Transforming secrecy claims into "a doctrine of broad government immunity"

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Mon May-22-06 04:20 PM
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Transforming secrecy claims into "a doctrine of broad government immunity"

via Laura Rozen

Secret Guarding
The new secrecy doctrine so secret you don't even know about it.
By Henry Lanman
Posted Monday, May 22, 2006, at 3:57 PM ET

Last Thursday, a federal court in Virginia threw out a lawsuit against the government that had been brought by a German citizen named Khalid el-Masri. El-Masri alleged that the government had violated U.S. law when—as part if its "extraordinary rendition" program—it authorized his abduction, drugging, confinement, and torture. His captors allegedly shuttled him on clandestine flights to and from places like Kabul, Baghdad, and Skopje, Macedonia, during the five months of his detention. He was released only when the government realized it had kidnapped the wrong man. El-Masri has substantial evidence to back up his story, and German prosecutors have verified much of it. And, while the government has not confirmed that it took el-Masri as part of its extraordinary rendition program, it has not shied away from admitting the program exists; it has in fact trumpeted it as an effective tool in the "war on terror." So why then was el-Masri's lawsuit thrown out? Because the judge accepted the government's claim that any alleged activities relating to el-Masri were "state secrets."

Never heard of the "state secrets" privilege? You're not alone. But the Bush administration sure has. Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters' Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.

There is nothing inherently objectionable about the state secrets privilege. It recognizes the reasonable proposition that even simple lawsuits against the government—tort suits, breach of contract claims—can sometimes involve issues that would be genuinely harmful to national security if they saw the light of day. Say, for instance, that a janitor in Los Alamos, N.M., tripped over a box of uranium lying in the hallway in 1943. It would hardly do to have the evidence used in the subsequent slip-and-fall case scuttle the entire Manhattan Project. So, tough though it is on individual plaintiffs, the courts have historically deferred to government claims that some evidence in certain litigation must be shielded as "state secrets."

Traditionally, this privilege was most often used to prevent plaintiffs from getting a hold of very specific, sensitive evidence in an ongoing lawsuit; it was seldom invoked to dismiss entire cases. Maybe that hypothetical Los Alamos plaintiff couldn't have discovered exactly what was in the box that he tripped over. But, generally speaking, if the lawsuit could have proceeded without his knowing the contents of that box, it would.

The troubling shift today is that in el-Masri and other similar lawsuits—almost all of which involve important challenges to the government's conduct since Sept. 11—the administration has been routinely asserting the privilege to dismiss the suits in their entirety by claiming that for it to participate in the trials at all would mean revealing state secrets. In other words, in addition to relying on the state secrets doctrine to an unprecedented degree, the administration is now well on its way to transforming it from a narrow evidentiary privilege into something that looks like a doctrine of broad government immunity.

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