Secrecy Chronicles: CIA Involvement In Torture Unreviewable in U.S. Court

An appeals court ruled Friday to uphold an earlier decision that Khaled Al-Masri may not sue the CIA or its contractors for allegedly abducting him overseas and subjecting him to torture before he was released months after the CIA realized they picked up the wrong guy. Despite a Council of Europe report that validates Al-Masri's accusations, the Fourth Circuit Court of Appeals found that allowing him to sue the government would expose state secrets, further solidifying the body of law that allows the executive branch to violate the law and the Constitution in war time with impunity.

The state secrets privilege was established in the 1953 decision United States vs. Reynolds, when the government got a lawsuit filed against it for information about a airport crash dismissed, based on the fact that occupants of the plane were testing new electronics. The court agreed that the case should be thrown out. In the 1990s, documents showed that the government lied to the court about the crash and that it was merely covering up maintainence errors.

The decision sets an odd test for judges, who aren't allowed to question classification decisions. Here's how I described that test in an earlier post on Al-Masri:

The court said there's no balancing test between the scope of the alleged wrongdoing and the power of the state secrets privilege. The only balance is between the scope of the alleged misdeeds and the scope of the judge's investigation of the truth of the government's claim that a lawsuit endangers security secrets.

So if the alleged wrong is small (say it's a fifth grader suing the NSA for allegedly spying on his walkie-talkie conversations to prove he cheated on his geography test), the court only has to investigate the truth of the government's state secrets claim lightly, if at all.

If, however, someone alleges that a secret anti-terrorism CIA program mistook him for his neighbor leading to the subsequent murder of his family and the cutting off of his ears, and provides the corpses, a videotape, and his body parts as evidence, the court must make very sure that the case could reasonably expose national security secrets.

In either case, according to the El-Masri decision (.pdf), if the judge finds the case reasonably be expected to confirm or deny an alleged program, state secrets privilege is absolute and judges must dismiss the case.

Friday's appeal court decision (.pdf) amplifies that logic:

El-Masri is therefore incorrect in contending that the central facts of this proceeding are his allegations that he was detained and interro- gated under abusive conditions, or that the CIA conducted the rendition program that has been acknowledged by United States officials. Facts such as those furnish the general terms in which El-Masri has related his story to the press, but advancing a case in the court of public opinion, against the United States at large, is an undertaking quite different from prevailing against specific defendants in a court of law.

If El-Masri's civil action were to proceed, the facts central to its resolution would be the roles, if any, that the defendants played in the events he alleges. To establish a prima facie case, he would be obliged to produce admissible evidence not only that he was detained and interrogated, but that the defendants were involved in his detention and interrogation in a manner that renders them personally liable to him.

Such a showing could be made only with evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations. With regard to Director Tenet, for example, El-Masri would be obliged to show in detail how the head of the CIA participates in such operations, and how information concerning their progress is relayed to him. With respect to the defendant corporations and their unnamed employees, El-Masri would have to demonstrate the existence and details of CIA espionage contracts.[...]

Furthermore, if El-Masri were somehow able to make out a prima facie case despite the unavailability of state secrets, the defendants could not properly defend themselves without using privileged evidence. The main avenues of defense available in this matter are to show that El-Masri was not subject to the treatment that he alleges; that, if he was subject to such treatment, the defendants were not involved in it; or that, if they were involved, the nature of their involvement does not give rise to liability.
Any of those three showings would require disclosure of information regarding the means and methods by which the CIA gathers intelligence.

Photo: Max Warren