The arguments made in the Ghailani case are a good indication of the kinds of claims that the suspected co-conspirators of the 9/11 terrorist attacks may make when their case begins in the same federal courthouse next year. The government’s response in this case similarly reveals how it’s likely to oppose any moves to dismiss the 9/11 cases.

The government’s argument in the Ghailani case can be summed up as: 1) it’s Ghailani’s own fault for being a fugitive before Sept. 11, 2001, while his co-conspirators all got prompt trials in New York; and 2) after the 9/11 terrorist attacks, the need for intelligence trumped all, and the speedy trial requirement got thrown out the window.

The way the government explains is it is somewhat more artful. After 9/11, the United States was at war. So Ghailani, who’d previously been charged as a civilian criminal along with other suspects, who were tried and convicted earlier in 2001, was suddenly transformed into a war criminal. And that changed all of the rules.

Given the threat of another major terrorist attack after 9/11, “the Government had shifted dramatically toward intelligence-gathering as the primary means to prevent such an attack.” When Ghailani was captured in 2004, “the defendant was believed to have, and in fact did have, actionable intelligence about al Qaeda — by virtue of his longstanding position in al Qaeda, his assistance to known al Qaeda terrorists” and his alleged ongoing relationship with Osama bin Laden.

Of course, none of these relationships had actually been proven by the time the government captured Ghailani, since he hadn’t had any sort of trial. But the government’s argument is that because he was believed to have information about al-Qaeda, it was justified in detaining him in a CIA prison, and then at the prison camp at Guantanamo Bay for another five years.

“In light of these extraordinary circumstances, the Government justifiably opted to initially treat the defendant as an intelligence asset,” the government writes.

The details of Ghailani’s imprisonment and interrogation by the CIA are all redacted in the government’s brief. But in the brief asking the court to dismiss the case, Ghailani’s lawyers argue that he was physically and psychologically abused during two years of overseas CIA imprisonment and interrogations at places where techniques “amounting to torture” had been authorized. Ghailani was also denied the right to a lawyer.

Ghailani was eventually charged in 2008 by the military commissions, but that proceeding was stalled after President Obama took office. Ghailani’s case was transferred to a civilian federal court in May.

“We respectfully submit that this case presents possibly the most unique and egregious example of a speedy trial violation in American jurisprudence to date,” Ghailani’s lawyers wrote in their brief.

The right to a speedy trial derives from the Sixth Amendment to the U.S. Constitution. The Supreme Court, however, said in a 1972 case that judges should weigh several factors in deciding whether the right had been violated, including the length of the delay and its reason, whether the defendant himself was to blame, and whether the delay would prejudice the defendant’s case.

Ghailani’s lawyers have said that their client “appears to be so damaged” by his treatment in U.S. that he may be unable to help his lawyers prepare his defense. They’ve asked the court to have an expert examine the mental state of their client.

Here is the Justice Department’s brief:

Although the men did not sue the government directly, the Bush administration intervened in the case two years ago and convinced a judge to dismiss all claims on the grounds that allowing the lawsuit to proceed would reveal sensitive “state secrets” and endanger national security.

The plaintiffs appealed, and the Obama administration has adopted its predecessor’s position, arguing before the appellate court that allowing the five men the opportunity to prove their case would jeopardize national security. At the same time, the  administration claims it has ended the program of “extraordinary rendition,” whereby terror suspects are abducted in one location and sent to another country for interrogation, where they are likely to be tortured. The administration says it still renders suspects to other countries, but only for legitimate court proceedings.  Nevertheless, it has insisted that any information about the Bush administration’s program would pose a current danger.

That argument doesn’t sit well with the plaintiffs in the case, like Binyam Mohamed, an Ethiopian-born British resident who says he was kidnapped by CIA agents in Pakistan and flown to Morocco and Afghanistan, where he was brutally tortured into falsely confessing to crimes he did not commit.

In court yesterday, American Civil Liberties Union attorney Ben Wizner, representing the five men, argued that it was absurd to suggest that allowing the truth about the program to come out, while still protecting any classified evidence, would endanger national security.

“The facts of this case are known throughout the world,” Wizner said. The Bush administration’s CIA directors had previously testified about the rendition program, and President George W. Bush had acknowledged it. As for the plaintiffs involved in the case against Jeppesen, the Swedish government has already apologized and offered to compensation one of the plaintiffs who was seized from Sweden, where he had sought asylum. The plaintiff claims he was taken to Egypt, where he was tortured with electrical shocks.

Whoever wins this round before the Ninth Circuit could still seek review from the Supreme Court.

Yesterday’s ruling involved an employment case. Norman Carpenter had sued Mohawk Industries after he was fired, claiming he was only fired because he’d complained that the company was hiring undocumented workers. Unbeknownst to Carpenter, the company was already being sued for allegedly trying to drive down wages by doing just that. Carpenter claimed one of Mohawk’s lawyers pressured him to recant his claims, and that he was fired because he refused.

The conflict heated up when Carpenter tried to get documents revealing what was said in that conversation with the company’s lawyer. The company refused to turn them over, citing attorney-client privilege. But the court said the company had waived that privilege already in various ways, and ordered them turned over. The company appealed.

In the appeal, the U.S. government filed a friend-of-the-court brief supporting Carpenter, but went out of its way to argue that while the employer should not have the right to an immediate appeal, if the government were involved and the disclosure involved state secrets, then the government should have that right. According to the Justice Department:

Although denials of the attorney-client privilege do not meet the Court’s stringent standards for collateral order review, denials of certain governmental privileges—in light of their constitutional grounding, rare invocation, and unique importance to governmental functions—should qualify for immediate appealability. In particular, the ordered disclosure of a Presidential communication or state secret would more directly and irremediably harm the purpose of the corresponding privilege (i.e., preserving confidentiality of top-level Executive Branch communications or protecting national security) than would disclosure of attorney-client privileged information.

The Justice Department seems to have been trying to get the court to sneak a statement into its opinion about the superior importance of executive branch communications or secrets, as opposed to an ordinary run-of-the-mill company’s privilege.

Sotomayor, in her first opinion of the new term, declined to do that.

The new directive, from Peter Orszag at the Office of Management and Budget, requires executive departments and agencies, within specific deadlines of not more than two months, to publish more information about their work online in an open format that can be retrieved and searched easily.

The progress report recounts what the administration has done so far to improve transparency, including writing new ethics rules to (mostly) prevent lobbyists from coming to work in government or sitting on its advisory boards; publishing the names of White House visitors; creating Websites that track how the government spends taxpayer money; reversing a Bush administration executive order that limited access to presidential records; and adopted a new state secrets policy. (The report neglects to mention ongoing criticism about the effectiveness of some of these measures.)

The latest transparency directive, while welcomed by open-government advocates, also highlights the fact that the sort of opennness Obama called for on his first day in office still has not taken place inside many executive agencies.

As Meredith Fuchs, General Counsel of the National Security Archive put it in a statement released after the White House announcement:

The Administration appears to realize that even eloquent statements of principle will not shift the bureaucracy’s natural and political tendency towards secrecy.

As for OMB’s new timetables to require more openness, she said:

The only thing missing is a clear enforcement regime, but if the White House, OMB, and the heads of the agencies are serious, then they will use their authority to make these changes real. In some ways that is the test of how serious the Obama Administration is about transparency.

Update: Steven Aftergood at Secrecy News notes that the new directive “does not extend to classified national security information or controlled unclassified information, both of which are to be addressed in other pending executive orders. But it does direct agencies to reduce any backlogs in Freedom of Information Act requests “by ten percent each year.”

Defense Secretary Robert Gates in mid-November invoked his new authority under the law to keep the photos concealed, saying that distribution of the photos would endanger U.S. troops abroad.

The Associated Press reports that the ACLU vows to continue fighting for the photos’ release.

Both of the newspapers cautioned that none of the reports could be independently corroborated. But the stories emphasize the point I’ve been making for a while now that even if President Obama manages to close the Guantanamo Bay detention center in the next several months (he’s already conceded he’s not going to meet his original January deadline), that’s not going to completely solve the United States’ image problem when it comes to prisoner mistreatment and abuse — because we still have Bagram.

Bagram has already been called “Obama’s Gitmo,” and “The Next Guantanamo” given that the administration is holding about 700 terror suspects there indefinitely without charge, with little meaningful opportunity to challenge their detention, no right to habeas corpus, and in conditions far more secretive than at Guantanamo Bay. We know that several detainees died from abuse at Bagram during the Bush administration, and conveniently, the Defense Department just stopped reporting detainee deaths in Afghanistan sometime in 2006.

So the latest reports of abuse shouldn’t come as a huge surprise. Just last summer inmates were protesting their indefinite detention at Bagram, refusing to leave their cells or even speak to family members. That supposedly led to a military review and overhaul of the U.S. detention center in Afghanistan, and recently the United States opened a new and improved prison facility on the air base, designed to improve inmates’ living conditions and quiet some of the complaints. The former detainees interviewed by the Times and Post reporters may not have had the benefit of those reported improvements. But given the secrecy that still surrounds the Bagram facility and its inmates, and the fact that the wing of the prison operated by Special Operations forces is even more secretive and closed to the ICRC, the Obama administration is going to have a hard time answering these latest claims.

Section 215 of the Patriot Act, known as the “business records provision,” relaxed the previous standard the government had to meet to obtain personal information from banks, hospitals, libraries, retail stores and other institutions. Previously, the government had to show that it had evidence that the person whose records it sought was a terrorist or spy. With passage of the Patriot Act, that standard was lowered to permit the government to collect any records it considered “relevant to an investigation.”

Wyden, Feingold and Durbin have been arguing that the relevance standard is far too broad and violates the privacy rights of ordinary law-abiding Americans. But they also claim that the government is withholding key information from Congress that would allow lawmakers to make an informed judgment about the issue. Although it’s not clear exactly what information they’re talking about, since even a description of the information is classified, it would seem to be information about how the government has used the business records provision, and what evidence it has obtained by its use.

As Jennifer Hoelzer, Wyden’s communications director, said in an e-mail: “The fact that I can’t in anyway characterize the information in itself highlights the problem and why we believe it is so essential that the Justice Department declassify this information. Senators should know what they are voting on.”

Here’s part of what Wyden wrote in The Huffington Post on this issue a few weeks ago:

I have served on the Senate Intelligence Committee for eight years, and I have yet to see evidence — classified or otherwise — that has convinced me that revising the business records provision to include a less intrusive standard would be harmful to U.S. national security. Yet as Congress considers whether to reauthorize this standard — written in a rush to judgment eight years ago — some will undoubtedly argue that Congress should just trust that the provision is essential and blindly sign-off on reauthorization. I disagree. While “just trust us” has passed as informed national security debate in this country for eight years, it hasn’t resulted in good national security policy.

The senators’ latest letter to the attorney general on this issue is here.

Attorney General Eric Holder (WDCpix)

On October 30, the Justice Department for the first time applied its new “state secrets” policy to a case charging the government with breaking the law. Open government advocates hoping for a significant change in the government’s stance toward secrecy in national security cases were sorely disappointed. Attorney General Eric Holder said that in the case of Shubert v. Obama — a class action filed in 2007 claiming that the National Security Agency has an ongoing dragnet surveillance program spying on the telephone and e-mail communications of ordinary Americans — the government would do the same thing it’s done repeatedly in the past: it would move to dismiss the case, because even to respond to the charges would endanger national security by revealing sensitive “state secrets.”

The state secrets privilege allows the government to ask a court to dismiss a case filed against it by claiming that merely allowing the case to move forward in court would reveal government secrets and jeopardize national security. It’s frequently used by the Justice Department in cases alleging warrantless wiretapping, “extraordinary rendition” and abuse of detainees by U.S. officials has angered open-government advocates, who claim that the Bush administration, and now President Obama, is using the evidentiary privilege to conceal government wrongdoing.

[Law1]Those concerns led Holder in September to announce a new policy that he said would limit the Justice Department’s reliance on the state secrets privilege. When he asked the federal court in San Francisco to dismiss the Shubert case in October, Holder said he was asserting the privilege in accordance with that new policy, after “following a careful and thorough review process” and “only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder insisted, adding that “we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.”

Because that information is filed with the court under seal, however, it’s impossible to know whether the government’s reasons are legitimate. That decision will be made by Judge Vaughn Walker, the federal judge in the Northern District of California who’s presiding over this and several other pending cases that the government also claims involve “state secrets.”

But lawyers and advocates for government transparency were dismayed that the Obama administration would even assert the privilege in the Shubert case after promising to severely restrict its use.

“What they’re saying is, ‘because of state secrets, we can’t tell you what the program is,’” said Ilann Maazel, a lawyer representing Virginia Shubert and the three other Brooklyn residents named in the the case who claim the government has been wiretapping them without a warrant. “There’s no limit to the state secrets privilege in their view. There’s no law they cannot violate that implicates national security in their view. Their view is, ‘just trust us.’ ”

Maazel is hardly the only one disappointed with how the Obama administration has used the privilege so far.

“The DOJ continues to embrace the very same “state secrets” theories of the Bush administration—which Democrats generally and Barack Obama specifically once vehemently condemned—and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law,” wrote Salon blogger and constitutional lawyer Glenn Greenwald after the Justice Department moved to dismiss the Shubert case.

Daniel Metcalfe, a former Justice Department official and now Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law, also thinks the new administration’s record on the issue overall has been disappointing.

“On the state secrets privilege as well as other transparency issues, the Obama administration has an easy act to follow, in that the Bush administration was so extremely secretive across the board,” he said. “But from early on, specifically as of February 9 when the Obama administration began following the Bush administration’s state secrets position in the case of Mohamed v. Jeppesen Dataplan,” a lawsuit challenging the government for its role in torture and extraordinary rendition, “open government advocates have been quite alarmed,” said Metcalfe. Although he acknowledged that it takes time for a new administration to develop its own policies, “the Obama administration’s eventual state secrets policy issuance of September 23 has done very little to assuage these growing concerns.”

The Collaboration on Government Secrecy gives President Obama a “D” on its secrecy/transparency scorecard for his use of the state secrets privilege so far. Metcalfe added that the Justice Department still has not completed a promised review of the cases where the government has invoked the state secrets privilege to dismiss them. The new state secrets policy announced in September did not mention that review.

The problem isn’t only that Holder wants to ues the privilege once again to dismiss a case that challenges government conduct. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists has pointed out in his blog, the government may not even be following all aspects of its new policy.

Part of that policy, announced in September after months of delay, attempts to respond to the concern that the state secrets policy can be used to conceal government lawbreaking. The new policy requires more thorough review by senior Justice Department officials, including the Attorney General himself. But it also says that if the Attorney General believes the case “raises credible allegations of government wrongdoing,” he’s supposed to refer those allegations to an Inspector General for further investigation.

Shubert v. Obama claims the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and internet communications without a warrant and without any suspicion that the targets have done anything wrong. It would all sound very sci-fi — and therefore, perhaps, not credible — if there weren’t strong evidence to back it up. That evidence was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds. The matter is still pending in the same federal district court in California where the Shubert case is filed.

After Klein’s testimony became public, another whistleblower came forward, this time a former NSA Intelligence Analyst. In January, Russell Tice told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

But is that enough evidence to require the Attorney General to refer the claims to an Inspector General for investigation, as the new policy requires? It’s impossible to know, because the new policy doesn’t say how the AG should decide which claims are “credible.”

Asked whether the Justice Department referred the matter to an inspector general, spokesperson Tracy Schmaler told TWI that she “can’t comment specifically” on that question, adding: “just to be clear, there is no automatic referral in the policy.”

As for whether guidelines or regulations govern the credibility determination, Schmaler said she couldn’t go beyond the statement made by the Attorney General when he announced his application of the state secrets privilege to the Shubert case.

Ultimately, critics say the problem with even the new state secrets policy is that it leaves too much discretion to the executive to decide what information is so sensitive that it cannot be disclosed even to a judge behind closed doors – and what constitutes a credible allegation against the executive branch that’s worth investigating. The Foreign Intelligence Surveillance Act provides various ways that the government can produce information to a court and have it still remain secret, but allow a legal challenge to government conduct to proceed.

The Obama administration’s use of the state secrets privilege to try to dismiss the Shubert case “demonstrates that we can’t count on the executive to rein itself in when it comes to the state secrets privilege,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation working on the Jewel case.

Although the debate over the privilege sounds technical, what’s at stake isn’t just courtroom procedure. It’s whether the government can get away with engaging in illegal conduct simply by claiming that the evidence is too sensitive to reveal.

“There is not a single person in the United States government who has disavowed the dragnet program, who has said that it’s stopped,” said Maazel, referring to the claims in the Shubert case. Although the government has said that warrantless wiretapping under the Terrorist Surveillance Program has stopped, the Obama administration has not said that warrantless wiretapping isn’t ongoing under some other program. “We have every reason to believe that the copping and splitting in San Francisco is continuing,” said Maazel, referring to the way the government allegedly duplicates messages for monitoring purposes.

Experts note that the state secrets privilege actually encourages illegal conduct in national security matters, since the government knows it can be invoked as a shield. “The basic nature of the state secrets privilege always has been that it can remove a disincentive that the government ordinarily would have against engaging in highly questionable, if not outright wrongful, conduct,” said Metcalfe.

Regardless of how Judge Walker rules in these cases (they’ve all be transferred to his court), the issue isn’t going away. Democrats in Congress have introduced legislation that would keep courts from dismissing cases based solely on the government’s assertion that the case would reveal state secrets. Last week the House Judiciary Committee approved the bill introduced by Rep. Jerrold Nadler (D-NY), after Nadler called the government’s use of the privilege “the greatest threat to liberty at present.”

President Obama, for his part, has avoided taking any position on it. In fact, when a House Judiciary subcommittee in June held a hearing on the proposed legislation, the Justice Department did not even send a witness to testify about its use, saying only that the policy was still under review.

A justice department attorney is expected to appear at a conference next week on the subject being held at Washington College of Law at American University, and will surely be asked about the administration’s views. Metcalfe, who’s convening the conference, hopes the department will also be prepared to report the results of the litigation review that Holder said the department was undertaking in February. That review could lead the government to change its position on asserting the privilege in some pending cases.

Ultimately, if Congress doesn’t pass legislation on the state secrets privilege, the matter could end up in the Supreme Court, which first recognized this controversial executive privilege back in 1953. The court dismissed that case, brought by widows of civilians killed in a military plane crash, because the government claimed it would reveal military secrets. But when the accident report was finally declassified in 2000, rather than military secrets, it revealed gross military negligence that would have been damning evidence against the government in the case. (The case settled in 1953 for $170,000.)

“The Supreme Court hasn’t heard a state secrets case since 1953,” said Maazel. “There’s no question they will have one sooner rather than later.”

Illustration by: Matt Mahurin

Twenty-four-year-old Amir Meshal, the son of Muslim immigrants from Egypt, was a lifelong resident of New Jersey when, after living briefly in Cairo with extended family members, in 2006 he decided to go to Somalia to study Islam and experience living under Islamic law. The country appeared to have stabilized and a new Islamic government was on good terms with the United States.

But Somalia wasn’t as stable as Meshal had thought, and as violence erupted there again in January 2007, Meshal fled, along with many Somali civilians. He was arrested in a joint U.S.-Kenyan-Ethiopian operation along the border of Kenya.

[Law1]During the next four months, Meshal says, he was detained and interrogated in three different African countries without charge, denied the right to speak to a lawyer or family member, and refused the right to even appear before a judicial officer. Although a lifelong U.S. citizen with two U.S. citizen parents, Meshal was repeatedly threatened with torture, rendition to another country where he would be tortured, and forced disappearance. And he believes that U.S. officials, who interrogated him more than 30 times during this process, directed his arrest and treatment.

Those claims are the subject of a new lawsuit being filed Tuesday by the American Civil Liberties Union in Washington. Although it’s not the first lawsuit against U.S. officials seeking damages for torture and other mistreatment abroad, Meshal is only the second U.S. citizen to sue for U.S.-sponsored torture. That and a few other distinctive facts in this case may give him some advantages over those that have been dismissed.

“This is a U.S. citizen who was caught in hostilities abroad, and instead of helping him return, U.S. officials abused him and mistreated him and never charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”

That’s the question that will face judges in this case. In the past, the government has managed to convince courts to dismiss torture victims’ cases by saying that government officials are entitled to qualified immunity, or that the case would reveal state secrets, or that courts should not imply a right to sue government officials for constitutional violations when the case involves national security and foreign policy. But will courts be so willing to dismiss a case brought by a U.S. citizen, born to U.S. citizen parents, allegedly tortured directly by U.S. officials, and who has never even been charged with doing anything wrong?

American University Law Professor Stephen Vladeck, an expert on constitutional and national security law, says that although doctrinally the cases are not very different, the fact that Meshal is a U.S. citizen “practically, could make a difference to judges,” he said. “It would just highlight how wrong those other decisions are,” he said.

One of those decisions is Rasul v. Rumsfeld, decided by the D.C. Circuit Court of Appeals last year. In that case, the court dismissed the claims of four British men who’d been detained and allegedly abused at Guantanamo Bay because, the court reasoned, the federal officials were entitled to “qualified immunity” because it was not clear that Guantanamo detainees had rights under the U.S. Constitution at the time of their alleged abuse.

In that case, though, which is still on appeal (the Supreme Court remanded it back to the D.C. Circuit for reconsideration in light of intervening Supreme Court precedents), the court’s reasoning was based in part on the fact that the plaintiffs were all “aliens” — none were lawful U.S. citizens or residents.

Meshal’s U.S. citizenship may make his case more difficult to dismiss. “Mr. Meshal alleges there needs to be discovery in this case to determine whether what those officers did was objectively reasonable,” said Choudury, his lawyer. “Should an FBI officer think it’s objectively reasonable to threaten a U.S. citizen to send him to place where he will be tortured?”

Interestingly, recently released documents produced in the ACLU’s Freedom of Information Act case against the government have revealed memos written by FBI interrogation specialists in 2002 and sent to Defense Department officials specifically explaining that threatening a detainee with torture, death or disappearance is a violation of the U.S. Constitution and the anti-torture law. That could weaken the government’s argument that FBI officials reasonably thought it was legal to threaten Meshal in 2007.

The most recent case decided that presents similar facts is the case of Maher Arar, dismissed this month for the second time by the Second Circuit Court of Appeals. Arar, a Canadian citizen, was arrested by U.S. authorities while he was changing planes at JFK airport in New York in 2002. Arar was held briefly in the states, denied access to a lawyer, then rendered to Syria where he was held in a grave-like cell and interrogated under torture, he says, for almost a year. He was finally released without charge; Syrian authorities acknowledged that they had no evidence against him.

Arar sued the U.S. government for complicity in his treatment abroad. The court last week ruled that he has no right to sue under the U.S. Constitution in this case because the claims would “have the natural tendency to affect diplomacy, foreign policy, and the security of the nation.” As for his claims under the Torture Victims Protection Act, enacted to protect victims of torture in other countries, Arar could not claim compensation from U.S. authorities because it was the Syrians who tortured him, even if U.S. officials knew that he was likely to be tortured when they sent him to Syria, the court ruled.

In addition to the fact that Meshal is a U.S. citizen, his case may stand a better chance because he is suing the actual FBI officials who he claims conducted his interrogation and threatened him with torture, forced disappearance and execution to coerce him into confessing to associations with al-Qaeda that he says he does not have.

“It was a Kenyan jail, but he is alleging that U.S. officials were complicit with those officials in keeping him detained in secret,” said Choudhury. “During interrogations, U.S. government officials threatened to send him to Israel, where they would make him disappear.”

Meshal’s constitutional claims may also fare better because there appears to be nowhere else to bring them — an important factor courts consider. The government claimed that Arar, as a Canadian, could have objected to his rendition before U.S. immigration authorities. (Arar’s lawyers disputed that.)

In this case, there appears to be no alternative means for redress. Meshal has declined to speak to reporters about his ordeal, but according to his legal complaint, while he was in Kenya, Meshal repeatedly asked to speak to a lawyer, to his father, and to the international Committee of the Red Cross; his requests were denied. He was allowed to speak once to a U.S. consular official in Kenya who said he would help Meshal.

Before the consular official could do anything, though, Meshal was handcuffed, hooded and flown to Somalia, where he feared he would be killed, he says. Meshal was deposited in an excruciatingly hot 25-foot-square cave, without windows or toilets. When guards opened the door of the cell, Meshal “noticed that enormous cockroaches were clustered in the corners of the cell and large black millipedes were all over the walls,” the legal complaint charges. Meshal says he was left there, handcuffed in the dark, for two days.

He was then moved to a storage tent where he was given one meal a day of biscuits, marmalade and water. He was left there for about four days until he was transferred to Ethiopia for further interrogation.

The government could still argue that the “state secrets privilege” should doom the case. In many cases charging government wrongdoing in the national security arena, the Justice Department has argued that allowing a lawsuit to go forward would reveal sensitive state secrets and endanger national security. The government’s frequent invocation of the state secrets privilege has become something of a political embarrassment, however. In February, Sen. Patrick Leahy (D-Vt.) introduced a bill, which now has nine co-sponsors, that would severely limit the government’s ability to dismiss cases on that ground. Shortly after, Attorney General Eric Holder in September announced a new policy on state secrets, pledging to use the privilege more sparingly and according to strict new rules. However, he has continued to assert it in situations where advocates say the case should move forward, with the judge simply reviewing any sensitive evidence behind closed doors.

“It seems unlikely the government wouldn’t invoke state secrets again,” said David Luban, a law professor at Georgetown University and expert on legal ethics and international law. In this case, Luban said, the government would likely claim that allowing the cases to move forward would expose sensitive information about the United States’ relationships or agreements with the other countries that Meshal was rendered to. And “if the action is being shut off because of state secrets,” he said, “I don’t think you can get around that.”

“The government can raise that in the course of litigation,” Choudhury agreed. “But that’s not a reason for this case not to go forward.” The government would still have to convince a court that national security would be put at risk simply by responding to requests about the FBI’s treatment of one individual and its role in his rendition and alleged torture. Some courts have been skeptical about that argument, although in the case of German citizen Khaled Al-Masri, a lawsuit filed by a rendition victim against U.S. authorities, a federal judge in Virginia did dismiss the case on state secrets grounds.

And the court could still decide to dismiss the case based on its broader national security implications, as it did in Arar. “What’s been so disturbing is how judges have bent backwards to say this is a new kind of claim,” said Vladeck. In the Arar case, for example, the court cast his claim for compensation for extraordinary rendition as a new kind of constitutional claim that would require the court essentially to create a new right to sue. The court then could easily decline to create that new right, citing the “special factors” involved — in particular, the potential impact on national security and foreign policy. “What’s so distressing about Arar was that the Second Circuit endorsed such a limitless view of special factors,” said Vladeck. “If Arar’s rendition case can’t prevail, then I’m pressed to see what kind of case can win.”

Still, one case has survived dismissal so far. That’s the case of Jose Padilla, a U.S. citizen deemed an “enemy combatant”, who is now suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. Although the Obama administration, representing Yoo, tried to have the case dismissed, a federal court in California refused, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.

Padilla was also the only U.S. citizen to have sued a U.S. official for torture. Until now. Choudhury hopes, at least, that Meshal’s U.S. citizenship might also make some difference. But the outcome is hard to predict. Judges and courts are sharply divided on when a victim of abusive federal government policies should have a right to bring their claims to court.

When the full Second Circuit court ruled in Arar’s case last week, the decision included four powerful dissents.

“The majority would immunize official misconduct by invoking the separation of powers and the executive’s responsibility for foreign affairs and national security,” wrote Judge Barrington Parker, in one of them. “Its approach distorts the system of checks and balances essential to the rule of law, and it trivilializes the judiciary’s role in these arenas,” he continued. The executive’s powers in foreign policy and national security “are not limitless” and their “bounds in both wartime and peacetime are fixed by the same Constitution,” he wrote. The court’s refusal to allow Arar a remedy, he continued, “immunizes official conduct directly at odds with the express will of Congress and the most basic guarantees of liberty contained in the Constitution. By doing so, the majority risks a government that can interpret the law to suits its own ends, without scrutiny.”

What’s particularly interesting about the assertion this time, though, is that it doesn’t appear to be simply covering up Bush-era government misconduct. The case, Shubert v. Bush, suggests an ongoing illegal government data-mining program that intercepts and listens in on a huge range of communications by U.S. citizens. The complaint (PDF), filed by ordinary U.S. citizens living in Brooklyn, N.Y., who communicate with people in different countries, is a fascinating read that charges the government is engaged in a bizarrely vast surveillance dragnet. On the one hand, it sounds completely paranoid; on the other hand, it could be true.

We may never know, however, because if Attorney General Eric Holder has his way, the case will be dismissed before the lawyers even get a chance to investigate. That’s because the government has “to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country,” as Holder said in a statement released late on Friday. Holder has once again invoked the so-called “state secrets privilege,” this time reluctantly, he says, because “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

In fact, federal courts handle classified and sensitive information all the time without disclosing it publicly, by filing records under seal and requiring the lawyers involved in the case to obtain security clearance. It’s unclear why that wouldn’t work in this case. But one implication of Holder’s statement is that the spying and data-mining program is ongoing, so to reveal it would harm national security.

Another equally disturbing implication of Holder’s statement is that even if the government were engaged in blatantly illegal conduct that violates the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Wiretap Act and other federal laws, there would be no way for any U.S. citizen targeted by the government’s illegal conduct to find out, let alone to hold anyone accountable.

As Ilann Maazel, a lawyer representing the plaintiffs who filed the case, told the National Law Journal earlier today, “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Judge Vaughn Walker in the Northern District of California, where the case is pending, has previously greeted the government’s assertion of the state secrets privilege with skepticism, and, in at least one case against an Islamic charity that claimed it was wiretapped, allowed the case to proceed.

We’ll be following closely to see what he does with this one.