The state secrets privilege has been invoked by the Bush Administration with greater frequency than ever before in American history in a wide range of lawsuits that the government says would threaten national security if allowed to proceed.
In virtually every case, the use of the privilege leads to dismissal of the lawsuit and forecloses the opportunity for an injured party to seek judicial relief.
Most recently, a lawsuit brought by Khaled El-Masri, a German citizen who alleged that he was kidnapped by the CIA and tortured over a five month period, was dismissed (pdf) after the CIA invoked the “state secrets” privilege.
The dismissal was not based on a finding that the allegations against the CIA were false.
“It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint,” wrote Judge T.S. Ellis, III in a May 12 order.
In fact, “It is worth noting that … if El-Masri’s allegations are true or essentially true, then all fair-minded people… must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy,” he wrote in the order dismissing the case.
“Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch,” he suggested.
But in this case the executive branch is the alleged perpetrator of the offense, and the legislative branch has no procedures for adjudicating allegations such as El-Masri’s, even if it had an interest in doing so. That’s what courts are for.
Terrorists can kill people and destroy property. But they cannot undermine the rule of law, or deny injured parties access to the courts. Only the U.S. government can do that.
The state secrets privilege has been invoked lately in a remarkable diversity of lawsuits. See this selection of case files from recent state secrets cases.
Tom Blanton of the National Security Archive reflected on the growing use of the state secrets privilege and how it relates to the larger climate of secrecy in “The lie behind the secrets,” Los Angeles Times, May 21.
Recently introduced legislation would “provide protection from frivolous government claims of state secrets,” the Project on Government Oversight noted.