In December 2003, local authorities detained German citizen Khaled El-Masri while he was traveling in Macedonia. Mr. El-Masri was then transferred to U.S. authorities, drugged, flown to Afghanistan and imprisoned at a CIA prison as a suspected terrorist; he was beaten, interrogated, and denied access to either a lawyer or a representative of the German government. After four months, the CIA abandoned Mr. El-Masri in Albania without explanation or apology. It was eventually discovered that Mr. El-Masri was the victim of a case of mistaken identity—the CIA had tortured an innocent man.

Mr. El-Masri sued then-Director of Central Intelligence George Tenet and the unnamed agents involved, seeking damages for his ordeal. Given his appalling treatment, it seemed unlikely that the CIA would escape liability for its actions. Unfortunately for Mr. El-Masri, and for the public at large, he may not have the chance to hold the CIA accountable. To date, federal courts have asked for no explanation from the CIA, instead allowing the agency to hide behind a claim of the “state secrets privilege.” Under this privilege, the Executive Branch claims that the disclosure of certain evidence in court may damage national security and therefore cannot be released in litigation. The court in Mr. El-Masri’s case dismissed his lawsuit without ever reviewing any evidence to assess the validity of the Executive’s claim.

The state secrets privilege is rooted in United States v. Reynolds, a 1953 Supreme Court decision arising from the deaths of three civilian contractors, who were killed when the Air Force plane they were aboard crashed. Their widows sued the military and sought to review the accident report. The military refused to release it -- even though it was the type of document that would have been readily available in a suit against a civilian airline -- claiming it contained information about sensitive equipment aboard the plane. The Supreme Court essentially accepted the Executive’s argument on faith, overruling both the trial court and the court of appeals and declining to order that the district court review the report to test the claim’s validity. History confirms that the Court seriously erred in deferring blindly to the Executive. The accident report was declassified in the 1990s; we now know that it contained no state secrets and that the Executive misled the courts to cover up its negligence relating to the crash.

There is no denying that the state secrets privilege can play a role in protecting national security.  Like other evidentiary privileges, however, it can only function properly when limited in its application and balanced against the interests of justice. In Mr. El-Masri’s case, and in other cases both before and after September 11 that involve military and intelligence programs, the Executive has instead used the privilege as a shield against embarrassment and scandal. In several cases, the Executive has completely evaded judicial oversight; all that the courts have required is the assurances of a government official involved in the case.

Broad application of the state secrets privilege reflects a failure to understand—or an unwillingness to accept—the capacity of the courts to review classified evidence. This is why the Constitution Project has recently released a statement calling on Congress to establish clear guidelines for the privilege, ensuring it will be used only where absolutely necessary to protect national security. The statement, authored by a broad bipartisan coalition of policy experts, former government officials, and legal scholars, provides a detailed critique of the doctrine and describes how a narrower application of the state secrets privilege can protect national security while furthering the pursuit of justice, safeguarding judicial autonomy, and ensuring governmental accountability.

For years, judges have regularly ruled on whether sensitive evidence should be subject to an evidentiary privilege. Judges may first screen such material in the privacy of their chambers, minimizing any risk of unwarranted exposure to either the public or opposing parties in a case. Passage of the Foreign Intelligence Surveillance Act of 1978 (“FISA”) and the Classified Information Procedures Act of 1980 (“CIPA”) enhanced the abilities of federal courts to evaluate sensitive materials and reflects congressional confidence in their ability to do so. 

The Supreme Court now has an opportunity to correct the flawed decision in Reynolds. As of this writing, Khaled El-Masri is seeking review of his case in the Supreme Court. We hope the Court will accept review of the case, rectify the error it made in Reynolds, and allow Mr. El-Masri’s case to proceed. At the same time, Congress should take steps to prevent the state secrets privilege from remaining a license for Executive overreaching. Congress must clarify that judges, not the Executive Branch, have the final say about whether disputed evidence is subject to the state secrets privilege. This will restore and strengthen the basic rights and liberties provided by our constitutional system of government, provide fairness to parties to litigation, and enable public scrutiny of governmental conduct and thus preserve accountability for Executive actions. 

Justice may have been denied in Reynolds, and indefinitely delayed for Khaled El-Masri, but prompt Supreme Court or congressional action may yet prevent countless other injustices from being committed in the name of secrecy.