El-Masri v. U.S., 06-1613

Supreme Court Refuses Torture Case

Associated Press
October 09, 2007 5:57 PM EDT

WASHINGTON - A German man who says he was abducted and tortured by the CIA as part of the anti-terrorism rendition program lost his final chance Tuesday to persuade U.S. courts to hear his claim.

The Supreme Court rejected without comment an appeal from Khaled el-Masri, effectively endorsing Bush administration arguments that state secrets would be revealed if courts allowed the case to proceed.

El-Masri, 44, a German citizen of Lebanese descent, says he was mistakenly identified as an associate of the Sept. 11 hijackers and was detained while attempting to enter Macedonia on New Year's Eve 2003.

He claims that CIA agents stripped, beat, shackled, diapered, drugged and chained him to the floor of a plane for a flight to Afghanistan. He says he was held for four months in a CIA-run prison known as the "salt pit" in the Afghan capital of Kabul.

After the CIA determined it had the wrong man, el-Masri says, he was dumped on a hilltop in Albania and told to walk down a path without looking back.

The lawsuit against former CIA director George Tenet, unidentified CIA agents and others sought damages of at least $75,000.

"We are very disappointed," Manfred Gnijdic, el-Masri's attorney in Germany, told The Associated Press in a telephone interview from his office in Ulm.

"It will shatter all trust in the American justice system," Gnijdic said, charging that the United States expects every other nation to act responsibly, but refuses to take responsibility for its own actions.

"That is a disaster," Gnijdic said.

El-Masri's claims, which prompted strong international criticism of the rendition program, were backed by European investigations and U.S. news reports. German Chancellor Angela Merkel has said that U.S. officials acknowledged that el-Masri's detention was a mistake.

The U.S. government has neither confirmed nor denied el-Masri's account and, in urging the court not to hear the case, said that the facts central to el-Masri's claims "concern the highly classified methods and means of the program."

El-Masri's case centers on the CIA's "extraordinary rendition" program, in which terrorism suspects are captured and taken to foreign countries for interrogation. Human rights activists have objected to the program.

President Bush has repeatedly defended the policies in the war on terror, saying as recently as last week that the U.S. does not engage in torture.

El-Masri's lawsuit had been seen as a test of the administration's legal strategy to invoke the doctrine of state secrets and stop national security suits before any evidence is presented in private to a judge. Another lawsuit over the administration's warrantless wiretapping program, also dismissed by a federal court on state secrets grounds, still is pending before the justices.

Conservative legal scholar Douglas Kmiec said the Bush White House uses the doctrine too broadly. "The notion that state secrets can't be preserved by a judge who has taken an oath to protect the Constitution, that a judge cannot examine the strength of the claim is too troubling to be accepted," said Kmiec, a law professor at Pepperdine University.

The court has not examined the state secrets privilege in more than 50 years.

A coalition of groups favoring greater openness in government says the Bush administration has used the state secrets privilege much more often than its predecessors.

At the height of Cold War tensions between the United States and the former Soviet Union, U.S. presidents used the state secrets privilege six times from 1953 to 1976, according to OpenTheGovernment.org. Since 2001, it has been used 39 times, enabling the government to unilaterally withhold documents from the court system, the group said.

The state secrets privilege arose from a 1953 Supreme Court ruling that allowed the executive branch to keep secret, even from the court, details about a military plane's fatal crash.

Three widows sued to get the accident report after their husbands died aboard a B-29 bomber, but the Air Force refused to release it claiming that the plane was on a secret mission to test new equipment. The high court accepted the argument, but when the report was released decades later there was nothing in it about a secret mission or equipment.

The case is El-Masri v. U.S., 06-1613.

Source: Associated Press
October 09, 2007 5:57 PM EDT
The Associated Press is the bastion of the people’s right to know around the world. With a long history of involvement in FOI issues and actions, AP is an industry leader in “open government issues.”

Reference: El-Masri v. U.S., 06-1613