Supreme+Court

"Supreme Disgrace" New York Times, October 11, 2007 Editorial

The Supreme Court exerts leadership over the nation’s justice system, not just through its rulings, but also by its choice of cases — the ones it agrees to hear and the ones it declines. On Tuesday, it led in exactly the wrong direction.

Somehow, the court could not muster the four votes needed to grant review in the case of an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the Bush administration’s morally, physically and legally abusive anti-terrorism program. The victim, Khaled el-Masri, was denied justice by lower federal courts, which dismissed his civil suit in a reflexive bow to a flimsy government claim that allowing the case to go forward would put national security secrets at risk.

Those rulings, Mr. Masri’s lawyers correctly argued, represented a major distortion of the state secrets doctrine, a rule created by the federal courts that was originally intended to shield specific evidence in a lawsuit filed against the government. It was never designed to dictate dismissal of an entire case before any evidence is produced.

It may well be that one or more justices sensitive to the breathtaking violation of Mr. Masri’s rights, and the evident breaking of American law, refrained from voting to accept his case as a matter of strategy. They may have feared a majority ruling by the Roberts court approving the dangerously expansive view of executive authority inherent in the Bush team’s habitual invocation of the state secrets privilege. In that case, the justices at least could have commented, or offered a dissent, as has happened when the court abdicated its responsibility to hear at least two other recent cases involving national security issues of this kind.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and flown to a squalid prison in Afghanistan. He says he was questioned there about ties to terrorist groups and was beaten by his captors, some of whom were Americans. At the end of May 2004, Mr. Masri was released in a remote part of Albania without having been charged with a crime. Investigations in Europe and news reports in this country have supported his version of events, and German Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice acknowledged privately to her that Mr. Masri’s abduction was a mistake, an admission that aides to Ms. Rice have denied. The Masri case, in other words, is being actively discussed all over the world. The only place it cannot be discussed, it seems, is in a United States courtroom.

In effect, the Supreme Court has granted the government immunity for subjecting Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable United States practice of transporting foreign nationals to be interrogated in other countries known to use torture and lacking basic legal protections. It’s hard to imagine what, at this point, needs to be kept secret, other than the ways in which the administration behaved irresponsibly, and quite possibly illegally, in the Masri case. And Mr. Masri is not the only innocent man kidnapped by American agents and subjected to abuse and torture in a foreign country. He’s just the only one whose lawsuit got this far.

This unsatisfactory outcome gives rise to new worries about the current Supreme Court’s resolve to perform its crucial oversight role — particularly with other cases related to terrorism in the pipeline and last week’s disclosure of secret 2005 Justice Department memos authorizing the use of inhumane interrogation methods that just about everyone except the Bush White House thinks of as torture. Instead of a rejection, the Masri case should have occasioned a frank revisiting of the Supreme Court’s 1953 ruling in United States v. Reynolds. That case enshrined the state secrets doctrine that this administration has repeatedly relied upon to avoid judicial scrutiny of its lawless actions.

Indeed, the Reynolds case itself is an object lesson in why courts need to apply a healthy degree of skepticism to state secrets claims. The court denied the widows of three civilians, who had died in the crash of a military aircraft, access to the official accident report, blindly accepting the government’s assertion that sharing the report would hurt national security. When the documents finally became public just a few years ago, it became clear that the government had lied. The papers contained information embarrassing to the government but nothing to warrant top secret treatment or denying American citizens honest adjudication of their lawsuit.

In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an innocent person without any remedy for his wrongful imprisonment and torture. It has damaged America’s standing in the world and established the nation as Supreme Enabler of the Bush administration’s efforts to avoid accountability for its actions. These are not accomplishments to be proud of.


 * Verify the facts of the case involving Khaled el-Masri.**

[|Wikipedia page for State Secrets Privilege]
 * What is the "state secrets doctrine"?**

//**__RYAN__**//

What is the state secrets privilege? Under this privilege, the executive branch claims that the disclosure of certain evidence in court may damage national security and therefore cannot be released in litigation. Beginning with the Supreme Court decision in United States v. Reynolds (1953), some federal judges have treated as absolute the executive branch's assertion about dangers to national security.

Why should the privilege be limited? Unless claims about state secrets evidence are subjected to independent judicial scrutiny, the executive branch is at liberty to violate legal and constitutional rights with impunity and without the public scrutiny that ensures that the government is accountable for its actions. By accepting these claims as valid on their face, courts undermine the principle of judicial independence, the adversary process, fairness in the courtroom, and our constitutional system of checks and balances.

What are some recent examples of assertions of the state secrets privilege? The state secrets privilege is currently being invoked in cases challenging the NSA eavesdropping program and in the extraordinary rendition cases of Maher Arar and Khalid El-Masri. http://openthegovernment.org/otg/Reforming_the_State_Secrets_Privilege_Statement.pdf

Center for Constitutional Rights. //Supreme Court Denies Immediate Review of Guantanamo Cases//. April 2, 2007 http://www.ccr-ny.org/v2/newsroom/releases/pReleases.asp?ObjID=UUUqX6KYx6&Content=983
 * What other recent cases involving national security issues did the Supreme Court refuse to hear? Give details.**

United States vs. Reynolds o A court case in 1953 which led to the establishment of the State Secrets Privilege. o The State Secrets Privilege extended the presidential power. It allowed for government to exclude evidence from a case if its exposure posed a threat to national security. o In this case three widows wanted access to an accident report regarding a B-29 Superfortress Bomber crash their husbands were in 1948. o The widows were denied access to the information because people feared leaking of the Bomber’s plan of attack would threaten national security. o The accident reports were released in 2000, they contained no secret information. They did however have information that could’ve potentially been detrimental to the Air Force.
 * Find background details on United States v. Reynolds (1953).**

inhumane interrogation."** //A Tortured History// http://www.factcheck.org/a_tortured_history.html
 * Find information on the "disclosure of secret 2005 Justice Department memos authorizing the use of