What is a Secret

During yesterday's American Constitutional Law lecture, I spent a good deal of time discussing the concept of separation of powers, and I noted that the Bush Administration has taken actions over the past several years that raise significant questions about the balance of power in the U.S. government. While these battles between the branches don't receive a great deal of attention here in Germany, one particular case has: the case of Khaled El-Masri, a German citizen who was "kidnapped" by the CIA as part of the Bush Administration's extraordinary rendition program. This case nicely illustrates the interplay between the three branches of government when it comes to something as sensitive as national security.

El Masri's case was dismissed by a federal court because the government claimed his lawsuit involved state secrets. As the Washington Post noted in an editorial earlier this week:

IN RECENT YEARS, a number of possibly deserving litigants have been denied their day in court after the Bush administration claimed that too many secrets would be spilled in an open trial. The cases of people who alleged they were subjected to illegal eavesdropping or were handed over to a foreign country in an "extraordinary rendition" have been fended off in this way.

But now Congress is trying to change this by passing a law that would allow courts to look more closely at the state secrets defense that has been raised in these cases. This is a classic example of one branch (Legislative) trying to place limitations on another branch (Executive) by giving the third branch (Judiciary) more power to check government actions. Whether Congress has the power to do this will be a topic we will address next week.