Sunlight Is the Best Disinfectant

Justice Denied
By William A. Cohn

10/26/07 “ICH” — – 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 US-led global war on terror. On October 9th, Masri’s last hope at getting justice in the US was dashed when the Supreme Court declined to review the lower court rulings dismissing his case based on the government’s assertion that to give Masri his day in court would require the disclosure of state secrets and thus harm US 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 for the silence and secrecy Masri encountered in his search for answers in the US. Now, Masri must turn to the European Court of Justice in the hopes that Europe will afford him the justice he was denied in America. Since the US is not a signatory to the European Convention on Human Rights, 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 US 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 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.

Masri’s story has been one of the most widely reported cases of so-called ‘extraordinary rendition’, the practice of secretly abducting suspected terrorists and indefinitely detaining them, often in countries known to torture prisoners. On December 6, 2005 Masri filed a lawsuit in US federal court against former CIA director George Tenet, and others, alleging that the defendants, acting as agents of the US government, kidnapped, wrongfully imprisoned, abused and tortured him. The 44-year-old married father of five alleges that on December 31, 2003 he was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to US 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 seems 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 Qaeda member in Germany. Likely, the CIA’s ‘enhanced interrogation techniques’ produced false ‘intelligence’ and they chased a fictive person with reckless abandon. The validity of Masri’s German passport was never checked before he was flown to Afghanistan. German Chancellor Merkel told the press that US Secretary of State Rice acknowledged to her the mistake with Masri. Rice’s staffers subsequently denied any such admission having been made. Rice, like all Bush officials, has refused to comment on Masri’s claims.

Masri’s lawsuit sought an apology and monetary compensation. US District Judge T.S. Ellis III held that 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 Masri will never obtain a remedy through the US legal system.

The Masri case reveals much of what has gone wrong in the ‘war on terror.’ The Supremes let stand the March 2nd Fourth Circuit Court of Appeals ruling which upheld Judge Ellis’ dismissal of the lawsuit because it could expose state secrets. 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.”

Masri’s is not the only such case to be so 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 US 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’. Sadly, the current US administration lacks the strength to ever apologize.

The once-obscure state secrets privilege has been expanded and used ever-more since it was created in the 1953 case US v. Reynolds. Information declassified half a century later reveals that the state secrets claim in the Reynolds case was a lie – the government was seeking to hide its mistakes and protect against embarrassment, not to protect the country’s security. This revelation has fueled calls for reform by legal scholars, public interest groups and the American Bar Association. 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.

On October 11th, the Times opined, “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. On October 10th, a federal judge, citing domestic and international law prohibiting torture, barred the transfer of Guantanamo Bay inmate to Tunisia, marking the 1st time the judiciary has blocked the government transfer of a terror detainee. Perhaps this signals a new willingness to question claims of executive privilege.

As part of a community working to instill respect for the rule of law in post-communist Europe, these are challenging times. America should lead by example in assisting new democracies to root out corruption and establish transparency and accountability in governance. Yet its refusal to cooperate with German prosecutors in Masri’s case, the Canadians in Arar’s case, or the Italians in a rendition investigation there, erodes international cooperation. And revelations of secret torture memos, secret prisons, and secretive government under a novel ‘unitary executive’ theory undermine efforts advocating a rule of law agenda.

We owe Khaled El-Masri our gratitude for helping to expose human rights abuses committed in our name. By taking his claim to the European Court of Justice Masri can shed additional light on the self-defeating post-9/11 tactics employed in the US and Europe. Sunlight is the best disinfectant.

Masri was turned back at the airport without explanation when he flew to the US to appear at his first court hearing, and in the end he was denied review by the Supreme Court without comment. Mr. Masri 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.

William A. Cohn, who reported on the Masri case in the spring 2006 issue of The New Presence, is a writer, lawyer and lecturer at the University of New York in Prague.

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