04 Mar 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.
Julian, thank you very much for the post. If this is a position of the US judiciary and in your view a right one a question arises what are then the checks on the executive not to commit these acts. What mechanisms are there to ensure that such grave violations of human rights do not happen? You can say that the main check on executive in a democracy is the vote of people. And indeed, in my view, this is a main reason why democracies have got generally a very good human rights record. If the governments misbehave they simply lose next elections. But (a big BUT) this mechanism (majoritarian voting) itself cannot prevent human right violations of those perceived as „others“ – minorities, socially excluded communities, foreigners etc. And it is exactly these, which are most vulnerable to human rights violations. This is where human rights come in and are the most important, in my view. Human rights are precisely a check on the executive not to do certain acts even though they would get away with it with their voters. So if the US courts have this hands off approach what mechanisms people like Khaled El-Masri have to get redress? What mechanisms are there in the US to ensure that the executive does not commit such acts?
Julian writes:
Indeed, he went so far as to argue that the whole privilege should be rejected in cases of extraordinary executive branch misconduct.
This misstates El-Masri’s position. Julian, following the court’s opinion on page 21, picks out a few phrases from El-Masri’s opening brief and places them into an argument that the brief does not in fact make. The brief can be found here: El-Masri Opening Brief
The relevant language is as follows
As the 4th Circuit acknowledged on page 7 of the opinion, El-Masri never argued that the privilege should not apply, only that it should not be applied in support of a dismissal of the suit before any discovery had taken place:
So, whether or not Julian’s argument is convincing, it in no way undercuts El-Masri’s position. El-Masri’s first argument is that the privilege does not apply in the sweeping manner the government claims, because the government’s rendition program has been openly acknowledged, reported on and thus is not a state secret. To the extent that there is some secret information that bears on El-Masri’s case, the solution is not dismissal but the appropriate invocation of the privilege to limit discovery.
I would, certainly from my limited knowledge of US law, agree that the case was correctly decided as far as such law goes. The Court appears to be saying that cases which the courts cannot deal with on the grounds of non-justiciability fall outside the Article III concept of ‘cases and controversies’. I am aware of Supreme Court authority for this position as regards the political question doctrine (Flast v. Cohen, 392 U.S. 83, 94-5 (1968); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 215 (1974)), and it seems only logical to extend this to other justiciability doctrines.
The fact that these doctrines are of long standing may explain the otherwise somewhat strange proposition that the meaning a term in the Constitution should be determined by law subordinate to it; also, the ‘cases and controversies’ clause may be taken as referring for much of its content to other law.
But I would suggest that, as international lawyers, we may well have reason to disagree.
As is well known, Article 14(1)(2) ICCPR provides for the right to a fair trial. Now, this is clearly only engaged when there is a trial, and therefore not by a refusal to entertain or proceed with a case. But the European Court of Human Rights has, of course, decided on the very much comparable provision of Article 6(1) ECHR that this implies a right of access to a court for a decision on one’s ‘rights and obligations’ (Golder v. United Kingdom, paras. 28-36). That case is now one of the leading cases on the ECHR, and has been referred to as ‘the great case of Golder v. United Kingdom‘ (Matthews v. Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163, para. 28).
I think it can be said that the same applies to Article 14 ICCPR. To adopt the reasoning of the European Court, ‘[i]t would be inconceivable (…) that [the] Article (…) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.’
I have developed the argument elsewhere at some greater length.
If that is so, then the only requirement to bring the right of access into operation (to render it applicable, as the European Court has sometimes put it), is that a case should concern the plaintiff’s ‘rights and obligations’. If that is so, and the case is dismissed, then such dismissal falls to be justified as having pursued a legitimate aim and having been proportionate to achieving it.
This means that the right of access to a court does not follow the domestic separation of powers, but makes certain requirements of it: the courts should generally be able to hear all cases involving a person’s ‘rights and obligations’, or justify, on the terms of the international right, any failure to be so available.
I have also discussed this before, here (with specific reference to the political question doctrine).
It is therefore immaterial whether domestic law allows or requires a court to dismiss a case, and it is likewise of no particular relevance if this is a constitutional requirement, or a consequence of the domestic view of the judicial function.
Only the international view counts, and this will take into account basically the reasonability of the dismissal in any one case. This may, of course, include some consideration of the separation of powers in the state concerned, but this will not necessarily be decisive; and if it is, it will be because the domestic arrangement is acceptable, not because it is of constitutional stature.
Turning to the state secrets doctrine, the consequences of the general rules under the right of access are these: state secrets are accepted as necessary, but the courts are not necessarily empowered to dismiss cases raising questions as to classified material. They must, instead, exhaust all possibilities of case management that may allow the case to go ahead, and may only dismiss if there is no other option. Such possibilities may include making classified material available only to the judge in chambers, or appointing special counsel for the plaintiff to whom such material will be disclosed instead of to the plaintiff personally.
All this means that, although the ‘removal of the court’s jurisdiction by executive ipse dixit‘ (Devenney v. United Kingdom, para. 28, citing Tinnelly and Sons Ltd and Others and McElduff and Others v. United Kingdom, para. 77) is obviously very problematic, it may be justified. But the court must always have given real consideration to the plaintiff’s right to have the case heard and decided.
(I have also, perhaps unsurprisingly, discussed this at my blog, here and here)
Whether the Circuit Court in el-Masri has done this properly, I cannot say, but the analysis of the District Court seemed searching enough.
But the Court was not right, from an international legal point of view, to take the line quoted by Prof. Ku above. International law, too, demands reasons as to why the court was not competent to hear the case, and Article III is not an answer.
(Mind you, this is a somewhat academic point, seeing as US courts accept the Senate’s statement that the ICCPR is not self-executing – Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163-165, n. 35 (2nd Cir. 2003), and the courts therefore could not apply the Covenant even if they recognized its relevance.)
Incidentally, I could not say anything more specific on the Circuit Court’s opinion because the link in the post seems to be wrong. Or is it just me?
And another incidental comment: the decision has received substantial, and not entirely flattering, media coverage in Germany. I should imagine that no ‘hearts and minds’ were won, and perhaps question the utility for the government of having the case dismissed. ‘Extraordinary rendition’ (a terrible euphemism) may be a state secret, but hardly effective as such. Basically, you should know you have lost when English judges, hardly known for their activism, pass comment on it: A and Others v. Secretary of State for the Home Department (No. 2) [2005] UKHL 71, [2006] 2 AC 221, paras. 82, 107 (per Lord Hoffmann and Lord Hope of Craighead); Ahmad v. Government of the United States of America [2006] EWHC 2927 (Admin), paras. 81 et seq.; Abu Qatada v. Secretary of State for the Home Department [2007] UKSIAC 15_2005, para. 324.
Tobias, you should be able to find the Circuit Court’s opinion here: http://pacer.ca4.uscourts.gov/opinion.pdf/061667.P.pdf
I’m sorry, I just don’t see where in the Constitution it says the executive is entitled to torture people and classify the evidence. Which clause again?
By the way, at risk of being inflammatory, I take it from your post that you would endorse the use of state secrets privilege if the CIA were running a death camp, right? I mean, there’s no logical distinction. Clearly the “case or controversy” requirement of Article III requires it.
A law professor. Amazing.
Along the same lines, I wrote a Jurist oped today on this entitled “The Un-American Way: The Kafkaesque Case of Khalid El-Masri”
Best,
Ben
On the ‘death camp’ proposition:
I’m not at all sure that the state secrets doctrine, properly applied, would really preclude judicial cognisance in such a case. It is difficult to see how a bona fide national security claim might be made for a death camp, and it is national security that the doctrine seeks to protect, not state secrets as such.
But there is another way of looking at this, which I find extremely troubling: according to District Judge Trager in Arar v. Ashcroft, cases must be dismissed if they tend to embarrass the executive. This would clearly apply to the hypothetical death camp case; indeed, it would apply with even greater force than in a case raising a more trivial violation of the law.
This terrible decision has been cogently criticised by David Luban at Balkinization, here and again here. I respectfully agree. I should hope that Arar will not be followed.