US District Court Judge TS Ellis III, who recently dismissed the corruption suit against Custer Battles on the fairly specious grounds that the CPA was not a “US govt entity” without explaining how it could rationally be considered anything else, last year dismissed Khaled Al-Masri’s lawsuit against the CIA for kidnapping and torture on the dubious grounds that “state secrets” might be “exposed” by a public trial. Al-Masri appealed that decision and yesterday the Fourth Circuit, led by Clinton appointee Robert B King, upheld Ellis’ ruling.
In May 2006, Judge T. S. Ellis III, of the Federal District Court in Alexandria, Va., dismissed the suit under the so-called state secrets privilege. The privilege can require courts to limit or dismiss suits that might disclose information harmful to national security. The decision yesterday, by the Court of Appeals for the Fourth Circuit, affirmed that ruling.
“We recognize the gravity of our conclusions that el-Masri must be denied a judicial forum for his complaint,” Judge Robert B. King wrote for a unanimous three-judge panel of the court. “The inquiry is a difficult one, for its pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”
Lawyers for the American Civil Liberties Union, which represents Mr. Masri, said there was enough public information about his ordeal to allow his suit to be adjudicated without endangering national security. The appeals court disagreed, saying that Mr. Masri could not win his case without exposing “how the C.I.A. organizes, staffs and supervises its most sensitive intelligence operations.”
Furthermore, the court continued, the defendants “could not properly defend themselves without using privileged evidence.”
King’s argument is tantamount to giving the CIA carte-blanche to do anything it wants to do anywhere in the world without either oversight or accountability and – as the Church Committee proved thirty years ago – there is no such immunity from prosecution enshrined in either US law or international law, nor was it ever the intent of Congress to give the Company such blanket immunity.
The “state secrets privilege” was invented by the Eisenhower Administration in 1953 to suppress information about the “secret mission” of a bomber that crashed in 1948. The SCOTUS bought the argument and dismissed the case, but in 2000 documents relating to the crash were finally released and it turned out that the only thing the Air Force was protecting was its own ass.
In 2000, the accident reports in question were declassified and released, and were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force’s case. Many commentators have alleged government misuse of secrecy in the landmark case.
The “privilege” was not invoked again until the Bush Administration. Since 2001, Bush has invoked it no fewer than 11 times, including the al-Masri case, the Arar case, and the Sibel Edmonds case. As a precedent, the legal history of the SSP is checkered at best, sometimes upheld and sometimes rejected, but it has worked often enough to be attractive to any administration that wants to hide its own culpability just as the Air Force hid theirs for almost half a century.
The beauty of the SSP lies in its ability to make not just information invisible but the govt’s motivation for hiding it. The “privilege” extends to reasons: once invoked, the govt doesn’t have to explain either what it’s hiding or why it’s hiding it. It’s the ultimate in executive privilege, comprehensive and hopelessly vague. The assumption behind it is that there is no limit to the govt’s power to declare virtually anything a matter of “national security” on its own say-so because the govt cannot be asked to explain or justify why it is invoking the “privilege”. Bush or Cheney could literally walk into Fort Knox, remove a few $$$billions$$$ worth of gold bullion, put it in a station wagon and drive off, and if they then said what they did was “a matter of national security” and invoked the SSP, nobody could even ask them about it, not the Congress or any court in the land except – maybe – the SCOTUS.
This is perfect Bush/Cheney territory. No wonder they use it so often. It’s authoritarian, autocratic, and anti-democratic. It turns the Executive Branch into the arbiter, judge and jury of itself. It excuses everything without either explanations or consequences.
King’s decision may be indefensible. Certainly it’s dangerous. He explained it this way:
Judge King gave examples of the problems the defendants would face. “If, for example, the truth is that el-Masri was detained by the C.I.A. but his description of his treatment is inaccurate, that fact could be established only by disclosure of the actual circumstances of his detention, and its proof would require testimony by the personnel involved.”
If this excuse is to be accepted legally, then all the actions of all the personnel involved in the CIA’s prison system are protected from disclosure, and they are protected from criminal prosecution if they have broken the law. It also means that any and all victims of GWOT persecution have no legal right of redress whatsoever if the CIA is involved. So even if, for example, the detainees were to regain the right of habeus corpus, they couldn’t use it. They would not be allowed to question their detention much less fight it legally.
I would expect this sort of hoo-doo from a conservative judge with a knee-jerk belief in the infallibility and unlimited power of the Executive – conservatives are basically re-engineered monarchists, after all – but for it to be coming from a Clinton appointee is, to say the least, a disappointment. Al-Masri will now have to appeal to the SCOTUS, the bunch that put Bush into the White House in the first place. If they uphold King, Bush will have the first piece of what he’s long been hunting: legal justification for the Imperial Executive.