JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the dismissal of Khalid el-Masri's rendition appeal on state secrets grounds leaves him without right or remedy, just like the iconic Joseph K. in Franz Kafka's The Trial, a legal and personal powerlessness which might have been expected under various historically-notorious regimes, but not in the United States of America…

The U.S. Court of Appeals for the Fourth Circuit in a unanimous decision has dismissed the action of Khaled el-Masri asserting claims related to his extraordinary rendition. The basis of the dismissal is the state secrets doctrine.

This decision presents us with the lawlessness of the internal law situation we have. The Executive cannot be criminally prosecuted domestically (above a few low level soldiers – Abu Ghraib – or CIA interrogators – Passarro) for its acts because it controls the federal prosecutors. If the Executive charges someone in court, then as a defense the person can seek to have evidence of horrible treatment brought in but will be confronted with the state secrets doctrine (see Padilla). If the Executive charges the person in a military commission the evidence issues again will come up against the state secrets doctrine (watch Hicks). If the person injured brings a civil suit as did el-Masri, the Fourth Circuit has told us that the state secrets doctrine will be allowed to trump and dismissal will occur.

On the international plane, el-Masri can seek to have the German government raise his claims in a state to state manner with the United States by having his claims espoused by his government. However, if he does that it is expected that the state-to-state solution, if it does occur, will be binding on him. His claim will fall into the pile of issues that impact US-German relations. One poor schmuck in that situation is not usually considered very important. Secretary of State Rice has apparently apologized to Germany and if Germany accepts that as the remedy, that appears to be all that el-Masri can get – an apology to his country for the treatment that happened to him. The United States has not apologized to el-Masri. El-Masri might sue other countries that allowed this to happen and maybe even Germany but would be unable to get relief from the principal cause of his injury – the United States.

Obviously the state secrets doctrine is one of the tools the US courts use to balance liberty and security concerns. The problem is that there appears to be absolutely no limit in our courts as to what kind of lawless executive behavior will be allowed to pass without judicial scrutiny as a matter of internal US law. The 4th Circuit understands in its opinion the gravity of what it is doing. Yet, it does not display the judicial will as a coequal branch of government to do otherwise.

A report by the Council of Europe of June 2006 concluded that el-Masri's account of having been abducted and mistreated was substantially accurate. This type of public information, it would seem to me, is not frivolous but raises a strong case for a need for the judiciary in the United States to allow a much closer look in a US court of law of the actions taken by the United States. In a setting where the person concerned is 1) not a national of a country hostile to or in armed conflict with the United States and 2) where credible corroborative evidence is present of official executive misconduct that violates fundamental domestic and international law in the treatment of human dignity, it would seem that the judiciary might wish to do its job of protecting us all by requiring an appropriate hearing of the claims.

This kind of limitation on the state secrets doctrine should be fashioned as part of the doctrine itself. Doctrines like this have in the background, I believe, an implicit assumption that the Executive is going to act within a lawful framework. There may be situations where the doctrine would "cover" some lawless conduct in a case by case type of analysis also – the tendency to err on the side of protecting state secrets is a reality. However, the judiciary might accept its task of stricter scrutiny when the level of official misconduct of the United State that is alleged with substantial evidence is of such an egregious nature, corroborated by independence sources, and goes to fundamental human/humanitarian rights.

While there are concerns about what the defense might have to bring forward as part of its defense, it seems to me that this is much like the child who killed his parents asking for mercy from the court as he is an orphan. I have faith that our judiciary can find a way to help this process work so that the truth – yes the truth can come out and justice be done and be seen to be done.

One argument that might be made is that the Inspector General system is the solution. This approach is simply not true. The Inspector General process will provide a report but that is it. The Executive retains total discretion so these reports (whatever the eloquence of the arguments) will not by themselves lead to any action.

Another argument is that the Congressional oversight should be able to address these situations. It is true that a Congressperson could introduce legislation to provide an apology and compensation to el-Masri for his ill treatment at the hands of the United States. But, just like the weakness of will in all those years in which Congress failed to enact an anti-lynching law (with the Senate finally apologizing about that recently), I do not expect that kind of statesmanship from Congress. Further, the issue of Congressional complicity in the whole extraordinary rendition program is something that the Congressional leaders – Democrat or Republican – would be reluctant to have aired I would imagine. So once again, there is no room at the inn for a schmuck like el-Masri – an alien truly abroad.

Not providing some mechanism in the United States for addressing this kind of official misconduct ordered at higher levels places us in the unfortunate situation of being an emperor with no clothes as regards our commitments.

Moreover, the person who has been treated this way, who is innocent, who is the iconic Joseph K., finds in the United States the exact type of trial of which Kafka wrote. Such a person can look to the left or to the right, to those above or around him, to all the powers that be, and the message that keeps coming back is that he has no rights which we will recognize. That is a recipe from Dred Scott for objectification of the human being that I thought we had long since transcended. Put another way, el-Masri ends up being just a poor schmuck that the judiciary will not hear. That might be fine in Pinochet's Chile, Argentina under the generals, or Soviet-era Russia, but it is not fine today, now, in the USA. Shame on us.

Benjamin Davis is a professor at the University of Toledo College of Law
——–