Secrecy Privilege Invoked in Fighting Ex-Detainee's Lawsuit

washingtonpost.com
Secrecy Privilege Invoked in Fighting Ex-Detainee's Lawsuit
By Dana Priest
Washington Post Staff Writer

For at least the fifth time in the past year, the Justice Department yesterday invoked the once rarely cited state secrets privilege to argue that a lawsuit alleging government wrongdoing should be dismissed without an airing, this time in the case of a German citizen seeking an apology and monetary compensation for having been wrongfully imprisoned by the CIA.

Assistant U.S. Attorney R. Joseph Sher said yesterday in the U.S. District Court for the Eastern District of Virginia that the government cannot confirm or deny the allegations made by Khaled al-Masri, who sources have said was held by the CIA for five months in Afghanistan. His allegations, Sher contended, "clearly involve clandestine activity abroad." Therefore, he said, "there is no way that the case can go forward without causing the damage to the national security."

Ben Wizner, an American Civil Liberties Union lawyer representing Masri in his lawsuit against former CIA director George J. Tenet and 10 unnamed CIA officials, said "the government is moving to dismiss this case at the outset on the basis of a fiction: that discussion in this courtroom of the very same facts being discussed throughout the world will harm the nation." Granting the motion, he argued, would amount "to giving a broad immunity to the government to shield even the most egregious activities."

He noted that the case has received extensive public attention. Masri's detention has been cited by the German chancellor, acknowledged by State Department and intelligence officials speaking on the condition of anonymity, and partially verified by German prosecutors and the European Parliament.

U.S. District Judge T.S. Ellis III said he will issue a ruling soon.

The state secrets privilege, created in the 1950s during the Cold War, allows the federal government to urge courts to dismiss legal cases that it asserts would damage foreign policy or national security. The courts have usually accepted the government's request.

The state secrets privilege was invoked about 55 times from 1954 to 2001, according to the Reporters Committee for Freedom of the Press, and in the first four years after the Sept. 11, 2001, attacks, it was invoked 23 times.

In April, the government invoked the state secrets privilege in an attempt to block a lawsuit against AT&T and the National Security Agency brought by the Electronic Frontier Foundation. The EFF alleges that the government has secret computer rooms within AT&T's buildings for conducting broad, illegal surveillance of U.S. citizens.

Masri, a German citizen of Lebanese descent, was arrested by police in Macedonia in December 2003 because his name was the same as that of another man suspected of terrorist links, and because Macedonian police believed he was carrying a false passport, according to former and current intelligence officials and U.S. diplomats.

He was held for five months largely because the head of the CIA's Counterterrorist Center's al-Qaeda unit "believed he was someone else," a former CIA official said last year.

This year, German investigators confirmed most of Masri's allegations, which have received extensive publicity in Europe.

In December, during a joint news conference with Secretary of State Condoleezza Rice, German Chancellor Angela Merkel said Rice had admitted the mistake. Rice declined to comment on the Masri case but said she told Merkel that "when and if mistakes are made, we work very hard . . . to rectify them."

Rice aides told reporters later that she had not admitted an error, but a senior administration official traveling with Rice confirmed that U.S. officials had previously informed the Germans that Masri was released because the intelligence was insufficient to justify his detention.

In a declaration filed in the Masri lawsuit, outgoing CIA Director Porter J. Goss said the secrecy was needed "to protect classified intelligence sources and methods from unauthorized disclosure."

Wizner argued that the court could limit the lawyers' "discovery" of facts to protect state secrets.

Goss's statement, however, said that such "special procedures are not adequate to protect these sensitive matters" but that the reasoning "cannot be described in the public record."

Researcher Julie Tate contributed to this report.