State secrets privilege

As you may have heard, Khaled el-Masri, the German citizen kidnapped by the U.S. and transported to Afghanistan by the CIA under the extraordinary rendition program brought suit against the U.S. and lost in District court since the Court held that the state secrets privilege barred the Court from hearing the case. This week a panel of the Fourth Circuit upheld the District Court, holding, among other things:

Indeed, in certain circumstances a court may conclude that an explanation by the Executive of why a question cannot be answered would itself create an unacceptable danger of injurious disclosure. See id. at 9. In such a situation, a court is obliged to accept the executive branch’s claim of privilege without further demand. See id. [emphasis mine]

Unfortunately, this effectively shields the government from any inquiry in the Court, since the Government can always say (whether true or not) that even explaining why a question cannot be answered would reveal state secrets. It is exactly the kind of government that would lie about these things that we need court protection from.

Meanwhile al-Masri has penned an op-ed in the LA Times.

My story is well known. It has been described in literally hundreds of newspaper articles and television news programs — many of them relying on sources within the U.S. government. It has been the subject of numerous investigations and reports by intergovernmental bodies, including the European Parliament. Most recently, prosecutors in my own country of Germany are pursuing indictments against 13 CIA agents and contractors for their role in my kidnapping, abuse and detention. Although I never could have imagined it, and certainly never wished it, I have become the public face of the CIA's "extraordinary rendition" program.

Why, then, does the American government insist that my ordeal is a state secret? This is something beyond my comprehension. In December 2005, with the help of the American Civil Liberties Union, I sued former CIA Director George Tenet along with other CIA agents and contractors for their roles in my kidnapping, mistreatment and arbitrary detention. Above all, what I want from the lawsuit is a public acknowledgment from the U.S. government that I was innocent, a mistaken victim of its rendition program, and an apology for what I was forced to endure. Without this vindication, it has been impossible for me to return to a normal life.

The U.S. government does not deny that I was wrongfully kidnapped. Instead, it has argued in court that my case must be dismissed because any litigation of my claims will expose state secrets and jeopardize American security, even though President Bush has told the world about the CIA's detention program, and even though my allegations have been corroborated by eyewitnesses and other evidence. To my amazement and dismay, last May, a federal district court judge agreed with the government and threw out my case. And then Friday, the U.S. 4th Circuit Court of Appeals upheld that decision. It seems that the only place in the world where my case cannot be discussed is in a U.S. courtroom.

I did not bring this lawsuit to harm America. I brought the lawsuit because I want to know why America harmed me. I don't understand why the strongest nation on Earth believes that acknowledging a mistake will threaten its security. Isn't it more likely that showing the world that America cannot give justice to an innocent victim of its anti-terror policies will cause harm to America's image and security around the world?

My answer to that rhetorical question is, "yes!"