80 Temp. L. Rev. 489 (2007)
State Secrets Problem: Can Congress Fix It; Kinkopf, Neil

handle is hein.journals/temple80 and id is 497 raw text is: THE STATE SECRETS PROBLEM:
CAN CONGRESS FIX IT?
Neil Kinkopf
I. THE STATE SECRETS PROBLEM
Imagine that a United States citizen, in a case of mistaken identity, is
arrested while walking down the street and sent off to a black site run by the
Central Intelligence Agency (CIA) in Afghanistan. The citizen is interrogated,
given mind-altering drugs, and subjected to beatings, waterboarding, and other
forms of torture or cruel, inhuman, and degrading treatment. Finally, the CIA
determines that it has the wrong person, so the person is sent back to the United
States and left at the spot where he was first picked up. What legal recourse does
such a person have? The person's legal rights-constitutional and statutory-
have been egregiously violated. Nevertheless, because of the state secrets
privilege, there is little chance of securing any redress through the courts.
The scenario set forth above is only barely hypothetical. Khaled El-Masri
alleged essentially these facts in his lawsuit against the United States and various
federal officials.1 The district court dismissed El-Masri's lawsuit on state secrets
grounds, and the Fourth Circuit affirmed.2 The state secrets privilege is a
common law evidentiary privilege that allows the government to withhold
information, the disclosure of which would harm national security.3 The modern
articulation of the state secrets privilege is found in United States v. Reynolds.4
Reynolds sets forth a three-part framework for assessing state secrets privilege
claims. First, the claim must be made in a way that comports with procedural
requirements;5 second, the court must determine whether the information that
* Professor, Georgia State University College of Law.
1. El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, No. 06-1613, 2007 WL
1646914 (U.S. Oct. 9, 2007). Although EI-Masri's scenario is quite similar to the hypothetical, subtle
differences exist. Specifically, EI-Masri is not a U.S. citizen, nor was he detained or released in a U.S.
territory. Nevertheless, no court has held, and there is no reason to believe, that the plaintiff's
citizenship is relevant for the purposes of the state secrets privilege.
2. EI-Masri v. Tenet, 437 F. Supp. 2d 530, 541 (E.D. Va. 2006), affd sub non. EI-Masri v. United
States, 479 F.3d at 300, cert. denied, No. 06-1613, 2007 WL 1646914 (U.S. Oct. 9, 2007).
3. See United States v. Reynolds, 345 U.S. 1, 6-7 & n.11 (1952) (stating privilege against revealing
military secrets is well established in the law of evidence).
4. 345 U.S. 1 (1953).
5. The privilege is the government's, and the government must formally assert the privilege.
Thus, the assertion may neither be made nor waived by a private party. The assertion must be made
by the head of the department which has control over the matter, after actual personal consideration
by that officer. Reynolds, 345 U.S. at 7-8; see also El-Masri, 479 F.3d at 304 (summarizing first part of
framework for assessing state secret privilege claims).

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