[wvns] Top court won't hear appeal in CIA torture case
Top court won't hear appeal in CIA torture case
Tue Oct 9, 2007
http://www.reuters.com/article/topNews/idUSWAT00823120071009
WASHINGTON (Reuters) - A German citizen who says he was kidnapped,
imprisoned and tortured overseas by the CIA lost his appeal on Tuesday
when the Supreme Court refused to review a decision dismissing the
case because it would expose state secrets.
Attorneys for Khaled el-Masri, a German of Lebanese descent, argued in
the high court appeal that his lawsuit did not depend on the
disclosure of state secrets and that it should be allowed to go
forward in U.S. court.
His case, in which Masri said he was abducted in Macedonia, flown to
Afghanistan and tortured, has drawn worldwide attention to the CIA's
extraordinary rendition program, in which terrorism suspects are sent
from one foreign country to another for interrogation. Human rights
groups have strongly criticized the program.
Masri's case sparked outrage in Germany and prompted a parliamentary
inquiry to find out what authorities might have known about U.S.
renditions.
Masri's attorneys from the American Civil Liberties Union challenged
what they called the Bush administration's increased invoking of
national security secrets to prevent any judicial inquiry into serious
allegations of misconduct.
The administration also has asserted the so-called state secrets
privilege in an effort to dismiss the lawsuits over the warrantless
domestic spying program that Bush created after the September 11 attacks.
Ben Wizner of the ACLU was disappointed by the Supreme Court decision.
'SWEPT UNDER THE RUG' Continued
"If Khaled el-Masri's case is a state secret, then virtually every
case of executive misconduct can be swept under the rug," he said.
"This case is not about secrecy. It's about immunity for crimes
against humanity."
Masri's lawsuit, which sought damages of at least $75,000, was brought
against former CIA Director George Tenet, three private aviation
companies and 20 unnamed employees of the CIA and the companies.
The Supreme Court sided with the administration and rejected the
appeal without any explanation or recorded dissent.
Masri said he was abducted by Macedonian authorities on December 31,
2003, while on vacation. After 23 days, he was handed over to a CIA
team and flown to a CIA-run secret prison near Kabul, Afghanistan, he
said.
Masri said he was beaten, interrogated and held as a terrorism
suspect, even though CIA officials quickly determined his innocence.
He said he was flown to Albania and released on May 28, 2004.
A federal judge and then a U.S. appeals court dismissed the lawsuit
because it threatened to expose government secrets, including how the
CIA supervises its most sensitive intelligence operations.
The Supreme Court formally recognized the state secrets privilege in a
1953 ruling. The ACLU's attorneys said the court has not revisited the
decision in more than 50 years and urged the justices to re-examine it.
The CIA has never acknowledged any role in Masri's detention. The Bush
administration opposed Masri's appeal.
Administration attorneys said lower courts applied "settled legal
principles to the highly classified facts of this case" and that
further review by the Supreme Court was unwarranted.
===
High Court Won't Hear Rendition, Torture Case
by Jim Lobe
Inter Press Service
http://www.antiwar.com/lobe/?articleid=11733
In a major rebuff to human rights and government accountability
activists, the U.S. Supreme Court Tuesday 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 "global 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 President George W. Bush's "global war on
terror."
El-Masri, whose case has clearly irritated U.S.-German relations and
contributed to European concern about the CIA's extraordinary
rendition program, was kidnapped while on vacation in Macedonia on New
Year's Eve 2003, according to a lengthy investigation by the New York
Times published in 2005.
The father of six young children 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 U.S. 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 flight 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 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 wiretapping of U.S.
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," he added.
===
Supreme Court refuses torture case By MARK SHERMAN, Associated Press
Writer
Tue Oct 9, 2007
http://news.yahoo.com/s/ap/20071010/ap_on_go_su_co/scotus_cia_lawsuit;_ylt=Al0uEw_AZ4CCuKRoK178mb2s0NUE
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 claims.
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.
Associated Press Writer Thomas Seythal in Frankfurt, Germany,
contributed to this story.
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