An Old, Unpublished Oped on a Still-Timely Idea

By Benjamin Wittes
Sunday, October 31, 2010, 10:08 AM

Speaking of Steve Aftergood, a few months ago over lunch, Steve and I had a lengthy discussion of the state secrets privilege and the problems its use creates in situations of genuine harm and government error. I mentioned to him an oped that I had written a few years ago with David Rivkin and Lee Casey on the subject, which had been serially rejected by major newspapers nationwide. Steve was enthusiastic about the piece when I later sent it to him, and he encouraged me to find an outlet for it. Though none was available at the time, writing my earlier post about Steve's work on the intelligence budget reminded me that I can now just post it on Lawfare. So with David's and Lee's permission, here it is.

Mistakes are inevitable in war.  Targeting decisions turn out to be wrong or civilians are caught in the crossfire.  When innocents get injured and their lives or property get destroyed, the law of war calls this “collateral damage” and does not require compensation.  The United States Armed Forces, however, often offer compensation anyway.  Indeed, in Iraq and Afghanistan, soldiers sometimes hand out cash--an integral part of the Pentagon’s effort to win local hearts and minds--at or near the time and place the damage was inflicted.  It is time to extend this sensible and humane policy of admitting mistakes and making compensation to other aspects of the conflict with Al Qaeda, especially with regard to the government’s detention, interrogation and “rendition” policies.

Although claims by some Guantanamo Bay critics that most of the al Qaeda and Taliban fighters held there are innocents can be dismissed as fanciful, some men clearly have been detained by mistake--sometimes for years.  The government’s own review process has found 38 cases in which it euphemistically termed detainees “no longer enemy combatants.”  Similarly, there have been well-publicized incidents involving individuals taken into custody, held for a time or transferred to other countries, by mistake. They claim to have been mistreated, and those claims may well be true. The most well-known such cases involve Maher Arar and Khaled el-Masri.

Arar is a dual Canadian-Syrian citizen who was detained in New York’s JFK Airport because his name appeared on an al Qaeda watch list. The government sent him to Syria (by way of Jordan), where security forces allegedly tortured him; only after ten month captivity in exceptionally harsh conditions was the Canadian government able to secure his release. El-Masri, a German national of Lebanese extraction, was seized by authorities in Macedonia and turned over to the CIA. He appears to have been flown to Afghanistan where he was interrogated and, allegedly, tortured by U.S. personnel. After a four month confinement, Masri was returned to the Balkans and left on hillside in Albania, where he was picked up by Albanian authorities and returned to his home in Germany. Secretary of State Rice has reportedly informed German Chancellor Angela Merkel that this was, in fact, a mistake.

A somewhat different case involves an American lawyer living in Portland, Oregon, named Brandon Mayfield. The FBI detained Mayfield, a convert to Islam, believing him connected to the March 11, 2004, bombings in Madrid, Spain. Agents had misinterpreted fingerprint evidence collected by Spanish authorities. Mayfield was held for two weeks, part of the time in a psychiatric ward.

Each of these individuals, along with several others, has attempted to obtain compensation through civil actions--against the government and individual officials. Only Mayfield has succeeded, securing a settlement in excess of $2 million and an apology from the government. Arar’s and Masri’s claims have been dismissed--the Supreme Court has rejected just this week Masri’s petition for review--based on a legal doctrine counseling courts to stay out of cases where the government asserts that litigation will impair important foreign policy and national security interests.  The “states secrets” privilege stands as a particular impediment to such actions and makes voluntary government action all the more important.

The states secret privilege requires a court to dismiss a civil claim against the government when litigation can reasonably be expected to reveal military, diplomatic or intelligence secrets and those secrets are so central to the case that it cannot fairly proceed without that information. While reasonable people differ about how deferentially the courts should invoke it, it is old and venerable, dating in American practice at least to Aaron Burr’s treason trial in 1807, and had even earlier precedents in British law.

At the same time, its application--however appropriate--to cases where the government made serious mistakes results in the appearance of injustice and sometimes its reality as well.  As the United States Appeals Court sitting in Richmond Virginia explained in dismissing el-Masri’s claims on state secret grounds, the privilege requires that the plaintiffs “personal interest in pursuing his civil claim [be] subordinated to the collective interest in national security.”  While we accept this point of legal doctrine, it can be morally problematic. Where an individual member of society must bear an inordinate share of the costs of the general good, compensation should be forthcoming.  This principle is reflected in a number of well-established practices, including the payment of compensation when somebody’s property has been taken for a public purpose.

Even where compensation is possible through protracted litigation, as in Mayfield’s case, the government ought to take responsibility preemptively. Where it has egregiously messed up and encumbered someone’s liberty, it ought to apologize on its own and offer generous settlements in advance of any litigation.

A quick, effective compensation system would not be difficult to create. First and foremost, when the government has made a mistake, it should openly and publicly apologize, even where the particular victim may not be an entirely laudable character. Second, it should make some form of reasonable compensation available with as little red tape as possible. One possibility would be to permit the United States Court of Federal Claims to consider claims under a streamlined process largely directed at assessing the damage suffered, rather than the underlying circumstances, where state secret issues would be most likely to arise. Another option would be to establish a claims office or commission that would perform the same service.

Publicly taking responsibility for its errors would not hamper the government’s efforts against terrorists but enhance them. In a conflict in which the government takes many actions in secret and asks for trust, public confidence that inevitable mistakes will not be swept under the rug is essential to maintaining that trust. Apologies go a long way. They are also the right thing to do.