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The American Civil Liberties Union suffered major defeats on Friday, when two of its cases involving clear violations of civil rights and civil liberties were dismissed, both undone by the judiciary’s deference to executive-branch secrecy.
A dramatically divided three-judge panel on the U.S. Court of Appeals for the D.C. circuit ruled in favor of Department of Justice lawyers who argued that Amir Meshal couldn’t sue for damages for his alleged torture at the hands of FBI agents in three African countries because it happened overseas and because the litigation would jeopardize “national security.” Meshal is a U.S. citizen who FBI agents suspected had ties to al Qaeda.
And a Maryland district court judge threw out a massive legal challenge to the National Security Agency and its “Upstream” surveillance program on behalf of Wikimedia, Amnesty International USA, The Nation magazine and six other groups, because they couldn’t prove that the NSA had specifically spied on them — despite the troves of publicly available information on how the mass-surveillance program works, primarily from NSA whistleblower Edward Snowden.
In both cases, the ACLU had appealed to the judicial branch for relief from the excesses of the executive branch. But both courts allowed the federal government to escape judicial oversight simply by insisting that national security matters should remain secret.