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On May 17, German police arrested Khaled El-Masri on suspicion of arson. El-Masri has been confined to a psychiatric hospital pending trial and is alleged to have caused more than $600,000 in property damage. If he is eventually found liable, the German court should send the bill to the CIA. More than three years ago, El-Masri, a German citizen of Lebanese descent, was detained by local authorities while on vacation in Macedonia. According to his sworn testimony, he was subsequently turned over to U.S. agents, and then beaten, sexually assaulted and transported to Afghanistan under heavy sedation. In Afghanistan, he was held at a secret CIA prison known as the “Salt Pit,” where he was repeatedly interrogated. After more than four months of imprisonment, the CIA learned they had the wrong man and unceremoniously abandoned him on a hilltop in Albania. Upon his return to Germany, El-Masri discovered that his wife had taken their children back to Lebanon, believing her husband to have abandoned them. El-Masri brought a suit against the CIA in federal court. Instead of mounting a defense of its actions, the government has claimed that the matters of the case � the rationale for El-Masri’s abduction, the details of his detention and the circumstances of his release � are subject to the “state secrets privilege.” The government claims that the details of the case are so sensitive that they cannot be revealed to the public, to El-Masri, to his counsel or even to the presiding judge in the case. To date, both a federal district court judge and a three-judge panel of the 4th U.S. Circuit Court of Appeals have sided with the government’s position, without reviewing a single document supposedly covered by the privilege. El-Masri is now seeking review of his case before the U.S. Supreme Court. The state secrets privilege originated in U.S. v. Reynolds, a 1953 Supreme Court decision involving the deaths of three civilian contractors while on board a military plane. The widows of these men brought wrongful death suits against the Air Force, and sought production of the accident report. In response, the Air Force claimed that handing over the accident report would risk disclosing classified information, and that the document was therefore privileged. The trial court found that the government was inventing “a new kind of privilege,” and rejected the argument. The court of appeals went further still in agreeing with the trial court, quoting Patrick Henry in saying that “to cover with the veil of secrecy the common routine of business is an abomination in the eyes of every intelligent man and every friend to his country.” In contrast to these categorical rejections of the state secrets privilege, the Supreme Court reversed the lower courts and ruled in the government’s favor. The court held that forcing the government to disclose information it claimed was sensitive created an unacceptable risk to national security. The court refused to compel the production of the accident report, even for a private review by the district court. As history has proven, this was a grievous error. When the declassified report surfaced decades later, it was revealed that the only “sensitive” information in the report was evidence that the contractors died as a result of Air Force negligence. No document review at all The precedent set by the court in Reynolds enshrined unchecked executive authority to suppress evidence. An invocation of the state secrets privilege now carries with it an appalling finality: Documents designated as privileged are not subject to any review whatsoever, even in the privacy of a judge’s chambers. As in both Reynolds and El-Masri, the ability to withhold evidence frequently results in a dismissal. The government has repeatedly relied upon this sweeping doctrine since the Sept. 11, 2001, attacks, including in defense of the National Security Agency’s warrantless domestic surveillance program. The Constitution Project recently brought together a broad, bipartisan coalition of policy experts, legal scholars and former government officials who crossed partisan boundaries in calling for substantive reform of the privilege. The report of the Constitution Project’s Liberty and Security Committee and Coalition to Defend Checks and Balances is signed by former federal judges, diplomats and intelligence officers of both parties, men and women devoted to the security of our country. The report urges Congress to clarify that the privilege is qualified, and urges judges to review purportedly sensitive documents to assess whether the privilege should apply. The signatories also call for Congress or the courts to require that judges actually review evidence the executive branch claims to be subject to the privilege. When appropriate, these reviews would occur in judges’ chambers, minimizing the risk of inadvertent exposure. On June 26, the CIA released almost 700 pages of previously classified documents outlining secret agency actions. Some of these programs were hidden from public view with good cause; others, however, detail a sordid history of covert actions of questionable legality. The CIA’s “family jewels” should serve as a warning to Congress and the courts: Our judges and elected officials should rein in abuse of the state secrets privilege and limit the ability of the executive branch to evade independent review of its actions. They must ensure that the privilege is used to protect our freedoms, and not to destroy them. Sharon Bradford Franklin serves as senior counsel at the Constitution Project, an independent think tank in Washington. She previously served as the executive director of the Washington Council of Lawyers and as a litigator in the Civil Rights Division at the U.S. Department of Justice.

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