Appeals Court Upholds State Secrets Doctrine Against El-Masri

A U.S. federal appeals court has upheld the use of the “state secrets privilege” to dismiss lawsuit brought by a German national. The underlying lawsuit, brought by Khaled El-Masri in U.S. federal court, alleged that he had been kidnapped by U.S. CIA agents and rendered to a third country for interrogation and torture.

The appeals court, like the lower court before it, relied on the “state secrets privilege”, may be invoked if there is a “reasonable danger” that litigation would require the disclosure “military matters which, in the interest of national security, should not be divulged.” If the court determines that the privilege does apply, the litigation must be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information’s disclosure.”

El-Masri argued that the privilege did not apply here, or if it did, it did not require the dismissal of his whole lawsuit. Indeed, he went so far as to argue that the whole privilege should be rejected in cases of extraordinary executive branch misconduct. The Court rejected all of these arguments, and in response to the last one, offered this rather sharp defense of their limited view of the judicial role here.

We also reject El-Masri’s view that we are obliged to jettison procedural restrictions — including the law of privilege — that might impede our ability to act as a check on the Executive. Indeed, El- Masri’s position in that regard fundamentally misunderstands the nature of our relationship to the executive branch. El-Masri envisions a judiciary that possesses a roving writ to ferret out and strike down executive excess. Article III, however, assigns the courts a more modest role: we simply decide cases and controversies. Thus, when an executive officer’s liability for official action can be established in a properly conducted judicial proceeding, we will not hesitate to enter judgment accordingly. But we would be guilty of excess in our own right if we were to disregard settled legal principles in order to reach the merits of an executive action that would not otherwise be before us — especially when the challenged action pertains to military or foreign policy. We decline to follow such a course, and thus reject El-Masri’s invitation to rule that the state secrets doctrine can be brushed aside on the ground that the President’s foreign policy has gotten out of line.

This seems about right. Just because courts have a limited role in overseeing executive conduct does not mean they have abdicated their authority. Courts have always had a limited role in reviewing executive action, especially administrative agency action. In some cases, they have no role at all. That doesn’t mean we don’t have the rule of law – it just means there are some areas that courts exercise no important role. Foreign intelligence seems like a proper place for a limited judicial role.