[The doctrine has such such a nice name. It makes us sound like a classic dictatorship. As does this whole nightmarish tale which seems now to have been pretty clearly admitted to be true: we grabbed a guy off the street in another country and tortured him for incommunacado months because of a typo. And then kicked him out the door and refuse to answer any questions about it.]
http://www.nytimes.com/2007/10/10/washington/10scotus.html
The New York Times
October 10, 2007
Supreme Court Refuses to Hear Torture Appeal
By LINDA GREENHOUSE
WASHINGTON, Oct. 9 The Supreme Court on Tuesday refused to hear an
appeal filed on behalf of a German citizen of Lebanese descent who
claims he was abducted by United States agents and then tortured by
them while imprisoned in Afghanistan.
Without comment, the justices let stand an appeals court ruling that
the state secrets privilege, a judicially created doctrine that the
Bush administration has invoked to win dismissal of lawsuits that
touch on issues of national security, protected the governments
actions from court review. In refusing to take up the case, the
justices declined a chance to elaborate on the privilege for the
first time in more than 50 years.
The case involved Khaled el-Masri, who says he was detained while on
vacation in Macedonia in late 2003, transported by the United States
to Afghanistan and held there for five months in a secret prison
before being taken to Albania and set free, evidently having been
mistaken for a terrorism suspect with a similar name.
Mr. Masri says he was tortured while in the prison. After
prosecutors in Germany investigated the case, a court there issued
arrest warrants in January for 13 agents of the Central Intelligence
Agency. The German Parliament is continuing to investigate the
episode, which has become a very public example of the United States
governments program of extraordinary rendition.
Mr. Masri, represented by the American Civil Liberties Union,
brought a lawsuit in federal court against George J. Tenet, director
of central intelligence from 1997 to 2004; three private airline
companies; and 20 people identified only as John Doe. He sought
damages for treatment that he said violated both the Constitution
and international law.
Shortly after he filed the lawsuit in December 2005, the government
intervened to seek its dismissal under the state secrets privilege,
asserting that to have to provide evidence in the case would
compromise national security. That argument succeeded in the Federal
District Court in Alexandria, Va., which dismissed the case without
permitting Mr. Masris lawyers to take discovery. The United States
Court of Appeals for the Fourth Circuit, in Richmond, Va., upheld
the dismissal in March.
In their Supreme Court appeal, El-Masri v. United States, No.
06-1613, Mr. Masris lawyers argued that these rulings allowed the
state secrets doctrine to become unmoored from its origins as a rule
to be invoked to shield specific evidence in a lawsuit against the
government, rather than to dismiss an entire case before any
evidence was produced.
The Supreme Court created the doctrine in a 1953 decision, United
States v. Reynolds, which began as a lawsuit by survivors of three
civilians who had died in the crash of a military aircraft. In
pretrial discovery, the plaintiffs sought the official accident
report.
But the government, asserting that the report included information
about the planes secret mission and the equipment that it was
testing, refused to reveal it. The Supreme Court upheld the
government, ruling that evidence should not be disclosed when there
is a reasonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security, should
not be divulged.
Mr. Masris lawyers argued that this decision, which the court has
occasionally invoked but has not revisited, did not justify
dismissing a case before any evidence was requested. Ben Wizner, Mr.
Masris lawyer at the civil liberties union, said in an interview
that the courts had permitted the doctrine to evolve from an
evidentiary privilege to a broad grant of immunity, a way for the
executive branch to shield itself from judicial scrutiny.
<end excerpt>
Michael