-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: June 27, 2007 11:49:17 AM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Secret State, Bad State
Remember Checks And Balances?
Sharon Bradford Franklin
June 25, 2007
Sharon Bradford Franklin serves as senior counsel at the
Constitution Project, an independent think tank in Washington, D.C.
http://www.tompaine.com/articles/2007/06/25/
remember_checks_and_balances.php
Khaled El-Masri, a German car salesman and father, was on vacation
in Macedonia when he was detained by local authorities. According
to his sworn declaration, he was later transferred to U.S.
authorities, and then beaten, sexually assaulted, drugged and
transported to a CIA-run “black site” in Afghanistan. For almost
five months, Mr. El-Masri was interrogated and held in a squalid
cell without charges. Then, he was abandoned, blindfolded and
alone, on a desolate Albanian hilltop more than a month after the
CIA realized they had been holding the wrong man.
Although Mr. El-Masri subsequently filed suit seeking to hold U.S.
officials accountable for their actions, thus far the U.S.
government has refused either to confirm or deny any of his
allegations. Rather, his case against the U.S. government was
dismissed after the government asserted the “state secrets
privilege,” suppressing any evidence or testimony that might have
been used to litigate his claim. He is now seeking to appeal his
case to the U.S. Supreme Court.
The executive branch has relied upon the state secrets privilege to
claim that the disclosure of certain evidence in court would
jeopardize national security, and therefore cannot be reviewed by
private parties, the attorneys or even the judge. As one might
expect, without this evidence cases are usually dismissed.
The Supreme Court first recognized this privilege in 1953 in United
States v. Reynolds, when it denied the widows of three civilian Air
Force contractors access to an accident report. The Air Force had
claimed that the report was confidential, noting that the personnel
aboard the plane “were engaged in a highly secret mission of the
Air Force.”
When the report surfaced decades later, it became clear that the
only sensitive information therein was evidence of negligence by
the Air Force that may have caused the men’s deaths. The lower
courts in Reynolds had ordered that the government submit the
accident report to the trial court, so it could assess whether the
document in fact contained state secrets that could not be
disclosed. But the Supreme Court overruled this determination.
Sadly, this Supreme Court precedent permitting the executive branch
to assert the state secrets privilege without any independent
review of the evidence still stands, and judges continue to give
the Executive an alarming degree of deference when this privilege
is invoked.
The Constitution Project recently brought together a broad,
bipartisan coalition of political leaders, policy experts and legal
scholars in calling for reform of the privilege. Our Report on the
State Secrets Privilege urges Congress or the Supreme Court to
clarify the narrow and qualified scope of this privilege so that
cases like Mr. El-Masri’s can be litigated.
A court’s acceptance of an executive branch claim of privilege
without question undermines the established practices and role of
an independent judiciary. Dismissing challenges to executive branch
policies outright in the name of national security is unnecessary
and erodes individual rights. Although there is a role for the
state secrets privilege to prevent disclosure of genuine state
secrets to private parties, it is critical that our independent
judiciary review such claims and determine when the privilege
properly applies. Either the Supreme Court or Congress can cure
this problem.
Since the state secrets privilege was first recognized in the
Supreme Court’s decision in Reynolds, the Court could revisit this
issue to correct and clarify the proper scope of the privilege. As
of this writing, Khaled El-Masri is seeking review of his case in
the Supreme Court. Hopefully, the Court will accept review of the
case, reexamine the scope and meaning of its decision in Reynolds
and allow Mr. El-Masri’s case to proceed. Alternatively, since
privileges are often created by statute, Congress can and should
take steps to make clear that the state secrets privilege is not a
license for Executive overreaching. Congress should craft
legislation which clarifies that judges, not the executive branch,
have the final say as to whether disputed evidence is subject to
the state secrets privilege.
Further, the Supreme Court or Congress should make it clear that
instead of accepting executive claims as valid on their face,
judges can and should privately review evidence allegedly subject
to the privilege, if necessary, in chambers—also known as an in
camera review. Judges should not accept edited documents or
affidavits, statements or declarations prepared by executive
officials; courts must review the disputed evidence itself. As the
courts have independently examined and assessed classified evidence
for decades, we have faith that judges are fully competent to
review these claims and balance the rights of individuals with
national security interests.
America’s constitutional system of checks and balance depends on
independent judicial review of executive branch actions. History
has demonstrated, time and again, just how vital independent
judicial review is; the executive branch should not be left to
police itself.
The Reynolds case is only the beginning of a long list of cases —
including those challenging the NSA’s warrantless domestic spying
program— in which the government has asserted the state secrets
privilege to shield itself from accusations of wrongdoing. Mr. El-
Masri’s treatment at the hands of the CIA may yet qualify for a
place on that list. The Supreme Court should take Mr. El-Masri’s
case and provide him an appropriate remedy.
We cannot allow the executive branch to evade all accountability
for embarrassing, illegal or unconstitutional acts simply by crying
“state secrets.”
Nor can we allow courts to abdicate their constitutional
responsibility to evaluate such claims of privilege. We need to
limit the use of the state secrets privilege and restore
independent judicial review. It is needed now more than ever.
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