The Supreme Court Refuses to Weigh National Security against Liberty

Last week the Supreme Court refused to grant certiorari to the case of Khaled el-Masri, who asserts the United States government tortured him while in Afghanistan. He claims that he was detained in 2003 while in Macedonia and later transported to Afghanistan to be tortured. His case would have presented two issues to the Supreme Court. If Mr. Masri had been taken to Afghanistan to be tortured, his case would affirm the United States' use of extraordinary rendition. Several international conventions prohibit the use of extraordinary rendition, or the movement of a person from one state to another, typically one that permits the use of torture. Among these is the United Nations Convention against Torture, which the United States ratified in 1994.

The second issue for the court would have been the need to balance national security ("State secrets privilege") and Mr. Masri's right to bring his case before the federal judiciary. As the Supreme Court declined to hear Mr. Masri's case, they affirmed the supremacy of national security in this particular case. The concern for organizations such as the American Civil Liberties Union, as the New York Times article reports, is the pervasive effect that the decision not to hear the case may have.