I wonder if the same doctrine will be used against Maher Arar's appeal in his suit against the US government. His lawyer thinks Arar's case is different because in his case it is known that the US had him deported to Syria where he was tortured.
Cheers, Ken Hanly
--- Michael Pollak <mpollak at panix.com> wrote:
>
> [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
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