Last week, I reported on the extensive use of National Security Letters (NSLs), one of the most powerful, and perhaps scariest weapons in their fight against terrorism.
According to Scott Horton, a contributing editor at Harper’s Magazine, NSLs are “one of the creepier weapons in the arsenal of the national-security state.”
This reporter believes that what is even more creepy is what is known as the State Secrets Privilege (SSP). It’s an evidentiary rule, which means that it can be invoked by the government as grounds for excluding some discreet item of evidence if, in the sole discretion of the government, its disclosure would compromise national security. It does not require review from a judge. In a large sense, it’s your government saying, “We know the evidence. We prepared the affidavit. Trust us.”
Virtually no one would deny a government – any government – the right to keep secret those things that are likely to expose the legitimate sources and methods used by the government to protect the country and its people. But there is a huge difference between ‘we know the evidence’ and ‘trust us.’ And there is a fine line between that objective and concealment to avoid embarrassing truths. Over many years, we’ve learned, as the man said, Trust but Verify. And in court, the only man who can verify is the judge.
First the George W. Bush Administration, and now the Barack Obama Administration, have used the SSP in an entirely different way. They have invoked the privilege to get judges – who have not seen the evidence – to throw entire lawsuits out of court, because the government argues that any mention whatever of any of the details of the case would have a disastrous effect on the well-being of all Americans.
Like this case:
Khaled el-Masri arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.
El-Masri, a German citizen, alleged that he was kidnapped in 2004, “rendered” to Albania and then to Afghanistan, where he was falsely held by the CIA for several months – which the CIA surprisingly acknowledges – and was beaten, drugged, and subjected to various other inhumane activity while in captivity.
They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew him to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four months. The government of Macedonia denies any involvement in his abduction.
He was ultimately released by the CIA on a deserted road in Macedonia in the dead of night with no charge ever being brought against him by the U.S. government or anyone else.
In 2005, the American Civil Liberties Union sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render el-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. constitution and universal human rights laws.
In May 2006, el-Masri’s court case was dismissed based on invocation of the “state secrets privilege” by the CIA. The U.S. District Court dismissed his case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA.
What was the reason for the government’s secrecy? Was it really national security? Or was it to spare government officials the embarrassment of admitting they made a huge error of mistaken identity? We’ll probably never know.
Or this case?
Arar v. Ashcroft is a 2010 federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The Canadian was Maher Arar, publisher of this magazine.
Arar, a Syrian-born, Canadian citizen was detained during a layover at J.F.K. Airport in September 2002 on his way home to his family in Canada. He was held in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The Bush administration labeled him a member of al-Qaeda, and rendered him, not to Canada, his home and country of citizenship, but to Syrian intelligence authorities renowned for torture. The plaintiff sued for a jury trial, compensatory and punitive damages, and a declaration that the actions of Defendants were illegal and violated Arar’s constitutional, civil, and international human rights.
The Canadian Government conducted a two-year investigation of the case and concluded that it too was guilty. It apologized for passing inaccurate information to the American authorities and paid Arar substantial monetary damages.
The US Government refused even to discuss the case, much less apologize. During a Congressional hearing, then Secretary of State Condoleezza Rice offered, “this case was not handled well.”
The Government’s silence also extended to US courts of law, where the government invoked the SSP to keep secret the details of Arar’s treatment. And the courts, by and large, agreed.
Arar pursued his claims through various US courts. On June 14, 2010, the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals’ en banc decision dismissing his case.
That ended Arar’s case in US courts, where once again judges sided with the unknown in the form of the State Secrets Privilege.
Or perhaps this case:
In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five extraordinary rendition victims. The suit charged that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation.
According to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, “We do all of the extraordinary rendition flights – you know, the torture flights. Let’s face it, some of these flights end up that way.”
Shortly after the suit was filed, the government intervened and inappropriately asserted the “State Secrets Privilege,” claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. To date, not a single torture victim has had his day in court.
One of the Jeppesen case plaintiffs, Binyam Mohammed, brought virtually the same lawsuit in British courts and was reportedly awarded damages of one million pounds.
During the Administration of George W. Bush, the courts saw a veritable avalanche of lawsuits thrown out of court through the government’s assertion of the SSP. While the rule itself dates back to the days of World War Two, it had been little used since then.
Perhaps one of the reasons for that was the disastrous revelation that followed the disclosure of what actually happened the first time the government used the SSP.
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