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Dangerous Discretion: State Secrets and the El-Masri Rendition Case

JURIST Guest Columnist Aziz Huq, Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law, says that the El-Masri v. Tenet ruling represents a dangerous trend in "state secrets" cases towards immunity from litigation at the discretion of the executive...


The U.S. Court of Appeals for Fourth Circuit recently upheld a district court dismissal of a tort case brought by a German citizen against former Director of Central Intelligence George Tenet, three private airplane corporations, and twenty John Does. The case, El-Masri v. Tenet, sought to cast light on a government practice that until now has been shrouded in careful secrecy: Extraordinary rendition, or the extra-legal transfer of suspects to the custody of another sovereign for likely torture.

The El-Masri case presents important challenges both to the international rule of law, and to the quality of justice delivered in the U.S.’s own federal courts. Professor Benjamin Davis, in an earlier JURIST Forum column, has pointed to some of the moral concerns the decision yields. My interest is in the technical aspects of the “state secrets” privilege on which the Fourth Circuit based its decision.

The facts of El-Masri’s case, as Professor Davis has explained, are stark. Initially arrested in December 2003 in Macedonia, El-Masri alleges he was handed over to the CIA by Macedonian authorities and then imprisoned for almost five months in an American facility in Afghanistan known as the “Salt Pit.” While imprisoned, El-Masri represents, he was beaten and interrogated under circumstances that arguably rise to the level of torture.

These facts, in my view, are credible. An official German inquiry, for example, has confirmed that El-Masri was arrested in Macedonia and was later held in Afghanistan (in part through chemical analysis of El-Masri’s hair). The American Civil Liberties Union, who are El Masri’s counsel, have identified another prisoner in the same U.S. facility in Afghanistan who corroborates the German citizen’s detention there. And German Chancellor Angela Merkel indicated in December 2005 that she had discussed El-Masri’s case with Secretary of State Rice, and that Rice had acknowledged that El-Masri’s disappearance and prolonged detention had been a “mistake.” Indeed, German prosecutors credit El-Masri’s account sufficiently that they have sought indictments of thirteen CIA agents on criminal charges.

But the Fourth Circuit would have none of this. Upholding a decision by Judge T.S. Ellis III, a panel of the appeals court held that the federal government had properly intervened in the case and upheld its objection to any litigation on “state secrets” grounds.

First christened by the Supreme Court in 1953 in United States v. Reynolds, the “state secrets” privilege originally allowed the government to shield specific pieces of evidence from discovery in the course of civil litigation. Once invoked by the head of a government agency, it serves as an absolute bar to judicial inquiry. From its inception, the state secrets privilege has been exercised with deference to executive judgment. Rare are the cases in which judges carry out even in camera examination of contested evidence to test whether it is properly kept secret.

In Reynolds, the Court held that the state secrets privilege protected Air Force documents pertaining to a plane crash, claiming that the documents contained sensitive materials, and that the plaintiffs in a tort case concerning the crash could not force their disclosure. As historian Louis Fisher has chronicled in his book In the Name of National Security, the documents, which emerged almost four decades later, in fact contained nothing of the kind: Rather, they revealed negligence on the Air Force’s part that would have made a determinative difference in the case. State secrets was thus flawed at birth.

Reynolds crafted the state secrets privilege out of whole cloth. Congress gave no warrant for the privilege, and the history the Court pointed to was fragmentary. Writing for the Court, Chief Justice Vinson stated that a “reasonable danger” that disclosure would harm national security stopped any discovery.

Vinson’s “reasonable danger” test has superficial appeal. But it lacks doctrinal roots. And in practice it has no teeth. All the government has to do to cloak itself in secrecy is use an ex parte proceeding to scare a non-specialist judge into believing that their claim of confidentiality is reasonable. More than anything, the Reynolds test echoes the deferential posture Vinson took toward government claims about security risks in the 1951 Dennis case. Of course Dennis hardly represented an accurate bellwether of First Amendment jurisprudence.

Once named, the “state secrets” privilege had the potential to grow. Like the doctrines of qualified and absolute immunity, which have been judicially expanded by insidious degrees, “state secrets” endows the executive branch with a substantial discretionary margin of error – or a discretion to abuse constitutional rights. Hence, there is a heavy incentive for the government, which is a repeat player in the federal courts, to push for doctrinal expansion.

In El-Masri, the Fourth Circuit held that “state secrets” had been properly invoked and required wholesale dismissal of El-Masri’s complaint before any evidence had been presented. Judge King starkly explained that the Court would sacrifice El-Masri’s “personal interest” for “the collective interest in national security.”

The Fourth Circuit’s decision to authorize threshold dismissal of El-Masri’s complaint, while not unprecedented, represents a dangerous trend in “state secrets” cases: Rather than an evidentiary doctrine, the privilege is becoming an immunity from litigation (just like qualified and absolute immunity). This is a qualitatively different kind of power for the executive to yield – and yet courts have never fully justified this subtle, yet consequential, transformation.

Judge King gave three reasons for the ruling. Each has troubling implications. First, he argued that any hearing into the facts of El-Masri’s case would reveal facts about “how the CIA organizes, staffs, and supervises its most sensitive intelligence operations.” Note that this reason is dramatically open-ended: Virtually any case that touches on intelligence operations could be dismissed under that logic.

The second ground that the Fourth Circuit relied upon was the possibility that defendants in El-Masri’s case might raise defenses that implicated state secrets. But this is curious speculation. El-Masri had not had a chance to elaborate his full case. Whatever defenses the one former state employee, Tenet, or the private contractor defendants had yet to make was a matter for future litigation. Even if certain facts could not be litigated, a court might have explored other procedural options.

Finally, the Court concluded that the “subject matter” of El-Masri’s case – the fact that the American government erroneously kidnapped, detained, and tortured an innocent German citizen – constituted a “state secret.” Again stated baldly, this means that any time the Government abuses its vast intelligence powers ($44 billion in government overhead as of 2005 and counting), the court must stand aside.

While the Fourth Circuit insisted that it, and not the executive, maintained control over the course of litigation, and that its decision did not constitute rank abdication of the judicial role, the breadth of its reasoning means that executive discretion to invoke “state secrets” is basically without limitation.

Yet it is simply not clear why the judiciary should be disabled so wholly in national security matters. None of the reasons for judicial abdication in fact hold water. Is it because they require the handling of specialized knowledge? This does not distinguish them from trademark, antitrust, patent, or medical malpractice cases. And there are ample procedural mechanisms to ensure the secure the safe handling of classified evidence, as the 1980 Classified Information Procedures Act (CIPA, which is used in the criminal context) demonstrates.

Alternatively, is the responsibility of the democratic branches to make decision about matters of such great weight as national security? This cannot be right either. From McCulloch to Dred Scott to Brown, our federal courts have taken center-stage in adjudicating the great national debates of the day. Without doubt, Frederick Schauer, writing recently in Harvard Law Review, is correct that the Court works at some remove from key national political debates of the day. Yet it is equally true that when the Courts will, they can enter the fray, and often give as good as they get.

So is it then that classified evidence cannot safely be handled by federal courts? At the threshold, it is important to recognize the alarming premise on which this claim is based: That federal judges cannot be trusted. There is, thankfully, no evidence for this amazing claim. Less than Congress and certainly less than the executive branch – as the Libby trial ought to have reminded us – the judiciary is simply not a source of secret disclosures.

There is in fact a range of procedural options available for handling classified evidence without compromising either security or the vindication of fundamental liberties, not least CIPA. While Congress is better positioned than the courts to devise ways of sifting creditworthy from bankrupt executive branch claims of secrecy, the federal courts ought not to wait for congressional direction. As the El-Masri decision shows, there is clear need for more rigorous analysis of the “state secrets” privilege’s dangerous and unwarranted breadth even now.


Aziz Huq directs the Liberty and National Security project at the Brennan Center and is co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror.

March 12, 2007


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