The Bush administration argues that the case of Khaled al-Masri, who seeks an apology and monetary compensation for having been kidnapped by the CIA because they thought he was someone else, should be dismissed out of respect for the state secrets privilege. This is, of course nonsense. They argue that discovery would cause disclosure of classified intelligence sources and methods. If true, dismisal would clearly be the wrong remedy for the problem.
It is also possible for the US to concede that is to choose not to present a defence of its indefensible actions. In this case, al-Masri can tell the judge what he wants and the judge will accept it as fact and decide on appropriate compensation. Since al-Masri was clearly wronged by the US, this would be a fair outcome. There is no legal obligation to defend the indefensible.
I am not a lawyer. I think there is this option because Alan Dershowitz claimed that Clinton could have avoided the very inconvenient discovery of facts allegedly related to (in fact irrelevant to) the case of Jones vs Clinton by conceding. Such a concession is not in any way a concession. He could say that her claims were false but he was too busy to bother with them, as he said in requesting court imposed delay (not dismissal). The cost to Clinton would have been a tiny fraction of his legal bills.
In the case of Al-Masri, the cost would be to make, for once, an honest woman of Rice. She claims she told Angela Merkel that "when and if mistakes are made, we work very hard . . . to rectify them." As it stands, we are using outrageous claims of the priviledge to keep any act committed by CIA agents secret to avoid rectifying a n act which was not just a mistake but also a crime. Why is the US contesting a case in which it is clearly in the wrong ?
Also note that Rice's version of what she said to Merkel is contested by Merkel who claims that Rice admitted that a mistake was, indeed, made. Merkel's version is confirmed by an anonymous source. The fact that Rice chose to lie about what she revealed does not imply that she did in fact reveal the alleged secret which is now publicly known. Thus the any possible minor damage to US interests caused by revelation of the kidnapping has already been added to the huge damage to US interests caused by the kidnapping itself.
The no liability for clandestine operations exception which the Justice Department is attempting to create would, as noted by Ben Wizner, amount "to giving a broad immunity to the government to shield even the most egregious activities." Howsabout the CIA decides that rest and recreation for CIA agents should be financed by robbing banks? That operation would clearly be covert. It would be neither more nor less criminal than kidnapping an innocent man without any evidence to speak of. Or for a non hypothetical example, how about the Iran-Contra business. That was clearly a covert operation which the executive attempted to keep secret. Should charges against North Poindexter et al have been dismissed to protect the secret ?
The US justice department is, as usual, saying that the US executive should be above the law, since they argue that if someone in the executive decides to call an operation covert then no one can be held liable. posted by Robert
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