The Supreme Court today declined certiorari in the case of El Masri v. United States, effectively endorsing the Cheney administration's notorious extraordinary rendition program.
The case had been dismissed at both the district court level and the appellate level based on the administration's invocation of the state secrets privilege. The case offered a golden opportunity to revisit the case law underlying the state secrets privilege, as well as examine the rendition program itself, but the Republican-dominated court dismissed the appeal without comment.
Claimed six times from its inception in 1953 up through 1976 - the darkest days of the Cold War - the current administration has claimed the privilege 39 times since 2001. The privilege amounts to a "trust us" argument by the government, and once it is claimed, from an evidentiary perspective, the case can only be dismissed. No evidentiary review by the presiding judge, even in camera, is allowed.
The state secrets doctrine as we know it today arose out of a wrongful death lawsuit filed against the federal government due to the crash of a B-29 bomber. Widows of the air force men killed in the accident sued to gain access to the government's accident investigation report and interviews with the three men who survived the crash. The government claimed that to do so would force the government to reveal state secrets due to the "highly secret" nature of the mission, which allegedly involved highly classified communication equipment. The case, US v. Reynolds, formalized a privilege that had been a matter of internal military policy.
The privilege to protect military and state secrets belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
The Court analogized the state secrets doctrine to the right against self-incrimination, going so far as to cite former Vice President Aaron Burr's trial for treason in 1807. The argument was a red herring, of course - the right against self-incrimination does not foreclose all judicial investigation into a crime. In the case of the state secrets privilege, only the government has access to the relevant material, and the entire case is tossed, whether circumstantial evidence may exist or not. The McCarthy era reasoning of the Court has an eerily familiar tone to it.
In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices have greatly enhanced the effective use of air power. It is equally apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.
The entire government claim of privilege was a fraud. When the documents were declassified in 2000, there was no evidence of any secret electronics equipment, or a sensitive classified mission, and the report blamed the accident on a faulty exhaust system that led to an engine fire - exactly the kind of case the Federal Tort Claims Act had been designed to address. The declassified report can be found in pdf here, and we've included a copy of US v. Reynolds for those who care.®
Burke Hansen, attorney at large, heads a San Francisco law office