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Comments on Current Events In Criminal Law
November 12, 2007
U.S. CONSTITUTION IMPALED ON THE SWORD OF FANATICISM
HOUSTON CRIMINAL DEFENSE ATTORNEY Discusses The United States Supreme Court’s Refusal To Hear El-Masri And Allegations Of CIA Torture
Last April we reported about the case of Khaled El-Masri, a German citizen of Lebanese descent, who in December 2003 was traveling in Macedonia when he was taken into custody by that nation’s law enforcement officials on some technicality concerning his passport. They held El-Masri in their custody for twenty-three days at a hotel in Skopje before turning him over to American CIA operatives. That began an odyssey of torture for El-Masri and an official plundering of time-honored principles of law set forth in this nation’s Bill of Rights and its Constitution.
The CIA operatives flew El-Masri in a private plane to a secret CIA-operated detention facility in Kabul, Afghanistan. He was beaten, drugged, bound, and blindfolded during this transport. He remained confined in this CIA torture facility until May 2004. Held in a small, dirty cell, El-Masri was subjected to repeated “interrogations” and was not allowed to contact his family or the German government. See: El-Masri v. United States, 479 F.3d 296, 299 (4th Cir. 2007).
Finally, on May 28, 2004 El-Masri was transported by the CIA to Albania and released on a hill in a remote area. He was then picked up by Albanian officials who took him to an airport in Tirana where he was put on a flight to Germany. Id.
In December 2006 El-Masri filed a lawsuit under Bivens and the Alien Tort Statute against former CIA Director George Tenet, unnamed CIA employees, and private individuals who provided resources and transports to the CIA. El-Masri charged that he had been abducted, detained, and tortured pursuant to an unlawful policy and practice known as “extraordinary rendition” devised by Tenet. This policy allows the CIA to secretly abduct and detain persons outside of the United States suspected of being involved in terrorist activities. These abductees are detained in secret prisons, routinely tortured, and held completely incommunicado. It is an American policy of terror implemented to fight the “war on terror.”
The Government quickly intervened in the lawsuit that was filed in the United States District Court for the Eastern District of Virginia. The Government said that El-Masri’s lawsuit could not proceed because “it posed an unreasonable risk that privileged state secrets would be disclosed.” Id., at 299-300. The District Court granted the Government’s “motion to dismiss” pursuant to the “state secrets doctrine.” See: El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va. 2006). The Fourth Circuit Court of Appeals upheld the district court’s ruling earlier this year. See: El-Masri v. United States, supra.
El-Masri applied to the United States Supreme Court for certiorari review, and on October 9, 2007 the court denied El-Masri’s certiorari petition. See: El-Masri v. United States, ___ S.Ct. ____, 2007 WL 1646914 (U.S.).
In 1953 the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953) recognized the common-law state secrets privilege. In that case a military plane crashed in Georgia and family members of three civilians who died in the crash brought a civil lawsuit against the government. Attorneys for the family members requested a copy of the flight accident report during the discovery process of that civil action. The government refused to disclose the report claiming that it contained information about secret military equipment being tested during the fatal crash. Id., 345 U.S. at 3-4. The Supreme Court made the following significant observations in Reynolds:
•The government’s privilege against disclosure of “military and state secrets” should not be “lightly invoked.’
•“A formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.”
•The greater the necessity for the privileged information in a case, the more a “court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.”
•The Court cautioned that “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”
•Finally, the Court emphasized that the privilege was “well established in the law of evidence.”
Id., 345 U.S. at 6-11.
The Reynolds Court relied heavily on John Henry Wigmore’s Evidence in Trials at Common Law. While this prominent legal scholar recognized the need for a “privilege” involving state secrets in “matters whose disclosure would endanger the Nation’s governmental requirements or its relations of friendship and profit with other nations,” he cautioned that the privilege “has been so often improperly invoked and so loosely misapplied that a strict definition of its legitimate limits must be made.” 8 John Henry Wimore, Evidence in Trials at Common Law § 2212a (3d ed. 1940). Wigmore added that the trial judge should closely scrutinize the evidence claimed to be privileged, adding:
“Shall every subordinate in the department have access to the secret, and not the presiding officer of justice? Cannot the constitutionally coordinate body of government share the confidence? The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege.” Id. at § 2379.
The state secrets privilege has not been addressed by the Court since Reynolds. With a lack of direction by the high court, the privilege has been seriously abused by the government which invokes the privilege at the pleading stage before any evidentiary dispute has arisen. Attorneys for El-Masri put it this way in their certiorari application:
“ … Indeed, Reynolds‘ instruction that courts are to weigh a plaintiff's showing of need for particular evidence in determining how deeply to probe the government's claim of privilege is rendered wholly meaningless when the privilege is invoked before any request for evidence has been made. Moreover, the government has invoked the privilege with greater frequency;[FN9] in cases of greater national significance;[FN10] and in a manner that seeks effectively to transform it from an evidentiary privilege into an immunity doctrine, thereby ‘neutraliz[ing] constitutional constraints on executive powers’.” See: Glasberg, Victor M., On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit, 2007 WL 1624819 (U.S.). See also: The Military and State Secrets Privilege: Protection for the National Security or Immunity for the Executive? 91 Yale L.J. 570, 581 (1982).
Writing in the Fordham Law Review, Amanda Frost pointed out that “the Bush Administration has raised the privilege in twenty-eight percent more cases per year than in the previous decade, and has sought dismissal in ninety-two percent more cases per year than in the previous decade.” See: The State Secrets Privilege and Separation of Powers, 75 Fordham L.Rev. 1931, 1939 (2007). Other legal scholars, like William G. Weaver and Robert M. Pallitto, have noticed that the executive has increased its use of the privilege. For example, the “Bush administration lawyers are using the privilege with offhanded abandon,” wrote Weaver and Pallitto. See: State Secrets and Executive Power, 120 Pol.Sci. Q. 85, 100 (2005). See also: Shane, Scott, Invoking Secrets Privilege Becomes a More Popular Legal Tactic by U.S., New York Times (June 4, 2006)[“Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the Bush administration is increasingly turning to a legal tactic that swiftly torpedoes most lawsuits: the state secrets privilege.”]
This is not idle criticism. The Bush administration, in its relentless zeal to “protect the nation from another terrorist attack,” has shredded the U.S. Constitution and the Bill of Rights. Since 9/11, the administration has invoked the privilege to prevent judicial scrutiny of NSA’s “warrantless surveillance” of American citizens in violation of the Foreign Intelligence Surveillance Act (FISA); NSA’s “warrantless data mining” of telephone calls and emails by American citizens; and NSA’s use of private telecommunication companies, like Verizon’s “Can you hear me now,” to assist in these highly questionable surveillance activities. See: Hepting v. AT&T Corp., 439 F.Supp.2d 974 (N.D.Cal. 2006); Haramain Islamic Found., Inc. v. Bush, 451 F.Supp.2d 1215 (D.Or. 2006); ACLU v. NSA, 438 F.Supp.2d 754 (E.D. Mich. 2006); Terkel v. AT&T Corp., 441 F.Supp.2d 899 (N.D. Ill. 2006). The Bush administration has also invoked the privilege in the following cases that have little, if anything, to do with “national security”:
• Invoked privilege to have a “whistleblower” lawsuit brought by former FBI translator dismissed – a case that involved allegations of security breaches and possible internal espionage within the Bureau. See: Edmonds v. U.S. Dep’t of Justice, 323 F.Supp.2d 250 (D.D.C. 2006), cert. denied, 74 USLW 3108 (U.S. 11-28-05).
• Invoked privilege in cases involving the kidnapping, incarceration, and torture of innocent foreign citizens like El-Masri. See: Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 2006)[dismissed on other grounds].
“ … In each of these instances,” El Masri’s certiorari petition informed the Supreme Court, “the government has sought dismissal at the pleading stage. Moreover, the privilege as asserted by the government and as construed by the court of appeals below has permitted dismissal of these suits on the basis of a government affidavit alone - without any judicial examination of the purportedly privileged evidence. Accordingly, a broad range of executive misconduct has been shielded from judicial review after the perpetrators themselves have invoked the privilege to avoid adjudication. If employed as it was here, the privilege permits the Executive to declare a case nonjusticiable - without producing specific privileged evidence, without having to justify its claims by reference to those specific facts that will be necessary and relevant to adjudicate the case, and without having to submit its claims to even modified adversarial testing.”
El-Masri argued that the government’s sweeping use, and the courts’ acceptance of this unbridled government action, begged review by the Court. By refusing to review the El Masri case, the Supreme Court has given constitutional blessing to a plethora of lawless and unconstitutional conduct by the Bush administration. More than a century ago the court held that “international law is founded upon mutuality and reciprocity.” See: Hilton v. Guyot, 159 U.S. 113, 228 (1895).
Writing in an amicus curiae brief, Peter Van Tol told the Supreme Court:
“If the U.S. expects its citizens' human rights to be honored by foreign governments, it must treat citizens of other countries with the same level of respect for their rights. This is consistent with the international law principle of reciprocity, which requires that favors, benefits, or penalties that are granted by one state to the citizens or legal entities of another state should be returned in kind.
“The U.S. cannot expect other countries to comply with and enforce international law within their spheres of influence if it does not require the same of itself. The U.S. advocates for the broad enforcement of fundamental rights for the benefit of its allies and its own citizens abroad. See, e.g., Case Concerning U.S. Diplomatic and Consular Staff in Tehran, (United States v. Iran) 1980 I.C.J. 3 at 23, 69 (May 24, 1980) (U.S. government sought and won reparations from the Islamic Republic of Iran for injuries sustained by kidnapped U.S. diplomatic personnel). Consistent with the principle of reciprocity, other countries expect the U.S. to enforce human rights within the realm of its authority. For example, the English Court of Appeal declined to compel the British Secretary of State to make representations to the U.S. concerning Guantanamo Bay in The Queen on the Application of Abbasi & Anor v. Sec'y of State for Foreign and Commonwealth Affairs, 2002 WL 31452052 [2002] EWCA Civ. 1598 (A.C.) (appeal taken from Q.B.D.), partly based on that court's expectation that the U.S. would ultimately comply with international law:
“’What appears to us to be objectionable is that Mr. Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter.… As is clear from our Judgment, we believe that the United States Courts have the same respect for human rights as our own.’ Id., at 66, 107 (emphasis added).
“To the contrary, the U.S. government's actions have created a legal precedent for the arbitrary abduction, illegal detention, and torture of U.S. military and civilian personnel abroad. If an American civilian were to be subjected to extraordinary rendition by a foreign state, the U.S. government could not credibly protest. It would be equally futile for the U.S. to attempt to rally its allies, since the U.S. has reportedly denied the same rights to citizens from all over the world, including Germany, Mr. El-Masri's home country.
“Foreign governments are already citing to the American example to justify abuses of international law. Malaysia's law minister said Malaysia's practice of detaining militants without trial was ‘just like [ ] Guantanamo Bay,’ emphasizing that he used ‘the equation with Guantanamo just to make it graphic [ ] that this is not simply a Malaysian style of doing things.’ The Extraordinary Rendition Program provides similar precedent for foreign states.
“The Extraordinary Rendition Program has also strained U.S. relations with its allies. The German authorities opened an official investigation into Mr. El-Masri's case in June 2004. The Munich state prosecutor Martin Hofmann is convinced that ‘[t]here's just no indication that [Mr. El Masri] is [lying].’ A German parliamentary committee of inquiry is also looking into Mr. El-Masri's allegations. Thomas Oppermann, chairman of the committee, has said that the ‘core of the story’ was ‘probably true’ but that some facts remained ambiguous because certain countries, including the U.S. and Macedonia, have prevented access to evidence. In January 2007, the Munich prosecutor issued international arrest warrants for thirteen CIA agents it believes were involved in Mr. El-Masri's abduction and detention. For ten of the agents, the district attorney's office in Munich filed international warrants with Interpol, and German officials have stated their intent to request extradition of these agents.
“A similar strain has been placed on Italian-U.S. relations with respect to the 2003 abduction and extraordinary rendition of the alleged terrorism suspect Osama Moustafa Hassan Nasr. Mr. Nasr was seized in Milan, allegedly by the CIA with the help of the Military and Intelligence and Security Service (SISMI). He was then allegedly sent to Egypt and turned over to Egypt's State Security Intelligence (SSI) where he was purportedly tortured and released in February 2007. Later that month, indictments were issued for 26 CIA agents and 5 SISMI officials for their alleged roles in Mr. Nasr's abduction. The U.S. refused to extradite the agents; they will be tried in absentia if the trial goes forward.
“In the case of Maher Arar, the Canadian abducted in New York and tortured in a Syrian prison, Canada allowed a special commission of inquiry access to all the necessary information, including certain documents that could not be made public. The commissioner, a judge, and not the government became the arbiter of what was supposedly a ‘state secret.’ Mr. Arar ultimately received compensation and a formal apology from the Canadian Prime Minister.” See: Brief for Amicus Curiae Senator Dick Marty, Chairman of the Legal Affairs & Human Rights Committee and Rapporteur of the Parliamentary Assembly of the Council of Europe, 2007 WL 2608792 (U.S.)
The “neo-cons” who have littered the State Department under the Bush administration justify the nation’s lawless conduct by pointing out that there have been no terrorist attacks on American soil since 9/11. That argument is comparable to putting the proverbial fox in charge of the hen house to protect the chickens’ eggs from king snakes. A nation’s freedom, and the precious individual liberties it bestows upon its citizenry, must be diligently guarded and protected from fanaticism and tyranny. When representatives of this nation are allowed to kidnap, confine, and torture innocent citizens, foreign or domestic, for any reason and the nation’s highest court gives constitutional blessing to that lawless conduct, the inmates have truly seized control of the asylum.
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