SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 72
September 13, 2010

Secrecy News Blog: http://www.fas.org/blog/secrecy/

STATE SECRETS VS. THE RULE OF LAW

The inherent tension between the state secrets privilege and the rule of law reached the breaking point last week when an appeals court dismissed the claims of several persons who said they were illegally transported and tortured through a CIA "extraordinary rendition" program. They would not be permitted to litigate their case, the court decided, because to do so would place "state secrets" at risk.

"This case presents a painful conflict between human rights and national security," the 9th circuit court of appeals noted in its September 8 opinion in Mohamed v. Jeppesen Dataplan, and by a 6-5 majority the judges determined that security considerations would take precedence.

"We have thoroughly and critically reviewed the government's public and classified declarations and are convinced that at least some of the matters it seeks to protect from disclosure in this litigation are valid state secrets, 'which, in the interest of national security, should not be divulged'," according to the majority opinion.

At the same time, the majority acknowledged, "Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs in this action, our decision forecloses at least one set of judicial remedies, and deprives them of the opportunity to prove their alleged mistreatment and obtain damages. At a structural level, terminating the case eliminates further judicial review in this civil litigation, one important check on alleged abuse by government officials and putative contractors."

For these reasons, "Dismissal at the pleading stage" as in this case "is a drastic result and should not be readily granted." Yet grant it the court did.

But the majority seemed conflicted and apologetic about its own ruling. It ordered the government to pay the parties' costs, and it devoted several speculative paragraphs to identifying potential "non-judicial remedies" that might be available to the plaintiffs. Perhaps Congress could investigate the matter, the court weakly noted, or maybe pass legislation on behalf of the plaintiffs.

And just because the court ruled against the plaintiffs, the majority suggested, that "does not preclude the government from honoring the fundamental principles of justice" and providing reparations to the plaintiffs anyway.

But these suggestions range from "impractical" to "absurd," five dissenting judges wrote. "Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter."

Attorney General Eric Holder's September 23, 2009 policy statement on the state secrets privilege did hold out the possibility of seeking Inspector General review of allegations of misconduct whose adjudication was blocked by the use of the state secrets privilege:

"If the Attorney General concludes that it would be proper to defend invocation of the privilege in a case, and that invocation of the privilege would preclude adjudication of particular claims, but that the case raises credible allegations of government wrongdoing, the Department will refer those allegations to the Inspector General of the appropriate department or agency for further investigation...." (section 4C).

Given the court's extended discussion of non-judicial remedies, this case would seem to be a fitting subject for an Inspector General investigation under the 2009 Justice Department policy. But it could not immediately be learned if the Department has made such a referral to an agency Inspector General in this or any other state secrets case.

"The state secrets doctrine is a judicial construct without foundation in the Constitution, yet its application often trumps what we ordinarily consider to be due process of law," the five dissenting judges wrote. "This case now presents a classic illustration."

THE NEW NOBILITY: RUSSIA'S SECURITY STATE

"The Soviet police state tried to control every citizen in the country. The new, more sophisticated Russian [security] system is far more selective than its Soviet-era counterpart; it targets only those individuals who have political ambitions or strong public views." That's what Andrei Soldatov and Irina Borogan discover in "The New Nobility," their impressive new book on the resurgence of Russia's security services in the post-Cold War era.

Soldatov and Borogan, Russian journalists who have produced some of the boldest reporting on the subject over the past decade, are also the creators and editors of Agentura.ru, a pioneering web site devoted to public interest research on Russian intelligence policy and related matters.

In "The New Nobility," they present many of the decisive episodes in the recent history of the FSB, the primary Russian security service, from the 2002 Moscow theater siege, to the 2004 Beslan school massacre, the war in Chechnya, and more. Overall they present a picture of a security service of increasing power and influence, uneven competence -- but virtually no accountability to parliament or the public.

"The Soviet KGB was all-powerful," Soldatov and Borogan write, "but it was also under the control of the political structure: The Communist Party presided over every KGB section, department, and division. In contrast, the FSB is a remarkably independent entity, free of party control and parliamentary oversight...."

The book is based on the authors' original reporting, which itself is a demonstration of unusual courage and commitment. A reader soon loses track of the number of times their computers are seized by authorities, how often their papers' web servers are confiscated, and how many times they are summoned for interrogation or even charged with crimes based on their reporting. Yet they persist.

Their book is full of remarkable observations. For example:

Fundamentally, the authors contend, Russia's FSB has gone astray by acting as an agent of state authority instead of representing the rule of law. "In today's Russia,... the security services appear to have concluded that their interests, and those of the state they are guarding, remain above the law." An American reader may ponder the similarities and differences presented by U.S. security services.

"The New Nobility: The Restoration of Russia's Security State and the Enduring Legacy of the KGB" by Andrei Soldatov and Irina Borogan is being published this month by Public Affairs Books.

"To those following the increasingly hostile environment for journalists in Russia, Soldatov's career is a curiosity," according to an internal profile of him prepared by the DNI Open Source Center in 2008. "Despite being questioned and charged by the FSB on several occasions, Soldatov has continued to cover hot-button issues such as corruption, security service defectors, and the increasing role of the special services in limiting free speech in Russia."

The New York Times featured Agentura.ru in "A Web Site That Came in From the Cold to Unveil Russian Secrets" by Sally McGrane, December 14, 2000.

The New York Times has also published "Above the Law," a continuing series of stories by Clifford J. Levy on "corruption and abuse of power in Russia two decades after the end of Communism."

******************************

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

The Secrecy News blog is at:
      http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

To UNSUBSCRIBE, go to:
      http://www.fas.org/sgp/news/secrecy/unsubscribe.html

OR email your request to saftergood@fas.org

Secrecy News is archived at:
      http://www.fas.org/sgp/news/secrecy/index.html

SUPPORT the FAS Project on Government Secrecy with a donation here:
      http://www.fas.org/member/donate_today.html