Abuse of Presidential Power and the Ghost of Nixon

| Tue Oct. 9, 2007 3:57 PM EDT

The Supreme Court today refused to hear the appeal of German citizen Khaled El-Masri, who was contesting a March decision by the Fourth Circuit Court of Appeals to dismiss his lawsuit against the CIA. El-Masri alleged that in 2004 he was kidnapped by the CIA and rendered to a secret prison in Afghanistan, where he was tortured.

The Court's refusal to hear the case affirms the decision of the Appeals Court, which ruled against El-Masri on the grounds that allowing him to seek judicial redress would expose state secrets. The court's opinion relied heavily on the precedent of United States v. Reynolds—the 1953 case that legally enshrined the State Secrets Privilege. Though not based in the Constitution, the Reynolds precedent allows the government to withhold evidence from a legal case if its disclosure would endanger national security—a privilege most notably invoked by Richard Nixon and George W. Bush.

In Reynolds, the Court held that the widows of three Air Force contractors who died in a 1948 crash could not be compensated, because litigating the case would expose military secrets. But in 2000, the documents related to the crash were declassified, revealing that what the military sought to conceal was not in fact a state secret, but instead evidence of the Air Force's culpability in the men's deaths. The Court ruled without ever seeing these documents, since they were, at the time, classified.

Anyone else see the legal Catch-22 here? The El-Masri decision is less about national security than it is about the President's right to invoke the privilege of state secrets. Without judicial process, we'll never know if that claim is legitimate or lawful. Before dismissing El-Masri's case, the Court might have looked to another old opinion, also cited in the March ruling of the Appeals Court:

Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

That was United States v. Nixon—the famous Watergate decision in which the court ruled unanimously to limit Presidential power.

—Casey Miner