Supreme Court is Asked to Review State Secrets Case

Attorneys for Khaled El-Masri, who was allegedly subjected to “extraordinary rendition” by the Central Intelligence Agency, asked the U.S. Supreme Court to review the dismissal of his lawsuit against the Agency last year on asserted “state secrets” grounds.

If the petition (pdf) is granted, the Court’s review has the potential to alter the judiciary’s handling of “state secrets” claims generally.

“The proliferation of cases in which the government has invoked the state secrets privilege, and the lack of guidance from this Court since its 1953 decision in Reynolds, have produced conflict and confusion among the lower courts regarding the proper scope and application of the privilege,” the petitioners argued. See Petition for Certiorari, May 30, 2007.

The government replied last week that the petition is an “extravagant request” to overturn “settled precedents” and should be rejected. See Government’s Opposition to Petition for Certiorari (pdf), September 2007.

The historical and legal background of the controversy over use of the state secrets privilege was examined most recently by legal scholar Louis Fisher in “The State Secrets Privilege: Relying on Reynolds,” Political Science Quarterly, Fall 2007 (subscription required).

A critical view of state secrets policy was presented by journalist Barry Siegel in “State-Secret Overreach,” Los Angeles Times, September 16.