- The Washington Times - Monday, March 12, 2007

The state secrets privilege fashioned by a naive United States Supreme Court in United States v. Reynolds (1953) enables the president to deprive individuals of their constitutional rights with impunity.

The privilege empowers the president to task Central Intelligence Agency officials or proxies to kidnap and torture American citizens abroad yet prevent them from obtaining redress by insisting that proof of the constitutional outrage would expose intelligence sources or methods.

The government lied about the privilege in Reynolds. The prevarication could have been expected because the executive regularly misclassifies information like the Pentagon Papers based on false assertions that disclosure would impair the national security or foreign policy of the United States.

Congress should repeal the privilege. In litigation where a plaintiff has offered credible proof of a constitutional violation, Congress should direct that a default judgment should be entered against the United States if the president refuses a rebuttal to protect alleged state secrets. The rule of law needs more deterrents to constitutional wrongdoing, not fewer.

The decision by the U.S. 4th Circuit Court of Appeals in Khalid El-Masri v. United States (March 2, 2007) highlights the menace of the prevailing state secrets privilege. A German citizen, Mr. El-Masri, filed suit seeking damages against former Director of Central Intelligence George Tenet, 10 unnamed CIA employees, and 10 unnamed employees of corporations. The complaint alleged a grim tale of “extraordinary rendition.” While traveling in Macedonia, Mr. El-Masri was detained by Macedonian law enforcement officials. He was then handed over to CIA operatives, who flew him to a CIA-operated detention facility in Afghanistan. There he was subject to torture, cruel, inhumane or degrading treatment for five months before he was transported to Albania and dumped in a remote area.

Mr. El-Masri was never charged with crime or terrorist activity. He claimed his detention and interrogation were “carried out pursuant to an unlawful policy and practice devised by defendant Tenet known as ‘extraordinary rendition’: the clandestine abduction and detention outside the United States of persons suspected of involvement in terrorist activities, and their subsequent interrogation using methods impermissible under U.S. and international laws.”

The United States intervened and asserted Mr. El-Masri should be blocked by the state secrets doctrine from proving his alleged torture and arbitrary detention orchestrated by Mr. Tenet and executed by his CIA minions. According to a sworn affidavit submitted by then CIA Director Porter Goss, permitting Mr. El-Masri’s suit to proceed would risk disclosures detrimental to the national security. The United States District Court for the Eastern District of Virginia dismissed the complaint, and a unanimous three-judge panel of the 4th Circuit affirmed in reliance on Reynolds.

There, an Air Force bomber crashed during testing of secret electronic equipment. Three civilian observers on board were killed. Their widows sued the United States for alleged negligence under the Federal Tort Claims Act. They sought discovery of the Air Force’s accident report and companion materials. The Air Force filed a “Claim of Privilege,” contending disclosing the information would “seriously hamper[ ] national security, flying safety and the development of highly technical and secret military equipment.”

The Supreme Court sustained the Air Force’s nondisclosure. It reasoned that the common law of evidence recognized a state secrets privilege to bolster the president’s constitutional responsibilities over the military and foreign affairs. The justices further declared that utmost deference must be given to the president’s determination that a disclosure might harm national security because he is vastly more knowledgeable than judges as to whether facially innocuous information could be the missing piece in an intelligence jigsaw puzzle to intelligence experts.

If information has been determined to be privileged under the state secrets doctrine, it is absolutely protected from disclosure — even from in camera examination by the court — and the case ordinarily must be dismissed.

Reynolds was misconceived. It ignores the government’s propensity to misrepresent national security dangers to avert liability or to prevent political embarrassment. Decades after the Supreme Court’s decision, the Air Force accident report that was held privileged was declassified. Judith Loether, daughter of one of the civilian engineers who died on the plane, discovered the report during an Internet search, and it does not discuss secret equipment.

The misrepresentation to the contrary in Reynolds was no aberration. President Richard Nixon falsely asserted that tracing the money used to pay the Watergate burglars would expose intelligence sources or methods. Indeed, the executive branch in general is notorious for classifying information whose disclosure would be harmless. Classified materials daily leak into the media with no credible showing of national security damage, for example, the New York Times’ disclosure of the National Security Agency’s electronic surveillance of American citizens on the president’s say-so alone in contravention of the Foreign Intelligence Surveillance Act.

Judges should be skeptical of state secret claims not because they know more than the White House about international affairs, but because the White House chronically fabricates to obtain a political or legal advantage.

Even when state secrets are genuinely implicated, the privilege still conceals proof of flagrant constitutional violations. The El-Masri case is emblematic. The 4th Circuit ruled that exposing CIA officials, their assignments, and modus operandi in kidnappings or torture to establish their liability under the Constitution would risk revealing intelligence sources or methods. In other words, even if Mr. El-Masri had been assassinated by CIA agents because of his religion or ethnicity, his estate could not sue the assassins because their identities would be state secrets.

Congress should not tolerate such a Kafkaesque doctrine.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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