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.
(Page 2 of 2)
In his appeal to the Supreme Court, Masri is asking the justices to examine whether the government properly invoked the state-secrets privilege or simply used the privilege to avoid being held accountable for alleged torture and other illegal and unconstitutional activities.Skip to next paragraph
Subscribe Today to the Monitor
"The [state-secrets] privilege is now routinely invoked to block adjudication of disputes that raise profound constitutional questions," says Benjamin Wizner of the American Civil Liberties Union, in his petition to the court.
He says the state-secrets privilege was originally meant to help resolve courtroom disputes over individual pieces of evidence. But the government is increasingly using the privilege as a way to immediately throw entire cases out of court, he says, before any investigation of the allegations can take place.
The Bush administration is urging the Supreme Court not to hear Masri's case. In a brief filed at the high court last week, Solicitor General Clement disputed suggestions that the administration has escalated its use of the state-secrets privilege. He also said the legal issues surrounding the privilege are clear and well settled.
"This court has already laid down the governing legal principles and ... the courts of appeals have consistently applied them to varying factual circumstances without demonstrating any need for further guidance," Mr. Clement writes in his brief.
The same state-secrets issue is also at the center of a string of lawsuits challenging the Bush administration's warrantless surveillance operations by the National Security Agency. The Ninth US Circuit Court of Appeals in San Francisco heard two cases last month involving alleged NSA surveillance within the US.
Although federal judges have reached conflicting rulings on how to apply the state-secrets privilege, so far appeals courts have uniformly upheld the Bush administration's position. Some analysts say that might soon change when the Ninth Circuit panel rules in the NSA cases.
Aside from the legal issue, the Masri case raises fundamental questions about fairness and respect for human rights by the US government, analysts say.
Masri's alleged ordeal sparked widespread outrage in Europe, triggered an ongoing German government investigation, and prompted an attempt by Secretary of State Condoleezza Rice to explain the Bush administration's position to allies. "When and if mistakes are made, we work very hard and as quickly as possible to rectify them," she told a 2005 press conference in Berlin.
But in the nearly two years since Ms. Rice's pledge, there has been no talk by the Bush administration of mistakes in the Masri case or rectification.
When he dismissed Masri's case on state-secrets grounds in 2006, US District Judge T.S. Ellis III said the action was required by settled, controlling law. But he added, "If El-Masri's allegations are true or essentially true, then all fair-minded people ... must ... agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy."
Some legal analysts also suggest new legislation could help resolve state-secrets disputes. The Classified Information Procedures Act was passed to help prosecute criminal cases in which some of the evidence is classified information. Under CIPA, a judge is empowered to substitute a nonclassified version of the same information as evidence for use in open court.
Some legal experts say Congress could write a new chapter to CIPA to permit similar protective procedures in civil cases filed against the US government involving classified information.