Agentless Backup is Not a Myth

Alone, in the middle of the night and nowhere, Khaled El-Masri discovered himself once again to be a free man. He had been left on a hilltop in Albania by his CIA captors, after nearly six months of torture in squalid detention at one of the CIA's black site prisons.

The German citizen eventually sued the CIA and lost after the CIA invoked the state secrets privilege in its own defense. But a new rendition case - this time targeting American aerospace powerhouse Boeing - is now working its way through a rather more sympathetic branch of the American legal system.

The state secrets doctrine is an evidentiary privilege invoked by the government in the interests of national security, and El-Masri found himself in the Fourth Circuit Court of Appeals, which encompasses most of the American south and is the most conservative appellate circuit in the United States. Perhaps not surprisingly, the Fourth Circuit, tortured in its own intellectually paranoid way, took a traditionally narrow evidentiary privilege and expanded it beyond all recognition, effectively rendering the El-Masri case non-justiciable. The Supreme Court declined to hear his appeal.

¡Arriba Bushies!

The new case, Muhamed v. Jeppesen, takes aim at a subsidiary of American defense contractor Boeing that appears to have cornered the market on CIA rendition flights, and profited handsomely thereby. The filings even include a declaration by a former Jeppesen employee, who recounts the story of a senior manager reveling in how profitable the rendition racket was at an employee meet-and-greet in San Jose, only to have to explain to the confused new employees that he was talking about the "torture flights".

Recent Ninth Circuit decisions have treated the state secrets doctrine with the narrow interpretation traditionally accorded an evidentiary privilege, which means that Muhamed has a much better chance of getting his day in court than the unfortunate El-Masri ever did. The Ninth Circuit has been especially skeptical of allowing the doctrine to be invoked to cover evidence that is already in the public domain - and much of the evidence in the Muhamed case, from the flight plans registered by Jeppesen with European regulators to the witness accounts and the admissions by collaborating, friendly governments, is already out there. The plaintiffs in Muhamed can testify personally to their own mistreatment, which eliminates the tricky standing issues of the Al-Haramain surveillance case.

One particularly noxious aspect of Muhamed is that the US government is seeking to intervene in a private lawsuit and invoke the evidentiary privilege before Jeppesen has even answered the complaint, and before any evidentiary discovery at all has taken place - essentially strangling a lawsuit in its infancy on behalf of a favored contractor. Typically, a court vets the admissible evidence in camera to remove whatever might be construed to be a legitimate threat to national security, leaving whatever is left for the plaintiff to utilize. Only if the privilege eliminated consideration of a legitimate defense for a defendant would the lawsuit itself be dismissed.

The doctrine has been invoked more by the current administration than any in history, and reconsideration of this common law doctrine - which sits rather awkwardly within a system of limited federal power derived exclusively from the Constitution - is long overdue. The Supreme Court has not considered the state secrets doctrine since 1953 in Reynolds, and although it declined to reconsider the doctrine in El-Masri, the stark jurisdictional split between the Fourth Circuit and the Ninth on the state secrets doctrine means that reconsideration will have to come sooner rather than later.

Reynolds concerned the widows of air force pilots killed in a plane crash who sued the government on a negligence theory, only to have crucial evidence of government guilt withheld under the state secrets doctrine. When those documents were declassified in 2000, government claims that the documents concerned top secret electronics equipment were proven false - the documents in fact concerned mechanical defects that led to engine failure.

One can only hope that current and future victims of US government malfeasance and obfuscation will not have to wait 50 years for vindication.®

Burke Hansen, attorney at large, heads a San Francisco law office

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