State Secrets and the Limits of National Security Litigation
By Robert M. Chesney, February 8, 2012
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The state secrets privilege has played a central role in the Justice Department’s response to civil litigation arising out of post-9/11 policies, culminating in a controversial decision by Judge T.S. Ellis concerning a lawsuit brought by a German citizen – Khaled El-Masri – whom the U.S. allegedly had rendered (by mistake) from Macedonia to Afghanistan for interrogation. Reasoning that the entire aim of the suit is to prove the existence of state secrets, Judge Ellis held that the complaint had to be dismissed in light of the privilege. The government also has interposed the privilege in connection with litigation arising out of the NSA’s warrantless surveillance program, albeit with mixed success so far._
