Editore"s Note
Tilting at Windmills

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October 9, 2007
By: Kevin Drum

STATE SECRETS....Khaled el-Masri, who was mistakenly abducted, tortured, and held for weeks in a case of mistaken identity, will not have his case heard in U.S. court:

The Supreme Court today declined to hear the case of a German citizen who said he was kidnapped, imprisoned and tortured by the CIA.

....The American Civil Liberties Union had taken up Masri's case. Lawyers for the group said the Bush administration was using the state secrets privilege too broadly, invoking it to stop lawsuits relating to wiretapping and whistle-blowers as well as terrorism cases.

In this case, they argued in asking the court to take the case, "the entire world already knows" the information the government said it is seeking to protect.

But government lawyers said comments from officials are different from the specific details the administration would need to expose in order to litigate the case. Solicitor General Paul D. Clement called it an "extravagant request" that would overturn the precedent set by the court more than 50 years ago in denying a lawsuit brought during the Cold War about a downed war plane.

This is unfortunate. Far from being "extravagant," this was an ideal opportunity to take a fresh look at a badly-constructed precedent that cries out for reexamination. The Bush administration has invoked the state secret privilege at triple the rate of any previous administration, and they don't use it solely to get specific pieces of evidence tossed out. They use it, as they're doing with el-Masri case, to keep cases from coming to trial at all, and they're almost certainly doing it as much to prevent the release of merely embarrassing information as they are to prevent the release of genuine secrets. Henry Lanman explained in Slate last year:

Despite the burgeoning use of this privilege and the way it's been used to gut entire cases, the most disturbing aspect of the Bush administration's expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration's broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists — if the administration continues to broadly assert this privilege and courts continue to accept it — the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the "war on terror" violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it's a secret.

The only silver lining to this, I suppose, is that given the current composition of the Supreme Court it might be all for the best to keep it out of their hands. For all we know, they could have ended up expanding the government's power just as easily as they could have decided to limit it. For now, maybe we're better off with the status quo.

Kevin Drum 1:01 PM Permalink | Trackbacks | Comments (26)

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Comments

The ultimate irony here is: you know the 1953 precedent they mention?

The government lied in that case.

"The state secrets privilege arose from a 1953 Supreme Court ruling that allowed the executive branch to keep secret, even from the court, details about a military plane's fatal crash.

Three widows sued to get the accident report after their husbands died aboard a B-29 bomber, but the Air Force refused to release it claiming that the plane was on a secret mission to test new equipment. The high court accepted the argument, but when the report was released decades later there was nothing in it about a secret mission or equipment."

The entire "state secrets" doctrine has been a flat-out lie from day one.

Posted by: scarshapedstar on October 9, 2007 at 1:06 PM | PERMALINK

Here is the difference:

This is terrible, and it makes me ashamed to be an American.

For the nuts like Albot and Egghead, it makes them feel manly and strong. And as long as a Republican is President, "America" can do no wrong.

Posted by: Gore/Edwards 08 on October 9, 2007 at 1:07 PM | PERMALINK

Let us not torture this lad further, Justice. You have done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?

Posted by: Xofis on October 9, 2007 at 1:15 PM | PERMALINK

There is no need to change 220 years of American legal tradition because 19 men armed with boxcutters hijacked four airliners. That was a crime and should have been pursued and prosecuted as a criminal event. It had nothing to do with war. To think otherwise, is to make things up out of whole cloth that don't really exist. If you think it was "an act of war", then where is the army we are at war with? What uniforms do they wear? How do we know how the enemy is? Where is the front line? How will we know when we win (or lose)? See - it doesn't make any sense to make that claim.

Our existing criminal legal system is perfectly capable of dealing with acts of terrorism - look at Ramzi al-Yousef. The Clinton Administration prosecuted the first attempt to bring down the WTC Towers just fine, without having to create special tribunals, blah, blah, blah....

Besides, other than KSM and a couple of others, Guantanomo is full of the slowest runners in Afghanistan - nothing more. Don't be fooled.

Posted by: The Conservative Deflator on October 9, 2007 at 1:23 PM | PERMALINK
The only silver lining to this, I suppose, is that given the current composition of the Supreme Court it might be all for the best to keep it out of their hands. For all we know, they could have ended up expanding the government's power just as easily as they could have decided to limit it.

Applying the state secrets privilege to the case is the maximum possible expansion of government power in this area, since any such case will allow an equally convincing claim of "state secrets", and therefore, with this case as precedent, will have unlimited license.

Posted by: cmdicely on October 9, 2007 at 1:24 PM | PERMALINK

it makes me ashamed to be an American

I wouldn't be ashamed if I were you, for being American is essentially a state of mind or a shared set of values. They have neither.

Posted by: Bob M on October 9, 2007 at 1:24 PM | PERMALINK

It is up to the Germans now. I wonder if they are up to the task of bringing the CIA to trial like the Italians. At the very least, they should round up as many American government officials as they can and deport them. Americans should be made to feel unwelcome in Germany.

Posted by: Brojo on October 9, 2007 at 1:37 PM | PERMALINK

There are now four Justices who, when told to jump by Bush, ask how high. Unfortunately, the other five have not yet figured out that the only way to save the country is always assume that the Cheney Administration is lying.

Posted by: reino on October 9, 2007 at 2:27 PM | PERMALINK

There's a perverse incentive at work here -- the more reprehensible the government activity, the more secret it would be -- for who would be mad enough to do such in public? -- and therefore the less likely the courts would ever allow remedies against it.

The best defense is pre-emptive awfulness.

Posted by: Davis X. Machina on October 9, 2007 at 2:47 PM | PERMALINK

For now, maybe we're better off with the status quo.

—Kevin Drum 1:01 PM Permalink |
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Gee, sounds like the same argument employed to cave on every bullshit stunt Bushco pulls.

Posted by: steve duncan on October 9, 2007 at 3:19 PM | PERMALINK

"State Secrets" doctrine is judge-made law, with no basis in statutes or the constitution. How can any honest conservative support it?

Posted by: Colin on October 9, 2007 at 3:26 PM | PERMALINK

"...For now, maybe we're better off with the status quo."

That's the most despicable thing I've ever seen you write. Good grief, is there any principle you won't flush into the sewer just to defend the status quo as opposed to the status quo ante?

Posted by: s9 on October 9, 2007 at 3:44 PM | PERMALINK

S9

I think Kevin meant that letting the Court decide the case could have ended up with an even worse situation. Would you want Scalia's opinion to become a precedent on this? Not me.

That's not to say I agree with Bushco on this, just that bad, even very bad, can still get worse.

Posted by: tomeck on October 9, 2007 at 4:21 PM | PERMALINK

That's a little harsh there, Bob M. Some of us down here still want our country to be what it claims to be.

Posted by: thersites on October 9, 2007 at 5:37 PM | PERMALINK

A Dem presidential candidate should pledge to let those cases go forward once they're in office.

Revealing the truth sometimes take a little time.

Posted by: MarkH on October 9, 2007 at 5:44 PM | PERMALINK

**

Posted by: mhr on October 9, 2007 at 5:53 PM | PERMALINK

For now, maybe we're better off with the status quo.

Well, it's not quite up there with "Aux armes, citoyens! Aux les barricades!" as a stirring call to liberty, but these days we take what we can get.....

Posted by: Stefan on October 9, 2007 at 5:58 PM | PERMALINK

The only silver lining to this, I suppose, is that given the current composition of the Supreme Court it might be all for the best to keep it out of their hands. For all we know, they could have ended up expanding the government's power just as easily as they could have decided to limit it. For now, maybe we're better off with the status quo.
—Kevin Drum 1:01 PM Permalink | Trackbacks |

-----------------------------------------------------

When I first read about this earlier today, I was pissed. But, unfortunately, Kevin is right. What is sickening about it all is most of the cases which need to be heard by the Supreme Court should now be delayed for over a decade for the same reason. So now I am really pissed that the Dems rolled over & allowed the nomination of Roberts & Alito, who were obviously lock step neocons!

So..........take a deep breath........& move on. Time to choose another battle...for now.

Posted by: bob in fl on October 9, 2007 at 6:49 PM | PERMALINK

"That's a little harsh there, Bob M. Some of us down here still want our country to be what it claims to be."

Fair enough. But I do think many people outside the US are more American than many inside, including elected officials. Think, say, civil rights in the fifties.

My correction: Being American is *also* a state of mind.

Posted by: Bob M on October 9, 2007 at 7:01 PM | PERMALINK

The accident investigation rapport that started this was declassified in the 90`s revealing the lie.

The daughter of one of the engineers that died went back to the supreme court. The court didn`t think such a lie was kind of a big deal.

Posted by: asdf on October 9, 2007 at 7:32 PM | PERMALINK

I did hear on NPR this afternoon that Germany has indicted some CIA.

Posted by: Brojo on October 9, 2007 at 10:56 PM | PERMALINK

Isn't another silver lining that this increases the validity of jurisdiction for this in courts that accept international human rights claims? I think the lack of local remedies is some sort of precondition.

Posted by: Philip Merrill on October 10, 2007 at 2:23 AM | PERMALINK

I did hear on NPR this afternoon that Germany has indicted some CIA.

Good for Germany. I am an American and not so proud to call myself one, and what was done to this man, because of secreracy, is utterly terrifying.
5 months? and his wife didn't know? How awful for him! How awful for his wife!
GW has done it again!!

Posted by: Martha Kelly on October 10, 2007 at 2:53 PM | PERMALINK

I understand the concern about putting this decision in the hands of political rubes like Roberts, Alito, Scalia, and Thomas. They would have come up with a tortured "Gore v. Bush-like" rationalization that corrupts the institution and plunders the Constitution. If the US Supreme Court will not give this man a forum, maybe the ACLU will consider taking this court before an international tribunal.

Posted by: Inquisitor on October 10, 2007 at 3:24 PM | PERMALINK

Actually...there's nothing good about germany in this case, either. Al-Masri's lawyer has filed suit against 13 CIA agents, yes, but the government doesn't push their extradition - the official reason is "Washington has made it clear they're not going to surrender them anyway, so why bother."

The sad truth is, the german government wants to close this case as quietly as possible, because they have their own dirty laundry. A number of ministers from the previous administration, some of which are in the current one as well, knew too much too early for comfort, then there are allegations that the BND (german counterpart to the CIA) was involved, and it's overall too similar to the Murat Kurnaz case (a german born turk held for years in Guantanamo Bay although everybody knew he was innocent), which is even more embarrassing to them.

Sadly, it would appear al-Masri's story ends here, I wouldn't expect anything more to come out of it. I only hope Khaled al-Masri will somewhen be able to live normally again - he has broken down a few months ago and is currently in a mental clinic, and I have my doubts these news will help him recover.

Posted by: german guy on October 10, 2007 at 3:43 PM | PERMALINK

These judges took an oath to uphold the constitution. They need to be impeached.

Posted by: aaron on October 10, 2007 at 5:27 PM | PERMALINK
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