The End of Redress: State Secrets Doctrine

Today’s New York Times editorial, Supreme Disgrace, talks about one of those situations that makes one wonder why we bother to learn civics in school.  What happened to Khaled el-Masri could never happen, according to my understanding of America.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and flown to a squalid prison in Afghanistan. He says he was questioned there about ties to terrorist groups and was beaten by his captors, some of whom were Americans. At the end of May 2004, Mr. Masri was released in a remote part of Albania without having been charged with a crime.

Masri didn’t pick up a gun and start shooting at Americans abroad. He did what a responsible person should do, he sought redress for what was done to him.  His effort ended yesterday, when the United States Supreme Court denied review of the lower courts dismissal of his action.

America may have done this to him, but it would not face him.  Instead, the government invoked the state secrets doctrine, which gives the United States a free pass when, in its own determination, to defend against the allegations would require the government to disclose state secrets and thus might endanger national security. 

The beauty of this doctrine is that no one, not even the judge before whom it is invoked, knows what the government is talking about.  It’s so secret that the judge doesn’t get to learn about it, consider its merit or decide whether the claim is valid.  By the mere incantation of the words, “state secret,”  the game is over.  And now that SCOTUS has passed, Mr. Masri’s effort is at its end.

This is judicial deference to executive fiat at its very worst.  No, the answer is not to force the government into revealing information that would truly endanger national security, although whether the claim is real or illusory is precisely the sort of thing that an Article III judge is paid to do.  How the government deems them so untrustworthy that even the judge can’t know what the government’s claim is strikes me as ridiculous.  But assuming the secret to be that sensitive, or the judge to be that untrustworthy, there are other options that would preserve American ideals of justice without putting American security at risk.

Consider that the Constitution has created a federal judicial system for the purpose of providing an avenue of redress.  This was done to avoid the need for insurrection every time someone took issue with the government, and taking issue with the government is the legacy of America.  Our forefathers fought hard over the details of how this nation would function, and the extent or limit of federal power.  Our most revered Patriots truly believed that a strong federal government, particularly the executive, was the surest route to tyranny.  

So when a wronged person knocks on the courthouse doors, should anyone answer?  Obviously, we either open the doors or are revealed as a country where justice is a sham, to be given only when convenient.  We hold ourselves out to the world (and to ourselves) as the beacon of justice.  And so we must live up to our promises.

That Mr. Masri’s treatment at the hands of America both happened and went terribly wrong doesn’t seem to be subject to much dispute.  It’s the part of determining what to do about it that has caused so many problems.  His case was dismissed because the government invoked the “state secret” doctrine.   Why dismissal?  Why not just the opposite?  

No one should be able to force the United States to reveal secrets that endanger the security of the nation.  Assuming that the courts wish to leave the determination of what constitutes a secret, and which secrets are so important that they cannot possibly be disclosed, in the hands of the executive alone, why should that mean that Mr. Masri loses?  Why are the doors slammed shut on him, rather than the party who refuses to show his cards?

Normally, a litigant can use the power of the court to force another party to disclose evidence necessary in the prosecution or defense of a claim.  State secrets should serve as sufficient basis (assuming that they are shown to be valid) to prevent this disclosure.  But then the party refusing to disclose should bear the weight of its decision, and not shift it onto the other side. 

Let Mr. Masri prove his case based on what he has to offer, with an inference in his favor for any undisclosed secret.  Let the government prove whatever it can that is not within the confines of its invoked “state secret” doctrine, and stand mute otherwise.  Masri will have his day in court.  The government will have its secrets.  Masri will receive whatever redress he is due under our system of justice.

Foul, you cry?  The government has “handcuffed” in its defense because it couldn’t use the really good stuff, the state secrets, to shut Masri down?  True, perhaps, but it was the government’s considered decision to keep its secret, nor Masri’s.  In the scheme of someone having to suffer for keeping a secret, it should not be shifted onto the victim, the party who has no say in any of this, rather than the government who both did the dirty deed leading to this suit and made the choice not to defend.

Simply put, one side has to bear the burden of losing when a real state secret is involved, and that side should be the one who made the call.  Not only does it place the burden on the decision-maker, but it is consistent with every American notion of justice and the fundamental fear that the executive, left to his own unchecked devices, will resort to tyranny.

We learn in civics that everyone is entitled to have their day in court in America.  Not anymore.  Think of all the social studies textbooks that will have to be changed because of this.

5 comments on “The End of Redress: State Secrets Doctrine

  1. Mark Bennett

    Great, great post, Scott.

    If the rule for state secrets were like the rule for self-incrimination in civil cases (you can refuse to answer the questions, but the answers will be deemed against you), what (short of the threat of extraordinary rendition) would stop contentious litigants from coming into court with fictitious claims that the government can’t answer without revealing state secrets?

  2. SHG

    The plaintiff would still be required to prove his case, and the government would still be able to defend to the extent that state secrets are not revealed.  Even if the government would be unable to defend at all, the plaintiff would be put to his proof, subject to cross, and held to have a meritorious claim before reaching any recovery.  This would not be a default situation, where facial allegations on paper would be enough to reach an assessment of damages.

    Would there still be a risk of a potential recovery by a party that is undeserving?  Probably, but that’s part of the process.  Either we deny everyone, or risk the occasional wrongful claim that makes it past the court.  Much like in criminal cases, the policy favors letting a guilty person go free rather than convict an innocent person (I know, how quaint), the policy here should be to favor access to the courts for civil redress rather than shut the courthouse doors because of fear that an undeserving plaintiff may somehow prevail.

  3. Windypundit

    Scott, I think you are exactly right. If the state secrets really are so important that they cannot be revealed, then certainly they are important enough to be worth losing an occasional lawsuit that could have been won.

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