Fourth Circuit Errs in El-Masri

Posted by Randy Gainer

In El-Masri v. United States, No. 06-1667 (4th Cir. March 2, 2007), a panel of the Fourth Circuit Court of Appeals affirmed the dismissal of Mr. El-Masri's claims related to his "extraordinary rendition" by the CIA. The Court held that El-Masri could not litigate his claims against the CIA and other parties because the central facts of his case were privileged pursuant to the state secrets privilege. Slip Op., 20. The Court's concluded that the "very subject matter" of the rendition program was so secret El-Masri's claims had to be dismissed despite:

1. public reports that the CIA's modus operandi for conducting renditions -- "masked men in an unmarked jet seize their target, cut off his clothes, put him in a blindfold and jumpsuit, tranquilize him, and fly him away" -- matched El-Masri's claims (Slip Op. 6);

2. public reports by the German and Macedonian governments that document details of El Masri's claims (Id.);

3. the July 7, 2006 public draft report by the Council of Europe that stated El-Masri's claims were substantially accurate (Slip Op. 7);

4. public acknowledgements by CIA Directors Tenet and Goss that the CIA conducts such renditions (Slip Op. 5-6);

5. public reports revealing the existence of secret CIA detention facilities where rendition subjects were held (Slip Op. 6);

6. President Bush's September 6, 2006 public admission that the CIA detained suspected terrorists and interrogated them outside the U.S. (Id.); and

7. El-Masri's uncontested claim that the CIA knew shortly after it detained him that it had the wrong man. Slip Op. 4.

The Court claimed that a Classified Declaration submitted by the United States (Slip Op. 5) explains that litigation of El-Masri's claims would risk disclosing certain facts about the rendition program and that their disclosure would harm national security. Slip Op. 22. Based on the Classified Declaration, the Court decided it was "unable" to permit El-Masri's claims to proceed. Slip Op. 24. One wonders if the Court would have been similarly "unable" to permit the case to proceed if El-Masri had been killed rather than kidnapped and held in isolation for months in Afghanistan. Surely in that case, too, the CIA would claim that disclosure of the details of its actions would harm national security.

The Court could have permitted the case to proceed by finding that a publicly acknowledged program cannot be shielded by the state secrets privilege if publicly available evidence shows that the program violates U.S. law or international laws that the U.S. has agreed to follow.

Sixty years ago, U.S. courts, including the Supreme Court, failed in their duty to defend the Constitution when they permitted Japanese American citizens on the West Coast to be interned for the duration of the Second World War. Years from today, scholars and judges will likewise look back on the Fourth Circuit's decision in El-Masri as a similarly flawed and unfortunate decision.

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