CIA abduction? Sorry, that's a secret By William Fisher
NEW YORK - The US government has again invoked the "state secrets" privilege,
arguing that a public trial of a lawsuit against a former head of the Central
Intelligence Agency (CIA) for abducting and imprisoning a German citizen would
lead to disclosure of information harmful to national security.
Once rarely used, the "state secrets" privilege has over the past five years
become a routine defense used by the administration of President George W Bush
to keep cases from being tried.
The current case involves a suit brought by Khalid El-Masri. El-Masri was on
vacation in Macedonia when he was kidnapped and transported to a CIA-run "black
site" in Afghanistan. After several months of confinement in squalid
conditions, he was returned to
Albania and abandoned on a hill with no explanation. He was never charged with
a crime.
El-Masri, who is represented by the American Civil Liberties Union (ACLU), is
seeking an apology and money damages from the CIA. The first - and perhaps the
last - hearing on the case took place last week before a federal court in
Alexandria, Virginia.
The lawsuit charges former CIA director George Tenet, other CIA officials and
four US-based aviation corporations with violations of US and universal
human-rights laws. It claims El-Masri was "victimized by the CIA's policy of
'extraordinary rendition'".
Lebanese-born El-Masri says he took a bus from Germany to Macedonia, where
Macedonian agents confiscated his passport and detained him for 23 days,
without access to anyone, including his wife.
He says he was then put in a diaper, a belt with chains to his wrists and
ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane,
his legs and arms spread-eagled and secured to the floor. He was drugged and
flown to Afghanistan, where he was held in solitary confinement for five months
before being dropped off in a remote rural section of Albania. He claims it was
a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were
responsible for his rendition to Afghanistan.
The aviation companies accused of transporting him during his detention are
also protected by the "state secrets" privilege. A federal judge must decide
whether to grant the government's motion to dismiss the case, but an ACLU
spokesperson said this could take weeks or months.
A parliamentary inquiry into El-Masri's kidnapping is also ongoing in Germany.
Speaking from Germany during a telephone news conference called last Friday by
the ACLU, El-Masri said his objective is an explanation and an apology from the
CIA.
According to Dr Beau Grosscup, professor of international relations at
California State University and an expert on terrorism, "Diplomatic assurances
are trumped by the military, police and intelligence 'counterinsurgency'
programs that the two Cold War superpowers instituted and still run in many of
these countries that train police and military personnel in torture.
"The real attitude driving the 'rendition' efforts is: 'Having paid to train
them in torture, why not get our money's worth?'" he said.
During her first meeting with newly elected German Chancellor Angela Merkel
several months ago, US Secretary of State Condoleezza Rice admitted El-Masri's
kidnapping and detention were the result of a "mistake" by the CIA. The
incident threatened again to sour US relations with Germany, which Rice
traveled to Europe to repair after Germany's opposition to the US invasion of
Iraq.
Rice has defended the practice of rendition, saying it was a vital tool in the
"war on terror". However, she has said the US does not "send anyone to a
country to be tortured".
"The United States has not transported anyone, and will not transport anyone,
to a country when we believe he will be tortured," she said. "Where
appropriate, the United States seeks assurances that transferred persons will
not be tortured."
But most human-rights and foreign-affairs experts believe that such "diplomatic
assurances" are worthless. They say there is ample evidence that detainees who
are "rendered" to other countries are frequently subjected to torture. The US
has rendered prisoners to a number of countries that have notoriously poor
human-rights records, including Egypt, Jordan, Syria, Afghanistan and Algeria,
as well as to suspected CIA secret prisons in Eastern Europe.
The existence of the Eastern European prisons was revealed by the Washington
Post. The newspaper reported that prisoners were routinely tortured, using such
techniques as "waterboarding" - submerging a prisoner in restraints in water to
convince him he was drowning - mock execution, prolonged shackling, being
threatened with dogs, and "cold cells", in which prisoners are held naked in
low temperatures and doused with cold water.
Last week, a special committee of the European Parliament issued an interim
report concluding that the CIA has on several occasions illegally kidnapped and
detained individuals in European countries. The report also found that the CIA
detained and then secretly used airlines to transfer persons to such countries
as Egypt and Afghanistan, which routinely use torture during interrogations.
Rendition is known to have been a CIA practice for some years. But its
frequency increased exponentially after September 11, 2001, with reportedly
dozens of prisoners being kidnapped from Italy, Sweden and other European
countries. Italy is suing the US for kidnapping an Italian citizen on Italian
soil.
The US Senate has passed an amendment mandating that the defense secretary
inform Congress about US-run secret prison facilities in foreign countries.
Last week, the US again refused the International Committee of the Red Cross
(ICRC) access to terrorism suspects held in secret detention centers. Jakob
Kellenberger, president of the ICRC, deplored the fact that the US authorities
had not moved closer to granting the Red Cross access to persons held in
undisclosed locations, the Geneva-based agency said.
Kellenberger said: "No matter how legitimate the grounds for detention, there
exists no right to conceal a person's whereabouts or to deny that he or she is
being detained."
The former senior Swiss diplomat said the ICRC would continue to seek access to
such people as a matter of priority.
Investigators for the European Parliament reported last month that they had
evidence that the CIA had undertaken 1,000 undeclared flights over Europe since
2001, in some cases transporting terrorist suspects abducted within the
European Union to countries known to use torture.
But in an appearance before the UN Committee on Torture, the body that monitors
compliance with the Geneva Conventions, the lead State Department lawyer, John
Bellinger, labeled as "absurd" charges that prisoners being rendered were on
all these flights. He also said terrorist suspects could pose a threat to
security if allowed to meet with ICRC representatives.
Addressing reporters after the hearing concluded, Bellinger said provisions in
the torture convention that prohibit transferring detainees to countries where
they could be tortured do not apply to detainee "transfers that take place
outside of the United States". He added, however, that the United States has
"as a policy matter, applied exactly the same standards" to such transfers.
The "state secrets" privilege being used by the government in the El-Masri case
is a series of US legal precedents allowing the federal government to dismiss
legal cases that it claims would threaten foreign policy, military
intelligence, or national security. A relic of the Cold War with the Soviet
Union, it has been invoked several times since the attacks on the World Trade
Center and the Pentagon on September 11, 2001. Judges have denied the privilege
on only five occasions.
