Supreme Court Refuses Torture Case

Khaled el Masri poses for a photo in Stuttgart, Germany in this Dec. 6, 2005 file photo. The Supreme Court on Tuesday, Oct. 9, 2007, terminated a lawsuit from a man who claims he was abducted and tortured by the CIA, effectively endorsing Bush administration arguments that state secrets would be revealed if the case were allowed to proceed. El-Masri, 44, alleged that he was kidnapped by CIA agents in Europe and held in an Afghan prison for four months in a case of mistaken identity . (AP Photo/Thomas Kienzle, File) (Thomas Kienzle - Associated Press)

President Bush has repeatedly defended the policies in the war on terror, saying as recently as last week that the U.S. does not engage in torture.

El-Masri's lawsuit had been seen as a test of the administration's legal strategy to invoke the doctrine of state secrets and stop national security suits before any evidence is presented in private to a judge. Another lawsuit over the administration's warrantless wiretapping program, also dismissed by a federal court on state secrets grounds, still is pending before the justices.

Conservative legal scholar Douglas Kmiec said the Bush White House uses the doctrine too broadly. "The notion that state secrets can't be preserved by a judge who has taken an oath to protect the Constitution, that a judge cannot examine the strength of the claim is too troubling to be accepted," said Kmiec, a law professor at Pepperdine University.

The court has not examined the state secrets privilege in more than 50 years.

A coalition of groups favoring greater openness in government says the Bush administration has used the state secrets privilege much more often than its predecessors.

At the height of Cold War tensions between the United States and the former Soviet Union, U.S. presidents used the state secrets privilege six times from 1953 to 1976, according to OpenTheGovernment.org. Since 2001, it has been used 39 times, enabling the government to unilaterally withhold documents from the court system, the group said.

The state secrets privilege arose from a 1953 Supreme Court ruling that allowed the executive branch to keep secret, even from the court, details about a military plane's fatal crash.

Three widows sued to get the accident report after their husbands died aboard a B-29 bomber, but the Air Force refused to release it claiming that the plane was on a secret mission to test new equipment. The high court accepted the argument, but when the report was released decades later there was nothing in it about a secret mission or equipment.

The case is El-Masri v. U.S., 06-1613.

___

Associated Press Writer Thomas Seythal in Frankfurt, Germany, contributed to this story.