Test of state secrets privilege
on May 30, 2007 at 10:46 am
UPDATE June 4: The case has now been docketed as 06-1613.
UPDATE Thursday p.m.
The Constitution Project on Thursday released a report urging Congress to narrow the “state secrets” privilege that is at issue in the petition for review discussed in this post. The Project calls for new “statutory language to clarify that judges, not the executive branch, have the final say about whether disputed evidence is subject to the state secrets privilege.” The full report is available at this link.
UPDATE 5:05 p.m.
After some delay, the petition is now available for downloading; the link is below.
Lawyers for a German citizen who has sued to challenge the government’s secret program of overseas detention and interrogation of individuals it suspects have terrorist ties asked the Supreme Court on Wednesday to clarify and limit the so-called “state secrets” privilege. The Court has not ruled direclty on the scope of that evidentiary limitation since the 1953 case of U.S. v. Reynolds. If the Reynolds precedent now allows the government to shut down a lawsuit over secret operations before any evidence is even offered, that ruling should be reconsidered and narrowed, the appeal in El-Masri v. U.S. argues. The new petition, filed by the American Civil Liberties Union, can be downloaded at this site. The case has not yet been assigned a docket number.
The case involves Khaled El-Masri, who lives near Neu Ulm, Germany. He has been a carpenter and car salesman, but since late December 2003 has been caught up in an international diplomatic and legal controversy over the Central Intelligence Agency’s “extraordinary rendition” program, and the part he involuntarily played in that activity. His lawsuit aimed at U.S. officials has been thrown out before it could proceed after the federal government invoked the “state secrets” privilege to stop it. Besides pursuing his lawsuit, El-Masri has asked the U.S. government for an apology “because I am an innocent man who has never been charged with any crime.”
The petition raises this question: “Whether the Court of Appeals [Fourth Circuit] erred in affirmed the pleading-stage dismissal, on the basis of the evidentiary state secrets privilege, of a suit seeking compensation for petitioner’s unlawful abduction, arbitrary detention, and torture by agents of the United States?”
Since the Reynolds decision 54 years ago, the petition argues, “the privilege has become nmoored from its evidentiary origins. No longer is the privilege invoked solely with respect to discrete and allegedly secret evidence; rather, the government now routinely invokes the privilege at the pleading stage, before any evidentiary disputes have arisen. Indeed, Reynolds’ instruction that courts are to weigh a plaintiff’s showing of need for particular evidence in determining how deeply to probe the government’s claim of privilege is rendered wholly meaningless when the privilege is invoked before any request for evidence has been made.”
The privilege is being invoked much more frequently by the government than in the past, the petition says. The result, it adds, is that the government “seeks effectively to transform it from an evidentiary privilege into an immunity doctrine, thereby neutralizing constitutional constraints on executive powers….In particular, since Sept. 11, 2001, the government has invoked the privilege frequently in cases that present serious and plausible allegations of grave executive misconduct” — including, of course, El-Masri’s case.
“Mr. El Masri’s case,” according to the petition, “provides a compelling example of the lower courts’ acquiescence in the government’s expansion of the privilege beyond its evidentiary foundation. In this case, the government sought outright dismissal of Mr. El-Masri’s claims by invoking an evidentiary privilege before any evidence had even been requested. Indeed, the government’s arguments were not evidentiary: the government did not, because it could not, invoke the privilege with respect to specific evidence.” So, it simply relied on former CIA Director George Tenet’s speculation about what might be offered, and the argument that no allegation could be confirmed or denied without harming national security. “Nothing in Reynolds emotely sanctions such a practice,” the appeal contends.
In a variety of cases, involving other foreign citizens detained on U.S. orders, as well as a long list of cases challenging the government’s secret electronic eavesdropping program, the privilege has been invoked with a motion to dismiss “at the pleading stage,” the petition says. “Moreover, the privilege as asserted by the government and as construed by the court of appeals below has permitted dismissal of these suits on the basis of a government affidavit alone — without any judicial examination of the purportedly privileged evidence. Accordingly, a broad range of executive misconduct has been shielded from judicial review after the perpretrators themselves have invoked the privilege to avoid adjudication.” (emphasis in original)
The rising number of such cases, along with the Supreme Court’s lack of guidance since 1953, have led to conflict and confusion among lower courts on the proper scope and application of the privilege, according to the petition.
Since the Reynolds ruling, the petition argues, two developments “have called into question” some aspects of that decision. First, it says, is the breadth of the government’s use of the privilege to block adjudication outright, and second is the fact htat courts have become more accustomed to assessing claims about sensitive information than they were in the 1950s. Those developments, it concludes, “call for the reexamination of Reynolds.”
