Congress Urged to Address State Secrets Privilege

If foreign terrorists set out to undermine confidence in the American legal system as an arbiter of justice, they could hardly do more damage than the Bush Administration has done by its use of the “state secrets” privilege.

Khaled el-Masri, who alleged that he was abducted and tortured by the Central Intelligence Agency, will not be permitted to argue his case in a U.S. court because the Bush Administration asserted that “state secrets” would be compromised, and the U.S. Supreme Court this week concurred, rejecting el-Masri’s appeal.

This means that even if all of el-Masri’s allegations are true, there is no legal remedy available to him. The courthouse doors are closed in the United States. That is bad law and bad policy.

It also seems to be unnecessary, since courts have long demonstrated an ability to securely handle highly classified information, and have frequently done so in espionage trials and certain other criminal cases.

Recently, a group of law professors, scholars and activists urged Congress to confront the executive branch’s use of the state secrets privilege, and to establish new constraints on the privilege.

“Congress has a duty to examine how the state secrets privilege is being invoked by the executive branch and interpreted by federal courts. There is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process,” they wrote (pdf).

“Congress possesses the constitutional authority to act, and it should do so.”

The October 4 letter, coordinated by the nonprofit Constitution Project, may be found here.