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Remember Checks And Balances?

Sharon Bradford Franklin

Khaled El-Masri, a German car salesman and father, was on vacation in Macedonia when he was detained by local authorities. According to his sworn declaration, he was later transferred to U.S. authorities, and then beaten, sexually assaulted, drugged and transported to a CIA-run "black site" in Afghanistan. For almost five months, Mr. El-Masri was interrogated and held in a squalid cell without charges. Then, he was abandoned, blindfolded and alone, on a desolate Albanian hilltop more than a month after the CIA realized they had been holding the wrong man.

Although Mr. El-Masri subsequently filed suit seeking to hold U.S. officials accountable for their actions, thus far the U.S. government has refused either to confirm or deny any of his allegations. Rather, his case against the U.S. government was dismissed after the government asserted the "state secrets privilege," suppressing any evidence or testimony that might have been used to litigate his claim. He is now seeking to appeal his case to the U.S. Supreme Court.

The executive branch has relied upon the state secrets privilege to claim that the disclosure of certain evidence in court would jeopardize national security, and therefore cannot be reviewed by private parties, the attorneys or even the judge. As one might expect, without this evidence cases are usually dismissed.

The Supreme Court first recognized this privilege in 1953 in United States v. Reynolds, when it denied the widows of three civilian Air Force contractors access to an accident report. The Air Force had claimed that the report was confidential, noting that the personnel aboard the plane "were engaged in a highly secret mission of the Air Force." When the report surfaced decades later, it became clear that the only sensitive information therein was evidence of negligence by the Air Force that may have caused the men's deaths. The lower courts in Reynolds had ordered that the government submit the accident report to the trial court, so it could assess whether the document in fact contained state secrets that could not be disclosed. But the Supreme Court overruled this determination. Sadly, this Supreme Court precedent permitting the executive branch to assert the state secrets privilege without any independent review of the evidence still stands, and judges continue to give the Executive an alarming degree of deference when this privilege is invoked.

The Constitution Project recently brought together a broad, bipartisan coalition of political leaders, policy experts and legal scholars in calling for reform of the privilege. Our Report on the State Secrets Privilege urges Congress or the Supreme Court to clarify the narrow and qualified scope of this privilege so that cases like Mr. El-Masri's can be litigated.

A court's acceptance of an executive branch claim of privilege without question undermines the established practices and role of an independent judiciary. Dismissing challenges to executive branch policies outright in the name of national security is unnecessary and erodes individual rights. Although there is a role for the state secrets privilege to prevent disclosure of genuine state secrets to private parties, it is critical that our independent judiciary review such claims and determine when the privilege properly applies. Either the Supreme Court or Congress can cure this problem.


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Since the state secrets privilege was first recognized in the Supreme Court's decision in Reynolds, the Court could revisit this issue to correct and clarify the proper scope of the privilege. As of this writing, Khaled El-Masri is seeking review of his case in the Supreme Court. Hopefully, the Court will accept review of the case, reexamine the scope and meaning of its decision in Reynolds and allow Mr. El-Masri's case to proceed. Alternatively, since privileges are often created by statute, Congress can and should take steps to make clear that the state secrets privilege is not a license for Executive overreaching. Congress should craft legislation which clarifies that judges, not the executive branch, have the final say as to whether disputed evidence is subject to the state secrets privilege.

Further, the Supreme Court or Congress should make it clear that instead of accepting executive claims as valid on their face, judges can and should privately review evidence allegedly subject to the privilege, if necessary, in chambers—also known as an in camera review. Judges should not accept edited documents or affidavits, statements or declarations prepared by executive officials; courts must review the disputed evidence itself. As the courts have independently examined and assessed classified evidence for decades, we have faith that judges are fully competent to review these claims and balance the rights of individuals with national security interests.

America's constitutional system of checks and balance depends on independent judicial review of executive branch actions. History has demonstrated, time and again, just how vital independent judicial review is; the executive branch should not be left to police itself. The Reynolds case is only the beginning of a long list of cases —including those challenging the NSA's warrantless domestic spying program—in which the government has asserted the state secrets privilege to shield itself from accusations of wrongdoing. Mr. El-Masri's treatment at the hands of the CIA may yet qualify for a place on that list. The Supreme Court should take Mr. El-Masri's case and provide him an appropriate remedy.

We cannot allow the executive branch to evade all accountability for embarrassing, illegal or unconstitutional acts by crying "state secrets." Nor can we allow courts to abdicate their constitutional responsibility to evaluate such claims of privilege. We need to limit the use of the state secrets privilege and restore independent judicial review. It is needed now more than ever.

Sharon Bradford Franklin serves as senior counsel at the Constitution Project, an independent think tank in Washington, D.C.

© 2007

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