Protecting Legitimate Secrets or Concealing Embarrassment?

By William Fisher

Scott Horton, who is also a lawyer, is one of the most astute chroniclers of our world. He writes for Harper’s Magazine and believes that National Security Letters are “one of the creepier weapons in the arsenal of the national-security state.”

This reporter agrees, but finds another of our government ‘s legal games arguably more reprehensible. It’s known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”

Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.

First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence -- to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.

Like this case:

Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.

El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.

They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.

He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.

In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.

In May 2006, El-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.

What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.

Or this case?

Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.

Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.

The Bush administration labeled him a member of Al Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.

The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty of mistaken identity. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.

The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”

The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.

Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.

Or perhaps this case:

In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."

Shortly after the suit was filed, the government intervened and inappropriately asserted the "State Secrets Privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.

One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was awarded damages of one million pounds.

During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.

Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.

In October 1948, a B-29 Superfortress caught fire at 20,000 feet on takeoff in central Georgia. Three crew members and a passenger jumped and parachuted to safety. At 8,000 feet, the plane exploded. The nine men remaining on board were killed.

Three civilian engineers who had been testing electronic equipment onboard the plane were killed. No further information was provided to the engineers’ families. The government said its investigation of the crash was a military secret. The Air Force said disclosure might jeopardize national security by revealing the nature of their work.

The fight for information found its way to the Supreme Court, which sided with the government in the landmark 1953 ruling United States v. Reynolds.

Since then, Reynolds has been the standard illustrating the bond of trust between judges and other officers of the court. Despite Reynolds’ disastrous outcome, judges are still apparently ready to buy what prosecutors are selling. So far in the recent history of the State Secrets Privilege, not a single plaintiff has won a single case!

The conclusion of the Reynolds case is instructive.

In 1949, one of the widows of the dead pilots sued the government for negligence, in part to make up for the loss of her husband’s salary. The government’s appeals worked their way to the Supreme Court, where, in October 1953, the solicitor general’s office argued that in the interest of national security, the executive branch could withhold any document “without showing it to a judge,” in camera, or private, review.
And five months later, the court came down unequivocally on the side of the government. The nation’s experience in World War II demonstrated the need to keep the electronics work secret so that its “full military advantage” could be exploited, the justices said. Chief Justice Vinson wrote, “There was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment” that the downed plane “had gone aloft to test.”
Blocked from probing the cause of the crash, the widows – two others had joined the suit -- was advised to settle. Later a copy of the court’s opinion was downloaded, and there was nothing in the accident report about the engineers’ electronics work, only a confused tale of the plane crash.

The readers believed that the claim about the engineers’ top-secret electronics work was a fiction designed to mask the fatal series of errors and breached procedures. The text that had been blacked out all those years ago was not government secrets but the names of those who had been at fault.

As a candidate, Barack Obama opposed the Bush administration’s embrace of the State Secrets Privilege as a tactic for deflecting litigation as part of his argument for greater transparency in Washington. He maintained the position, at least rhetorically, following his election. In a memo discussing the Freedom of Information Act in February 2009 the president wrote, “A democracy requires accountability, and accountability requires transparency.”
The Justice Department continues to claim fairness and even-handedness as it misuses the SSP. Says the DOJ: “The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege. The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”

Furthermore, it adds, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”

The Obama Administration has proposed a number of legislative changes in the SSP and the way it should be used. None of these has gotten very far in a Congress fearful of bucking any trend that ran counter to the perception of victory in the “war on terror.”

Jameel Jaffer of the ACLU has a rather different take. He said, “It's clear that the executive branch is using the state secrets privilege not to protect legitimate national security information but to shield the government and its agents from accountability for systemic violations of the Constitution. A state secrets privilege that operates in this way serves neither national security nor the country's broader interest in the rule of law."

Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, told this reporter, “There are innocent individuals who have been swept up in U.S. government counterterrorism operations, wrongly detained, ‘rendered’ surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged.”

He added: “In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government’s invocation of the state secrets privilege,” he added. “As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole.”
But legal experts are beginning to discuss “a new departure” in the use of the SSP. It springs from the Obama Administration’s “kill list” – individuals, including US citizens, who have dedicated themselves to destroying Americans and US interests and who the government says may legally be killed by the government.
This incendiary ruling – made only by the Executive Branch of government, not yet tested by any court – has rocked the legal world.

The sparse wording of the ACLU announcement of this newest development suggests its shock value.

The ACLU said, “Today in Yemen, U.S. air strikes killed American citizen Anwar Al-Aulaqi. Al-Aulaqi has never been charged with a crime. Last year, the ACLU and Center for Constitutional Rights represented Al-Aulaqi's father in a lawsuit challenging the government's asserted authority to carry out ‘targeted killings’ of U.S. citizens located far from any armed conflict zone. We argued that such killings violate the Constitution and international law, but the case was dismissed in federal court last December.”

In response to the killing of Al-Aulaqi, ACLU Deputy Legal Director Jameel Jaffer said:

“The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific, and imminent. It is a mistake to invest the President — any President — with the unreviewable power to kill any American whom he deems to present a threat to the country.”

Ben Wizner of the ACLU suggests that the al-Aulaqi case represents a new chapter in Obama-era state secrets invocation. “This is the first time that I am aware of that the [Obama] administration has invoked state secrets in defense of its own policies.”

The policies Wizner refers to are the administration’s asserted authority to use lethal force away from the battlefield -- including against US civilians who have not been charged with any crime.



This article originally appeared in the pages of Prism Magazine.