No Easy Answers

Tuesday, May 23, 2006

State Secrets: Court Order Dismissing El-Masri Case

Hat tip to the Federation of American Scientists.

   Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006       Page 1 of 17

                         IN THE UNITED STATES DISTRICT COURT
                                    Alexandria Division

KHALED EL-MASRI,                                    )
               Plaintiff,                           )
                        v.                          )          Case No. 1:05cv1417
GEORGE TENET, et al.,                               )
               Defendants.                          )


       Plaintiff in this civil suit claims to be an innocent victim of the United States'

"extraordinary rendition" program 1 and seeks redress from the former Director of the Central

Intelligence Agency (CIA), private corporations allegedly involved in the program, and unknown

employees of both the CIA and the private corporations. At issue is whether the assertion of the

state secrets privilege by the United States is valid, and, if so, whether this privilege prevents this

case from proceeding.


                                              A. Facts 2

       Plaintiff Khaled El-Masri is a German citizen of Lebanese descent. His allegations begin

        The complaint alleges that since the early 1990s the CIA has been operating
interrogation centers in countries where the United States believes legal safeguards do not
constrain efforts to interrogate suspected terrorists. This practice is commonly known as
"extraordinary rendition."
        As appropriate when considering a motion to dismiss pursuant to Rule 12(b)(6),
Fed.R.Civ.P., the facts recited here are derived from the complaint and assumed true. Randall v.
United States, 30 F.3d 518, 522 (4th Cir.1994) (plaintiff's version of facts accepted as true at
threshold dismissal stage).


  Case 1:05-cv-01417-TSE-TRJ             Document 51        Filed 05/12/2006       Page 2 of 17

on New Years Eve 2003 when he claims he was seized by Macedonian authorities while

attempting to cross the border between Serbia and Macedonian. Following his abduction, El-

Masri alleges the Macedonian authorities imprisoned him in a Skopje hotel room for 23 days,

refusing to let him contact a lawyer, a German consular officer, a translator or his wife, and

interrogating him continuously about his alleged association with Al Qaeda, an association he

consistently denied. After thirteen days of this treatment, El-Masri alleges he commenced a

hunger strike to protest his detention, and he did not eat again in Macedonia.

       On January 23, 2004, El-Masri claims several men in civilian clothes entered his hotel

prison room. They forced El-Masri to make a statement that he had not been mistreated by his

captors, and would shortly be flown back to Germany. After his captors videotaped this

statement, El-Masri states he was blindfolded and driven to what sounded like an airstrip

approximately one hour from Skopje. Still blindfolded, he alleges he was led to a building where

he was beaten, stripped of his clothing, and sodomized with a foreign object. He further alleges

he was dragged naked to a corner of the room where his captors removed his blindfold only for

him to be blinded again by a camera's flash. When he regained his sight, he claims he saw seven

or eight men dressed in black and wearing black ski masks. El-Masri contends that these men

were members of a CIA "black renditions" team, operating pursuant to unlawful CIA policies at

the direction of defendant Tenet. These men, he alleges, dressed him in a diaper, a tracksuit and

earmuffs. He claims he was then blindfolded, shackled and dragged to an airplane where his

captors injected him with a sedative that rendered him nearly unconscious. In this drugged state,

he states he was secured inside the aircraft and thereafter only dimly remembers the airplane

landing once and taking off again before finally depositing him in a place that El-Masri knew

from the air temperature was not Germany. Indeed, El-Masri was to discover later that he had


  Case 1:05-cv-01417-TSE-TRJ             Document 51       Filed 05/12/2006       Page 3 of 17

been flown to Kabul, Afghanistan.3

       Upon reaching Kabul, El-Masri claims he was again beaten and then placed in a small,

cold cell. He contends this prison was a CIA-run facility known as the "Salt Pit," an abandoned

brick factory north of the Kabul business district. El-Masri alleges he was detained in the "Salt

Pit" for the next four months, during which time he was repeatedly interrogated about his alleged

association with terrorists, including September 11 conspirators Mohammed Atta and Ramzi

Binalshibh. He points out that although the prison facility was nominally run by Afghans, two of

his interrogators identified themselves as Americans. He claims he repeatedly beseeched his

captors to contact the German government on his behalf, but these requests were denied.

       In March, El-Masri contends he and several other inmates commenced another hunger

strike to protest their continued confinement. After 27 days without food, El-Masri states he was

brought before two unmasked persons he believes were CIA agents in charge of the "Salt Pit."

These men refused to accede to El-Masri's demands to release him, to charge him with a crime,

or to allow him to contact a German official. Although the American official denied these

requests, El-Masri contends the official conceded to El-Masri that El-Masri's detention was a

mistake, but that he could not agree to El-Masri's release without permission from Washington.

At this point, El-Masri states he was returned to his cell where he continued his hunger strike.

After ten more days without nourishment, El-Masri asserts his captors fed him forcibly by

        In his complaint, El-Masri alleges that documentary evidence supports his recollection.
He claims aviation documents show that late on the evening of January 23, 2004 a Boeing
business jet owned by defendant Premier Executive Transport Services, Inc. (PETS) and operated
by defendant Aero Contractors Limited (ACL) flew from Skopje, Macedonia to Kabul,
Afghanistan with a brief stop in Baghdad, Iraq. This documentary evidence is attached to the
plaintiff's memorandum of points and authorities in opposition to the United States' motion to


   Case 1:05-cv-01417-TSE-TRJ            Document 51        Filed 05/12/2006       Page 4 of 17

inserting tubes into his nose and his mouth through which they pumped liquid sustenance. Soon

thereafter, El-Masri states he was given canned food and books to read. El-Masri alleges that his

hunger strike had a deleterious effect on his health; he lost sixty pounds over the course of his


       El-Masri contends that the CIA had determined soon after his arrival in Afghanistan that

they were detaining an innocent man. Further, he contends that Tenet knew this fact by April

2004 and that Secretary of State Condoleeza Rice knew by early May that El-Masri was the

victim of mistaken identity.4 Nonetheless, El-Masri says he remained imprisoned in Kabul until

May 28, 2004, after which he was flown in a private jet, again blindfolded, from Kabul to

Albania, where he was deposited by his captors on the side of an abandoned road. With the

assistance of Albanian authorities, El-Masri eventually made his way back to his home in

Germany only to find that his wife and four children, believing he had abandoned them, had left

Germany to live in Lebanon. El-Masri asserts that he remains deeply traumatized by his

abduction and treatment during his detention.

                                          B. Proceedings

       The complaint in this case was filed on December 6, 2005, naming the following

defendants: (1) former Director of the CIA George Tenet, (2) certain unknown agents of the CIA

(John Does 1-10) (3) PETS, (4) ACL, (5) Keeler and Tate Management (KTM),5 (6) and certain

         El-Masri also intimates that the German government was aware of his captivity. In
addition to his American interrogators, El-Masri describes meeting a German speaker who
identified himself only as "Sam." "Sam" asked El-Masri many of the same questions as his
American interrogators, but ultimately informed him that he would be released only if he agreed
never to discuss what had happened over the last five months.
        According to El-Masri, the aircraft used in his transfer from Macedonia to Afghanistan
was sold by PETS to KTM on or about November 14, 2004, shortly after reports of the aircraft's


   Case 1:05-cv-01417-TSE-TRJ            Document 51        Filed 05/12/2006        Page 5 of 17

unknown employees of the defendant corporations (John Does 11-20). Tenet is sued in his

individual capacity for authorizing the unknown CIA agents' actions with actual or constructive

knowledge that such actions were illegal, and John Does 1-10 are sued for their actual

participation in El-Masri's treatment. El-Masri sues the American corporations PETS, ACL and

KTM, as well as their employees, for their participation in the CIA's "extraordinary rendition"

that victimized El-Masri. El-Masri contends that these corporate defendants are liable for

authorizing the use of aircraft they owned or operated for the transfer of suspected terrorists to

detention facilities despite the corporate defendants' knowledge that the suspected terrorists,

including El-Masri, would be detained incommunicado, tortured and subjected to other cruel


       El-Masri asserts three separate causes of action. The first claim is brought against Tenet

and the unknown CIA agents pursuant to the cause of action recognized by the Supreme Court in

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),

for violations of El-Masri's Fifth Amendment right to due process. Specifically, El-Masri

contends that Tenet and John Does 1-10 violated the Due Process Clause's prohibition against

anyone acting under color of U.S. law (1) to subject any person held in U.S. custody to treatment

that "shocks the conscience," or (2) to deprive any person of liberty in the absence of legal

process. El-Masri's second cause of action is brought against all defendants pursuant to the

Alien Tort Statute (ATS) for violations of international legal norms prohibiting prolonged

involvement in the "extraordinary rendition" program. El-Masri contends that this transfer was
fraudulent because it was done to avoid potential liability for PETS' acts. El-Masri contends that
KTM is the successor to PETS, carrying on the same business and operations and utilizing the
same personnel and assets as PETS.


   Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006       Page 6 of 17

arbitrary detention.6 Likewise, El-Masri's final cause of action is brought pursuant to the ATS

for each defendant's violation of international legal norms prohibiting cruel, inhuman, or

degrading treatment.

       On March 8, 2006, the United States filed a statement of interest and a formal claim of the

state secrets privilege. In support of its formal claim of privilege the United States submitted

both an unclassified and a classified ex parte declaration of the Director of the CIA (DCI).

Thereafter, on March 13, 2006, the United States moved to intervene in the suit pursuant to Rule

24(a), Fed.R.Civ.P. in order to protect its interests in preserving its state secrets. The motion was

granted on March 21, 2006. El-Masri v. Tenet, Case No. 1:05cv1417 (E.D.Va. March 21, 2006).

Concurrent with the motion to intervene, the United States moved for dismissal or for summary

judgment on the ground that maintenance of the suit would invariably lead to disclosure of its

state secrets. The parties presented oral argument on this motion on May 12, 2006.


       The United States' dismissal motion and the plaintiff's opposition raise important

threshold issues, the resolution of which requires a two step analysis. First, it is necessary to

determine whether the United States' assertion of the state secrets privilege is valid in this case.

If not, the inquiry is over and the United States' dismissal motion must be denied. On the other

hand, if the assertion of the privilege is valid, then the second step in the analysis requires

         Codified at 28 U.S.C. § 1350, the ATS provides that "[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States." The Supreme Court in Sosa v. Alvarez Machain,
542 U.S. 692 (2004), has interpreted this statute as providing district courts jurisdiction over civil
suits brought by aliens for violations of a limited set of well-recognized norms of international
law. Id. at 724. The Supreme Court did not identify precisely which well-recognized norms of
international law are actionable under the ATS.


   Case 1:05-cv-01417-TSE-TRJ              Document 51         Filed 05/12/2006      Page 7 of 17

determining whether dismissal is required or whether the case may nonetheless proceed in some

fashion that adequately safeguards any state secrets.


        Determining whether the state secrets privilege has been validly asserted requires an

understanding of the nature and purpose of the privilege and of who may assert it. The state

secrets privilege is an evidentiary privilege derived from the President's constitutional authority

over the conduct of this country's diplomatic and military affairs and therefore belongs

exclusively to the Executive Branch. See United States v. Reynolds, 345 U.S. 1., 7-8 (1953). As

such, it must be formally asserted by the head of the Executive Branch agency with control over

the state secrets at issue, and then only after that person has personally considered the matter.

See id. If validly asserted the state secrets privilege permits the government to "block discovery

in a lawsuit of any information that, if disclosed, would adversely affect national security."

Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C.Cir. 1983). More particularly, "the various harms,

against which protection is sought by invocation of the privilege, include impairment of the

nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and

disruption of diplomatic relations with foreign governments." In re Under Seal, 945 F.2d 1285,

1287 n.2 (4th Cir. 1991) (quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C.Cir.1983)); see also

Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005). Given the vitally important purposes it

serves, it is clear that while the state secrets privilege is commonly referred to as "evidentiary" in

nature, it is in fact a privilege of the highest dignity and significance.

        As noted, the privilege belongs solely to the Executive Branch and must be formally

asserted by the head of the Executive Branch agency with responsibility for, and control over, the

state secrets involved. Once it is determined that the appropriate officer has invoked the


   Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006        Page 8 of 17

privilege, the next step in the judicial inquiry into the validity of the assertion is to determine

whether the information for which the privilege is claimed qualifies as a state secret. Importantly,

courts must not blindly accept the Executive Branch's assertion to this effect, but must instead

independently and carefully determine whether, in the circumstances, the claimed secrets deserve

the protection of the privilege. Reynolds, 345 U.S. at 10. This determination requires a court to

consider whether "a responsive answer . . . or an explanation of why it cannot be answered might

be dangerous because injurious disclosure could result." Sterling, 416 F.3d at 343 (quoting

Reynolds, 345 U.S. at 9). In other words, this part of the inquiry focuses on whether the United

States has made an adequate showing that disclosure of claimed privileged material would injure

national security.

        How searching the judicial inquiry must be depends on the particular circumstances of the

case, for it is well-settled that the depth of a court's inquiry increases relative to the adverse

party's need for the information the government seeks to protect. Reynolds, 345 U.S. at 11;

Sterling, 416 F.3d at 343. If the information is peripheral to the adverse party's claims, the

court's inquiry need not be as searching as it must be in cases where the claimed state secrets are

at the core of the suit. In those cases where the claimed state secrets are at the core of the suit

and the operation of the privilege may defeat valid claims, courts must carefully scrutinize the

assertion of the privilege lest it be used by the government to shield "material not strictly

necessary to prevent injury to national security." Ellsberg, 709 F.2d at 58. But, in undertaking

this inquiry, courts must also bear in mind the Executive Branch's preeminent authority over

military and diplomatic matters and its greater expertise relative to the judicial branch in


   Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006        Page 9 of 17

predicting the effect of a particular disclosure on national security.7 Accordingly, the judiciary

must accept the executive branch's assertion of the privilege whenever its independent inquiry

discloses a "reasonable danger that compulsion of the evidence will expose military matters

which, in the interest of national security, should not be divulged." Reynolds, 345 U.S. at 10

(emphasis added). Importantly, once the court is satisfied that any disclosure of the putative

secrets "might have a deleterious effect on national security, `the claim of the privilege will be

accepted without requiring further disclosure.'" Id. (quoting Reynolds, 345 U.S. at 9).

       Finally, it is important to note that, unlike other privileges, the state secrets privilege is

absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is

not subject to a judicial balancing of the various interests at stake. 8 Thus, the adverse party's

need for privileged information affects only the depth of the judicial inquiry into the validity of

the assertion and not the strength of the privilege itself, for "even the most compelling necessity

cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are

at stake." Reynolds, 345 U.S. at 11.

       Given these governing principles, there is no doubt that the state secrets privilege is

validly asserted here. To begin with, the privilege has been formally asserted by the appropriate

        See United States v. Nixon, 418 U.S. 683, 710 (1974) (claims of privilege for military or
diplomatic secrets "traditionally shown the utmost deference."); see also C. & S. Air Lines v.
Waterman S.S. Corp., 333 U.S. 103, 111 (1948) ("The President, both as Commander-in-Chief
and as the Nation's organ for foreign affairs, has available intelligence services whose reports are
not and ought not to be published to the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of the Executive taken on
information properly held secret.").
        See In re Under Seal, 945 F2d 1285, 1288 (4th Cir. 1991) ("the privilege is absolute
when properly invoked"); United States v. Halkin, 690 F.2d 977, 990 (D.C.Cir. 1982) ("[S]ecrets
of state--matters the revelation of which reasonably could be seen as a threat to the military or
diplomatic interests of the nation--are absolutely privileged from disclosure in the courts.").


  Case 1:05-cv-01417-TSE-TRJ             Document 51        Filed 05/12/2006       Page 10 of 17

Executive Branch official, the DCI, who has done so by submitting an ex parte classified

declaration labeled "JUDGE'S EYES ONLY," and also an unclassified declaration for the public

record. The latter document states in general terms that damage to the national security could

result if the defendants in this case were required to admit or deny El-Masri's allegations. The

former is a detailed explanation of the facts and reasons underlying the assertion of the privilege.

It is, of course, inappropriate to reveal here the substance of the DCI's classified ex parte

declaration, for to do so would compromise "the very thing the privilege is designed to protect."

Reynolds, 345 U.S. at 8. It is enough to note here that the substance of El-Masri's publicly

available complaint alleges a clandestine intelligence program, and the means and methods the

foreign intelligence services of this and other countries used to carry out the program. And, as

the public declaration makes pellucidly clear, any admission or denial of these allegations by

defendants in this case would reveal the means and methods employed pursuant to this

clandestine program and such a revelation would present a grave risk of injury to national

security. This conclusion finds firm support in the details disclosed in the DCI's classified ex

parte declaration.

       Plaintiff's argument that government officials' public affirmation of the existence of a

rendition program 9 undercuts the claim of privilege misses the critical distinction between a

general admission that a rendition program exists, and the admission or denial of the specific

facts at issue in this case. A general admission provides no details as to the means and methods

        See Declaration of Stephen Macpherson Watt in Support of Plaintiff's Opposition to the
United States' Motion to Dismiss or, in the Alternative, for Summary Judgment ("Watt Decl.")
Exh. A.


  Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006       Page 11 of 17

employed in these renditions, or the persons, companies or governments involved.10 Nor is the

government's assertion of the privilege here intended to protect from disclosure this general

information. Instead, the government seeks to protect from disclosure the operational details of

the extraordinary rendition program, and these details are validly claimed as state secrets.

Accordingly, El-Masri's argument that generalized public admissions somehow undercut the

government's right to protect the specific details of the "extraordinary rendition" program are


       Nor is the strength of the government's privilege somehow diminished by either El-

Masri's complaint or the numerous media, government or other reports discussing renditions,

often relying largely on El-Masri's allegations.11 It is self-evident that a private party's

allegations purporting to reveal the conduct of the United States' intelligence services overseas

are entirely different from the official admission or denial of those allegations. Furthermore,

neither the United States' claim of privilege, nor a judicial acceptance of that claim is tantamount

to an admission that El-Masri's factual allegations are true. The applicability of the state secrets

privilege is wholly independent of the truth or falsity of the complaint's allegations. While a

public admission of the alleged facts would obviously reveal sensitive means and methods of the

country's intelligence operations, a denial of the alleged facts would also be damaging, as it may

raise an inference of veracity in those cases where the government does not deny similarly

         This distinction between the general and the particular is exemplified by Secretary of
State Rice's public comments concerning El-Masri's claims in which she affirmed the existence
of the program but declined to comment on the specific facts alleged by El-Masri. See Watt Decl.
Exh. B. Although not revealing any details about the program, she did say in response to a
question about El-Masri's allegations that "when and if mistakes are made, we work very hard to
rectify them." Id.
            See generally id.


  Case 1:05-cv-01417-TSE-TRJ              Document 51        Filed 05/12/2006        Page 12 of 17

sensitive allegations but asserts the state secrets privilege instead. For this reason, the CIA has

appropriately adopted the policy of neither admitting nor denying allegations regarding the

means, methods, persons, entities or countries used in its foreign intelligence operations. In light

of this sensible policy, and on the basis of the DCI's public and classified ex parte declarations,

the Court finds the United States' privilege is validly asserted in this case.


        If a court finds that the state secrets privilege has been validly asserted, it must then

determine whether the case must be dismissed to prevent public disclosure of those secrets, or

whether special procedural mechanisms may be adequate to prevent disclosure of the state

secrets. Resolution of this issue will depend on the centrality of the privileged material to the

claims or defenses asserted by either party. As the Fourth Circuit has recently put it, "when the

very subject of the litigation is itself a state secret," and where there is "no way [the] case could

be tried without compromising sensitive military secrets, a district court may properly dismiss the

plaintiff's case." Sterling, 416 F.3d at 347-48 (quoting Fitzgerald v. Penthouse Int'l., Ltd., 776

F.2d 1236, 1243 (4th Cir. 1985)) (internal quotations omitted). Thus, while it is well-settled that

"dismissal is appropriate only when no amount of effort and care on the part of the court and the

parties will safeguard privileged material," it is equally well-settled that "where the very question

on which a case turns is itself a state secret, or the circumstances make clear that sensitive

military secrets will be so central to the subject matter of the litigation that any attempt to proceed

will threaten disclosure of the privileged matters, dismissal is the appropriate remedy." Id. at 348

(internal quotations and citations omitted). In sum, the question is whether El-Masri's claims

could be fairly litigated without disclosure of the state secrets absolutely protected by the United

States' privilege.


  Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006       Page 13 of 17

       In the instant case, this question is easily answered in the negative. To succeed on his

claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and

degrading treatment, all as part of the United States' extraordinary rendition program.12 As noted

above, any answer to the complaint by the defendants risks the disclosure of specific details about

the rendition argument. See Rule 8(b), Fed.R.Civ.P. ("A party shall state in short and plain terms

the party's defenses to each claim asserted and shall admit or deny the averments upon which the

adverse party relies."). These threshold answers alone would reveal considerable detail about the

CIA's highly classified overseas programs and operations.

       Finally, the fact that any answer to the complaint would potentially disclose information

protected by the privilege refutes El-Masri's argument that special procedures short of dismissal

would be adequate to protect the government's validly asserted privilege. To be sure, special

procedures, such as clearing defense counsel for access to classified information and the

application of the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3, could be, and

indeed have been, used effectively in appropriate circumstances in other cases. These are not

appropriate circumstances. Such procedures are plainly ineffective where, as here, the entire aim

of the suit is to prove the existence of state secrets. As the Fourth Circuit recognized in Sterling,

where "the whole object of the suit and of the discovery is to establish a fact that is a state secret"

special procedures are inadequate. 416 F.3d at 348. Precisely this is the case here. Further, even

          For purposes of the present analysis it is appropriate to assume that El-Masri has stated
a cognizable claim; the strength or weakness of his legal claims is immaterial to the resolution of
the state secrets privilege dismissal motion. It is nonetheless worth noting that El-Masri's legal
claims are novel and might well be vulnerable to dismissal pursuant to Rule 12(b)(6),
Fed.R.Civ.P., quite apart from the application of the state secrets privilege. See generally Scott J.
Borrowman, Sosa v. Alvarez-Machain and Abu Ghraib ­ Civil Remedies for Victims of
Extraterritorial Torts by U.S. Military Personnel and Civilian Contractors, 2005 B.Y.U.L.Rev.
371 (2005).


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assuming some mechanism might be used to avoid disclosure of state secrets in the answer, it is

clear that the use of special procedures during discovery and trial would be wholly inadequate to

preserve the United States' privilege. The Fourth Circuit also addressed this point in Sterling

where it noted that:

        Such procedures, whatever they might be, still entail considerable risk.
        Inadvertent disclosure during the course of a trial ­ or even in camera ­ is
        precisely the sort of risk that Reynolds attempts to avoid. At best, special
        accommodations give rise to added opportunity for leaked information. At worst,
        that information would become public, placing covert agents and intelligence
        sources alike at grave personal risk.

Sterling, 416 F.3d 338. Thus, while dismissal of the complaint deprives El-Masri of an American

judicial forum for vindicating his claims, well-established and controlling legal principles require

that in the present circumstances, El-Masri's private interests must give way to the national

interest in preserving state secrets. The United States' motion to dismiss must therefore be



        The United States' dismissal motion also argues that the recently reaffirmed so-called

Totten bar renders this case non-justiciable. See Tenet v. Doe, 125 S.Ct. 1230, 1237 (2005). This

argument is problematic in certain respects, but in the end need not be reached.

        The Totten bar is quite distinct from the state secrets privilege; it is not a privilege or a

rule of evidence; it is instead a rule of non-justiciability that deprives courts of their ability to

hear "suits against the Government based on covert espionage agreements" even in the absence of

a formal claim of privilege. Id. at 1233. It is properly invoked only in those cases "where success

depends upon the existence of [a] secret espionage relationship with the government," or where

the government cannot openly "admit or deny [a] fact that [is] central to the suit." Id. at 1236-37.


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In Totten, the Supreme Court forbade the suit of a self-proclaimed Civil War secret agent

attempting to enforce the secret espionage agreement he claimed he had negotiated with President

Lincoln on the ground that "public policy forbids the maintenance of any suit in a court of justice,

the trial of which would inevitably lead to the disclosure of matters which the law itself regards

as confidential." See Totten v. United States, 92 U.S. 105, 107 (1876). See also Weinberger v.

Catholic Action of Ha./Peace Ed. Project, 454 U.S. 139, 146-47 (1981) (holding that whether the

Navy had complied with the National Environmental Policy Act (NEPA) with respect to its

storage of nuclear materials was "beyond judicial scrutiny"). In Tenet, the Supreme Court

applied the Totten bar to a suit brought by former Soviet double agents seeking to enforce their

agreement with the CIA, but made clear that the bar was not limited to contract actions, but

applies whenever a party's "success depends upon the existence of [a] secret espionage

relationship with the government." Tenet, 125 S.Ct. at 1236.

       It is debatable whether the Totten bar would apply to the present case. It is true that El-

Masri's allegations here concern the existence of several "secret espionage relationships"

between the United States and both certain foreign governments and the corporate defendants,

but it is also true that El-Masri himself was not a party to any of these secret espionage

agreements or relationships. There is, therefore, some doubt whether Totten speaks to the

circumstances at bar. In any event, because the valid assertion of the state secrets privilege

presents an adequate and independent ground for dismissal of this case, it is unnecessary to reach

and decide the applicability of the Totten bar to the facts of this case.


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        It is important to emphasize that the result reached here is required by settled, controlling

law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri's

complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual

allegations; they may be true or false, in whole or in part. Further, it is also important that

nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition

programs; it is not intended to do either. In times of war, our country, chiefly through the

Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable

and patriotic Americans are still free to disagree about the propriety and efficacy of those

exceptional steps. But what this decision holds is that these steps are not proper grist for the

judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly


        Finally, it is worth noting that putting aside all the legal issues, if El-Masri's allegations

are true or essentially true, then all fair-minded people, including those who believe that state

secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary

step to take in this war, must also agree that El-Masri has suffered injuries as a result of our

country's mistake and deserves a remedy. Yet, it is also clear from the result reached here that

the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the

Judicial Branch.

        Accordingly, and for the reasons stated from the bench,

        It is hereby ORDERED that the United States' claim of the state secrets privilege is


        It is further ORDERED that given the application of the privilege to this case, the United


  Case 1:05-cv-01417-TSE-TRJ             Document 51         Filed 05/12/2006         Page 17 of 17

States' motion to dismiss must be, and hereby is, GRANTED.

       The Clerk is directed to send a copy of this Order to all counsel of record and to place this

matter among the ended causes.

Alexandria, Virginia                                            T.S. Ellis, III
May 12, 2006                                                    United States District Judge


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