Remember Checks And Balances? (TomPaine.com)

[marmar]

Remember Checks And Balances?
Sharon Bradford Franklin
June 25, 2007


Sharon Bradford Franklin serves as senior counsel at the Constitution Project, an independent think tank in Washington, D.C.

Khaled El-Masri, a German car salesman and father, was on vacation in Macedonia when he was detained by local authorities. According to his sworn declaration, he was later transferred to U.S. authorities, and then beaten, sexually assaulted, drugged and transported to a CIA-run “black site” in Afghanistan. For almost five months, Mr. El-Masri was interrogated and held in a squalid cell without charges. Then, he was abandoned, blindfolded and alone, on a desolate Albanian hilltop more than a month after the CIA realized they had been holding the wrong man.

Although Mr. El-Masri subsequently filed suit seeking to hold U.S. officials accountable for their actions, thus far the U.S. government has refused either to confirm or deny any of his allegations. Rather, his case against the U.S. government was dismissed after the government asserted the “state secrets privilege,” suppressing any evidence or testimony that might have been used to litigate his claim. He is now seeking to appeal his case to the U.S. Supreme Court.

The executive branch has relied upon the state secrets privilege to claim that the disclosure of certain evidence in court would jeopardize national security, and therefore cannot be reviewed by private parties, the attorneys or even the judge. As one might expect, without this evidence cases are usually dismissed.

The Supreme Court first recognized this privilege in 1953 in United States v. Reynolds, when it denied the widows of three civilian Air Force contractors access to an accident report. The Air Force had claimed that the report was confidential, noting that the personnel aboard the plane “were engaged in a highly secret mission of the Air Force.” When the report surfaced decades later, it became clear that the only sensitive information therein was evidence of negligence by the Air Force that may have caused the men’s deaths. The lower courts in Reynolds had ordered that the government submit the accident report to the trial court, so it could assess whether the document in fact contained state secrets that could not be disclosed. But the Supreme Court overruled this determination. Sadly, this Supreme Court precedent permitting the executive branch to assert the state secrets privilege without any independent review of the evidence still stands, and judges continue to give the Executive an alarming degree of deference when this privilege is invoked.

The Constitution Project recently brought together a broad, bipartisan coalition of political leaders, policy experts and legal scholars in calling for reform of the privilege. Our Report on the State Secrets Privilege urges Congress or the Supreme Court to clarify the narrow and qualified scope of this privilege so that cases like Mr. El-Masri’s can be litigated. ......(more)

The complete piece is at: http://www.tompaine.com/articles/2007/06/25/remember_checks_and_balances.php

[MasonJar]

1. Do NOT expect this Pug Supreme Court to decide against W. If

it did the floodgates would open in a tsunami.