Goverment responds to state secrets challenge

The Solicitor General’s office asked the Supreme Court on Wednesday not to review the suit of a German citizen alleged to have been mistakenly abducted and sent to a secret prison in Afghanistan as part of the Central Intelligence Agency’s “extraordinary rendition” program. The government’s brief (here), obtained Thursday afternoon, argues the district court and Fourth Circuit properly dismissed the complaint at the pleadings stage under the so-called “state secrets privilege,” which allows the government to seek the exclusion of evidence officials assert could jeopardize national security.

The government said that while it could not publicly discuss the significance of the secret evidence at issue in its public brief, officials would make a classified declaration available to the Justices upon request under “appropriate security measures.” Also on Wednesday, the Justices received amicus briefs in support of the petitioner from the Constitution Project (here) and the New York City Bar Association (here).

Lawyers for the American Civil Liberties Union filed the petition in May on behalf of Khaled El-Masri, a German citizen born to Lebanese parents. According to the petition in El-Masri v. United States (06-1613) (here), officials at the Macedonian border detained El-Masri in the final days of 2003 as he attempted to enter the country by bus. After being interrogated at a hotel for more than three weeks, El-Masri was turned over U.S. agents and flown to a CIA prison in Afghanistan known as the “Salt Pit,” his lawyers say. Agents at the prison repeatedly beat and interrogated El-Masri, according to the petition, until officials realized he was not the Al Qaeda suspect they had originally believed.

In late 2004, El-Masri brought suit against former CIA Director George Tenet in the Eastern District of Virginia, as well as three corporations and unnamed agents allegedly involved in his abduction. The U.S. government intervened to dismiss the case, saying the disclosure of state secrets would inevitably be required during the course of litigation. Both the district court and a Fourth Circuit panel ruled for the government after reviewing a classified declaration from then-CIA Director Porter Goss. Publicly, the government has said it “can neither confirm nor deny” El-Masri’s accusations.

In the petition for certiorari, El-Masri’s lawyers argued that the privilege had “become unmoored from its evidentiary origins” – invoked not against specific pieces of evidence but to prevent suits from even reaching discovery. In Wednesday’s response, the government argued that “[t]here is no logical basis for petitioner’s assertion that cases may not be dismissed before discovery even if it is evident at the outset that they could not proceed to judgment without recourse to state secrets.” The brief continued, “[s]uch litigation not only would be pointless, but would threaten the disclosure of the very privileged information that the state secrets privilege is designed to protect.”

Citing a forthcoming article in the George Washington Law Review, the government’s brief says courts dismissed nearly two dozen complaints at the pleading stage between 1973 and 2000 under the state secrets privilege. Also according to the article, authored by Professor Robert M. Chesney, “[t]he available data do … not support the conclusion that the Bush administration chooses to resort to the privilege with greater frequency than prior administrations or in unprecedented substantive contexts.”

El-Masri’s petition also sought to cast doubt on the appropriateness of the state secrets privilege given the extensive media attention devoted to the story, including a CNN appearance by Tenet himself in which he denied El-Masri’s allegations. The government’s response states that “[w]hile there have been reports in the media and elsewhere about the allegations underlying this case, such media reports do not reflect the government’s official view and are not necessarily accurate.” In response to the petition’s claim that “[t]he central facts of this case are not state secrets,” the government’s brief argues, “all four of the judges below who had access to the government’s classified submission in this case – not to mention the top government officials whose job it is to assess and protect foreign intelligence – have disagreed with that contention.”

The government repeatedly cites United States v. Nixon (1974) in arguing that courts owe “utmost deference” to requests for privilege connected to presidential actions undertaken in the performance of constitutional duties. “Such deference protects the Executive’s Article II responsibility to safeguard national security information,” the brief states, “and accounts for the fact that the Executive Branch is in a far better position than the courts to evaluate the national security and diplomatic consequences of releasing sensitive information.”