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The New York Times
OPINION
Supreme Disgrace
EDITOIAL, nytimes.com
on the Web, October 11, 2007
The Supreme Court exerts leadership
over the nation’s justice system, not just through its rulings, but also by its
choice of cases — the ones it agrees to hear and the ones it declines. On
Tuesday, it led in exactly the wrong direction.
Somehow, the court could not muster the four votes needed to grant review in the
case of an innocent German citizen of Lebanese descent who was kidnapped,
detained and tortured in a secret overseas prison as part of the Bush
administration’s morally, physically and legally abusive anti-terrorism program.
The victim, Khaled el-Masri, was denied justice by lower federal courts, which
dismissed his civil suit in a reflexive bow to a flimsy government claim that
allowing the case to go forward would put national security secrets at risk.
Those rulings, Mr. Masri’s lawyers correctly argued, represented a major
distortion of the state secrets doctrine, a rule created by the federal courts
that was originally intended to shield specific evidence in a lawsuit filed
against the government. It was never designed to dictate dismissal of an
entire case before any evidence is produced.
It may well be that one or more justices sensitive to the breathtaking violation
of Mr. Masri’s rights, and the evident breaking of American law, refrained from
voting to accept his case as a matter of strategy. They may have feared a
majority ruling by the Roberts court approving the dangerously expansive view of
executive authority inherent in the Bush team’s habitual invocation of the state
secrets privilege. In that case, the justices at least could have
commented, or offered a dissent, as has happened when the court abdicated its
responsibility to hear at least two other recent cases involving national
security issues of this kind.
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. Investigations in
Europe and news reports in this country have supported his version of events,
and German Chancellor Angela Merkel has said that Secretary of State Condoleezza
Rice acknowledged privately to her that Mr. Masri’s abduction was a mistake, an
admission that aides to Ms. Rice have denied. The Masri case, in other
words, is being actively discussed all over the world. The only place it
cannot be discussed, it seems, is in a United States courtroom.
In effect, the Supreme Court has granted the government immunity for subjecting
Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable
United States practice of transporting foreign nationals to be interrogated in
other countries known to use torture and lacking basic legal protections.
It’s hard to imagine what, at this point, needs to be kept secret, other than
the ways in which the administration behaved irresponsibly, and quite possibly
illegally, in the Masri case. And Mr. Masri is not the only innocent man
kidnapped by American agents and subjected to abuse and torture in a foreign
country. He’s just the only one whose lawsuit got this far.
This unsatisfactory outcome gives rise to new worries about the current Supreme
Court’s resolve to perform its crucial oversight role — particularly with other
cases related to terrorism in the pipeline and last week’s disclosure of secret
2005 Justice Department memos authorizing the use of inhumane interrogation
methods that just about everyone except the Bush White House thinks of as
torture. Instead of a rejection, the Masri case should have occasioned a
frank revisiting of the Supreme Court’s 1953 ruling in United States v.
Reynolds. That case enshrined the state secrets doctrine that this
administration has repeatedly relied upon to avoid judicial scrutiny of its
lawless actions.
Indeed, the Reynolds case itself is an object lesson in why courts need to apply
a healthy degree of skepticism to state secrets claims. The court denied
the widows of three civilians, who had died in the crash of a military aircraft,
access to the official accident report, blindly accepting the government’s
assertion that sharing the report would hurt national security. When the
documents finally became public just a few years ago, it became clear that the
government had lied. The papers contained information embarrassing to the
government but nothing to warrant top secret treatment or denying American
citizens honest adjudication of their lawsuit.
In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an
innocent person without any remedy for his wrongful imprisonment and torture.
It has damaged America’s standing in the world and established the nation as
Supreme Enabler of the Bush administration’s efforts to avoid accountability for
its actions. These are not accomplishments to be proud of.
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