Skip navigation
× You have 2 more free articles available this month. Subscribe today.

“State Secrets Privilege” Forecloses CIA-Detainee’s Kidnapping and Torture Suit

"State Secrets Privilege" Forecloses CIA-Detainee?s Kidnapping and Torture Suit

by John E. Dannenberg

The Fourth Circuit U.S. Court of Appeals has upheld a district court's dismissal of a civil rights action filed by a foreign national who was (apparently mistakenly) kidnapped and spirited away by the Central Intelligence Agency (CIA) to various clandestine prisons around the world, where he alleged he was incarcerated in inhumane conditions, kept from contacting his family, and tortured. The appellate court held that even bringing the case to the initial stage of litigation -- discovery -- would place the United States in peril of revealing national security secrets in violation of the government's rights protected under 28 U.S.C. § 517 (the ?state secrets privilege?).

Khaled El-Masri, a Lebanese-born German citizen, was detained by Macedonian authorities and turned over to CIA operatives, who flew him to a U.S.-run prison in Kabul, Afghanistan. Five months later while en route back to Germany he was dropped off in Albania. El-Masri was released when the CIA apparently determined that it had abducted the wrong man. He eventually reunited with his family, which, believing he had abandoned them, had moved to Lebanon.

In a Bivens civil rights action brought in U.S. District Court (E.D. Va.), El-Masri alleged he had been "interrogated" in violation of U.S. Constitutional and international law. He sued for violation of due process under the Fifth Amendment and also asserted violations of the Alien Tort Statute. The United States government intervened, maintaining that El-Masri's action could not proceed because it posed an unreasonable risk of exposing privileged state secrets. The district court agreed and dismissed el-Masri's suit.

After a detailed analysis of the operation of the "state secrets privilege," the Fourth Circuit affirmed. El-Masri principally argued that following the district court's dismissal, the news media reported and President Bush publicly admitted the existence of an "extraordinary rendition" program to secrete terrorist suspects in unknown prisons outside the United States. Therefore, the argument went, the "secret" was out of the bag and he should not be restricted under § 517 from suing.

The Fourth Circuit disagreed. It was not the remedy that was precluded by § 517, the appeals court reasoned, but the litigation itself. This followed from the fact that the process of litigation would require discovery that would in turn necessarily reveal state secrets, a result barred by § 517. That some publicity had attended the CIA's dirty works did not permit El-Masri to expose more, the appellate court ruled.

The process of demurring under § 517 is sound, the Fourth Circuit held.

Relying on U.S. Supreme Court precedent, the court noted that the burden of asserting and proving the privilege rests with the government.

Furthermore, this procedure cures El-Masri's complaint that the Executive Branch is running amok without checks and balances. When the Executive Branch of the U.S. government is in tension with the judiciary in matters of national security, § 517 envisions taking the question before a court to determine not whether a litigant has a legitimate claim, but to first decide if the government has met its national security defense burden.

The precise threshold question is whether there is a "reasonable danger that such disclosure will expose military matters which, in the interest of national security, should not be divulged," citing U.S. v. Reynolds, 345 U.S. 1 (1953). In United States v. Nixon, 418 U.S. 683 (1974), the high court recognized executive privilege when it "relates to the effective discharge of a President's powers," and reaffirmed that the privilege is constitutionally based.

Having resolved the constitutional question in favor of the government, the appeals court went on to test the matter at issue using a three-part analysis. First, the court had to ascertain if the procedural requirements for invoking the privilege had been satisfied. Second, it must decide if the information sought qualified under the doctrine.
Third, if the information was thus deemed privileged, it had to determine the proper disposition of the action.

In carrying out this delicate judicial supervision, the court must "do so without forcing a disclosure of the very thing the privilege is designed to protect." The government may file a Classified Declaration to satisfy to the court that national security issues are truly involved. However, "the court is obliged to accord the 'utmost deference' to the responsibilities of the Executive Branch."

Moreover, when prosecuting a lawsuit turns on the use of such privileged evidence, the only remedy for the court is dismissal. The appellate court found here, after in camera review of the government's Declaration, that El-Masri's action could not proceed because it would necessarily reveal details of the "rendition" program that had not been publicly disclosed.

Accordingly, the Fourth Circuit affirmed the district court's conclusion that "El-Masri must be denied a judicial forum for his Complaint."

El-Masri was represented by the ACLU, which filed a certiorari petition on May 30, 2007. See: El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007). In denying El Masri any remedy for his kidnapping and torture the court affirmed a long line of precedent that gives the United States total impunity for those victims that it kidnaps, tortures and kills. The only upbeat note to this case is that El-Masri escaped with his life and the CIA did not "bury" its mistake. But then they have no need to.

Meanwhile, prosecutors in Munich investigating El-Masri's kidnapping have complained about a lack of cooperation from U.S. officials. In February 2007 German authorities issued warrants for 13 CIA operatives believed to have been involved in El-Masri's abduction; the warrants were turned over to Interpol despite protests by U.S. authorities. Another 26 CIA agents are subject to prosecution in Italy for the Feb. 2003 kidnapping of an Egyptian cleric, Abu Omar, who was also targeted under the rendition program.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

El-Masri v. United States