High court to decide on 'state secrets' doctrine

WASHINGTON — washington -- The Supreme Court is set to decide as early as tomorrow whether the government can invoke the doctrine of "state secrets" to quash a legal claim from an apparently innocent victim of bungling by the CIA that resulted in his being abducted, imprisoned and tortured.

Only after five months of such treatment did CIA agents seem to realize that the man in custody, Khaled el-Masri, a German citizen of Lebanese descent, was not the wanted terrorist Khalid al-Masri.


The case has attracted wide public attention in Europe, but el-Masri has been unable to gain a court hearing in the United States because, at least so far, the government has successfully invoked the argument that it cannot be taken to court when doing so might expose "state secrets."

That el-Masri is the victim of a case of mistaken identity does not seem to be in doubt. In 2005, German Chancellor Angela Merkel said after a meeting with Secretary of State Condoleezza Rice that the Bush administration "admitted this man had been erroneously taken." In January, German prosecutors issued arrest warrants for 13 CIA agents for their roles in el-Masri's abduction and abuse.


Two years ago, el-Masri filed suit against George J. Tenet, who was CIA director at the time of el-Masri's kidnapping, and several private contractors who were involved in flying him from Macedonia, where he been on a holiday, to a prison camp in Afghanistan. He sought damages for his "unlawful abduction, arbitrary detention and torture by agents of the United States."

In response, administration lawyers said the suit must be dismissed because it could reveal "state secrets." A federal circuit court judge in Alexandria, Va., and the U.S. Court of Appeals in Richmond, Va., agreed.

El-Masri's appeal came before the Supreme Court last week.

The case tests the outer reaches of the so-called state secrets privilege, a rule established during the Cold War to block a lawsuit after the crash of a B-29 bomber. Three widows of crewmen had sued and sought the official accident reports. The Air Force objected, saying the reports could not be revealed because the bomber was on a top-secret mission to test new equipment.

The Supreme Court ruled for the government in the 1953 case, U.S. vs. Reynolds.

Recent disclosures show the justices were fooled. When the accident reports were declassified in 2000, they revealed only that the aircraft was in poor condition, evidence that might have helped the widows.

Though the Supreme Court has not directly ruled on the "state secrets" doctrine in more than 50 years, the rule has been invoked regularly in the lower courts. The Bush administration has used it to block suits involving whistle-blowers, wiretapping and the firing of CIA agents.

Lawyers for the American Civil Liberties Union urged the high court to take up el-Masri's case to cut back the privilege. They say it has been transformed from a limited protection for military secrets to a broad shield for the government to hide behind.


It is particularly strange, they say, to allow the Bush administration to "invoke state secrets to protect the nation against the disclosure of information that the entire world already knows."

El-Masri, a car salesman and a father of four, said his ordeal began on New Year's Eve 2003 when he was pulled off a bus after it crossed the Serbian border into Macedonia. His passport was taken, and he was questioned for days by agents who said he was a terrorist. They refused his request to contact German authorities.

After 23 days, he was blindfolded, taken to the airport and turned over to U.S. authorities.

His appeal to the court said he was then put in a plane, "chained spread-eagle to the floor," injected with drugs and flown to Baghdad and then on to Kabul, Afghanistan. It said he spent the next four months in a CIA-run prison.

In late May 2004, U.S. officials had apparently concluded they had the wrong man. El-Masri was flown back to Europe, blindfolded and put into the back of truck and dropped off on a hillside in what turned out to be Albania. From there, he made it back to Germany, where an investigation was launched.

The ACLU's lawyers said the high court should not permit the "government to engage in torture, declare it a state secret and ... avoid any judicial accountability."


On the other side, U.S. Solicitor General Paul D. Clement urged the court to turn away el-Masri's appeal. It amounts to an "extravagant request that the court overrule its settled precedents" permitting the government to protect national security secrets. Allowing el-Masri's lawsuit to go forward will inevitably reveal details about the nation's "most sensitive intelligence operations," he argued.

The Supreme Court has been closely split in cases that challenge the administration's handling of the war on terrorism. It takes the votes of four of nine justices to grant an appeal.

David G. Savage writes for the Los Angeles Times.