## Facts

- Khaled El-Masri, a German citizen, alleged he was mistakenly targeted in the CIA’s “extraordinary rendition” program.
- He claimed that while traveling from Germany into Macedonia on December 31, 2003, Macedonian officials detained him, held him incommunicado for 23 days, and interrogated him about terrorism.
- He alleged Macedonian authorities denied him contact with his family, the German Embassy, and counsel, and pressured him to confess to terrorist membership.
- He claimed that around January 23, 2004, he was transferred to CIA custody, subjected to physical abuse, restrained and sedated, and flown to Afghanistan.
- He alleged he was confined and interrogated in a CIA-run detention facility in Afghanistan, repeatedly sought access to German officials, and was refused.
- He claimed U.S. personnel later acknowledged his detention was a mistake but that authorization for release required approval from Washington.
- He alleged he was released without charges on May 28, 2004, transported to Europe, and returned to Germany.
- In December 2005, he sued former CIA Director George J. Tenet, unidentified CIA personnel, and corporate aviation entities allegedly involved in transportation, asserting constitutional and common-law tort claims.
- The United States intervened solely to invoke the state-secrets privilege and moved to dismiss, asserting the litigation could not proceed without risking disclosure of classified national-security information.

## Issues

1. Whether the state-secrets privilege was properly invoked to protect information whose disclosure would pose a reasonable danger to national security.
2. Whether the privilege required dismissal at the pleading stage because the alleged rendition and detention activities were so central to the claims and defenses that litigation would present an unacceptable risk of disclosure.
3. Whether alternative procedures (e.g., in camera proceedings, protective orders, or security-cleared counsel) could permit adjudication without revealing protected information.

## Decision

- The Fourth Circuit affirmed the dismissal of the complaint.
- The court held the state-secrets privilege was properly asserted and that the case had to be dismissed because privileged matters were central to the subject matter, claims, and defenses.
- The court concluded that litigating whether and how the alleged operations occurred would risk disclosing classified intelligence methods, sources, relationships, and covert operational details.
- The court rejected proposed substitutes for open litigation, determining that protective mechanisms could not eliminate the disclosure risk where the “very subject matter” required classified confirmations or denials.
- Certiorari was denied, leaving the Fourth Circuit’s judgment intact.

## Legal Principles

- The state-secrets privilege permits the government to withhold information from discovery when disclosure would pose a reasonable danger to national security.
- The privilege can be case-dispositive when the subject matter of the litigation, or the evidence necessary to prove or defend the claims, is inseparable from protected secrets.
- Dismissal is required when proceeding would either (a) force disclosure of privileged information or (b) unfairly prevent a defendant from presenting valid defenses that depend on privileged information.
- Public discussion or partial public information about alleged intelligence activity does not eliminate the privilege where the essential facts needed for adjudication remain classified.
- Courts may not employ procedural alternatives that would effectively compel confirmation or denial of classified facts, even through in camera or ex parte proceedings, when the risk to national security remains unacceptable.

## Conclusion

The Fourth Circuit held that the suit could not be litigated without risking disclosure of classified intelligence operations and therefore must be dismissed under the state-secrets privilege, even though the allegations involved serious asserted misconduct and personal harm.


El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007)