Cheating Justice (24 page)

El-Masri has continued to seek recourse in European and international venues, as described in chapter 5.

In the case of
Mohamed v. Jeppesen Dataplan, Inc.
, filed in federal court in
Northern California on May 30, 2007, five plaintiffs, all former detainees of the CIA, sought recourse against a subsidiary of Boeing Aircraft that had provided planes and logistical support for the CIA's torture program.
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The named plaintiff, Binyam Mohamed, an Ethiopian who resided in Britain, was seized by the CIA in 2002 and taken to several countries, including Morocco, where he was tortured with sleep deprivation, shackling, threats, and repeated slashings of his penis with a scalpel.
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British government officials stated that the detention and interrogations had “a marked effect upon him” and caused “significant mental stress and suffering,” according to an article in the
Telegraph
on February 10, 2010.
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He was able to get monetary relief through the courts in Great Britain, as described in chapter 5, but the claim of Mohamed and the others in the United States was rejected on the grounds of state secrets by the district court in 2008. Upon appeal by the ACLU, a divided Ninth Circuit Court of Appeals upheld the decision on September 10, 2010,
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and the Supreme Court declined to consider it.
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A number of U.S. court cases have also challenged President Bush's authorization of illegal surveillance. In
ACLU v. National Security Agency
in 2006, the ACLU sued the United States on behalf of scholars, journalists, and nonprofit organizations for both illegal wiretapping and data mining, claiming, among other things, that the illegal surveillance violated their First Amendment rights.
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The government asserted a state secrets privilege to stop the lawsuit. The trial judge, Anna Diggs Taylor, dismissed the data mining claims on the grounds that the government could not defend them without exposing state secrets. But, as
New York Times
reporters explained in a 2006 article, Judge Taylor did find that the president's warrantless wiretapping program was no longer secret, since it had received extensive publicity and the president himself had admitted its existence in a national broadcast. The judge also rejected the government's claim that it needed to rely on state secrets to defend against this claim and allowed that part of the case to proceed.
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Unfortunately, the judge's decision was overruled in July 2007 by the Sixth Circuit Court of Appeals, which found that the plaintiffs did not have standing to sue because they were unable to show how they had been harmed. Of course, the government wouldn't release any information to them, so the plaintiffs couldn't definitively show that they had been wiretapped. The Supreme Court declined to take the case in 2008. The final result: the lawsuit was ended and the plaintiffs were shut out of court.
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In
Al-Haramain Islamic Foundation v. Bush
, filed in 2006
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—Obama's name was substituted for Bush's later—a foundation and its lawyers said that they were the subjects of illegal surveillance in March and April 2004, and sought damages.
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The Al-Haramain Foundation was based in Saudi Arabia, and a U.S. branch operated from Ashland, Oregon. The U.S. government inadvertently sent a document to the foundation, indicating that the organization's lawyers had been wiretapped. The lawyers and foundation sued the government in 2006 for penalties under the Foreign Intelligence Surveillance Act (FISA) for conducting wiretapping on them without a warrant. Then things became tricky. Although the plaintiffs had already seen the document showing that they had been wiretapped, it was held to be a state secret and was sealed, and the lawyers were forbidden to mention it. As a consequence, the foundation collected other evidence showing that it had been wiretapped—including a speech referring to the surveillance by an FBI official and posted on the FBI website.

The government refused the opportunity to show the judge information about the legality of the wiretaps in private and explain why the foundation was not entitled to a penalty. Instead, the government simply invoked state secrets to block any inquiry, and sat back. In response, the judge held that the government was in default in a 2010 ruling, and the plaintiffs were granted $26,000 in damages and $2 million in legal fees. In this one case—a rarity—the judge refused to allow the claim of a state secrets privilege to obstruct fairness.
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In another case,
Amnesty v. Clapper
(formerly
Amnesty v. McConnell
), the Second Circuit Court of Appeals issued a decision on March 21, 2011, allowing a group of citizens, journalists, and nonprofit organizations to challenge the constitutionality of the Foreign Intelligence Surveillance Amendments Act of 2008, even though they couldn't show definitively that they had been subjected to surveillance.
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The court said that the plaintiffs, because of their work with persons likely to be the subject of surveillance under the law, had a “reasonable fear” that their communications would be monitored. They suffered actual injury, for example, in being forced to travel outside the United States to meet with clients or others in person in order to assure the privacy of their communications.
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The decision allows the case to move forward in the trial court. Since, for the most part, the courts have simply slammed the door to victims of Bush administration lawlessness and misconduct, this decision represents
an important breakthrough in the citizen use of civil litigation to challenge a potentially unconstitutional law.

The civil legal process can be a powerful way for people in a democratic society to press legitimate claims and to secure accountability and change. Unfortunately, most of the cases challenging Bush-era illegality have been stopped at the courthouse door.

Use of the state secrets privilege became a tool used with increasing fervor during the Bush administration.

I developed a certain skepticism about government secrecy claims after seeing them used in entirely unnecessary ways. In recent years, I became involved in an effort to declassify U.S. government files relating to Nazi war criminals. I served on a federal panel that oversaw the program, and through it, more than eight million pages of previously secret documents were declassified.
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In some cases, Nazi documents captured by the United States during the World War II had been classified as U.S. secrets; in other cases, information about the whereabouts of war criminals had been classified. Of the eight million pages, only one page was legitimately withheld for national security purposes; and the rest could have been declassified many years earlier without endangering the United States. The excessive classification and secrecy for all those years didn't serve the best interests of anyone—the government or the public.

The state secrets privilege was first articulated in a 1953 Supreme Court decision in
Reynolds v. United States
, but in recent years, it has been misinterpreted and misapplied well beyond its original scope. In
Reynolds
, widows of personnel killed in the crash of a B-29 bomber sued the U.S. government and asked for the accident report. The government invoked the state secrets privilege and refused to supply the report, claiming it would disclose secret electronic equipment and harm national security. While the
Reynolds
case allowed the state secrets privilege to apply to that document, it did so with caveats. It looked at a balance of needs. In
Reynolds
, the court found that the plaintiff could secure the needed information in other ways—for example, by interviewing survivors of the crash.
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As a result, the Supreme Court barred the disclosure of the accident report. Years later, when the accident report was finally declassified, it showed that government negligence was a factor in the plane crash. Even though the government may
have had legitimate reasons for claiming state secrets, it was also hiding a deeper, darker secret—its own negligence.

Reynolds
underscores the fallacy of blindly believing the government's invocation of state secrets. While the case should serve as a hallmark of caution, the courts have regularly ruled in a knee-jerk way in favor of the state secrets privilege. Rather than carefully scrutinize the government request and balance the need for the evidence against the government's claim, the courts have given extreme deference to the government position.

This is not what Congress intended in 1973 when it included a state secrets privilege in the rules of evidence. The legislation—I was a member of Congress at the time and proposed the House bill—required that the state secrets privilege, along with other common-law privileges, such as those for “husband–wife” or “attorney–client” communications, be evaluated on a case-by-case basis, relying upon the court's ability to apply reason and experience. I was prompted to take action on the state secrets provision because President Nixon's Justice Department was attempting to insert an exceptionally strong state secrets privilege in the rules of evidence—a privilege that easily could have been used to hide the misdeeds of an imperial president. Our provision of a case-by-case review by the judge was an alternative to allowing presidents to cover up information unilaterally.

But the courts have simply said yes to executive claims on state secrets and closed down plaintiffs' cases altogether without balancing the plaintiff's needs for evidence with the government's need for secrecy, and without using the test of reason and experience that Congress intended. In addition, the Bush era ushered in “sweeping state secrets assertions” by the government, as Steven D. Schwinn wrote in a 2010 law review article.
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In failing to investigate the government's claims carefully, the courts have not provided due process to victims. When we considered the legislation in Congress, we did not anticipate that courts would collapse whenever an administration invoked national security: we expected the courts to act as a vital check on power grabs by the executive branch. During the Bush administration, the state secrets privilege became a form of hidden immunity for governmental lawlessness.

Reform of the state secrets privilege is essential. The courts themselves could heighten judicial oversight of claims of state secrets to make sure they are warranted and not a sham. “Judges have the constitutional and legal authority to review and evaluate any evidence,” wrote the Constitution Project
in Washington, D.C., in a 2007 report on reforming the state secrets privilege. The report calls upon judges to “exercise their independent duty to assess the credibility and necessity of state secrets claims by the executive branch.”
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When the state secrets claim is warranted, measures should be available to allow for the lawsuit to proceed in ways that do not jeopardize national security.

Congress also has the power to revise and regulate the state secrets privilege, and it should do so. Legislation on state secrets should include the following provisions:

The use and seeming overuse of the state secrets privilege has protected governmental lawbreakers from having to answer for their crimes. It leaves people seeking justice out in the cold, and leaves the American public in the dark about the misdeeds of their government. Reining in the expansive use of the state secrets privilege will go a long way toward returning the possibility of accountability to our system.

Under the Constitution, the president, vice president, judges, and civil officers of the United States may be removed from office for “high crimes and misdemeanors” through impeachment and trial.
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Impeachment would have been an appropriate way for the nation to respond to the misdeeds of President Bush and Vice President Cheney—and I advocated for it.
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Since Bush and Cheney are no longer in office, impeachment is no longer available
as a practical matter (they do get government benefits—pensions, for example—which leads some people to the theoretical, if unrealistic, suggestion that impeachment is still a possibility).

But another individual inside the Bush administration who participated in a conspiracy to violate the law is currently holding office and may be impeached. That is Jay Bybee, who signed the torture memos while serving as a lawyer in the administration's Office of Legal Counsel.
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President Bush appointed Bybee to an important judgeship on the federal Ninth Circuit Court of Appeals. Federal judges have lifetime appointments, and there are no time limits for impeachment—proceedings may be brought as long as the judge sits on the bench.

Impeachment proceedings are extremely important tools, not only for removing someone who has abused power, but because the proceedings themselves open up a great deal of information to the public—documents, testimony, witnesses. The House Judiciary Committee, when inquiring into the need for the impeachment of Richard Nixon, was able to use subpoena power, call witnesses, override claims of executive privilege, and secure documents that would otherwise have been hidden. Although Bybee might seem like small potatoes compared to the president and vice president, he holds a critical position in the judiciary, to which he was named while working in the Office of Legal Counsel. There, he helped the highest officials in the land authorize a scheme of torture and cruel and inhuman treatment. Shortly after the torture memos were first made public, the
New York Times
called the documents “a journey into depravity.” In an editorial titled “The Torturers' Manifesto,” the
Times
said: “These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.”
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The use of impeachment, a vital tool that the nation's founders built into our Constitution, would be an invaluable aid to gaining accountability for Bush administration misdeeds.