Khaled El-Masri, a German citizen of Lebanese descent, was abducted while vacationing in Macedonia in December 2003, turned over to the CIA and held as a suspected terrorist in a secret prison in Afghanistan for five months. When the CIA apparently realized it had mistaken him for an al Qaeda suspect with a similar name, he was flown back to Macedonia and released — with arrangements for him to be flown back to Germany, but with no explanation or apology.

A day after the story was reported by The Washington Post in December 2004, Secretary of State Condoleezza Rice publicly acknowledged the events at a news conference in Germany and promised that the United States would do “everything possible to rectify the mistakes,” whether in German or U.S. courts.

Masri sued the CIA in federal court the next day, but the Bush administration has not followed through on Rice’s promise. Quite the opposite: In March 2006, it invoked perhaps the most powerful weapon in its legal arsenal, the state secrets privilege, to ask that the lawsuit be dismissed before Masri could gather evidence or demonstrate legal entitlement to damages. The Justice Department said that allowing Masri to conduct such discovery risked harm to national security by exposing intelligence “sources and methods.”

That argument prevailed in two lower federal courts, which rejected pleas by the American Civil Liberties Union to allow the suit to continue under procedures to safeguard national security secrets as the issues arose. And this month the Supreme Court declined to review the case, leaving Masri with no apparent remedy in U.S. courts for the consequences of his mistaken identity by the U.S. government.

Masri is one of several recent innocent victims of the state secrets privilege, a legal doctrine that, even to its most prominent academic supporter, often amounts to overkill. Two years ago, for example, the justices similarly refused to hear a challenge to the government’s invocation of the privilege in the case of Sibel Edmonds, an Arabic-language expert who claimed the FBI fired her after she tried to blow the whistle on ineptitude and espionage among other FBI translators working on al Qaeda-related intercepts.

The justices’ disinterest in reviewing the privilege comes more than half a century after their predecessors established it. In 1953, the Supreme Court ruled, 6-3, in United States v. Reynolds that the government does not have to disclose evidence in a suit when there is “a reasonable danger” the disclosure will expose sensitive national security matters. (Tellingly, when documents about the crash of a specially outfitted B-29 at the center of the case were released five decades later under the Freedom of Information Act, they disclosed no state secrets — only evidence of likely government negligence in the crash.)

Government wrongdoing, intentional or not, is a common feature of many lawsuits stunted over the past 30 years by the use of the state secrets privilege. The courts’ complaisance is ironic. The increased litigation in the national security field stems in part from the exposure of the dark side of the CIA’s history in the 1970s, which demonstrated the risks of a culture of blind trust in the national security apparatus. But today, accounts from both supporters and critics of the state secrets privilege describe the courts as almost uniformly responding to the government’s invocation of the privilege with what amounts to blind trust.

There is disagreement among academic experts about whether the Bush administration has been promiscuous in using the privilege to cut off lawsuits against the government. William Weaver, a political scientist at the University of Texas at El Paso and adviser to the National Security Whistleblower Coalition, says this administration has been using the privilege “with abandon.” But Robert Chesney, a law professor at Wake Forest University, says the relatively small number of published court opinions on the subject makes any talk of a “trend” misleading. Still, the seven published opinions last year in cases involving the privilege were the most for any single year ever.

The statistical dispute misses a broader point: The administration has been invoking the privilege in cases with broader impact. Many of the cases in the past involved suits of interest primarily to individuals. The Bush administration has been invoking the privilege in cases that significantly bear on its policies for pressing its “war on terror.” Masri’s suit, for example, might have examined the controversial policy of “extraordinary rendition” of suspected terrorists. The administration is also using the state secrets privilege to block suits challenging the program of warrantless electronic surveillance Bush authorized shortly after the Sept. 11 attacks.

Chesney describes some applications of the privilege as “over-inclusive.” He says that Congress might play a role in scrutinizing the executive’s use of the privilege and that courts should be chary about dismissing cases altogether. Weaver says courts need to be much more skeptical to prevent “abuse” of the privilege. But with Congress reluctant to challenge the administration and the Supreme Court showing no interest, any move to rein in the privilege seems unlikely — at least for the duration of this presidency.

Kenneth Jost is the Supreme Court editor for CQ Press.