No one denies that what happened to Khaled El-Masri was wrong. El-Masri, a German citizen of Lebanese descent, was on vacation on New Year’s Eve 2003 in Macedonia when he was seized at a border crossing, tortured, and then flown to a secret prison in Afghanistan. He remained in a squalid cell for five months before his captors, realizing they had the wrong man, flew him to Albania and dumped him on a roadside, convinced no one would believe the story El-Masri would tell.

But German investigators and a fellow detainee in the Afghan prison have confirmed El-Masri’s story and the identities of his captors. They worked for the Central Intelligence Agency (CIA).

Not surprisingly, El-Masri sued the United States government. “No one said, ‘Sorry, we made a mistake,’” El-Masri told the Los Angeles Times in 2005. “I just want to find out what happened and why it happened. I want those responsible to be punished.”

Even Federal District Court Judge T. S. Ellis III, who presided over El-Masri’s case in Alexandria, Virginia, expressed revulsion at the mistreatment the man endured, writing that if his story was true, “all fair-minded people” must agree “El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” Yet Ellis dismissed El-Masri’s lawsuit before it could even begin, a decision upheld by the U.S. Court of Appeals for the Fourth Circuit. In October 2007 the U.S. Supreme Court declined, without comment, to hear the case. El-Masri’s suffering was confirmed, but his day in court was denied.

Privilege and a Free Pass
The courts dismissed El-Masri’s case after the George W. Bush administration, against which the suit was brought, invoked the state secrets privilege, a presidential power intended to prevent public disclosure of classified information. Then-CIA Director Porter J. Goss never showed the judges the secret information, but he convinced them to end the case by insisting that El-Masri’s trial would endanger the nation’s security even though evidence already on the public record confirmed the abuses El-Masri suffered. Indeed, just days after El-Masri filed suit in December 2005, former Secretary of State Condoleezza Rice, who had personally ordered El-Masri’s release, told German Chancellor Angela Merkle that the U.S. government made a mistake in abducting him. Still, U.S. courts deferred to the government.

El-Masri’s case is extreme, but not unique. Several people have filed lawsuits claiming they were wrongly abducted and flown to other countries to be tortured under President Bush’s “extraordinary rendition” program. A host of other lawsuits were brought by Americans claiming the Bush administration violated their rights by monitoring their e-mails and phone calls without the required warrants. In each case, the government invoked the state secrets privilege. And in many of them, the courts acquiesced to the government’s demands. Cases were dismissed before they even began, usually by judges who never actually reviewed the alleged secret material to ensure the government’s assertion of the privilege was not an attempt to cover up embarrassing or illegal activity.

Cases such as El-Masri’s have led to charges that the Bush administration overused and abused the state secrets privilege. Among those critics was President Barack Obama who, during the 2008 presidential campaign, pledged to revamp the way the privilege was invoked, but who in his first 100 days in office exercised the privilege in the exact same manner Bush did three times.

“There is, without question, a more aggressive use [of the privilege] over the last several years where cases involving fundamental questions of constitutional rights—and involving information that is in many ways already on the public record—those cases are being shut down before the plaintiffs get to have their day in court,” says Larry Schwartztol, a staff attorney for the American Civil Liberties Union’s (ACLU) National Security Project, which represented El-Masri and plaintiffs in other lawsuits against the government.

“What the invocation of the privilege does in those kinds of cases is just give a free pass to the government and shut the courthouse doors to plaintiffs who are articulating very severe violations of their constitutional rights,” Schwartztol adds.

Representative Jerrold Nadler (D–N.Y.), who chairs the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties and who led a hearing on the state secrets privilege in June 2009, says the use of the privilege to dismiss lawsuits threatens the one hope for justice available to individuals harmed by their government. Congress, he says, must reassert its constitutional check on presidential power.

“If the government can eliminate that lawsuit on the pleadings simply by coming into court and using the magic incantation of the words ‘state secrets,’ and say, ‘This case should be dismissed because we say, in our unexamined assertion, that trying the case would necessitate the revelation of state secrets,’ then there is no recourse for the courts and there is no enforcement of rights,” Nadler says. “And rights without a remedy are illusory. Therefore, we must put some limits on this use of the state secret doctrine.”

On February 11, Nadler reintroduced the State Secret Protection Act of 2009 to provide a more “meaningful judicial determination of the state secrets privilege.”

Reaching for Reynolds
Estimates of how many times Bush invoked the state secrets privilege vary, running as high as 39 times in eight years, compared to the 55 times it was asserted by all other presidents since 1953 when the Supreme Court established the modern precedent for the privilege in United States v. Reynolds. A variety of scholars, lawyers, and government officials, however, say the number of times Bush invoked the privilege is irrelevant, and in no way indicates that his administration abused the privilege in a legal sense.

There is no way to know for sure how many times the privilege was invoked by any president, scholars say. For the most part, the numbers offered in the debate are culled from published court opinions that cite the privilege, although many opinions are never published. There also is no way to account for the number of cases that were dropped because the plaintiff realized that the privilege could be invoked, they add. Moreover, the number of times a president invokes the privilege depends entirely on how many lawsuits involving classified information are filed, something a president cannot control. Of the dozens of lawsuits filed against the Bush administration, most of them pointed to just two government programs: rendition and wiretapping.

“I’m sure it’s true that there was a lot more state secrets litigation going on in the Bush years than in prior years, but that doesn’t tell us anything,” says Robert M. Chesney, a University of Texas at Austin law professor who has written extensively about the privilege. “Quantity is not relevant. Invoking the privilege is not inherently good, and it’s not inherently bad.”

The more important question, Chesney and other scholars say, is whether Bush widely expanded the way the privilege was used. The privilege, with roots stretching back to the nation’s birth, was conceived as an evidentiary rule, invoked by the government only to prevent specific classified information from being made public in court. But Bush used it to have lawsuits against his own administration—lawsuits alleging illegal and unconstitutional behavior—dismissed before those bringing the suit ever have a chance to present evidence of wrongdoing. Still, Bush is not necessarily the first president to do that, as his critics charge.

In the 1970s, the last time there was a public outcry over government spying on Americans, including those involved in the civil rights and anti-war movements, people brought lawsuits against the government because they suspected they were the target of government surveillance, only to have their suits derailed by the government’s invocation of the privilege, Chesney says.

The number of such early dismissals also grew in the 1980s, in lower-profile cases involving people working in the U.S. intelligence community, says Mark S. Zaid, a Washington, D.C., lawyer who has represented many of those CIA employees. For decades after the Reynolds decision, most of the cases in which the privilege was invoked did not directly involve the government. They were usually third-party disputes over contracts and patents in which the government would intervene to prevent disclosure of classified information. But in the 1980s CIA officials and others who once would never have thought of suing their employer began doing so on a more regular basis in cases involving racial discrimination, unjust firings, or First Amendment disputes over books they wished to publish. Many of those employees’ lawsuits were terminated when the government invoked the secrecy privilege, Zaid says.

But all of that is likely to be of little consolation to Bush’s critics.

Presidential Expansion of Power
If there is a clear distinction between Bush and past presidents in the use of the state secrets privilege, it is that Bush used the privilege as another way to expand presidential power. While Bush often claimed he needed additional powers to defend the country after the September 11, 2001, terrorist attacks, he was bristling over what he saw as interference from Congress and the courts long before then.

The George Bush–Dick Cheney view of expansive presidential power manifested itself in programs the administration created by executive fiat, including the indefinite detention of suspected terrorists without the right to trial and the use of torture. That view prevailed in matters as sweeping as from authorizing the National Security Agency (NSA) to spy inside the United States to the more common use of “signing statements,” in which Bush declared which parts of the laws passed by Congress he would—or would not—enforce at his own discretion.

“All of these things get lumped together often, I think, extraordinarily carelessly as if they’re all morally equivalent, all legally equivalent,” Chesney says. “And they’re not.”

Bush’s—and now Obama’s—use of the state secrets privilege has divided U.S. courts and raised accusations from attorneys and civil libertarians that judges are abdicating their responsibilities by taking the government at its word, as the district and appellate courts in Virginia did with El-Masri.

“I blame the judicial branch,” Zaid says. “Why wouldn’t the executive branch, no matter who it is, invoke the privilege [when] they know the judicial branch isn’t going to do anything? As far as I am concerned, the buck stops at the judicial branch, not the executive branch. It’s the judicial branch that is violating the civil liberties of those who have the privilege invoked against them because it’s the judicial branch that could stop the abuse and chooses not to—intentionally chooses not to.”

But other jurists, most prominently from the Court of Appeals for the Ninth Circuit in California, have been pushing back, refusing to immediately dismiss cases of rendition (Mohamed v. Jeppesen Dataplan, Inc.) and wiretapping (Al-Haramain Islamic Foundation, Inc. v. Bush) where both Bush and Obama invoked the privilege. Writing for the appellate court in its April 2009 decision in Jeppesen, Judge Michael D. Hawkins said dismissing cases because the government alleges secrets are involved would “cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from demands and limits to the law.” The government’s argument has “no logical limit,” Hawkins wrote.

“[W]hile classification [of government information] may be a strong indication of secrecy as a practical matter,” Hawkins continued, “courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the privilege. Common sense confirms this conclusion.”

On June 4 Patricia M. Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, outlined the problem for the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties during its hearing on Rep. Nadler’s proposed State Secret Protection Act. Wald said the quick dismissal of lawsuits in which the privilege is invoked “is often unnecessary and, I think, produces rank injustice in many cases.”

Citing the Reynolds decision, Wald said, “the Supreme Court acknowledged, and there is no dispute, that ultimately it is a judge who must decide whether the privilege applies or not. But judges who have been administering the privilege have struggled with varying success to find a middle way between national security and ensuring access by worthy plaintiffs to some form of remedy for their grievances.

“Unfortunately,” Wald added, “the judges have not been entirely consistent in the way they administer the privilege. Some show a readiness to dismiss cases outright on mere allegations or a conclusory affidavit, and some probe more intensely. Some judges actually look at the item that the state secrets privilege is raised as to, and some don’t and are content to look at the government’s affidavits. There isn’t even any consistency as to how substantial the risk has to be to justify closing down the case.”

Chesney, of the University of Texas, says the divide in the courts on such a profound issue is likely going to require the Supreme Court to revisit the matter, although it has so far declined to do so. The inconsistency in how judges are dealing with the privilege often comes down to the judge’s own trust in the executive branch to do the right thing or, at a minimum, his or her hesitation to second-guess government officials on matters of national security.

“There is something to be said for the claim that when it comes to determining the impact on national security, the Director of National Intelligence or the Secretary of Defense is simply more likely to make a better judgment than a judge,” Chesney says. “On the other hand, it’s true at the exact same time that if the [judicial] review doesn’t have any bite, then there’s really nothing that would prevent an abuse” by the government.

Following in Bush’s Footsteps?
The international uproar over the presidential use of the state secrets privilege in cases such as El-Masri’s also has spurred reaction on Capitol Hill.

Last year Congress considered, but failed to pass, legislation that would require judges to personally evaluate information the government insists is secret and would forbid courts from dismissing lawsuits until the evidence has been presented. The State Secret Protection Act, first introduced in 2008 and supported by a variety of law and civil liberties groups, including the ACLU and the American Bar Association, also would require the president to notify Congress whenever the privilege is invoked.

After Obama made the state secrets privilege an issue in the 2008 presidential campaign, as evidence of Bush’s abuse of government secrecy, the Democrat-controlled Congress did not immediately reintroduce legislation to curb the use of the privilege when it convened in January 2009.

But on February 9, Obama stunned the judges on the Ninth Circuit—as well as lawmakers and civil libertarians—when, in the first test of the new administration’s attitude toward the privilege, he took the same position as Bush in Jeppesen. Obama asked the court to dismiss the case, in which five men claim to have been illegally tortured under the U.S. rendition policy, because it involved state secrets. While the courts would ultimately rule against the administration, it was only two days after that court appearance that Democratic lawmakers reintroduced the legislation they say is needed to rein in overly broad executive powers.

“In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation,” Sen. Patrick Leahy (D–Vt.), chair of the Senate Judiciary Committee, said in reintroducing the State Secret Protection Act on February 11. The Senate version of the bill is still pending.

Vice President Joe Biden cosponsored the legislation to curb executive use of the privilege while in the Senate in 2008, and Obama during the 2008 campaign assailed Bush for invoking the privilege “more than any other previous administration to get cases thrown out of civil court.” But Obama now appears reluctant to accept new restrictions from Congress even as he continues to insist that the system is in need of reform. In an April 29 news conference marking his first 100 days in office, Obama suggested that he took the same position as Bush in his first court cases because he did not have time to rewrite the rules—a point disputed by critics who say the administration could have asked for extensions in those cases.

“And so we don’t have the time to effectively think through what should an overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us,” Obama said. “I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being an open court—you know, there should be some additional tools so that it’s not such a blunt instrument.”

If Congress and the courts are having trouble sorting out their responsibilities in the wake of the 1953 Reynolds decision, it may be, at least in part, due to the doggerel pedigree of the decision itself.

Affirming the Right to Keep Secrets
The Reynolds case was rooted in the crash of a B-29 Superfortress bomber in Georgia on October 6, 1948. There were 13 people aboard the plane: eight military personnel and five civilian engineers who, newspapers would report within days of the crash, were working on a secret Air Force project. The plane was only 40 minutes into its flight when one of its four engines malfunctioned and another caught fire. Four men safely parachuted out of the plane. Four others jumped too late and were killed. The remaining five went down with the plane, which spread bodies and debris over a two-mile area near Waycross, Georgia.

In June 1949, the contractors’ widows sued the U.S. government claiming pilot error and Air Force negligence had caused the accident that killed their husbands. They requested the accident reports on the crash, and while the courts agreed they should have them, the Air Force repeatedly refused to release the documents. The U.S. Department of Justice said making the reports public would “seriously hamper national security” and told the judge that the documents were “beyond judicial authority.” What the government did not tell the courts was that those reports had already been reclassified to a much lower rating, an indication that even the Air Force did not believe they contained classified information.

Given the Air Force’s refusal to release the reports, the court ruled in favor of the widows, a decision upheld by the Third Circuit Court of Appeals. Writing for the appellate court, Judge Albert Maris raised the alarm on allowing the government sole power to determine whether information is so sensitive that lawsuits should not be allowed to proceed, especially in cases where the government itself was being sued. “[W]e regard the recognition of such a sweeping privilege … as contrary to a sound public policy,” Maris wrote. Judges must have the right to review the information to determine if it meets the standards of the privilege, Maris said. “The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments.”

So, in October 1952, the Air Force took the case to the Supreme Court and, for the first time, top Air Force officials filed a formal “claim of privilege.” In an affidavit, those officials again insisted that the reports “could not be furnished ‘without seriously hampering national security.’” Based on the affidavit—and without ever reviewing the accident reports themselves—the justices issued a 6–3 decision on March 9, 1953, reversing the lower courts and formally recognizing the government’s right to maintain secrets. What was less clear, however, was how much deference justices thought the courts should give to the government’s claim of national security.

“Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case,” Chief Justice Fred M. Vinson wrote. If the government can convince a judge that there is a “reasonable danger” that disclosing the information would endanger national security without ever showing the judge that information, Vinson said, then “the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”

Louis Fisher of the Library of Congress, a leading expert in the use of the state secrets privilege, calls Reynolds “a disastrous case brought at the worst possible time.” It was the height of the Cold War, the Rosenbergs were on trial for spying, and Sen. Joseph McCarthy (R–Wis.) was fanning national fears that Communist infiltrators lurked around every corner. Against such a backdrop, Fisher says, it was inevitable that the Court would instinctively defer to the executive branch on matters of national security.

Indeed, Vinson noted in his opinion that “we cannot escape judicial notice that this is a time of vigorous preparation for national defense.” That Cold War deference continues to permeate current cases, Fisher says. And the courts, as recent decisions in the Fourth and Ninth Circuits show, clearly are still wrestling with just how much deference to give to the executive branch.

Nearly 50 Years of Fraud
But what the public—or the courts—did not know until nearly 50 years after the Reynolds ruling was that the Air Force had lied about the accident reports. The reports contained no secret information beyond the fact that secret equipment was aboard the plane, a fact already reported by the media. What the reports did show was that, just as the widows had suspected, gross negligence and pilot error caused the crash and killed those contractors, something the courts would have immediately realized if they had seen the documents.

Among the Air Force’s findings was that the B-29 that crashed had been grounded by maintenance problems 95 of the 189 days prior to the accident. It had, in fact, been listed as unfit to fly and was used that day only after a squadron commander signed an “exceptional release” form allowing it. Problems included an engine exhaust system that posed a “definite fire hazard” but was never repaired.

Investigators also found violations of Air Force regulations, including failure to brief the civilian passengers on emergency safety procedures, such as how to put on a parachute, prior to takeoff. They also cited a long list of mistakes made by the plane’s crew that contributed to the crash. Responding to an engine fire, the pilot cut power to the wrong engine. At one point, three of the plane’s four engines were not working. The crew also opened the bomb bay doors to use as an escape hatch, contributing to the plane’s instability and leading to a downward spiral that made it impossible for most of the crew to escape, the reports showed.

Reynolds, as the reports made clear, not only provided a precedent for use of the state secrets privilege but also proof that the government was capable of abusing the privilege to cover up embarrassing or illegal activity.

The truth about the Air Force’s claims was discovered in 2000 by Judy Palya Loether, the daughter of one of the civilian contractors killed in the crash. Loether, who was just seven weeks old when her dad, Al, was killed, had been searching the Internet for information about the crash when she discovered a Web site selling now-declassified accident reports involving military aircraft. Loether sent for the reports of her father’s crash and began a three-year quest to learn the truth about what happened to her dad, of whom she knew little, and about her mom, one of the widows who brought the Reynolds case against the Air Force.

“My mother never talked about him. There were never any pictures out in the open. It was just something not talked about,” says Loether, now 61 and living in Massachusetts with a family of her own. “I knew very little about my father when I was growing up, and I was aware there was a court case—that my mother had been to court—about the plane crash. And, frankly, I always thought my mother won the case because I knew she got money. So I always assumed she’d won. But that was really all I knew.”

Some of Loether’s relatives came to believe that because the crash involved a secret project during the Cold War, and because the government fought so hard to keep the accident reports secret, that the Russians might have blown up the plane. That’s what Loether thought she would be able to determine once she sifted through the reports’ tedious 220 pages of military jargon. What Loether did find as she pursued her own investigation was that another contractor killed in the crash had a daughter who would be about the same age as her. Loether sent postcards to 20 people with the same name across the country and heard back in less than two weeks from the woman, who also lived in Massachusetts. It was only during a meeting with the other woman’s family that Loether learned just how important her mother’s case had been.

“The other families said this was a landmark case. But I didn’t really know what that meant. I didn’t know what ‘state secrets’ was,” Loether says.

But as Loether learned more, particularly how pivotal the accident reports were to the case, she grew angry.

“I knew in my heart there were no secrets in that accident report. What was there in that report was a horrible black comedy of negligence,” Loether says. “It made me angry because I know my mother struggled with three little kids. And I know what a tragedy it was for my father’s family because he was loved by that family. And in my own life—I can’t say I had a bad life—but I didn’t have my father as I grew up and, as an adult, I understood that that had an impact on my life. Just the idea that my mother went to court and lost just because the government lied, it was just very, very upsetting to me.”

Loether spent three years combing through military records and court documents as well as a jumble of newspaper clippings, letters, and other papers her mother had kept in a single box—the only relics Loether had of her father’s life—before deciding that she, too, would sue the government. Her suit, brought with other families involved in the original case, asserted that the Reynolds decision “stands as a classic ‘fraud on the court,’ one that is most remarkable because it succeeded in tainting a decision of our nation’s highest tribunal.”

But the lower courts dismissed the suit and, in 2006, the Supreme Court declined to hear the case. “Our day in court is over,” Loether says.

Continuing Debate, Review
The Obama administration has shown no interest in allowing Congress to take the lead in altering the way the executive branch invokes the privilege, refusing to send a representative to the one hearing Congress held this year on the issue. In September, however, U.S. Attorney General Eric H. Holder Jr. announced new, self-imposed safeguards at the Department of Justice to ensure the privilege is used only to prevent the release of information that would pose “significant harm” to national security. The standard in Reynolds is “reasonable danger.”

The new policy creates an additional Department of Justice review of each privilege request, which could include Holder himself, and specifically prohibits using the privilege to prevent disclosure of “government wrongdoing or avoiding embarrassment to government agencies or officials.” The new rules allow judges to request to see the evidence the government wishes to keep secret, though there’s no stipulation that the administration would automatically provide the evidence requested.

The new rules would still allow the federal government to seek the dismissal of lawsuits in the way Bush and Obama have already done. And civil libertarians have argued that true and lasting reform can be ensured only if Congress changes the law, not by voluntary guidelines the administration could later change or ignore. But Holder said the additional safeguards would “ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”

“This policy,” Holder said in a statement, “is an important step toward rebuilding the public’s trust in the government’s use of the privilege while recognizing the imperative need to protect national security.”

But if Obama initially raised the ire of civil libertarians and his progressive political supporters, he has eased some of the concerns people in the intelligence field had about him. Ironically, Obama may provide the best opportunity to restore the public’s faith in the government’s use of classified information and the privilege itself, says Stewart A. Baker, who worked in national security and homeland defense positions under Presidents George H. W. Bush, Bill Clinton, and George W. Bush.

Baker does not believe Bush overreached in exercising the state secrets privilege. “I think the groups that were ideologically opposed to a lot of what the Bush administration did overused litigation as a remedy for their essentially political objections to the administration,” he says. Baker is encouraged by what many see as Obama’s broken promise to use the privilege differently than Bush.

“It’s not surprising that he’s learning a lot as he sees connections between a bunch of things he wasn’t familiar with when he was in the Senate or campaigning for office,” Baker says. “One of the things I hope we’ll see as a result of the change in the administration is that there’ll be a recognition that for all presidents there’s real value in classified information, that there’s real value in being able to gather intelligence from secret sources and methods. And perhaps we’ll see a reduction in the assumption that anything that is classified must be hiding an illegitimate secret.”

However the current debate turns out, it’s likely to be of little consequence to people like Khaled El-Masri or Judy Loether, who says her faith in the government has been greatly diminished by her own brush with the state secrets privilege. Loether, who has been following El-Masri’s case, says she remains “ashamed” of how the government has treated him.

“My naiveté about the way this country operated in the year 2000, when I found that accident report, and today has certainly changed,” Loether says. “I think a lot of Americans are starting to feel this way. You don’t trust your public officials anymore. You don’t trust them to be honest people. In decades past we all trusted our elected officials and our administrations. There were always a few [bad] people, but most just want to do the right thing…. But you can’t just sit back and think they’re doing the right things anymore.”

Bob Kemper, a freelance writer based in Washington, D.C., wrote about the landmark Gideon case in the September issue.