An extremely important decision (link) came down from the Fourth Circuit Court of Appeals on Friday. The Fourth Circuit affirmed the lower court's decision that denied this plaintiff his day in court -- Mr. Khaled El-Masri, a falsely arrested prisoner and kidnap victim of the CIA rendition program.
The opinion was issued this past Friday, and IMHO, the blogosphere chatter hasn't sufficiently amped up over this decision, I regularly practice in Federal Court (sometimes i even get it right?!) and believe this is an important decision that should stir more discussion.
[UPDATE -- AS PER COMMENT BY JMORTON, THIS IS IMPORTANT because...]
This result will allow an Executive Branch to protect itself from lawsuit and grant its negligent Government Contractors complete immunity from lawsuit and judicial review by simply stating one specific comment: There is a reasonable danger that defense of this lawsuit will force the disclosure of state secrets AND to even explain how and why would force the disclosure of the very state secrets we are trying to protect.
If you believe this is an important issue, please comment below and consider reccomending.
As stated in commentary to two well written but under received prior diaries,
Bad Day For Justice - El Masri Looses by Gary Norton and See Me Has A Human Being, Not A States Secret by OneCrankyDom.
the subject hasn't generated sufficient traffic,... yet.
BACKGROUND - LINKS FOR FURTHER INFO RENDITION PROGRAM
To see a documentary in which Mr. Masri is interviewed; Extraordinary Rendition, Torture and Disappearances in the 'War on Terror'.
For a full background and more in -depth explanation of the GHOST PLANES by Avila or the CIA Rendition program, read diaries by Armando here, here, and here and Plutonium Page here and here and by Frank.
Parties and Claims Overview - Procedural History
Mr. Masri was detained on December 31, 2003 and released on May 28, 2004.
Mr. Masri filed this complaint in the Eastern District of Virginia on Decembr 6, 2005 against George J. Tenet (CIA Chief during the imprisonment), 20 Unnamed Defendants of the CIA, and the three Corporate entities that owned and provided the GHOST PLANES - pilots and airplanes - used by the CIA to transport prisoners in the CIA Rendition program. MR. Masri brought three claims, one Bivens claim and two claims pursuant to the Alien Tort Statute, alleging prolonged arbitrary detention and cruel, inhuman or degrading treatment during this detention.
As explained by the Fourth Circuit (on page 3):
on December 31, 2003, while travelling in Macedonia, [Mr. Masri] was
detained by Macedonian law enforcement officials; after twenty-three
days in Macedonian custody, he was handed over to CIA operatives,
who flew him to a CIA-operated detention facility near Kabul,
Afghanistan; he was held in this CIA facility until May 28, 2004,
when he was transported to Albania and released in a remote area;
and Albanian officials then picked him up and took him to an airport
in Tirana, Albania, from which he travelled to his home in Germany.
The Complaint asserted that El-Masri had not only been held against
his will, but had also been mistreated in a number of other ways dur-
ing his detention, including being beaten, drugged, bound, and blind-
folded during transport; confined in a small, unsanitary cell;
interrogated several times; and consistently prevented from communi-
cating with anyone outside the detention facility, including his family
or the German government.
El-Masri alleged that his detention and
interrogation were carried out pursuant to an unlawful policy and practice
devised and implemented by defendant Tenet known as "ex-
traordinary rendition": the clandestine abduction and deten-
tion outside the United States of persons suspected of
involvement in terrorist activities, and their subsequent
interrogation using methointernational laws.
On March 8, 2006, pursuant to a specific rule of law (28 U.S.C. 517), the United States officially interceded in this case, asserting the Executive Privilege of "State Secrets" and seeking an immediate stay of the proceedings. On this date, the CIA Chief Porter Goss filed two affidavits, one classified and one not classified.
On March 9, 2006 the court granted the requested stay.
On March 13, 2006, the United States requested the dismissal of this lawsuit against all defendants, including the 3 corporate defendants.
On April 7, 2006, Mr. Masri's lawyers - The ACLU - filed a sworn declaration of Steven Macpherson Watt, a human rights adviser to the ACLU, that asserted multiple reasons that the STATE SECRETS were not so secret.
!. Multiple public officials had publicly recognized the existence of the rendition program including Condoleezza Rice, Scott Mclellan and CIA Chiefs Tenet and Goss.
- Various Human RIghts Groups have Published statements and commentary on the renditon programs, some specifically referencing Mr. Masri's unlawful imprisonment.
- The European Union and Council of Europe had commenced investigations into possible European cooperation in the US rendition program;
- Similar investigations existed in at least eighteen countries.
- Media Reports, 'too numerous to assemble" exist about the existence of the CIA rendition program, including specifics about the detention facilities where some rendition subjects were held, as well as the United States 'modus operandi' for conducting rendtions:
masked men in an unmarked jet seize their target, cut off his clothers, put him in a blindfold and jumpsuit, tranquilize him and fly him away.
.
(6&7 were additional factors that were raised and considered by the Appellate Court)
- On June 6, 2006, The Coucil of Europe issued a draft report on United States renditions and detentions involving the Council's member countries.
- On September 9, 2006, Pres. Bush addressed the nation and admitted the existence of the CIA rendition program.
Nonetheless, on May 12, 2006, the District Court granted the motion of the United States and dismissed this case in its entirety finding that the continuation of this litigation 'will expose militaryt matters which, in the interest of national security, should not be divulged.' U.S. v. Reynolds.
Mr. Masri has appealed this decision alleging that the
CIA's operation of a rendition program targeted at terrorism suspects, plus the tactics employed therein - have been so widely discussed that litigation concerning them could do no harm to National Securty. (page 16)
For a more detailed explanation of the arguments raised in the filings to the Fourth Circuit by Mr. Masri via the ACLU and by the Defendants, please see my prior diary, CIA Rendition Program Challenge Heard in 4th Circuit
STANDARD OF REVIEW - STANDARD OF STATE SECRETS
The opinion is, of course, well written and immediately informs us, on page 3, that it affirms the lower court's (the Eastern District Court of Virginia) dismissal of Mr. Masri's entire lawsuit based on the intervention of the United States Government.
The Appellate Court reviews the lower court decision de novo (page 6). This standard requires the reviewing Court to analyze the same facts and law as was available to the District Court, and simply decide if the lower court made the correct decision (as opposed to an abuse of discretion standard which would require a finding that the lower court abused its discretion in order to reverse the court).
Under the state secrets doctrine, the United States may prevent the disclosure of information in a judicial proceeding if 'there is a reasonable danger' that such disclosure 'will expose military matters which, in the interest of national security, should not be divulged.' (page 8)
Moreover, even though the State Secrets Doctrine was developed through signifcant cases that were brought in the past (including its recognition in favor of Aaron Burr in his 1807 trial for treason), the 4th Circuit held that this privilege serves a strong constitutional function because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities. (page 9).
Citing to Totten v. U.S., 92 U.S. 105 (1875), the 4th Circuit stated that
public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which law itself regards as confidential, and respecting which it will not allow the confidence to be violated. (page 8)
Then citing to United States v. Nixon, 418 U.S. 683 (1974), the 4th CIrcuit asserts that the Executive Privilege is at its broadest when it is in the realm of miltary and foreign affairs (page 11).
A court faced with a state secrets privilege question is obliged to
resolve the matter by use of a three-part analysis. (page 9).
i. Has the privilege been asserted through the correct procedure.
ii. Does the information that is being protected qualify as a state secret.
iii. Can the matter be defended without a reasonable danger that the state secrets would be exposed.
i. Has the privilege been asserted through the correct procedure.
--> a. must be asserted by U.S., b. formal claim of privilege by head of the department which has control of the matter that is being protected, and c. (GET THIS>> the department head has given actual personal consideration that the state secrets privilege is not to be lightly invoked.
ii. Does the information that is being protected qualify as a state secret.
---> this balancing test pits the Judicial branch abdicating judicial control over evidence in a case ... 'to the caprice of executive officers' - versus - placing too much of the President's ability to preserve state secrets at the mercy of the Courts (page 10).
However, after recognizing the delicate balance needed, the 4th Circuit then abdicates judicial control over evidence in this case to the Bush Administration claiming 'the court is obliged to accord the utmost deference to the responsibilities of the exectuve branch.' (page 11). The Court boot straps its own argument by being overly concerned with the ability of the Executive Branch to properly explain the rationale for the privilege without disclosing the very facts the privilege is attempting to protect.
Then in respect to a recent song by Laurie Anderson (i heard at the Old Knit 20th Anniversary Concert in NYC last week, but can't find on line at itunes or elsewhere) only the experts can really know what can be disclosed and what a state secret may look like.
the Executive and the intelligence agencies under his control occupy a position superior to that of the courts in evaluating the consequences of a release of sensitive information. in the related context of confidentiality classification decisions, we have observed that '[t]he courts, of course, are ill-equipped to become sufficiently steeped in foregin intelligence matters to serve effectively in the review of secrecy classifications in that area. (citations omitted) The executifve branch's expertise in predicting the potential consequences of intelligence disclosures is particularly important given the sophisticated nature of modern intelligence analysis, in which '[t]he significance of one item of information may frequently depend upon knowledge of many other items of information,' and '[w]hat may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.'
The 4th Circuit decided not to challenge the Executive Branch, while looking to another balancing test, this one as to the depth of investigation the Court should undertake before accepting the Executive assertion of the State Secrets privilege,
Indeed, in certain circumstances a court may conclude that an explanation by the Executive of why a question cannot be answered would itself create an unacceptable danger of injurious disclosure.. (and) In such
a situation, a court is obliged to accept the executive branch’s claim of privilege without further demand. (page 12).
So, in essence, the 4th Circuit has made inconsistent arguments to reach their decision. On pages 20-21, it recognizes that Mr. Masri has raised additional questions (along with those raised by a group of former diplomats and State Department officials who have submitted a friend of the court brief in favor of Mr. Masri's claim going forwrad and against recognizing the State Secrets doctrine in this matter (footnote 6, page 22)) that:
- Allowing the District Court ruling to be affirmed will enable the Executive to unilaterally avaoid judicial scrutiny by merely asserting that state secrets are at stake, and
- The Court is duty bound to review Executive action and overcome the procedural protecdtions of the state secrets doctrine where 'egregious executive misconduct' is alleged.
After having already stated on page 12
in certain circumstances a court may conclude that an explanation by the Executivy of why a question cannot be answered would itself create an unacceptable danger of injurious disclosure, and holding that in such a situation, a court is obliged to accept the executive branch's claim of privilege without further demand.
the 4th Circuit now contradits itself by holding on page 21 that it has not abdicated judicial review because
the Executive must satisfy the court that disclosure of the information sought to be protected would expose matters that, in the interest of national security, ought to remain secret.
On one hand, the Court says they haven't abdicated control of the process by requiring the Executive Branch to meet their burden of proof to assert the State Secrets privilege. Yet, on the other hand, the Court had already stated that in certain circumstances (and hasn't said whether this case was or was not one of those circumstances) the assertion of the privilege, coupled with a statement that any further information would create a reasonable danger of disclosing the protected information, would be stop any and all judicial review and allow the privilege to stand. BOOOOOOOOOOOOOOOOO!!!!!!
iii. Can the matter be defended without a reasonable danger that the state secrets would be exposed.
The 4th Circuit goes through pains to point out the voluminous manners in which the procession of this lawsuit would expose State Secrets to an unreasonable danger of exposure including:
by Mr. Masri to prove his case he would need:
- To prove by admissible evidence that the defendants were involved in his detention and interrogation, requiring evidene exposing how the CIA organizes, staffs and supervises its most sensitive intelligence operations.
- To show in detail how CIA Chief Tenet was involved and how he received information regarding the rendition program.
- and with respect to the Defendant Corporations, to demonstrate the existence and details of CIA espionage contracts.
by the defendants to defend this lawsuit:
The main avenues of defense available in this matter are to show that El-Masri was not subject to the treatment that he alleges; that, if he was subject to such treatment, the defendants were not
involved in it; or that, if they were involved, the nature of their involvement does not give rise to liability. Any of those three showings would require disclosure of information regarding the means and
methods by which the CIA gathers intelligence. If, for example, the truth is that El-Masri was detained by the CIA but his description of his treatment is inaccurate, that fact could be established only by dis-
closure of the actual circumstances of his detention, and its proof would require testimony by the personnel involved. Or, if El-Masri was in fact detained as he describes, but the operation was conducted
by some governmental entity other than the CIA, or another government entirely, that information would be privileged. Alternatively, if the CIA detained El-Masri, but did so without Director Tenet’s active
involvement, effective proof thereof would require a detailed explanation of how CIA operations are supervised. Similarly, although an individual CIA officer might demonstrate his lack of involvement in
a given operation by disclosing that he was actually performing some other function at the time in question, establishing his alibi would likely require him to reveal privileged information.
Moreover, proof of the involvement — or lack thereof — of particular CIA officers in a given operation would provide significant information on how the CIA makes its personnel assignments. Similar concerns would attach to evidence produced in defense of the corporate defendants and their unnamed employees.
Here is where the Legislature can stand up and make a necessary change. Apparently, in our modern society we need a special, secret Federal Court (think FISA) where civil cases involving State Secrets can be litigatted. A review of the fact patterns of the cases cited by the 4th Circuit in support of this opinion is a ride through hearbreak litigation lane.
There is simply no way, WE THE PEOPLE believe that if our Government or their contractors (GOV'T CONTRACTORS???), should wrong an individual that the individual or their faimilies should be barred from bringing a lawsuit seeking redress for that wrong. No. Simply, No. It is not Fair, it is wrong, look at these various fact patterns with the thought, is this the result that WE THE PEOPLE desire.
Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005) (page 13) where an African-American CIA agent brought a lawsuit alleging unlawful discrimatory practices by CIA Management, DISMISSED.
Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998), where the plaintiff alleged that The Air Force had violated the Resource Conservation and Recovery Act in its storage, treatment and disposal of hazardous waste at a classified location near Groom Lake, Nevada. DISMISSED.
Bareford v. Gen. Dynamics Corp. , where the plaintiff alleged that a Government Contractor had design defects in its military weapons system. DISMISSED.
US v. Reynolds, 345 U.S. 1 (1953) , where an Air Force B-29 bomber had crashed during testing killing three civilian observers who were on board. Their widows brought suit against the U.S. and sought certain documents. The Air Force answered that the plane was on a highly secret mission and disclosure of these documents would hamper national security, flying safety and the development of highly technical and secret military equipment. DISMISSED.
Black v. United States, 62 F.3d 1115 (8th Cir. 1995) where it was alleged by Mr. Black that after he had reported suspicious contact with a possible Soviet spy, the CIA, FBI, Department of Defense and Department of State had subjected him to a campaign of harassment and psychological attacks including subjecting him to strange phone calls, having his apartment and car being broken into, being drugged with a substance that produced terrifying halluncinations. DISMISSED.
MISC.THOUGHTS AND CONCLUSION
- Was this a unanimous Court decision?
Sort of. It was a panel of 3 judges and the opinion issued was 3-0. However, in cases of legal importance and weight, the Appellate Court may choose to rule en banc. That is, rule by the entire panel of 4th Circuit judges. Since this case was not ruled on, en banc , it could be argued in good faith, that its unanimity is not quite the same level of strenght as a unanimous Supreme Court decision (which is almost always en banc) (note, i haven't researched the en banc rules, so take this info with a grain of salt.
- Likelihood of Supreme Court Review.
For this case to be heard by the Supreme Court, Mr. Masri would have to file a certiorari to the Supreme Court asking to be heard in this matter. The Court reviews these certs to determine if there is a strong federal question or a question of law that hasn't been reviewed by the Supremes earlier and as a result, the lower Circuit Court of Appeals have had inconsistent and differing standards and opinions developing.
As there are other cases throughout the country right now that do impact the State Secrets doctrine, it is quite possible that a strong argument could be made to the Supremes why this case should be heard.
Oher cases include:
i. Al-Haramain Islamic Foundation Inc. v. Bush, 2006 WL 2583425 (D.Or. 9/7/06)
ii. ACLU v. NSA, 438 F.Supp.2d 754 (EDMich. 8/17/06) My First Ever Diary Summarized this decision
iii. Hepting v. AT&T, 439 F.Supp.2d 974 (N.D.Cal 7/20/06)