'Rendition' victim is denied justice in US
By Jim Lobe
WASHINGTON - The US Supreme Court has declined to take up the case of a German
citizen who was allegedly abducted, detained and tortured by the Central
Intelligence Agency (CIA) as part of the CIA's "extraordinary rendition"
program.
By declining to hear the appeal, the court effectively let stand a decision by
a federal court judge in 2006 to dismiss a civil lawsuit brought against former
CIA director George Tenet, among others, by Khaled el-Masri, on the grounds
that a trial risked exposing
"state secrets".
"This is a sad day not only for Khaled el-Masri but for all Americans who care
about the rule of law and our nation's reputation in the world," said Ben
Wizner, a staff attorney for the American Civil Liberties Union (ACLU), which
brought the case on el-Masri's behalf.
"By denying justice to an innocent victim of this country's anti-terror
policies, the court has provided the government with complete immunity for its
shameful human rights and due process violations," he added, noting that the
administration of President George W Bush has asserted state secrecy to avoid
disclosing information regarding key aspects of its "war on terror", including
the use of torture, in several other cases as well.
"When the government hides behind the state secrets doctrine to evade
accountability for abuses, and the courts accept that justification despite
clear evidence of wrongdoing, it undermines the whole idea of enforcement of
human rights," agreed Elisa Massimino, the Washington director of Human Rights
First.
"Congress has let the CIA program of rendition and secret detention go on long
enough. It is time to bring this practice under control," she added.
"Extraordinary renditions", in which terrorist suspects have been seized by the
CIA and transported to other countries for interrogation, were first authorized
by President Bill Clinton but became a much more frequent practice during
Bush's "war on terror".
El-Masri, whose case has clearly irritated US-German relations and contributed
to European concern about the CIA's rendition program, was kidnapped while on
vacation in Macedonia on New Year's Eve, 2003, according to lengthy
investigation by the New York Times published in 2005.
The father of six young children, he was flown to Afghanistan where he was held
and interrogated at a secret prison called the "salt pit" in Kabul for some
four months. According to his own account, he was constantly shackled and
sometimes drugged and beaten during his confinement until his CIA handlers
became convinced that he was the victim of mistaken identity.
El-Masri, who is of Lebanese descent, has said he was also interrogated three
times by a German national during his detention in Afghanistan.
In May, he was flown to Albania, driven to a remote mountain area and abandoned
by the side of a road.
The CIA has declined all comment on the case, but German Chancellor Angela
Merkel last year asserted that US officials had admitted to her government that
el-Masri had been seized by mistake. In June 2006, a report by the Council of
Europe concluded that el-Masri's account of his ordeal was substantially
accurate.
Last January, German prosecutors issued arrest warrants for 13 people,
including suspected CIA operatives and contract pilots, in connection with
el-Masri's abduction and rendition to Afghanistan. They are all believed to
have been part of the rendition team that used the Spanish island of Majorca as
a logistical base for renditions in Europe.
In December 2005, el-Masri filed a lawsuit against Tenet, who was CIA director
at the time of his detention, several private companies believed to have been
involved in his abduction, and their employees, to recover damages for
violating his due process rights and international laws that ban arbitrary
detention and cruel and inhuman treatment.
In May 2006, however, a federal judge dismissed the suit under the so-called
"state secrets privilege" which permits governments to argue that permitting
sensitive cases to be heard could harm national security.
The judge in the case, T S Ellis III, said he deferred to the administration's
invocation of the privilege but added, "If el-Masri's allegations are true or
essentially true, then all fair-minded people must ... agree that el-Masri has
suffered injuries as a result of our country's mistake and deserves a remedy."
Last March, a three-judge appeals court upheld Ellis' decision, although it,
too, indicated some qualms. Writing for the court, Judge Robert King noted that
the case "pits the judiciary's search for truth against the executive's duty to
maintain the nation's security ... We recognize the gravity of our conclusions
that el-Masri must be denied a judicial forum for his complaint."
El-Masri's hopes for a judicial remedy, however, ended on Tuesday when the
Supreme Court denied his petition to hear the case without comment, a decision
that was characterized by White House spokeswoman Dana Perino as "a good
thing".
But others disagreed.
"Today's decision by the Supreme Court not to hear Mr el-Masri's case is
profoundly disappointing," said Sharon Bradford Franklin, senior counsel of the
Constitution Project, which filed a friend-of-the-court brief urging the court
to review the case and the application of the "state secrets privilege".
"The government's treatment of Mr el-Masri has been appalling and the executive
branch should not be permitted to hide its mistakes behind the so-called state
secrets privilege," she said. Franklin called on Congress to "immediately take
up legislation to reform the privilege and clarify that it does not authorize
unchecked power to disregard individual rights."
The ACLU has argued that the privilege was originally designed to merely
exclude sensitive kinds of evidence from being exposed in court cases, but that
the administration has used it increasingly as a way to dismiss entire cases,
thus barring any effective judicial review of its more controversial tactics,
including the wire-tapping of US citizens.
"Today's decision will not end the debate over the government's use of the
'state secrets' privilege to avoid judicial scrutiny for illegal actions
carried out in the name of fighting terrorism," said Steven Shapiro, the ACLU's
legal director. "In a nation committed to the rule of law, the government's
unlawful activity should be exposed, not hidden behind a 'state secrets'
designation."
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