Criminal Conduct as a "State Secret"

The recent decision of the 4th Circuit Court of Appeals in El-Masri v. Tenet, ___ F.3rd ___, No. 06-1667 (4th Cir. 3/2/2007) is definitely disturbing in its implications, if not its explications.

Briefly, Khaled El-Masri is a German citizen who was allegedly seized in Macedonia, delivered into the custody of the U.S. Central Intelligence Agency, imprisoned by the CIA in Afghanistan, beaten and abused, and finally released in Albania. He was apparently a victim of the U.S. program of secret prisons and "extraordinary rendition" that has been widely reported by the press and finally acknowledged publicly by several top government officials. The essential elements of El-Masri's own account of his abduction and imprisonment have been confirmed by the Council of Europe, and arrest warrants for persons suspected of involvement (who have not been publicly identified) have been issued by a German court.

El-Masri also filed a civil suit in the United States against then-Director of the CIA George Tenet, other named CIA officials, and other unnamed persons responsible for his abduction and mistreatment. El-Masri v. Tenet et al., No. 1:05-cv-01417 (U.S.D.C. E.D. Va.). (Selected court documents can be found through the ACLU.) The United States government immediately intervened and asserted the "state secrets" privilege, which prevents a court from considering a case if state secrets would necessarily be involved. The District Court dismissed the case on those grounds, and now the 4th Circuit Court of Appeals has affirmed.

In his assertion of the state secrets privilege, then-Director of the CIA Porter Goss stated that the civil complaint alleges that the CIA conducted a "clandestine foreign intelligence activity," and that the United States can neither confirm nor deny those allegations without disclosing classified intelligence source and methods. Goss further stated that, because of the allegations of CIA involvement, "parties in this case have a special incentive to probe the CIA's foreign intelligence interests, authorities, and methods generally, and seek information and evidence to establish or refute claims and defenses." The nature of the interests, authorities, methods, or defenses that might be exposed by the litigation is not disclosed in the record, but were described in a "classified declaration" reviewed only by the judge in the District Court, and by the three judges who heard the appeal in the 4th Circuit.

What is disturbing about the claim of Director Goss, and the opinion of the 4th Circuit, is that the legality or criminality of the activities of the CIA have nothing to do with whether the state secrets privilege should apply. The 4th Circuit acknowledged that El-Masri challenged whether the state secrets doctrine should apply in cases of "egregious executive misconduct," and it's response is very unsatisfying. The court rejected the concept that the judiciary "possess a roving writ to ferret out and strike down executive excess," and explained that the courts have a "more modest role," which is to "simply decide cases and controversies." According to the 4th Circuit, the courts can impose liability against an executive officer "in a properly conducted judicial proceeding," but "we would be guilty of excess in our own right if we were to disregard settled legal principles in order to reach the merits on an executive act that would not otherwise be before us." This is circular, internally inconsistent, and evasive.

It is circular because the El-Masri was not asking the court to do anything but decide the case in front of it, and the court's response says little more than that the court has to dismiss the case because the court has to dismiss the case.

It is internally inconsistent, because the court claims to "simply decide cases" and implicitly rejects the idea that it should take into account broader public policy considerations even while dismissing the case under a doctrine that is based on broader public policy considerations.

Finally, the court is being evasive because it fails to address the actual issue raised by El-Masri, which is whether the application of the state secrets privilege to activities which appear to be unlawful on their face is a "settled legal principle." All of the precedents cited by the court seem to involve cases in which the alleged actions of the government might or might not have been legal, but are there any possible defenses to what is alleged to have occurred?

The heart of the complaint against George Tenet is that, as Director of the CIA, he approved a program of extra-legal seizures, transportations, and detentions of persons in violation of the laws of the United States and international law. The 4th Circuit claimed that, in order to succeed in that claim, El-Masri "would be obliged to show in detail how the head of the CIA participates in such [sensitive intelligence] operations, and how information concerning their progress is relayed to him." But is that true? That would be true if the question were whether Tenet was negligent in some way, or whether he was aware of El-Masri's circumstances in particular, but in this case the question is whether Tenet approved a particular program, the existence of which is already public knowledge, and it should be relatively simple to either or confirm deny that fact. And if Tenet approved an unlawful program, then he would be legally responsible for the results of that program whether or not he knew anything about El-Masri individually.

The only imaginable way that an investigation into Tenet's liability might be invasive, and so risk state secrets, is if the program he approved were legal or the harm to El-Masri were not foreseeable, in which case it would be necessary to disclose the details of the program in order to judge whether or not Tenet should be responsible for what happened to El-Masri. Is such a defense really possible? Is it really possible that our government can officially, regularly, and secretly seize people without any arrest or other judicial approval, imprison them, and abuse them without violating any law?

Unfortunately, we don't know what issues were raised in the classified declaration, and the 4th Circuit admits that is "no doubt frustrating" that the exact reasons for the court's opinion are classified. It is even more frustrating to learn that the CIA has been imprisoning and abusing people and there has been, and will be, no judicial restraint, no oversight, and no legal consequences.

Two final notes:

Whether or not the government has the raw extra-legal power to do what it did and get away with it, there is still the moral issue of whether or not the government should compensate El-Masri for his sufferings at our hands. There is no reason to believe that the Bush administration has ever considered, or will ever consider, this issue, despite its claims of Christianity and morality.

There are a number of differences defenses that the Bush administration could have asserted to the El-Masri complaint, including whether or not the complaint even states a cause of action against the government even if what the complaint alleges is true. (It is not clear to me whether a court would assert civil liability against a government official for actions taken outside of the United States in the absence of clear legal authority, which I'm not sure exists.) The Bush administration chose to assert the defense that resulted in the most governmental secrecy and the most Presidential power, and this is consistent with most decisions of the Bush administration.