WASHINGTON – The Supreme Court is set to decide as early as today whether the government can invoke the doctrine of “state secrets” to quash a legal claim from an apparently innocent victim of bungling by the CIA that resulted in his being abducted, imprisoned and tortured.
Only after five months of such treatment in 2003 did CIA agents seem to realize that the man in custody – Khaled el-Masri, a German citizen of Lebanese descent – was not the wanted terrorist Khalid al-Masri.
The case has attracted wide public attention in Europe, but el-Masri has been unable to gain a court hearing in the United States because, at least so far, the government has successfully invoked the argument that it cannot be taken to court when doing so might expose “state secrets.”
That el-Masri is the victim of a case of mistaken identity does not seem to be in doubt. In 2005, German chancellor Angela Merkel said after a meeting with U.S. Secretary of State Condoleezza Rice that the Bush administration “admitted this man had been erroneously taken.” In January, German prosecutors issued arrest warrants for 13 CIA agents for their roles in el- Masri’s abduction and abuse.
Two years ago, el-Masri filed suit against then-CIA Director George Tenet and several private contractors who were involved in flying him from Macedonia, where he been on a vacation, to a prison camp in Afghanistan. In response, administration lawyers said the suit had to be dismissed because it could reveal “state secrets.”
Both a federal circuit-court judge in Alexandria, Va., and the U.S. court of appeals in Richmond, Va., agreed. El-Masri’s appeal came before the Supreme Court last week.
The case tests the outer reaches of the “state-secrets privilege,” a rule established during the Cold War to block a lawsuit after the crash of B-29 bomber. Three widows of crewmen had sued and sought the official accident reports. The Air Force objected, saying the reports could not be revealed because the bomber was on a top-secret mission.
The Supreme Court ruled for the government in the 1953 case, U.S. vs. Reynolds,, but recent disclosures show the justices were fooled.
When the accident reports were declassified in 2000, they revealed only that the aircraft was in poor condition, evidence that might have helped the widows win their suit.
While the Supreme Court has not directly ruled on the “state secrets” doctrine in more than 50 years, the rule has been invoked regularly in the lower courts. The Bush administration has used it to block suits involving whistle-blowers, wiretapping and the firing of CIA agents.
Lawyers for the American Civil Liberties Union urged the court to take up el-Masri’s case to cut back the privilege.
They say it has been transformed from a limited protection for military secrets to a broad shield for the government to hide behind when confronted with allegations of “grave executive misconduct.”
