Unanimous Fourth Circuit panel throws out ACLU’s case against CIA on behalf of German terror suspect
Posted on March 3, 2007
Stay tuned. This will be appealed to the Supreme Court.
Richmond Times-Dispatch: Court rejects German’s appeal in torture case
German national Khaled al-Masri went to court seeking a U.S. apology for allegedly being kidnapped, held five months in Afghanistan and tortured by the CIA.
Yesterday three judges of the federal appeals court in Richmond ruled that U.S. District Judge T.S. Ellis III of Alexandria was right to dismiss al-Masri’s lawsuit in May.
The panel of the 4th U.S. Circuit Court of Appeals unanimously said trying the case would necessitate revealing state secrets and harm national security. The panel, expressing regret, said the “state secrets doctrine” overcomes al-Masri’s right to litigate his case.
Judge Robert B. King wrote the opinion; Judges Dennis W. Shedd and Allyson K. Duncan joined.
Judge King, a Clinton appointee and author of the opinion, writes:
After a court has confirmed that the Reynolds procedural prerequisites are satisfied, it must determine whether the information that the United States seeks to shield is a state secret, and thus privileged from disclosure. This inquiry is a difficult one, for it pits the judiciary’s search for truth against the Executive’s duty to maintain the nation’s security. The Reynolds Court recognized this tension, observing that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” — no matter how great the interest in national security — but that the President’s ability to preserve state secrets likewise cannot be placed entirely at the mercy of the courts. 345 U.S. at 9-10. Moreover, a court evaluating a claim of privilege must “do so without forcing a disclosure of the very thing the privilege is designed to protect.”
The Reynolds Court balanced those concerns by leaving the judiciary firmly in control of deciding whether an executive assertion of the state secrets privilege is valid, but subject to a standard mandating restraint in the exercise of its authority. A court is obliged to honor the Executive’s assertion of the privilege if it is satisfied, “from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10. In assessing the risk that such a disclosure might pose to national security, a court is obliged to accord the “utmost deference” to the responsibilities of the executive branch. Nixon, 418 U.S. at 710. Such deference is appropriate not only for constitutional reasons, but also practical ones: the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information. In the related context of confidentiality classification decisions, we have observed that “[t]he courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area.” United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972). The executive branch’s expertise in predicting the potential consequences of intelligence disclosures is particularly important given the sophisticated nature of modern intelligence analysis, in which “[t]he significance of one item of information may frequently depend upon knowledge of many other items of information,” and “[w]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.” Id. In the same vein, in those situations where the state secrets privilege has been invoked because disclosure risks impairing our foreign relations, the President’s assessment of the diplomatic situation is entitled to great weight.
More:
After information has been determined to be privileged under the state secrets doctrine, it is absolutely protected from disclosure — even for the purpose of in camera examination by the court. On this point, Reynolds could not be more specific: “When . . . the occasion for the privilege is appropriate, . . . the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” 345 U.S. at 10. Moreover, no attempt is made to balance the need for secrecy of the privileged information against a party’s need for the information’s disclosure; a court’s determination that a piece of evidence is a privileged state secret removes it from the proceedings entirely. See id. at 11.
The effect of a successful interposition of the state secrets privilege by the United States will vary from case to case. If a proceeding involving state secrets can be fairly litigated without resort to the privileged information, it may continue. But if “‘the circumstances make clear that sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters,’ dismissal is the proper remedy.” Sterling, 416 F.3d at 348 (quoting DTM Research, LLC v. AT & T Corp., 245 F.3d 327, 334 (4th Cir. 2001)). The Supreme Court has recognized that some matters are so pervaded by state secrets as to be incapable of judicial resolution once the privilege has been invoked. [Emphasis mine]
Apparently these conditions were met. Of course, what the ACLU asserts in response (”With today’s ruling, the state secrets doctrine has become a shield that covers even the most blatant abuses of power,” said ACLU Executive Director Anthony D. Romero.) is melodramatic bunk. The testimony entered by Porter Goss could have been determined by the panel to NOT satisfy the state secrets privilege. There is a need, as the judges were emphatic in pointing out, to balance a plaintiff’s claim with national security. Sometimes national security wins, ACLU.
The “absolute” position here is really what the ACLU is asking — access to any information for any reason just because they want it. Nothing new for the ACLU - a group that puts the advancement of its extremist agenda above all other concerns.
» Filed Under ACLU, News, Supreme Court, War On Terror
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they got the wrong man. they owe him.
al masri should proceed against the usg in germany …let the germans deal with him…he is their home grown terrorist anyway…