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Bush's Legal Club: 'State Secrets'; Why Won't Liberals like Justice Stevens Act?

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This is the first of two columns on the Bush administration's abuse of the "state's secrets" doctrine.

Since so many American youngsters are left behind in their knowledge of Supreme Court history, the constitutional clarity and courage of the late Justice Wiley Rutledge is unknown to them. But one of his former clerks, John Paul Stevens, now himself a Supreme Court Justice, has quoted Justice Rutledge on due process being our greatest protection against unbridled power. Yet on Oct. 9, Justice Stevens was silent when once more the Bush administration used the club of "state secrets" to prevent a case from even being heard.

Appealing to our court of finality, a German citizen, Khaled el-Masri, was asking for damages after having been abducted by the CIA in 2004 to a secret prison in Afghanistan, where he was beaten and tortured repeatedly for five months. He was suddenly released because, as German Chancellor Angela Merkel says Condoleezza Rice told her, the CIA had kidnapped the wrong man as a suspected terrorist. (We haven't even said we're sorry.) Mr. el-Masri's ordeal - from which he is far from recovered psychologically - is widely known in Europe and elsewhere in the world. It has further shamed the United States for its CIA "renditions," again recently approved by the president.

Yet, when the American Civil Liberties Union took Mr. el-Masri's case to the Supreme Court, not even the four justices necessary to have his case reviewed, including Justice Stevens, said a word. The court cut Mr. el-Masri off from any chance of justice in this country, which, as the president keeps pledging, adheres to all U.S laws and international treaties. (He omits those steamrolled by the CIA in this criminal kidnapping.) Our highest court bowed low to the Bush administration's invoking of the "state secrets" privilege. It warned this land's national security would be compromised by any revelations of why and how the CIA, under authorization of the president, had been responsible for Mr. el-Masri's current commitment to a psychiatric institution in Germany.

Solicitor General Paul Clement, in the government's brief to the Supreme Court, insisted that American officials have never revealed the super-secret ways in which CIA agents plan and conduct these renditions. But I have hundreds of documented pages detailing those methods from reports by human rights organizations and such heavily footnoted books as Stephen Grey's "Ghost Plane: "The True Story of the CIA Torture Program" (St. Martin's Press, 2006).

There are also specific accounts by victims of this American way of torture and an extraordinarily detailed report on CIA secret prisons in Europe also part of our torture program, from the Council of Europe. …