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TechnoratiA Check on Abuse of Power
Of the myriad tactics the Bush administratio uses to prevent oversight of its controversial anti-terror policies, none has been more successful, or more far-reaching, than the state secrets privilege. On Wednesday, the Senate considered, at long last, bipartisan legislation that would place reasonable limits on the executive branch's use of the privilege to terminate lawsuits on dubious grounds. But for some -- like my client, Khaled El-Masri, who was mistakenly kidnapped, imprisoned and tortured by the CIA -- Congress' interest, though welcome, comes too late.
The state secrets privilege, first recognized by the U.S. Supreme Court half a century ago, permits the government to block the release during litigation of information or evidence that poses a national security risk. No one seriously disputes the validity of the underlying doctrine: Litigants should not be permitted to use the discovery process to expose the identity of the next Valerie Plame.
But in recent years, the state secrets privilege has mutated from a rule of evidence into a virtual grant of immunity. This administration has invoked the privilege not to protect sensitive information but to torpedo entire lawsuits alleging grave executive misconduct -- before any requests for evidence have been made.
Khaled El-Masri's case is illustrative. El-Masri, a German citizen, was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to the CIA, then beaten, drugged and transported to a secret prison in Afghanistan for harsh interrogation. Five months after his abduction -- long after the CIA realized its mistake -- El-Masri was deposited at night on a hill in Albania.
El-Masri's ordeal received front-page media coverage throughout the world and has been the subject of criminal and intergovernmental investigations in Europe. Nonetheless, when we brought suit against former CIA Director George Tenet and others seeking compensation for the brutal treatment of El-Masri, the administration insisted the case be dismissed because any litigation of the claims would reveal state secrets. The government's argument prevailed, and the Supreme Court declined to intervene.
So as the law stands, the U.S. can engage in torture, declare it a state secret and, by virtue of that designation alone, avoid any accountability for conduct that violates the Constitution and universal human rights guarantees. A broad range of executive misconduct has been shielded from judicial review under this doctrine.
The State Secrets Protection Act would prohibit the dismissal of cases prior to discovery. The legislation would require courts to examine the actual classified evidence instead of dismissing suits on the sole basis of affidavits submitted by the perpetrators themselves. It would also allow courts to compel the government to produce unclassified substitutes for privileged evidence and, if the government refuses, to resolve the issue in favor of the plaintiff.
These overdue amendments can ensure that other pending cases are not unjustly terminated.
Last week, I was in court in San Jose, Calif., on behalf of five other torture victims who were transported by the CIA to secret U.S. facilities overseas or to regimes notorious for abuse of prisoners. Our suit charged that a Boeing Co. subsidiary, Jeppesen Dataplan Inc., provided flight planning and logistical support with full knowledge that it was profiting from what one senior company official openly described as "torture flights."
Our case was supported by abundant corroborating evidence, including a sworn affidavit from a former company employee and flight records that confirm our clients' accounts and Jeppesen's involvement. Nevertheless, the administration again demanded that the case be dismissed. It claimed that confirming in court what the entire world already knows -- that our plaintiffs were in CIA custody -- would somehow reveal state secrets.
On Wednesday, the very day the Senate held its first hearing on state secrets, the court acceded and dismissed the case.
The administration has openly discussed the CIA's detention and interrogation of other prisoners, of course, most notably the six Guantanamo detainees charged this week with capital murder. In the administration's view, such activities are a state secret when deployed to hold government officials accountable but not when needed to prosecute and execute an alleged terrorist.
Under a system built on respect for the rule of law, the government should have no privilege to violate our most fundamental legal rights and values. Congress should enact the State Secrets Protection Act as a first step toward restoring the role of the judiciary as a crucial check on executive abuse of power.
Ben Wizner is a staff attorney in the national legal department of the American Civil Liberties Union.
© 2008 The Times Union
22 Comments so far
Show AllMr. WIZNER: Many thanks for your courageous representation of justice in times that marry Orwell with Kafka with The Twilight Zone. I hope apart from honoring your own innate sense of justice, you have a source for your spiritual replenishment. You are one David up against this mammoth militaristic modern Goliath. Aim well! The Light rides with you.
JA MADISON4: That's an abstinence campaign we could only wish could be retroactively administered!
Our best hope is that John Edwards will be our next Attorney General.There will be a lot of work since we have only had brain dead idiots in there for the last seven years.
i second that.
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that's why we have a government with 3 branches.
and we shouldn't forget our unofficial 4th branch which is supposed to uncover things like abuse of power in public office. google: freedom of the press
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"I wonder when he'll close down Congress and the Senate and move the Federal Court to a small annexe in the White House?"
google: NATIONAL SECURITY PRESIDENTIAL DIRECTIVE NO. 51
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lucky lefty, Hopefully I won't get disappeared some dark night. I wouldn't put that past this crowd. I would like to see a 3rd party organize and institute some kind of revolution by the ballot box. If enough of us were to get together I think it could be done. I know 3rd parties always fail but we need a different approach. Thanks for your comment. I would be interested in what is illegal about this. I was not aware of that.
"Shouldn't we develope some kind of plan to fix things?" tbenner February 18th, 2008 7:33 am
tbenner, everything you or anyone here would do, or attempt to organize is already ILLEGAL by act of Congress. If it isn't overtly illegal they will fuck you anyway for being an uppity peasant. Our government recognizes no law except their monopoly on violence.
If you think "bad" thoughts and talk about it, you will be fired from work. If you act in ANY WAY as a Citizen of this country you are subject to the full force and coercion of the State.
If you doubt this, begin organizing a shut down of DC on these pages. Invite people to join you to shut down DC on any work day. You will be "disappeared" never be seen again and no one will say anything and if you do survive you will have no access to any legal redress for your broken body, your broken mind, or your broken life, "It would embarass the Government to have their crimes exposed". We're all "Enemies of the State" now. We just haven't been arrested yet.
In a totalitarian regime the people are afraid of their government.
In a democracy the government is afraid of the people.
Which one do you think we got?
Peece.
Yes, yes, yes, the government no longer works. It ignores the general populace with impunity. The power elite are entenched like a malignant inoperable growth. Shouldn't we develope some kind of plan to fix things?
America is a corrupt culture, on a deep slide into ignominy from which it will have a terrible job recovering, if ever.
And the problem is that it is not an isolated situation, because America has through hubris and the corrupt deception of its mythology become a massive exporter of the very ideas that are taking it down as nation, and which will take the rest of the world who have bought into American methodology (media models, corporate style, flawed economic models and thinking, etc.) down with them.
I doubt the Budministration will go quietly. Though if it does, by some "moral" miracle manage to walk away softly, you can be sure that they are going to walk into the sunset and fade from view, absolved from all wrongdoing, their wallets fatter, their futures assured, knowing full well that "crime does pay" and the bigger the crime the bigger the payoff.
And when/if that happens I hope Transparency International shoves America all the way to the bottom of the list of the Corruption Index where it truly belongs because of the pretense it presents to rule of law, against which America commits every offense with impunity.
What America and Americans have done to the concepts of freedom, liberty, justice, fairness, morality and idealism is disgusting, loathsome, and should make any decent human being's gut roil with disgust and revulsion.
The travesty of America's big money elections says it all. There are no checks on abuse of power in America. The only place these will be found is outside of America and that is a truly terrible thought to contemplate because it will put us back into a pre-mid-last century state, where all gains made evaporate into the illusion that took over post-war.
Mars bless America the brute of freedom, the Fake Country, the world's Duperpower.
Abuse of Executive Power? By his actions, George, with the help of his Neocon Mates, has written the training manual!
I wonder when he'll close down Congress and the Senate and move the Federal Court to a small annexe in the White House?
www.dangerouscreation.com
1. Scene: cold block room w/single light bulb. CIA interrogation room. An Arab being waterboarded. The agent pouring the water says, "OK, Abdul, I'm gonna ask you one more time—Who set up 9/11?". Abdul: "blubDickblubblub blubCheneyblubblub". Second agent with a clip board, to a third agent with the video camera: "Eh, that's what they all say the first few times…".
The little mouse in the corner says, "Must be a conspiracy"….
There is a very dark and sad, but plausible case to be made that the secrecy and torturing is not to make the war less dangerous or shorter for our troops or safeguard national security, but to cover up, ferret out and neutralize evidence or anyone who has first hand knowledge of who the perps are and how the whole thing unfolded. It may also be plausible that OBL is still free because he has arranged one of those "if anything happens to me" letters as in spy v. spy movies. Can anyone come up with a way to connect the dots that is less painful to patriotic sensibilities? I hope so, because thoughts about people engaging in such deep treachery and treason are hard to bear.
Basic question: What would various perps do if they had the means and motive after pulling off 9/11? There are plenty of detectives, criminologists and psychologists out there who could speak to this conjecture. Let's hear from some.
peace
Have we all forgotten that the big W considers the Constitution "just a fucking piece of paper" ?
Law? Accountability? Transparency? Get real. The only thing he respects is power. I live for the day that all he thinks about is keeping his skin on his bones from day to day.
We all understand about a national security risk, but who is to say that it is one? The present bunch seems to think that anything that they want to keep secret is. They may be hiding their criminality, but claim it is national security. It makes them feel more secure that they might not go to prison, but that is about it.
ezeflyer: A check on abuse of power is what the losing party always wants.
It's what the public should want.
But since the public has been the losing party when it comes to the Bush administration, I guess that's the same thing.
Checks and balances were what the Founding Fathers wanted - that's why we have a government with 3 branches. Truth should be on our side, we shouldn't have to struggle against it. When the State is unchecked, it is free to use lies. Truth becomes a threat to the State. Capitalism and democracy assumes the players know the truth so that they can exercise self-interest. It's a big assumption and an invalid one without checks and balances.
State Secrets tend to lead to Secret States.
The war criminals of the Bush Administration want to hide their guilt. .They delude themselves that they have fooled everyone. .The Mad Cowboy thinks his lies have made him, the Leader of the World.
Bush is the worst president, the United States has ever had. . His father and mother should have practiced abstinence!!!!!!!!!!!!!!
Keep fighting, BW - sadly, even if you win eventually, the Loonitary Decider will then invoke "executive privilege" in order to keep everything secret while they busy themselves destroying "videotapes" and "loosing" emails.
Failing that, any person or corporation found guilty of anything will be pardoned, then granted retroactive immunity and awarded the Medal of Freedom.
That's why We're Number One and the most God-blessed of all!
Another comment in response to ezeflyer's:
The Democrats will regret not having gone after Bush and Cheney's abuses of power. As soon as a Democrat occupies the presidential seat, be it Clinton or Obama, all we will hear from the Republican minority will be charges of unconstitutional exercise of executive power, and maybe even impeachment charges: and they will be right. They will do what the Democrats should have done as soon as the executive branch started pissing on the Constitution, and the Democrats will have screwed themselves yet again. There will be repercussions for the Dem's infuriating strategy of just "waiting it out" until the election. Wexler and Kucinich will prove prescient.
ezeflyer...
People who think of the current Constitutional crisis as just a game are the true "losing party", and such ignorant self-interest is disgusting and contemptible. Realize that the Bush Regime could not care less about you, that nothing positive has come from these crooks, and that you are supporting the wrong team, to carry out your inane game metaphor.
how's this for a legacy?
The act should be named the "Bush/Cheney Executive Accountability Act".
so it goes down in history just how the law came to be.
/rather than being rewritten by karl rove on FauxNews for the next 30 years
If the type of tyranny is allowed to continue and grow it will cause a violent reaction. Violence is not in the interest of the poor or the rich and powerful. The rich falsely believe that they can abuse people forever in a fog of short term greed. That type of thinking is feudalism. When the serfs were allowed a portion of their labor the wealthy soon had goods beyond the dreams of the old lords of the manor.
We now need to see to it the working class is compensated at a livable wage. Then ironically the future rich will be even richer.
A check on abuse of power is what the losing party always wants.
The act should be named the "Presidential Accountability Act".
Thank you for this, Mr. Wizner. Every bit of light that can be shone on the moral hypocrisy of our government is useful, even more so when you can reveal practical steps to be taken to correct. This kind of clarification is invaluable.