What is the State Secrets Privilege, and why should it concern us?

The State Secrets Privilege is otherwise known as the SOI, or Security of Information policy. It is “the authority by which government officials withhold from the public information that has been classified as sensitive and necessary to that nation’s national security.” (1)

Well, that’s what it is, but why should it concern us? 

First christened by the Supreme Court in 1953 in United States v. Reynolds, the “state secrets” privilege originally allowed the government to shield specific pieces of evidence from discovery in the course of civil litigation. Once invoked by the head of a government agency, it serves as an absolute bar to judicial inquiry. (2)

When a government invokes the State Secrets Privilege in a court case, judicial inquiry is barred, and the case is summarily dismissed. The State Secrets Privilege allows the government to completely dismiss a case on the basis of  “reasonable danger” that the U.S. government could be harmed by the revelation of certain “state secrets.” Concerned yet? Read on.

On May 13, 2006, Dana Priest of the Washington Post wrote:

Assistant U.S. Attorney R. Joseph Sher said yesterday in the U.S. District Court for the Eastern District of Virginia that the government cannot confirm or deny the allegations made by Khaled El-Masri, who sources have said was held by the CIA for five months in Afghanistan. His allegations, Sher contended, "clearly involve clandestine activity abroad." Therefore, he said, "there is no way that the case can go forward without causing the damage to the national security." (3)

Today it was revealed that the Fourth Circuit court has summarily dismissed the El-Masri case based on State Secrets Privilege:

In El-Masri, the Fourth Circuit held that “state secrets” had been properly invoked and required wholesale dismissal of El-Masri’s complaint before any evidence had been presented. Judge King starkly explained that the Court would sacrifice El-Masri’s “personal interest” for “the collective interest in national security.” (4)

Let’s get this straight.

Initially arrested in December 2003 in Macedonia, El-Masri alleges he was handed over to the CIA by Macedonian authorities and then imprisoned for almost five months in an American facility in Afghanistan known as the “Salt Pit.” While imprisoned, El-Masri represents, he was beaten and interrogated under circumstances that arguably rise to the level of torture. (5)

This is definite grounds for a lawsuit, and a rather big one. What happens? The case is dismissed. El-Masri’s “personal interest” is sacrificed for the “collective interest in national security,” and the whole matter is swept under the rug. This is chilling. Especially when you consider that the arrest was a mistake:

German Chancellor Angela Merkel indicated in December 2005 that she had discussed El-Masri’s case with Secretary of State Rice, and that Rice had acknowledged that El-Masri’s disappearance and prolonged detention had been a “mistake.” Indeed, German prosecutors credit El-Masri’s account sufficiently that they have sought indictments of thirteen CIA agents on criminal charges. (6)

Let me repeat that. Secretary of State Rice acknowledged that the arrest and detention was a mistake. When the man sues his detentioners for the “mistake,” the court rules that he cannot sue because state secrets might be revealed during the course of the investigation. In other words, the government can do what it wants to with whomever it wants to, invoke the State Secrets Privilege, and walk away with complete immunity. The victim of the “mistake” has his/her interests sacrificed for the good of the whole, and life goes on as if nothing happened. Can it get any clearer? F A S C I S M. It is here folks. We are next.

References:

1) http://www.sourcewatch.org/index.php?title=State_secrets_privilege

2) http://jurist.law.pitt.edu/forumy/2007/03/dangerous-discretion-state-secrets-and.php

3) http://www.washingtonpost.com/wp-dyn/content/article/2006/05/12/AR2006051202008.html

4) http://jurist.law.pitt.edu/forumy/2007/03/dangerous-discretion-state-secrets-and.php

5) http://jurist.law.pitt.edu/forumy/2007/03/dangerous-discretion-state-secrets-and.php

6) http://jurist.law.pitt.edu/forumy/2007/03/dangerous-discretion-state-secrets-and.php  

 Copyright 2007, Barbara H. Peterson