State Secrets

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.