Gregory T. Nojeim and Daniel G. Jarcho are co-chairs of the Coordinating Committee on National Security and Civil Liberties of the ABA Section of Individual Rights & Responsibilities.

Khaled el-Masri, a German citizen of Lebanese descent, claimed that he was illegally kidnapped by agents of the Central Intelligence Agency who mistook him for a terrorist with a similar name. He alleged that he was flown from Macedonia to Kabul, Afghanistan on a CIA plane, and there was detained for five months. He further alleged that during his detention, he was beaten, drugged, blindfolded, interrogated harshly and repeatedly, and barred from contacting anyone on the outside. At the end of the period, according to El-Masri, he was flown to Albania, and released in the middle of nowhere with just enough cash to purchase an airplane ticket back to his home in Germany. He claims that his kidnapping was part of the extraordinary rendition program run by the CIA – and acknowledged by President Bush – under which suspected terrorists are “rendered” to foreign countries for interrogation. A report to the Council of Europe, which was investigating the involvement of European countries in the CIA “extraordinary rendition” program, concluded that El-Masri’s claims were largely accurate.

El-Masri brought suit in U.S. courts claiming, among other things, that this detention violated the 5th Amendment’s due process clause. Although the government had previously admitted that the CIA had engaged in extraordinary renditions, it claimed that there was a reasonable danger that disclosure of the information necessary for El-Masri to prove his claims would reveal military, diplomatic or intelligence matters which were subject to the state secrets privilege. The court dismissed the case, while acknowledging that dismissal would mean that el-Masri would be left with no judicial remedy.

Responding to cases like that of Khaled el-Masri, the ABA Individual Rights & Responsibilities Section proposed that the ABA House of Delegates adopt a policy that would lay the legislative groundwork for Congress to rein in possible government abuse of the state secrets privilege. Cases involving the violation of fundamental rights were being dismissed at the pleadings stage, and might be allowed to go forward if necessary procedures were put in place to protect sensitive information. El-Masri, for example, claimed that he himself had sufficient evidence to prove his claims regardless of the evidence he might seek in discovery from the government, but the court dismissed the case nonetheless. The policy, which the ABA adopted at its Annual Meeting in August, 2007, states its fundamental goal up front: that Congress should enact legislation with procedures and standards designed to ensure that whenever possible, federal civil cases are not dismissed based solely on the basis of the state secrets privilege.

Members of both houses of Congress responded a few months later by introducing legislation that draws heavily from the ABA policy recommendations. Like the ABA policy, both bills require the government to make available to the court for in camera review the evidence that the government claims is subject to the state secrets privilege. This requirement challenges the U.S. Supreme Court’s statement in the leading state secrets case, U.S. v. Reynolds, that there are some situations in which the allegedly privileged evidence is so sensitive that the judge should not even examine it. Like the ABA policy, both bills empower judges to require the government to fashion a non-privileged substitute for privileged evidence so that whenever possible, the case can go forward with the substituted evidence without risking disclosure of sensitive national security information.

In testimony before the House Judiciary Committee Subcommittee on the Constitution, ABA President-elect Tommy Wells endorsed the Senate state secrets bill, which was the only legislation pending at the time. He said, “The ultimate goal of all of these [ABA policy] recommendations and the objective that should underlie any legislative response, is the protection of both the private litigants’ access to critical evidence, including evidence necessary to obtain redress for constitutional violations and other wrongful conduct, and our critically important national security interests which, if not protected, could put the nation at grave risk.”

Despite a strong push from the ABA, state secrets legislation faces formidable obstacles to becoming law. Attorney General Michael Mukasey issued a letter on March 31, 2008, threatening to recommend that the President veto the Senate version of the legislation, the State Secrets Protection Act (S. 2533). He argued that it is “highly questionable” that Congress even has authority to legislate in this area because the privilege “is rooted” in the President’s power under Article II of the Constitution to control access to information bearing on national security. However, the letter ignores the fact that nothing in the bill permits any person, including counsel with the highest possible security clearance, to have access to privileged information, and that Congress can, and has, legislated with respect to the assertion in court of other privileges.

If Congress rejects the notion that it is powerless to legislate about the state secrets privilege, it will have to resolve other important questions as the legislation moves forward. For example, to what extent must a court defer to the judgment of the head of an intelligence agency that information is subject to the state secrets privilege? Should a judge, to avoid injustice that might result from dismissal of a meritorious claim, be empowered to enter a judgment for or against a party to a civil case based on information that is subject to the state secrets privilege and is not disclosed to that party?

These and other questions promise to make this legislative battle one that will stretch over into the next Congress and the next President’s term.

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