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Reforming the State Secrets Privilege Reforming the State Secrets Privilege

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LEGAL AFFAIRS

Reforming the State Secrets Privilege

The United States has a moral obligation to compensate and apologize to victims of its own misconduct.

Among the legal issues over which the Bush administration and its congressional critics are stalemated in the war on terrorism is the so-called state secrets privilege. The case of one Khaled el-Masri illustrates the need for carefully balanced congressional reforms during the next administration to mitigate the privilege’s harsh effects on deserving plaintiffs—and on the national image.

In a petition filed on April 9 with the Inter-American Commission on Human Rights, this apparently innocent German citizen of Lebanese extraction described a harrowing five-month ordeal at the hands of Macedonian and

 

then U.S. agents who mistook him for a Qaeda operative. While el-Masri was on a vacation trip, according to the petition (drafted by the American Civil Liberties Union), Macedonian agents abducted, isolated, and harshly interrogated him for 23 days, then brutally beat him while handing him over to a CIA “rendition team.” The CIA agents in turn allegedly beat, stripped, and drugged el-Masri and flew him to a secret prison in Afghanistan, where he was held incommunicado for more than four months, harshly interrogated, and treated inhumanely. Finally he was blindfolded again, flown to Albania, and released in the dead of night. El-Masri’s allegations draw plausibility from the government’s failure to deny his factual claims.

The second apparent victimization of el-Masri came when the government denied him compensation or apology for this grotesque mistreatment. It chose instead to hide behind the state secrets privilege, persuading the courts to dismiss el-Masri’s lawsuit against former CIA Director George Tenet and other officials because it would require the agency to admit or deny the existence of a clandestine CIA activity, including highly classified details such as the persons, companies, or governments involved. The Supreme Court declined in October to take up el-Masri’s last appeal.

This was an especially harsh example of the workings of the state secrets privilege, a long-established legal doctrine for resolving—usually by upholding—government claims that disclosures of classified evidence in civil litigation must be blocked to protect national security.

 

Many lawsuits, including el-Masri’s, have been dismissed altogether on the ground that classified evidence is essential either to the plaintiffs’ or to the defendants’ cases. Courts tend to be highly deferential to the government in ruling on such claims—too deferential, sometimes.

El-Masri is a poster child for members of Congress, civil libertarians, and others who complain that the Bush administration and its predecessors have used the state secrets privilege to avoid exposure of government misconduct and who want the privilege curtailed.

Others whose lawsuits have been blocked include Sibel Edmonds, a former FBI translator who was fired after accusing colleagues of security breaches; Jeffrey Sterling, an African-American CIA officer who complained of job discrimination; assorted whistle-blowers; and victims (if any) of President Bush’s warrantless surveillance program. Lawsuits involving security-sensitive government contracts, patents, and the like have also been blocked.

Louis Fisher, a scholar with the Library of Congress who is a leading critic of the state secrets privilege, argues that it “is incoherent, contradictory, and tilted away from the rights of private citizens and fair procedures, and supportive of arbitrary executive power.” Adds the Constitution Project, a group that seeks bipartisan solutions to tough legal and constitutional issues: “History teaches that without independent judicial review of the executive branch’s claim, the judge, the other parties to the case, and the public cannot know whether the claim is being asserted for legitimate reasons or to conceal embarrassment, illegality, or constitutional violations.”

 

All true. Meanwhile, in keeping with the administration’s pattern of exaggerating its own powers and its complacency about the need to redress abuses, Attorney General Michael Mukasey was less than persuasive in a March 31 letter to Congress that argued, “It is highly questionable that Congress has the authority to alter the state secrets privilege, which is rooted in the Constitution.”

Some aspects of the privilege do have roots in the president’s constitutional duty to protect national security. But the case law indicates that nothing in the Constitution bars either Congress or the courts from making it harder for the executive to use the privilege to shield misconduct or from mitigating the harsh impact of the privilege on deserving plaintiffs.

The Supreme Court specified 55 years ago in its leading precedent on the privilege, “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” The executive branch does, as Mukasey emphasizes, have far more expertise than the courts on what disclosures might harm national security. But it also has shown, time and time again, that it cannot be trusted not to use bogus national security claims to avoid exposure of misconduct or embarrassment.

The hardest cases are the ones such as el-Masri’s, in which government misconduct is inextricably intertwined with genuinely critical secrets such as the identities of foreign governments and officials who have cooperated with covert CIA activities gone bad, and the identities of the covert agents involved.

In such cases, even when the government’s national security concerns are valid, “the use of the privilege to obtain dismissals of suits alleging government misconduct or unconstitutional behavior … raises special concerns relating to democratic accountability and the rule of law,” as Robert (Bobby) Chesney, a professor at the Wake Forest School of Law, wrote last year in an incisive and exhaustive 84-page law review article.

The decision to dismiss el-Masri’s lawsuit, for example, was probably right as a matter of current law. But there is a strong case for changing the law to provide more redress to such victims of government misconduct if that can be done without jeopardizing security.

Any new legislation should be drawn very, very carefully, however, lest we lurch from the current risk of shielding outrageous government misconduct to disabling the government from defending against bogus charges.

 

The government has shown, time and time again, that it cannot be trusted not to use bogus national security claims to avoid exposure of misconduct or embarrassment.

 

Reformers largely agree that rather than simply rubber-stamping government contentions that opposing parties have no opportunity to contest, as some courts have done, judges should be required in most cases to personally examine the classified documents to test the accuracy of the government’s assertions that they in fact contain security-sensitive information.

Reformers also agree that judges should ordinarily test the government’s assertions about classified evidence by giving access to independent lawyers with security clearances who can argue against the government’s position.

But some of the detailed reform proposals now before Congress would go too far. For example, a mostly reasonable bill proposed by Sens. Edward Kennedy, D-Mass., and Arlen Specter, R-Pa., could require giving the personal attorneys of accused terrorists (if they can get security clearances) direct access to the government’s most sensitive secrets. It could also be construed to allow plaintiffs to win their lawsuits even when the government has strong but highly classified evidence that the most damaging allegations are false.

Worse, a proposal by Rep. Jerrold Nadler, D-N.Y., would replace current law’s excessive judicial deference to the superior expertise of the executive branch on whether specified disclosures would harm national security with a regime of almost no deference at all.

One cautious reformer who seems to strike about the right balance between security and rule of law concerns is Chesney. He agrees that Congress should change the current practice of allowing only judges and government lawyers access to the classified evidence. But he would assign the role of testing such claims to lawyers with security clearances (“guardians ad litem”) specially appointed by the courts, not to the personal lawyers of parties opposing the government, some of whom might be untrustworthy or feel ethically obliged to share secrets with their clients.

Chesney also suggests giving judges the option of seeking nonbinding advisory opinions from the congressional intelligence committees on whether disclosure of the information at issue in a state secrets battle would in fact harm national security.

More important, Chesney suggests that Congress give plaintiffs who collide with the state secrets privilege the option of having their suits transferred to a new court that could hear their cases in closed session, without juries, to the extent necessary to avoid compromising sensitive information.

Such a secret, or semisecret, court would, like the 30-year-old Foreign Intelligence Surveillance Court, be an imperfect substitute for the usual judicial process. But for victims of misconduct such as Khaled el-Masri, it would be a lot better than “case dismissed.”

For the time being, the world’s el-Masris have no legal remedy. But that need not mean that they have no remedy at all. Unless responsible officials at least assert under oath that the plaintiffs’ main allegations are false, the United States has a moral obligation to compensate and apologize to victims of its own misconduct. Congress can and should do that directly if it cares about presenting America to the world as an honorable nation.

This article appears in the April 12, 2008 edition of National Journal Magazine Contents.

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