Did CIA kidnap vacationer? It's a state secret.

At issue is whether the White House has the power to keep an alleged victim from seeking redress in US courts.

By Warren Richey | Staff writer of The Christian Science Monitor

from the September 19, 2007 edition

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In December 2003, German citizen Khaled el-Masri boarded a bus in Germany for a holiday in Skopje, Macedonia.

Instead of a restful vacation, the Muslim man of Lebanese heritage says he ended up in a Central Intelligence Agency isolation cell in Afghanistan as a suspected terrorist. He was released after five months of interrogation with no explanation justifying the action or apology if it was a mistake.

Now, nearly four years later, his lawyers are asking the US Supreme Court to examine whether the Bush administration has the power to prevent Mr. Masri from seeking recourse in American courts.

Masri's lawyers claim that the CIA kidnapped and tortured an innocent man. The government has never responded directly to the accusation. Instead, Justice Department lawyers asked a US judge to throw the case out of court to prevent disclosure of state secrets. He did.

At issue in El-Masri v. US is the government's use of the so-called state-secrets privilege. The judicial doctrine provides that some legal cases must be dismissed if the central evidence in the court battle would require disclosure of national security secrets. The Bush administration is using the same doctrine to block a string of legal challenges to other secret terror-war tactics, including warrantless electronic surveillance in the US.

Masri's lawyers say he is not seeking to disclose secrets; he just wants to have US officials held accountable for their alleged treatment of him, which has already been made public. The government counters that any effort to defend US actions in the Masri case would require disclosure of how the CIA handles terror suspects and other US intelligence sources and methods. Such information is secret and must remain secret, government lawyers say.

"It is true that, at a high level of generality, the government has disclosed the CIA's participation in a program involving detention and interrogation of suspected terrorists," Solicitor General Paul Clement says in his brief to the court. "But ... the facts that would be central to the adjudication of this action are not limited to such general disclosures."

Critics of the government's approach say the state-secrets privilege is being used to cover up Masri's alleged illegal detention and treatment. They add that it undermines the judiciary's oversight role in America's constitutional system of checks and balances.

"The whole reason for the court system is to protect individual rights that wouldn't be protected in the political process," says Amanda Frost, a visiting professor at Harvard Law School, who also teaches at American University's Washington School of Law.

If the high court takes up Masri's case, including the broader area of judicial responsibility, it could set the stage for a landmark ruling endorsing aggressive judicial oversight of secret administration tactics in the war on terror.

But that approach runs counter to the limited role for judges embraced by Chief Justice John Roberts and arguments by the solicitor general that judges have no business second-guessing presidential decisions concerning intelligence and war-fighting matters

When Masri filed his suit in federal court, government lawyers told the judge that just confirming or denying the charges would reveal state secrets about how the US is waging its war on terror. The government submitted a classified affidavit to the trial judge, explaining its position. Masri's lawyers were not permitted to see the affidavit.

The judge threw out the suit on state-secrets grounds, and a federal appeals court panel upheld the dismissal on the same grounds.

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