XPost: aus.legal, az.general, misc.legal   
   XPost: nyc.politics, rec.motorcycles   
   From: theprof@jonez.net   
      
   > WASHINGTON, Oct. 9 - The Supreme Court on Tuesday refused to hear an appeal   
   > filed on behalf of a German citizen of Lebanese descent who claims he was   
   > abducted by United States agents and then tortured by them while imprisoned   
   in   
   > Afghanistan.   
   >   
   > Text: 4th Circuit Opinion (El-Masri v. U.S.) (pdf)   
   > Without comment, the justices let stand an appeals court ruling that the   
   state   
   > secrets privilege, a judicially created doctrine that the Bush administration   
   > has invoked to win dismissal of lawsuits that touch on issues of national   
   > security, protected the government's actions from court review. In refusing   
   to   
   > take up the case, the justices declined a chance to elaborate on the   
   privilege   
   > for the first time in more than 50 years.   
   >   
   > The case involved Khaled el-Masri, who says he was detained while on vacation   
   > in Macedonia in late 2003, transported by the United States to Afghanistan   
   and   
   > held there for five months in a secret prison before being taken to Albania   
   > and set free, evidently having been mistaken for a terrorism suspect with a   
   > similar name.   
   >   
   > Mr. Masri says he was tortured while in the prison. After prosecutors in   
   > Germany investigated the case, a court there issued arrest warrants in   
   January   
   > for 13 agents of the Central Intelligence Agency. The German Parliament is   
   > continuing to investigate the episode, which has become a very public example   
   > of the United States government's program of "extraordinary rendition."   
   >   
   > Mr. Masri, represented by the American Civil Liberties Union, brought a   
   > lawsuit in federal court against George J. Tenet, director of central   
   > intelligence from 1997 to 2004; three private airline companies; and 20   
   people   
   > identified only as John Doe. He sought damages for treatment that he said   
   > violated both the Constitution and international law.   
   >   
   > Shortly after he filed the lawsuit in December 2005, the government   
   intervened   
   > to seek its dismissal under the state secrets privilege, asserting that to   
   > have to provide evidence in the case would compromise national security. That   
   > argument succeeded in the Federal District Court in Alexandria, Va., which   
   > dismissed the case without permitting Mr. Masri's lawyers to take discovery.   
   > The United States Court of Appeals for the Fourth Circuit, in Richmond, Va.,   
   > upheld the dismissal in March.   
   >   
   > In their Supreme Court appeal, El-Masri v. United States, No. 06-1613, Mr.   
   > Masri's lawyers argued that these rulings allowed the state secrets doctrine   
   > to become "unmoored" from its origins as a rule to be invoked to shield   
   > specific evidence in a lawsuit against the government, rather than to dismiss   
   > an entire case before any evidence was produced.   
   >   
   > The Supreme Court created the doctrine in a 1953 decision, United States v.   
   > Reynolds, which began as a lawsuit by survivors of three civilians who had   
   > died in the crash of a military aircraft. In pretrial discovery, the   
   > plaintiffs sought the official accident report.   
   >   
   > But the government, asserting that the report included information about the   
   > plane's secret mission and the equipment that it was testing, refused to   
   > reveal it. The Supreme Court upheld the government, ruling that evidence   
   > should not be disclosed when "there is a reasonable danger that compulsion of   
   > the evidence will expose military matters which, in the interest of national   
   > security, should not be divulged."   
   >   
   > Mr. Masri's lawyers argued that this decision, which the court has   
   > occasionally invoked but has not revisited, did not justify dismissing a case   
   > before any evidence was requested. Ben Wizner, Mr. Masri's lawyer at the   
   civil   
   > liberties union, said in an interview that the courts had permitted the   
   > doctrine to evolve from an evidentiary privilege to a broad grant of   
   immunity,   
   > a way for the executive branch to shield itself from judicial scrutiny.   
   >   
   > In this case, Solicitor General Paul D. Clement offered to let the justices   
   > see, "under appropriate security measures," the classified declaration that   
   > the government filed in the lower courts to support its claim of privilege.   
   > The court evidently did not think that step was necessary.   
   >   
   > The court will soon have other opportunities to revisit the state secrets   
   > issue. Last week the A.C.L.U. filed an appeal that raises the issue as part   
   of   
   > a challenge to the National Security Agency's program of wiretapping without   
   > court warrants.   
   >   
   >   
      
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