would be compromised by any revelations of why and how the CIA, under authorization of the president, had been responsible for Mr. el-Masri’s current commitment to a psychiatric institution in Germany.
Solicitor General Paul Clement, in the government’s brief to the Supreme Court, insisted that American officials have never revealed the super-secret ways in which CIA agents plan and conduct these renditions. But I have hundreds of documented pages detailing those methods from reports by human rights organizations and such heavily footnoted books as Stephen Grey’s “Ghost Plane: “The True Story of the CIA Torture Program” (St. Martin’s Press, 2006).
There are also specific accounts by victims of this American way of torture and an extraordinarily detailed report on CIA secret prisons in Europe also part of our torture program, from the Council of Europe. Its author, Swiss Sen. Dick Marty, was helped, Reuters reported on July 17, by cooperation from dissenting CIA officers. Moreover, some former CIA agents have also provided information on such “renditions as el-Masri’s.” As the ACLU told the Supreme Court in its brief in the el-Masri case: “The government cannot legitimately keep secret what is already widely known.” The present administration has closed our courtroom doors, in lower courts as well as the Supreme Court, 39 times since 2001 with the “state secrets” barrier more than double the average in the past 24 years. There have been forced disappearances of cases on warrantless surveillance of Americans, e-mails and telephone calls and the accompanying pervasive data-mining by combined intelligence agencies of millions of Americans’ personal records.
Steven Aftergood, a secrecy specialist at the Federation of American Scientists, told me, after the Supreme Court sent Mr. el-Masri into the darkness beyond our rule of law, that “at first, the terrorists, in their acts of destruction on 9/11, and before, never imagined they could shut down the American legal system, and its core, due process.” But the Supreme Court’s refusal to even hear Mr. el-Masri’s plea for justice, in a case reported and followed around the world, allows the terrorists to make hollow the president’s assurance on Sept. 12, 2001, that “we will not allow our enemy to restrict our freedoms.” But “state secrets” have also barred American citizens from our courts.
In the case of Japanese-Americans being herded into internment camps during World War II, Supreme Court Justice Robert Jackson later said in Korematsu v. United States (1944) that when an overreaching claim of executive power becomes validated into precedent (by the Supreme Court): “The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply into our law and thinking and expands it into new purposes.”
In el-Masri v. United States, all nine justices silently kept the loaded weapon of “state secrets” ready for this or the next president to shoot when he or she asserts “an urgent need.” During all the Republican and Democratic presidential debates, have any candidates mentioned “state secrets”?