09 Oct Supreme Court Refuses to Review State Secrets Privilege
09.10.07
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5 Comments
The U.S. Supreme Court has refused to review an appeal brought by Khaled el-Masri, a German national who alleged that he was kidnapped by CIA agents in Europe and held in an Afghan prison. El-Masri’s lawsuit was dismissed, not on the merits, but on the “state secrets privilege” ground. This is not totally surprising, but it suggests that the Court is willing to hold off on at least some of the legal challenges arising out of the war on terrorism. Still, the Court may simply be waiting for the lower courts to split on the application of the privilege, which (as far as I know) hasn’t happened yet.
An interesting fact from the article:
“At the height of Cold War tensions between the United States and the former Soviet Union, U.S. presidents used the state secrets privilege six times from 1953 to 1976, according to OpenTheGovernment.org. Since 2001, it has been used 39 times, enabling the government to unilaterally withhold documents from the court system, the group said”
I guess the silver lining in this denial of cert. for civil libertarians is that at least the Court can’t do any worse now than U.S. v. Reynolds and still leaves some room for judicial bravery against the executive in the lower courts.
Oh yeah, it’s real “judicial bravery” to do ones job for which one has a life-time appointment.
I’m surprised the justices have no interest in clarifying state secrets. At least they’ll have plenty of cases to choose from.
It is possible they see the current use as correct, thus their disinterest in clarification.
Well El-Masri has exhausted his local remedies in the United States – so now it goes back to what Germany wants to do. We had our shot.
Best,
Ben
I think it would be hard to argue that there has not been a split on the state secrets privilege. There is no split about the propriety of having a state secret privelege doctrine. Everyone recognizes that there are occasions when the invocation of the privilege is perfectly appropriate and that courts should accord significant deference to claims of privilege. But courts have taken very different approaches in determining what consequence the invocation of the privilege should have for the litigation. The ACLU’s cert. petition does a good job of laying out the different ways in which courts have attempted to accommodate the privilege. That document can be found here: http://www.aclu.org/safefree/torture/29917lgl20070530.html. The current trend is towards pre-discovery dismissal of claims, but there are still courts that find ways to allow claims to proceed without the evidence subject to the privilege. Because courts have done quite a variety of things in response to invocations of the privilege, the doctrine is a terrible mess that the Court really should clean up a bit. My guess though is that the Hepting case, currently pending in the 9th Circuit, will provide a better opportunity for the Court to do so. In response to non… Read more »