Now official: the right not to be imprisoned without legal process, guaranteed by the Constitution, is unenforceable when evidence in the case is deemed a state secret. That’s the implicit message of the U. S. Supreme Court in declining to review the judgment in El-Masri v. United States. El-Masri sued for damages, claiming he was imprisoned and tortured by U. S. officials in violation of our laws. The government got the case dismissed without a trial on the claim that the evidence was a state secret. The high court refused without comment to disturb that ruling.
In foreclosing the fundamental right not to be deprived of liberty without due process of law, the Supreme Court has effectively repealed the rule of law itself. The power to imprison people permanently, beyond the reach of legal review, is an indispensable tool of tyranny. In liberating the lower courts from any lingering doubt that the government has this power–the state secret privilege derives from a single case decided 54 years ago–this ruling gives a boost to totalitarians the world over.
The court’s silence on this case leaves a gaping logical breach in the rationale for a state secret privilege. Since the high court recognized the privilege in 1953, it’s been used repeatedly to cover up official malfeasance. These days, the privilege is invoked as a matter of routine against victims of violence at the hands of military and civilian agencies. The laws now seem to hold that wrongful, injurious acts committed in furtherance of war or espionage are by definition state secrets. The worst acts that a government can commit against a person–the ones committed clandestinely and illegally–are rendered legal by this privilege, as it is applied today.
Also worth noting: if the government can take your liberty without legal process, they can also take your life and property, which are part of the same “due process” clause that the high court refused to enforce. Officials of our government now have the same right to jail and murder you and confiscate your belongings as the Gestapo once had over citizens of the Third Reich. Tell your survivors not to bother bringing suit. The evidence will be a state secret.
The justices who voted not to hear the case will see their treachery justly rewarded, just as the judicial facilitators of Nazism did. If the government is not bound by laws, neither are the people. Eventually, we turn out lawless governments by whatever means are available to us, and this government will be no exception. It might take a generation–the last revolution did–but it will get done. Oil the hinges in the gallows floor.