Once rarely used, the “state secrets privilege” was successfully invoked again by the Executive Branch with today’s news that Khaled el-Masri’s case was thrown out. It seems even individuals who are kidnapped, held captive for five months, and tortured mistakenly by the U.S. government won’t have their day in court as “private interests must give way to the national interest in preserving state secrets.” Birthed in a creative moment of judicial activism in the 1954 Reynolds v. U.S. case, the state secrets privilege is a monster which seems to get larger and more snarly by the day. The great irony is that persuasive evidence was brought forward in recent years which showed that the government abused its power in the original Reynolds case.
Pesky lawsuits against the government are now routinely quashed including those dealing with domestic spying, torture, government whistleblowers, and more. The Congress has only begun to grapple with the growing problem. A bill recently introduced by Democrats in the House and Senate would “provide protection from frivolous government claims of state secrets, such as when the government asserts that a whistleblower’s date of birth is a state secret.”
-- Beth Daley