Petitions to Watch: Conference of 10.5.07

The latest edition of “Petitions to Watch,” featuring highlighted petitions on the Court’s ‘paid’ docket up for consideration at Friday’s conference, is now available here. In addition to all certiorari-stage filings, the supplement now also includes downloadable PDFs of the opinions below.

To read the “Conference Call” feature in Legal Times, focusing on the petition in No. 06-1613, El-Masri v. United States, click here (subscription required) or continue reading below.

Conference Call: Supreme Court Asked to Define State Secrets Doctrine

Government used national security privilege to dismiss abduction and torture claims made by German citizen

By Ben Winograd

Khaled El-Masri’s allegations against the U.S. government have by now received media coverage worldwide. In early 2004, according to the German citizen of Lebanese parents, CIA agents flew him from Macedonia — where he had been held for three weeks as a suspected al-Qaida agent — to a secret prison in Afghanistan. Alongside other suspects in the CIA’s “extraordinary rendition” program, El-Masri alleges he was repeatedly beaten and interrogated but released five months later once officials realized he was not the al-Qaida suspect they originally had believed.

Even before El-Masri filed suit against his alleged captors in late 2005, his account had been printed in newspapers all over the world. But the question facing the Supreme Court at its private conference on Oct. 5 is whether the suit was properly dismissed under the “state secrets” doctrine on the ground that litigating his case would require the disclosure of witnesses and information that could pose a danger to national security. (The petition is El-Masri v. United States, 06-1613.)

Named in the original complaint — filed in the U.S. District Court for the Eastern District of Virginia — were former CIA Director George Tenet, three aviation companies and unnamed agents involved in the abduction. Before the defendants could answer, the United States intervened to dismiss the suit under the state secrets doctrine. The district court dismissed the case, and the U.S. Court of Appeals for the 4th Circuit unanimously affirmed, after reviewing a classified declaration from then-CIA Director Porter Goss that asserted the basis for the privilege.

In upholding the dismissal, the 4th Circuit reasoned that El-Masri could make his case “only with evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations,” and that he “would need to rely on witnesses whose identities . . . must remain confidential in the interest of national security.” Despite the widespread media attention that El-Masri’s case had already received, the 4th Circuit found that the public information did not include facts central to litigating his suit.

El-Masri’s petition for certiorari, filed by Ben Wizner of the American Civil Liberties Union, contends that both the ruling below and federal courts in general have strayed far from the Supreme Court’s opinion in U.S. v. Reynolds (1953), which formally recognized the state secrets privilege. In that case, the Court upheld the withholding of a flight accident report from the families of three civilians who died in the crash of a military plane.

Over time, and especially in recent years, the government has invoked the state secrets doctrine both with greater frequency and before reaching discovery, the petition states. As a result, the petition contends, “the privilege has become unmoored from its evidentiary origins,” and has been invoked “in a manner that seeks effectively to transform it from an evidentiary privilege into an immunity doctrine.”

Noting that the government has invoked the privilege in suits challenging wiretapping and data mining programs run by the National Security Agency, the petition urges the Court to resolve purported confusion among federal judges as to the level of scrutiny privilege claims should receive and whether lawsuits can be dismissed outright on the basis of the privilege.

As a practical matter, the petition argues that the government cannot invoke the doctrine when top-level officials — including Tenet, Secretary of State Condoleezza Rice and President George W. Bush himself — have confirmed the existence of the “extraordinary rendition” program. “As a matter of law and common sense, the government cannot legitimately keep secret what is already widely known,” the petition reads.

Opposing certiorari, the U.S. government’s brief — filed by Solicitor General Paul Clement — emphasizes that the CIA program has been publicly discussed only “at a high level of generality,” and that U.S. officials have never revealed the ways in which agents carry out renditions. “While there have been reports in the media and elsewhere about the allegations underlying this case,” the government’s brief says, “such media reports do not reflect the government’s official view and are not necessarily accurate.”

The government also contests El-Masri’s assertion that courts should rarely, if ever, dismiss cases at the pleading stage on the basis of state secrets. “There is no logical basis for petitioner’s assertion that cases may not be dismissed before discovery even if it is evident at the outset that they could not proceed to judgment without recourse to state secrets,” Clement argues, stating that “[s]uch litigation not only would be pointless, but would threaten the disclosure of the very privileged information that the state secrets privilege is designed to protect.”

For statistical support, the government’s brief cites a forthcoming article in the George Washington Law Review reporting that courts made nearly two dozen pleading stage dismissals from 1973 through 2000 under the state secrets privilege. The article’s author, professor Robert Chesney, also concluded that “[t]he available data do . . . not support the conclusion that the Bush administration chooses to resort to the privilege with greater frequency than prior administrations or in unprecedented substantive contexts,” according to the brief.

The Supreme Court could announce as early as October 9 whether it will hear El-Masri’s case.

Other cases up for review include the following:

06-1535, Hudson v. Spisak (CA6)
Whether the Eighth Amendment prohibits instructions to a capital jury that its sentencing verdict must be unanimous, unless the jurors are also instructed that they need not unanimously agree on the existence of any one particular mitigating factor in weighing whether to impose a death sentence.

07-9, Johnson v. United States (1st Circuit)
Whether the stand alone concurrence of Justice Anthony Kennedy or the narrower opinion of the four-justice plurality is the controlling opinion in Rapanos v. United States, 126 S. Ct. 2208 (2006).

07-19, Department of the Army v. Kirkendall (Federal Circuit)
Whether the 15-day statutory time limit for filing an appeal with the Merit Systems Protection Board from a decision of the secretary of labor denying a complaint under the Veterans Employment Opportunities Act of 1998, 5 U.S.C. 3330a(d), is subject to equitable tolling.
07-72, Coloian v. United States (1st Circuit)
Whether a federal district court has inherent or ancillary jurisdiction to expunge judicial criminal records based on equitable considerations.

07-94, Middleton v. Trustees of the S. California Bakery Drivers Security Fund (9th Circuit)
Whether, under ERISA, plan assets used to purchase a product or service from an independent third party may retain their characterization as plan assets after being paid to that third party pursuant to a contract, and whether contributions made to a multi-employer employee welfare plan on behalf of a particular group of plan participants may not be used for the benefit of other plan participants.

07-138, Microsoft v. Odom (9th Circuit)
Whether an association-in-fact “enterprise” under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, must be an organization with an ascertainable structure separate and apart from that inherent in the alleged pattern of racketeering activity, and whether a group of corporations can constitute an association-in-fact RICO enterprise.

07-142, Memorial Day Weekend Salute to Veterans Corp. v. Wickersham (8th Circuit)
Whether non-governmental organizers of public events and festivals — here, a Memorial Day air show — may qualify as “state actors” under 42 U.S.C. § 1983.

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