from the FAS Project on Government Secrecy
Volume 2007, Issue No. 25
March 5, 2007

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A federal appeals court ruled last week that the overriding need to protect "state secrets" makes it impossible to litigate claims by a German citizen named Khaled el-Masri that he was illegally detained and abused by the Central Intelligence Agency in a case of "extraordinary rendition." The appeals court upheld a lower court's earlier dismissal of the proceeding.

In a March 2 decision, the court rehearsed the allegations at issue as well as the relevant case law on the state secrets privilege.

El-Masri would not be able to make his case, the court concluded, except by using "[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations."

Similarly, said the court, the CIA could not defend itself against the allegations "without using privileged evidence."

"The main avenues of defense available [to CIA] in this matter are to show that El-Masri was not subject to the treatment that he alleges; that, if he was subject to such treatment, the defendants were not involved in it; or that, if they were involved, the nature of their involvement does not give rise to liability. Any of those three showings would require disclosure of information regarding the means and methods by which the CIA gathers intelligence."

The court rejected the contention by the defense that by yielding to the government's state secrets claims, the judiciary had abdicated jurisdiction over a case of egregious governmental abuse.

"Contrary to El-Masri's assertion, the state secrets doctrine does not represent a surrender of judicial control over access to the courts," the court said.

"As we have explained, it is the court, not the Executive, that determines whether the state secrets privilege has been properly invoked. In order to successfully claim the state secrets privilege, the Executive must satisfy the court that disclosure of the information sought to be protected would expose matters that, in the interest of national security, ought to remain secret," the court ruling stated.

"Today the appeals court gave the CIA complete immunity for even its most shameful conduct," said ACLU attorney Ben Wizner, who represented El-Masri. "Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured."

Under current legal conditions, there is no disincentive for the government to invoke the state secrets privilege, which often terminates litigation in its favor. But a pending bill introduced by Rep. Henry Waxman and several House colleagues would change that calculation in the case of whistleblower lawsuits.

Under the provisions of the Whistleblower Protection Act of 2007, "the court shall resolve the disputed issue of fact or law in favor of the plaintiff," if the government's use of the state secrets privilege prevents the plaintiff from making his case and there is independent support for his argument from an Inspector General investigation.

And whenever the state secrets privilege is asserted, the bill would also require the agency head to submit a report to Congress "describing the reasons for the assertion, explaining why the court hearing the matter does not have the ability to maintain the protection of classified information related to the assertion," and providing other relevant information. See section 10 of HR 985:


A reference manual to assist government employees and contractors in correctly marking classified Department of Energy records has recently been published and distributed by DOE.

See "DOE Marking Handbook: How to Mark Matter Containing Classified Information and Unclassified Controlled Information," September 26, 2006:


Some recent products of the Congressional Research Service obtained by Secrecy News that have not previously been made readily available in the public domain include the following.

"Congressional Oversight of Intelligence: Current Structure and Alternatives," updated February 15, 2007:

"Intelligence Spending: Public Disclosure Issues," updated February 15, 2007:

"The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions," updated February 15, 2007:

"Polygraph Use by the Department of Energy: Issues for Congress," updated February 14, 2007:

"Data Mining and Homeland Security: An Overview," updated January 18, 2007:

"Abu Sayyaf: Target of Philippine-U.S. Anti-Terrorism Cooperation," updated January 24, 2007:

"Airport Improvement Program: Issues for Congress," February 26, 2007:

"Tracking Current Federal Legislation and Regulations: A Guide to Resources," February 28, 2007:


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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