Bring Back Government in the Sunshine! It's the best disinfectant. . . .

Do you remember the "Government in the Sunshine Act?" It was passed in 1976. Basically the idea was something like a Freedom of Information Act for what Government agencies do on behalf of the citizens. It requires advance notice of meetings and meetings open to the public. We could use a lot more sunshine on what our Government has been doing in our name around the world that has brought our reputation to such a tarnished state.

I just learned this afternoon that the Supreme Court has ruled that someone who claimed to be a victim of "extraordinary rendition," Khaled el-Masri, cannot get a trial in the United States on his claims of violation of his 5th Amendment right to due process of law before being subjected to treatment that "shocks the conscience" or deprives him of his liberty. In addition, Mr. el-Masri asserted claims against the CIA and various private companies that allegedly cooperated in his abduction and interrogation that they had violated his rights under the Alien Tort Statute not to be abducted and subjected to prolonged, involuntary detention and to cruel, inhumane or degrading treatment prohibited by customary international law. The high Court declined to hear Mr. el-Masri's case on appeal from the US Court of Appeals for the Fourth Circuit in Richmond. The appeals court upheld the decision of the trial judge that the "state secrets doctrine" prohibits disclosure of the truth about what happened to Mr. el-Masri.

Years ago I worked in the Office of International Affairs in the US Department of Justice. That office is responsible for shepherding all international extradition cases involving US requests to prosecute people who are abroad but wanted for prosecution in the United States and vice versa. These extraditions are governed by US treaties with other nations (mostly bi-lateral treaties negotiated by the two nations involved) and US law that implements the treaties. The US has a statute that provides our federal courts with a road map of the finding that must be made, based upon limited evidence, that the person is a fugitive from justice (or just plain wanted for prosecution by the lawful authorities based on a warrant) in the Requesting State, that the person before the court is the one that is wanted, and that there is probable cause to believe that he committed a crime that is a crime at the felony level under the law of both nations. The implementing laws in other countries are similar to ours. The procedure followed in the US is simple. The person wanted for extradition who is found in the United States is afforded a hearing before a US magistrate judge, and the right, if found extraditable, to challenge the decision by way of a writ of habeas corpus (basically a complaint that states he is being held unlawfully) and finally, an appeal directly to the US Secretary of State.

When I was at DOJ, however, every once in awhile, when there was a high stakes "target" and extradition was unlikely or would take too long, the FBI or DEA or other agency would arrange with some cooperative third government to have the target lured there, arrested and quickly put on a plane to, say, Miami where a coterie of US Marshals would be waiting at the airport outside of town. Back in those days, the targets were usually major drug dealers who hailed from Colombia during the days when it was the policy of the Colombian government not to extradite its own nationals who happened to be among the most sought after global criminals. Because of what is known as the "Ker-Frisbie" doctrine (named after a couple of old Supreme Court cases), a US court will not look behind the fact that someone arrived in the US to question whether they got here lawfully. So, a criminal defendant who is the subject of an "extraordinary rendition" basically has no way of challenging the way he arrived in the US as a reason to throw his case out of court.

But el-Masri's case was different. What he said was that the US Government and its agents and cooperating companies that arranged for his secret and secure transportation abducted him in Macedonia and arranged for him to take an involuntary trip to Kabul, Afghanistan where he was subjected to interrogation techniques that were much worse than the ones my father used to use on me when I got in late at night. Basically, el-Masri sought the assistance of the US courts to expose the practice and condemn it and award him damages. Forgeddaboutit, said the American judges. If we let our countrymen and the world know what happened to you, it would expose a program or a technique that is important to national security according to what the Government lawyers told us --- hence, it is a state secret.

As more of these operations go forward to spirit away people wanted for interrogation in a manner that would not pass the smell test in the US, our reputation in the world, in my view, sinks lower and lower. Why do we think that the world is fooled simply because we outsource our interrogations to places and sometimes interrogators who are, as my mother would say, "not our type, dear." Do they think that these operations are not totally under our control? As a potential client said to me, part of my career cannot be discussed because it never officially happened. Isn't that chilling (not to mention unhelpful when it comes time for promotion).

An Italian magistrate has issued warrants for the extradition of CIA agents who were believed to have been involved in a similar abduction in Italy. It is hard to believe that anything goes on in Italy in law enforcement without the complete knowledge and cooperation of our two governments. In the days when Ed Meese was Attorney General, he loved to go to the biennial meetings with his Italian counterparts to manage the bilateral cooperative effort against the Mafia, drug traffickers, and the occasional terrorist. However, the magistrate, who acts like a grand jury in Italy, was sufficiently outraged that he wants to apply the law to what is alleged to have been done to a Muslin cleric, Hassan Osama Nasr, who was abducted in Milan. He has even arrested the deputy head of Italy's military intelligence service and put his predecessor under house arrest because they allegedly cooperated with the CIA in the operation. The affected CIA agents, if they were involved at all, have had their utility limited as they undoubtedly cannot travel outside the US without being subject to being arrested for extradition to Italy.

Ronald Reagan famously described the United States of America as a shining city on a hill. The image was an apt one because it summed up the admiration that he had for the land he loved -- the land of the free and the home of the brave. While I was never a big fan of President Reagan, his simple words had a way of saying what we as a nation are supposed to stand for. I am certain that he would be appalled at the abuses at Abu Ghirab which were exposed. I am not so certain what he would think about what our courts have done to protect the black hole of extraordinary rendition from Government in the Sunshine. My hope is that the United States under the next administration will once again become the admiration of all the world -- one that believes in and adheres to the norms of international law that it fought to develop. It is hard to remember that we were the ones who led the fight for the Geneva Conventions beginning at the end of the 19th century through the founding of the United Nations.

I remember being invited to be part of the faculty at a program sponsored by the UN High Commissioner for Refugees in Minsk, Belarus many years ago -- before there was even a McDonald's in Minsk. The topic of the conference, for Belarussian government officials, was "Human Rights and Police Procedures" with an emphasis on United Nations policy documents governing those issues . Many of the UN resolutions on these topics drew heavily from the US Constitution and caselaw. When I arrived in Minsk, I discovered that half the invited faculty had not shown up. I was asked to give the keynote speech at the last minute. I did so. The next day, about half of the attendees who had been present at the previous session did not return. The translator told me they were afraid to be identified as attending a conference where such dangerous concepts as due process of law and universal human rights to avoid cruel, inhuman and degrading treatment were being discussed. The Government of Belarus was then, as now, a monument to Communism. Local human rights protesters had to be clever (announcing their demonstration for a particular place and then holding it elsewhere, for example. It was suggested that I not attend the protest because I did not come fully equipped -- I did not bring my own bandages!). I felt proud to be bringing concepts accepted the world over through the United Nations to the attention of a people long subjected to dictatorial rule.

It is very troubling that our Government is now in need of the same lecture on human rights and police procedures. No matter how hideous and dangerous our opponents, we must hold our system of Government up as an example -- not just as something that is expedient when the threat level is lower than "yellow" or "orange." Democracy is very fragile; we must fight every day to support its principles. Bring back Government in the Sunshine!