* This text was reproduced and reformatted from the text appearing at the fmdlaw website (visited May 21, 2007) <http://caselaw.lp.findlaw.com/data2/circs/4th/061667p.pdf.>

1 Saira Mohamed is an Attorney-Adviser in the U.S. Department of State's Office of the Legal Adviser. The views expressed in this Note are her own and do not necessarily reflect those of the United States Government.

2 See El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006).

3 El-Masri v. United States, 479 F.3d 296, 302 (4th Cir. 2007).

4 A copy of the petition is available at <//www.aclu.org/ safefree/torture/299171gl20070530.html>.

5 See Opening Brief for Plaintiff-Appellant at 2-3, El-Masri v.United States, 479 F.3d 296 (4th Cir. July 24, 2006) (available at <//www.acluva.org/docket/pleadings/elmasri_appeall.pdf>); see also El-Masri, 479 F.3d at 300; El-Masri, 437 F. Supp. 2d at 533,

6 Opening Brief for Plaintiff-Appellant, supra note , at 3; seealso El-Masri, 437 F. Supp. 2d at 533.

7 See El-Masri, 437 F. Supp. 2d at 533; Opening Brief forPlaintiff-Appellant, supra note , at 4. El-Masri alleged that the CIA determined soon after his arrival in Afghanistan that he was innocent, and that Tenet knew this fact by April 2004. He also alleged that his detention was known to the German government, including an individual who visited him in the detention facility in Kabul, whom El-Masri later identified in a police lineup as a German intelligence officer. El-Masri, 479 F.3d at 300.

8 El-Masri, 437 F. Supp. 2d at 534; Opening Brief for Plaintiff-Appellant, supra note , at 5.

9 Opening Brief for Plaintiff-Appellant, supra note , at 6.

10 El-Masri, A31 F. Supp. 2d at 535; see also El-Masri, 479 F. 3d at 301.

11 El-Masri, Am F. Supp. 2d at 536.

12 Memorandum of Points and Authorities in Support of the Motion by Intervenor United States to Dismiss or, in the Alternative, for Summary Judgment at 1, El-Masri v. Tenet, A31 F. Supp. 2d 530 (E.D. Va. March 13, 2006) (available at <// www.aclu.org/pdfs/safefree/govt_mot_dismiss.pdf>).

13 Id. at 12 (quoting Tilden v. Tenet, 140 F. Supp. 2d 623, 626(E.D. Va.)).

14 See El-Masri, 479 F. 3d at 301; Memorandum of Points and Authorities in Opposition to the United States’ Motion to Dismiss or, in the Alternative, for Summary Judgment at 1, El-Masri v. Tenet, A3! F. Supp. 2d 530 (E.D. Va. April 11, 2006) (available at www.aclu.org/pdfs/safefree/elmasri_final_brief.pdf).

15 Memorandum of Points and Authorities in Opposition to Motion to Dismiss, supra note , at 1.

16 Id.

17 See supra note 14 at 6-7 (quoting United States v. Reynolds, 345 U.S. 1, 7 (1953)).

18 See supra note 14 at 11.

19 El-Masri, 437 F. Supp. 2d at 537. The court dismissed El- Masri's contention that the government's public affirmation of the program's existence rendered the state secrets privilege inapplicable, explaining that litigation would inevitably in volve “operational details” that are validly claimed as state secrets. The court further asserted that general acknowledge ment by public officials that the program exists “provides no details as to the means and methods employed in these renditions, or the persons, companies or governments in volved,” and the existence of media and other reports dis cussing renditions had no relation to government discussion of the program's existence or its details, which would be required to litigate the action.

20 Sterling v. Tenet, 416 F.3d 338, 347-48 (4th Cir. 2005) (internal quotation marks omitted).

21 El-Masri, 437 F. Supp. 2d at 539.

22 345 U.S. 1 (1953).

23 El-Masri, 479 F.3d at 302.

24 Id. at 304 (quoting Reynolds, 345 US at 10).

25 See supra note 23 at 307.

26 The facts that el-Masri alleged have been credited by many sources. German prosecutors concluded that chemical analysis of a sample of El-Masri's hair was consistent with a period of detention in a South Asian country and an extended period of fasting (El-Masri was on a hunger strike for several weeks). See Opening Brief for Plaintiff-Appellant, supra note , at 5-6. The Council on Europe released a report in June 2006 on alleged secret detentions that concluded that “[e]verything points in the direction that [El-Masri] was the victim of abduction and ill-treatment amounting to torture.” Council of Europe, Part. Ass., Alleged Secret Detentions and Unlawful Inter state Transfers of Detainees Involving Council of Europe Member States at 31, Doc. No. 10957 (2006) (available at <//assembly.coe.int//Main.asp?link=http://assembly.coe. int/Documents/WorkingDocs/doc06/edocl0957.htm?link=/ Documents/WorkingDocs/Doc06/EDOC10957.htm>). The German government issued indictments against thirteen CIA agents for their involvement in El-Masri's abduction and detention. See Mark Landler, German Court Confronts U.S. On Abduction, N.Y. Times, Feb. 1, 2007, at Al.

27 El-Masri, 479 F.3d at 313.

28 See, e.g., Brief Amicus Curiae of Former United States Diplo mats Supporting Plaintiff-Appellant and Reversal, El-Masri v. Tenet, 479 F.3d 296 (4th Cir. July 31, 2006).

29 As the Fourth Circuit's decision noted, the Supreme Court in United States v. Nixon asserted that “to the extent an executive claim of privilege ‘relates to the effective discharge of a Presi dent's powers, it is constitutionally based.'” El-Masri, 479 F.3d 296, 303 (quoting 418 U.S. 683, 711 (1974)).

30 Opening Brief for Plaintiff-Appellant, supra note , at 12-13 (quoting 542 U.S. 507, 536 (2004)).

31 El-Masri, 479 F. 3d at 312.

32 Id.

33 See, e.g., Youngstown Sheet&Tube Co. v. Sawyer, 343 U.S. 579, 594-95 (1952) (Frankfurter, J., concurring).

34 345 U.S. at 6, quoted in El-Masri, 479 F.3d at 303.

35 345 U.S. at 9-10.

36 El-Masri, 479 F.3d at 304-05.

37 Compare El-Masri, 479 F.3d 296, with Hepting v. AT & T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006), appeal docketed, No. 06-17137 (9th Cir. Nov. 9,2006) (“[E]ven the state secrets privilege has its limits. While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litiga tion has been so publicly aired.” (citation omitted)).

38 In the petition for certiorari, El-Masri contends that the current government has asserted the privilege with greater frequency and in cases of greater significance than previous administra tions. See Petition for Writ of Certiorari at 12-13&nn.9-10, El-Masri (not yet docketed).

1 The corporate defendants named in El-Masri's Complaint are Premier Executive Transport Services, Inc., which the Com plaint describes as doing business in Massachusetts; Keeler and Tate Management LLC, described as doing business in Nevada; and Aero Contractors Limited, described as doing business in North Carolina. See Complaint 9-11. The Com plaint is found at J.A. 9-34. (Citations herein to “J.A“refer to the contents of the Joint Appendix filed by the parties in this appeal.)

2 Pursuant to 28 U.S.C. § 517, “any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States.“

3 The Watt Declaration is found in the Joint Appendix at J.A. 191-210.

4 El-Masri does not dispute that the procedural requirements for asserting the state secrets privilege have been satisfied here.

5 By no means do we endorse El-Masri's theory that publicly reported information concerning his alleged rendition is ineligible for protection under the state secrets doctrine simply because it has been published in the news media. We need not address his contention in that regard, however, because his appeal would fail even if we were to accept it.

6 A group of former diplomats and State Department officials have submitted a brief in this matter as amici curiae. The amici emphasize that it is important, as a matter of foreign policy, to provide a forum for claims of civil and human rights violations. Even if we were to conclude, however, that protecting national security is less important than litigating the merits of El-Masri's claim, we are not at liberty to abrogate the state secrets doctrine on that basis.

7 It should be unnecessary for us to point out that the Executive's authority to protect confidential military and intelligence information is much broader in civil matters than in criminal prose-cutions. The Supreme Court explained this principle in Reynolds, observing: Respondents have cited us to those cases in the criminal field, where it has been held that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on terms to which it has consented. 345 U.S. at 12. El-Masri's reliance on our decision in United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004), in which we required the United States to grant a criminal defendant substantial access to enemy-combatant witnesses whose very identities were highly classified, is thus misplaced.

8 On July 17, 2006, the United States filed a motion for expedited in camera/ex parte review of the Classified Declaration. By Order dated August 19, 2006, we deferred consideration of that motion. We now deny the motion as moot.