The Prague Post Online: Opinion: Supreme mistake

November 22nd, 2008

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Supreme mistake

Denied justice in the United States, Khaled el-Masri should seek it in Europe

October 24th, 2007 issue

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By Bill Cohn

It was a case of mistaken identity. It could have happened to any one of us.

And yet, in 2007 it is hard for us to imagine the ongoing nightmare endured by Khaled el-Masri, the German citizen whose story helped to expose the ugly underbelly of the U.S.-led global war on terror. Masri’s last hope at getting justice in the United States was dashed Oct. 9 when the Supreme Court declined to review the lower court rulings dismissing his case, based on the government’s assertion that to give el-Masri his day in court would require the disclosure of state secrets and thus harm U.S. national security.

His Kafkaesque plight brings to mind the inquisitorial “justice” meted out by totalitarian regimes.

That the high court refused to hear his case without comment is all too fitting, given the silence and secrecy el-Masri encountered in his two-year search for answers in the United States. Now, el-Masri must turn to the European Court of Justice in the hopes that Europe will afford him the justice he was denied in the United States. Since the United States is not a signatory to the European Convention on Human Rights, el-Masri should bring suit against Germany for its complicity in his mistreatment in order to obtain an adjudication affirming the mistreatment he received at the hands of U.S. agents.

The Supreme Court decision, which The New York Times called a “supreme disgrace,” in essence accepted the Bush administration’s contention that the judiciary must “trust us” that allowing el-Masri’s case to proceed would harm national security. But the constitutional rule of law is based on distrust, not trust. That is why, recognizing as axiomatic that “Power corrupts, and absolute power corrupts absolutely,” the constitution established a system of checks and balances by means of a separation of powers aimed at accountability. By rubber-stamping claims of executive privilege, the judiciary shirks its constitutional duty, and thus fails us all.

El-Masri’s case shed light on so-called “extraordinary rendition,” the practice of secretly abducting suspected terrorists and indefinitely detaining them, often in countries known to torture prisoners. He filed a lawsuit in a U.S. federal court Dec. 6, 2005, against former CIA Director George Tenet and others, alleging that the defendants, acting as agents of the U.S. government, kidnapped, wrongfully imprisoned, abused and tortured him.

The 44-year-old married father of five alleges that he was forcibly abducted while on holiday in Macedonia, Dec. 31, 2003, detained incommunicado, handed over to U.S. agents, then beaten, drugged and taken to a secret prison in Afghanistan, where he was interrogated in a cruel and inhuman manner. His allegations have been investigated and substantiated by the German state prosecutor and the Council of Europe, the continent’s human rights watchdog.

It appears that Khaled el-Masri was thought to be Khalid al-Masri, the name given to the CIA by the Hamburg-based terror suspect Ramzi Binalshibh as the person who helped Mohammed Atta’s 9/11 cabal make contact with a senior al-Qaida member in Germany. It’s likely that the CIA’s “enhanced interrogation techniques” produced false intelligence, and the agency chased a fictive person with reckless abandon.

The validity of el-Masri’s German passport was never checked before he was flown to Afghanistan. German Chancellor Merkel told the press that U.S. Secretary of State Rice acknowledged to her the mistake with el-Masri. Rice’s staffers subsequently denied that any such admission was made. Rice, like all Bush officials, has refused to comment on el-Masri’s claims.

El-Masri’s lawsuit sought an apology and compensation. U.S. District Judge T.S. Ellis III held that el-Masri’s “private interests must give way to the national interest in preserving state secrets,” adding that if the allegations are true, “all fair-minded people must also agree that el-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” Indeed, there is no justice without a remedy for a legal wrong. But following the Supreme Court refusal to review his case, it is now a certainty that el-Masri will never obtain a remedy through the U.S. legal system.

The el-Masri case reveals much of what has gone wrong in the “war on terror.” The Supremes let stand the March 2 Fourth Circuit Court of Appeals ruling which upheld Judge Ellis’ dismissal of the lawsuit. These decisions have brought widespread disbelief, disappointment and disgust. Following the Fourth Circuit ruling, ACLU attorney Ben Wizener said: “This is doubly insulting. Everyone knows that Mr. el-Masri was a mistaken victim of the rendition program. He is now a victim of the misuse of the state-secrets privilege.”

El-Masri’s is not the only such case to be dismissed. For instance, Maher Arar, the Canadian citizen taken to an Edgar Allan Poe-like secret prison in Syria, also had his case thrown out of U.S. federal court by a state secrets ruling. The Canadian government substantiated Arar’s claims and offered an apology and compensation for its role in his rendition.

The once-obscure state secrets privilege has been expanded and used increasingly since it was created in the 1953 case U.S. v. Reynolds. Information declassified half a century later revealed that the state secrets claim in Reynolds was a lie — the government was seeking to hide its mistakes and protect against embarrassment, not protect the country’s security. This revelation has fueled calls for reform by legal scholars, public interest groups and the American Bar Association, citing that since 1993, judges have required in-camera review of the disputed documents underlying state secrets claims in less than an eighth of cases, opting instead for blind deference.

The Times opined Oct. 11, “this administration has repeatedly relied upon [the state secrets doctrine] to avoid judicial scrutiny of its lawless action . . . courts need to apply a healthy dose of skepticism to state secrets claims.”

Recently, parts of the judiciary have awakened. Federal judges have denied state secrets claims, noting that to defer to a blanket assertion of state secrets would be to abdicate their duty. Oct. 10, a federal judge, citing domestic and international law prohibiting torture, barred the transfer of a Guantanamo Bay inmate to Tunisia, marking the first time the courts have blocked the government transfer of a terror detainee.

The need for the judiciary to re-assert its constitutional authority has been made clear by the litany of executive branch abuses degrading the rule of law — most recently, revelations of secret torture memos. We owe Khaled el-Masri our gratitude for helping to expose those abuses. An ECJ suit would shed additional light on the self-defeating post-9/11 tactics employed by the United States. and Europe.

El-Masri was turned back at the airport without explanation when he flew to the United States to appear at his first court hearing, and in the end he was denied review by the Supreme Court without comment. He is reportedly experiencing psychiatric problems today. Let us hope that he has the strength to continue his search for truth and fairness with the European Court of Justice. For we all have a stake in his struggle for justice.

—Bill Cohn, who reported on the el-Masri case in the spring 2006 issue of The New Presence, is a lawyer, writer and lecturer at the University of New York in Prague

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