Archive for March 12th, 2007|Daily archive page

Bearing Burdens or Just Overbearing

Two weeks ago the Fourth Circuit Court of Appeals in Richmond Virginia turned down the appeal by Khaled el-Masri to reinstate his civil lawsuit for his “extraordinary rendition” which had been thrown out by a lower court. The reason for refusing the lawsuit wasn’t because it wasn’t valid but because it might cause information to be divulged that would be a detriment to national security. It violated the so called state secrets privilege.

From the Washington Post,

The danger that state secrets could be revealed outweighs a German man’s claims that the CIA tortured him in an Afghan prison, a federal appeals court ruled Friday in refusing to reinstate his lawsuit.

The case centers on the CIA’s “extraordinary rendition” program, in which terrorism suspects are captured and taken to foreign countries for interrogation. Human rights groups have heavily criticized the program.

The three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of Khaled el-Masri’s lawsuit against former CIA director George Tenet and others.

I won’t mention the Bush friendly placement of this judgement on a Friday. You get better – um – nonexistent news coverage on Fridays.

I haven’t blogged about this for a couple of reasons: First I wanted to read the opinion (to be found here) and second because I wanted to think about the ramifications a bit.

There are a couple of things I’d like to point out. While I am neither an attorney nor do I blog as one on TV, I suspect the court had very little leeway here. As they present the case law in their opinion, they have followed fairly standard case law. This was not an activist court room. The opinion seems to be rather normal.

As far as I can see, el-Masri, the ACLU etc. are arguing that all the basic facts in the case are already part of the public record. Bush and others have admitted the ‘extraordinary rendition’ program. The fact that el-Masri was kidnapped and held also isn’t really disputed. The EU has published findings about both black sites and illegal flights. Those things aren’t being challenged.

The problem is that the defendants in the case, Tenet et al., can’t raise an effective defense without recourse to classified data or without exposing information that the government has determined to be detrimental to national security. (And they can’t tell you why because that’s classified.) The defendant’s can’t show an alibi if they can’t talk about where they really were.

El-Masri’s attorneys argued that the case could be tried without openly revealing the information. The evidence could be reviewed in court and protected using nod-disclosure agreements.

But the appellate court doesn’t have any choice but to throw the case out. From the opinion.

El-Masri’s contention in that regard, however, misapprehends the nature of our assessment of a dismissal on state secrets grounds. The controlling inquiry is not whether the general subject matter of an action can be described without resort to state secrets. Rather, we must ascertain whether an action can be litigated without threatening the disclosure of such state secrets. Thus, for purposes of the state secrets analysis, the “central facts” and “very subject matter” of an action are those facts that are essential to prosecuting the action or defending against it. [emphasis in original]

Thus, I can’t imagine that this case will be touched by the Supreme Court. I can’t imagine why.

But that isn’t what irritates me.

First. The main case being sited, United States v. Reynolds, tried in 1953. This case sheds quite a bit of light on the use of the state security privilege by the US government. From InsideDefense ,

The petition, filed last month in Philadelphia, claims the widows of three contractors who were killed in a 1948 research flight near Waycross, GA, were denied a portion of their compensation for the crash after the government refused to release accident reports relating to the case because the documents purportedly contained “military secrets” that could not be viewed by the court. After the government appealed two lower court decisions that were favorable to the widows, the Supreme Court decided in the 1953 case, United States v. Reynolds, to reverse the lower court rulings based in large part on an affidavit signed by then-Air Force Secretary Thomas Finletter and then-service Judge Advocate General Maj. Gen. Reginald Harmon. Because of the reversal, the widows were forced to settle with the government, receiving $50,000 less than the amount that had been awarded in the lower courts, according to the recently filed petition.

When the accident report and other documents relating to the 1948 crash were declassified in 2000 and appeared to contain no secret information, the victims’ families contacted the Philadelphia law firm that had represented the widows in the 1953 case, leading to the filing of the petition earlier this year.

Although the petition seeks only compensation for the money previously denied the victims and attorneys fees, and not a reversal of the legal principles that were established in United States v. Reynolds, observers of federal secrecy policy say the case highlights flaws in the way the state secrets privilege is adjudicated.

This case has been precedent for the past 50 years in cases of the government claiming state security privilege. The government was covering up the very issue the widows had claimed. That the aircraft were poorly maintained. If something is embarrassing; you simply tell people you can’t talk about it.

The similarities to the case of el-Masri are eerie; the American government has a problem that it can’t or won’t admit, and thus claims national security ‘issues.’

Not only does the US government deny litigation in its own courts. It tries to keep litigation out of foreign courts as well.

Shortly after this ruling was publicised, German news agencies reported that the American government was putting pressure on Germany to revoke the warrants for the arrests of the people involved in the kidnapping. According to n-TV [German]

The investigation by the Munich public attorney against 13 CIA-agents in the case of el-Masri is straining the German-American relations. Highly ranked US diplomats again intervened with the German government last week against the judicial prosecution of the intelligence officers, alleged to have been involved in the abduction of the German-Lebanese Khaled el-Masri at the beginning of 2004.

Der Spiegel reports further that American diplomats spoke with foreign advisors in [German] Chancellor Angela Merkel’s (CDU) chancellery. The Federal Ministry of Justice, officially responsible for international legal issues, was also visited by a representative of the US embassy. This is the US government’s reaction to Berlin’s decision to internationally issue the Munich warrants for the alleged assault and illegal restraint.

Despite substantial political concerns, responsible Federal ministries decided to release the juristically flawless warrants for an international manhunt. Since then 10 of the 13 alleged CIA-agents, who flew el-Masri from Macedonia to Afghanistan via Mallorca, are wanted in the 186 Interpol member countries for “extradition to Germany for arrest.” The warrant was also sent to Washington by Interpol according to Spiegel. Last week the John Bellinger, legal advisor in the US State Department criticized European countries for their dealings with his country. [my translation]

Thus, not only is el-Masri out of luck in America. Even when his government tries to protect its citizens, the Americans feel a need to step in. America. Home of the brave and carrying the flag of democracy and justice to every corner of the world. Except those corners where American interests might be challenged. Nice.

But perhaps most chilling is the following quote from the most recent ruling.

As we have observed in the past, the successful interposition of the state secrets privilege imposes a heavy burden on the party against whom the privilege is asserted. See Sterling, 416 F.3d at 348 (“We recognize that our decision places, on behalf of the entire country, burden on Sterling that he alone must bear.”). That party loses access to evidence that he needs to prosecute his action and, if privileged state secrets are sufficiently central to the matter, may lose his cause of action altogether. Moreover, a plaintiff suffers this reversal not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security.

Isn’t it nice that America want its citizens to bear the burden for national security? But the American government also expects this burden to be carried by anyone in the world, American or not. And if a foreign government attempts to protect its citizens (like the American government would do), it is placed under pressure to ‘drop it.’

Just precious.

America. Justice for all some whoever America chooses. America. Love it or just be quiet and bear our burdens for us.