El Masri 04-25-07

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State Secrets Privilege Used to Protect Executive Misconduct, Invites use of Torture The Fourth Circuit in El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) recently issued a decision that brings into focus the dangerous threat posed by the “war of terror” to the United States Constitution and our historically sacred Bill of Rights. El-Masri is a German citizen of Lebanese descent. In December 2003 he was traveling in Macedonia. He was taken into custody by Macedonian law enforcement officials. They held him in their custody for twenty-three days before turning him over to American CIA operatives. These operatives then flew El-Masri in a private plane to a CIA-operated detention facility in Kabul, Afghanistan. The German citizen remained in this facility until May 2004. He has been beaten, drugged, bound, and blindfolded during his transport; he was kept confined in a small, dirty cell; interrogated “several times”; and “consistently prevented from communicating with anyone outside the detention facility, including his family or the German government.” Id., at 299. Finally, on May 28, 2004 El-Masri was transported by the CIA to Albania and released in a remote area. He was then picked up by Albanian officials who took him to an airport in Tirana where he was put on a flight to Germany. In December 2006 El-Masri filed a lawsuit under Bivens and the Alien Tort Statute against former CIA Director George Tenet, unnamed CIA employees, and private individuals who provided resources and transports to the CIA. El-Masri charged that he had been abducted, detained, and tortured pursuant to an unlawful policy and practice known as “extraordinary rendition” devised by Tenet. This policy allows the CIA to secretly abduct and detain persons outside of the United States suspected of being involved in terrorist activities. These abductees are detained in secret prisons, routinely tortured, and held completely incommunicado. It is an American policy of terror implemented to fight the “war on terror.” The Government quickly intervened in the lawsuit that was filed in the United States District Court for the Eastern District of Virginia. The Government said that El-Masri’s lawsuit could not proceed because “it

posed an unreasonable risk that privileged state secrets would be disclosed.” Id., at 299-300. The District Court granted the Government’s “motion to dismiss” pursuant to the “state secrets doctrine.” See, El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va. 2006). What exactly is the “state secrets doctrine”? The United States Supreme Court in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed.2d 727 (1953) said that under this doctrine the Government can prevent disclosure of information if “there is a reasonable danger” that the disclosure of that information would “expose military matters which, in the interest of national security, should not be divulged.” Id., 345 U.S. at 10. It was Reynolds that put the privilege of state secrets into its modern “state secrets doctrine.” El-Masri, supra, 479 F.3d at 302. The Reynolds case concerned the crash of an Air Force B-29 bomber during a flight testing “secret electronic equipment,” killing three civilian observers on board. Id., at 303. Their widows sued the United States under the Federal Tort Claims Act, and they sought discovery of certain Air Force documents relating to the crash. The Air Force refused to disclose the documents and filed a formal “Claim of Privilege,” contending that the plane had been on “a highly secret mission of the Air Force,” and that disclosure of the requested materials would “seriously hamper[ ] national security, flying safety and the development of highly technical and secret military equipment.” Id. at 4-5, 73 S.Ct. 528. The widows of the civilians sued and the Supreme Court upheld the Air Force’s refusal to disclose documents sought by lawyers for the widows. The Supreme Court used the term “privilege” is saying that there exists a “privilege against revealing military secrets; and that the privilege was “well established in the law of evidence.” Id., 345 U.S. at 6-7. The high court examined a long line of precedents dealing with this “privilege” issue, including Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875) in which the court dismissed an action for “breach of a secret espionage contract,” finding that public policy prohibits a lawsuit that “would inevitably lead to the disclosure of maters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Id., 92 U.S. at 107. While the Reynolds court noted that the “privilege” had been developed in common law as exampled by Totten, the Fourth Circuit in El-

Masri stressed that the privilege “performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign affairs responsibilities.” Id., 479 F.3d at 303. See also: Reynolds, supra, 345 U.S. at 6. Two decades after Reynolds the Supreme Court once again confronted this executive privilege issue in United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)[“areas of Art. II duties [in which] the courts have traditionally shown the utmost deference to Presidential responsibilities”]. The Nixon Court addressed the privilege issue in more expansive language, saying that when an executive privileges “relates to the effective discharge of a President’s powers, it is constitutionally based.” Id., 418 U.S. at 711. Paying deference to Supreme Court guidance, the Fourth Circuit said that the “Executive’s constitutional authority is at its broadest in the realm of military and foreign affairs. The [Supreme] Court accordingly has indicated that the judiciary’s role as a check on presidential action in foreign affairs is limited.” Id., 479 F.3d at 303. Courts facing an issue involving the “state secrets doctrine” must conduct a three-part analysis. First, the court must determine that the Government has satisfied the “procedural requirements” for invoking the privilege. Second, the court must decide whether the information the Government seeks to protect qualifies as privileged” under the doctrine. Third, once the court determines that the information is privileged, the most significant issue then is how the action “should proceed in light of the successful privileged claim.” Id., 479 F.3d at 304. The Supreme Court in Reynolds set forth the “procedural requirements” for invoking the state secrets privilege. First, the Government must plead the privilege because it “belongs to the Government;” second, there must be a “formal claim of privilege, lodged by the head of the department which has control over the matter;” and, finally, the department head’s privilege can be invoked only “after actual personal consideration by that officer.” Id., 345 U.S. at 7-8. Once a trial court is satisfied that the Reynolds prerequisites have been satisfied, it must determine if the information the Government is trying

to shield is a state secret and, therefore, exempt from disclosure. The Fourth Circuit noted that “this inquiry is a difficult one, for its pits the judiciary search for truth against the Executive’s duty to maintain the nation’s security.” Id., 479 F.3d at 304. Quoting from Reynolds, the El-Masri court stressed this point by saying that “’judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers’ – no matter how great the interest in national security – but that the President’s ability to preserve state secrets likewise cannot be placed entirely at the mercy of the courts.” Id. See also: 345 U.S. at 9-10. The Reynolds court struck the balance in favor of the courts, saying that a court is obligated to honor the pled privilege if it is satisfied, “from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Id., 345 U.S. at 10; 479 F.3d at 5. On appeal, the Government still bears the burden of showing the reviewing court that the Reynolds “reasonable-danger standard” was satisfied at the trial level. The reviewing courts were instructed by Reynolds with the caveat that they should be cautious in the amount of information they seek to review lest they “disclose the very thing the privilege is designed to protect.” Id., 345 U.S. at 8. This may force a trial court, or even a reviewing court, to conduct an in camera inspection to insure that the Reynolds criteria has been satisfied. Id., 345U.S. at 11. However, if the information has been determined to be privileged under the state secrets doctrine, there is no need for an in camera review. Id., 345 U.S. at 10; 479 F.3d at 5. El-Masri accepted the constitutional framework of the state secrets doctrine. He acknowledged that it protects state secrets from disclosure in court proceedings, and that those proceedings should be dismissed at the pleading stage if the secrets are so “so central to a proceeding that it cannot be litigated without threatening their disclosure.” Id., 479 F.3d at 308. The Fourth Circuit then concisely set out El-Masri’s claim. The heart of El-Masri’s appeal is his assertion that the facts essential to his complaint have largely been made public, either in statements by United States officials or in reports by media outlets and foreign governmental entities. He maintains that the

subject of this action is simply a ‘rendition and its consequences,’ and that its critical facts—the CIA’s operation of a rendition program targeted at terrorism suspects, plus the tactics employed therein—have been so widely discussed that litigation concerning them could do no harm to national security.’ Id. at 308. The Fourth Circuit quickly rejected the very premises of El-Masri’s claim; specifically, that U.S. officials had publicly acknowledged the CIA’s “rendition” program. The appeals court noted there is a major difference being pressing a case in the court of public opinion as opposed to a court of law. Id. In a court of law El-Masri would have to establish the roles that not only the defendants but others may have played in his abduction, torture, and detention. Id., at 309. Such an effort would expose how the “CIA organizes, staffs, and supervises its most sensitive intelligence operations.” Id. El-Masri would have to establish how Director Tenet personally participated in such programs, or how information about those programs was relayed to him. He would also have to establish the role that “private contractors” play in such operations; the exact arrangement the spy agency maintains with such contractors. Id. The Fourth Circuit said that this would violate the Supreme Court’s decision in Totten which is an absolute bar to disclosure of confidential espionage contracts. See also: Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005)[reaffirming Totten]. The El-Masri court then noted that “even marshalling the evidence necessary to make the requisite showings would implicate privileged state secrets, because El-Masri would need to rely on witnesses whose identities, and evidence the very existence of which, must remain confidential in the interest of national security.” Id., at 310. The Fourth Circuit pointed to a proverbial Catch-22 situation in the El-Masri case: even if he could establish a prima facie case without disclosing state secrets, the defendants would not be able to properly defend themselves without the use of “privileged” evidence. Id. The defendants would have to argue that (1) El-Masri was not subjected to the treatment he alleged, (2) or if he was subjected to such treatment, the defendants were not involved in it, and (3) if the defendants were involved, their involvement did not give rise to liability. Id. The Fourth Circuit noted that “any of those three showings would require disclosure of information regarding the means and

methods by which the CIA gathers intelligence.” Id. See also: Bareford v. General Dynamics Corp., 973 F.d 1138, 1140 (5th Cir. 1992). El-Masri tried to compromise with the court. He suggested that rather than dismissing his lawsuit, the court could develop a procedure during which the secrets would be revealed to him, his counsel, and the court, but withheld from the public. He suggested an in camera procedure and keeping the evidence under seal of the court. The Fourth Circuit once again went to Reynolds for instruction. The Supreme Court there said when “the occasion for the privilege is appropriate … the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone in chambers.” Reynolds, supra, 345 U.S. at 10; El-Masri, supra, 479 F.3d at 311. El-Masri also argued that a unilateral avoidance approached under the “state secrets doctrine” invited executive misconduct and that the judiciary should maintain its historical constitutional duty to review executive action. The Fourth Circuit flatly rejected this claim, explaining: “ … it is the court, not the executive, that determines whether the state secrets privilege has been properly invoked. In order to successfully claim the state secrets, the Executive must satisfy the court that disclosure of the information sought to be protected would expose matters that, in the interest of national security, ought to remain secret. Similarly, in order to win dismissal of an action on state secrets grounds, the Executive must persuade the court that state secrets are so central to the action that it cannot be fairly litigated without threatening disclosure. The state secrets privilege cannot be successfully interposed, nor can it lead to dismissal of an action, based merely on the Executive’s assertion that the pertinent standard has been met.” Id., at 312. Finally, the Fourth Circuit noted that the Executive faces a heightened burden in criminal cases. The appeals court pointed to its decision in United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004) in which the court required the government to make available to the defendant substantial access to enemy combatant witnesses who identities had been highly classified. Id. This judicial posturing notwithstanding, El-Masri is a dangerous concept. None of the cases cited by the Fourth Circuit in El-Masri involved the United States of America abducting, torturing, and detaining foreigners in secret prisons in foreign “rogue” nations simply because these people are suspected terrorists or suspected of being associated with terrorist activities.

Under El-Masri, an American citizen could be sitting in a Paris outdoor restaurant talking to someone of Arab descent he had just met. A CIA operative (not even an American) could witness the innocent, harmless conversation. He knows the Arab is either a terrorist or terrorism supporter. He informs his CIA superiors, telling them it was a “secret” meeting. The American could be abducted, tortured, and detained incommunicado for months in some filthy prison on foreign soil by his own government before being released after it was discovered that it had been an “innocent misunderstanding.” That American citizen would have no legal recourse because of the state secrets doctrine. When the Government engages in lawless, criminal behavior against either foreigners or its own citizens, the rule of law and common decency should prevail over the “privilege” of state secrets. Attached to any governmental “privilege” must be governmental responsibility and, more significantly, governmental accountability.

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