German Alleging CIA Abduction Rejected by U.S. Supreme Court
Bloomberg | October 9, 2007
By Greg Stohr
The U.S. Supreme Court refused to reinstate a lawsuit against the CIA by a German citizen who says he was abducted and subjected to months of torture because of mistaken identity.
The justices, making no comment, today let stand a lower court decision that dismissed Khaled el-Masri's suit against the Central Intelligence Agency on the grounds that the case would expose state secrets.
The rejection is a victory for President George W. Bush's administration, which might have faced closer judicial scrutiny of its anti-terrorism policies had the high court intervened. The administration has invoked the so-called state secrets privilege in a number of contexts, including suits over warrantless surveillance by the National Security Agency. The Supreme Court hasn't directly considered the issue since 1953.
The Supreme Court should reassert ``the judiciary's constitutional role in reviewing the legality of executive actions,'' el-Masri's unsuccessful appeal argued. ``Otherwise, the government may engage in torture, declare it a state secret, and by virtue of that designation avoid any judicial accountability.''
The Bush administration urged the court to reject el-Masri's appeal without a hearing.
``The executive's invocation of the privilege is entitled to the utmost deference,'' U.S. Solicitor General Paul Clement argued. ``The executive branch is in a far better position than the courts to evaluate the national security and diplomatic consequences of releasing sensitive information.''
The justices already are considering whether inmates at the Guantanamo Bay prison have a constitutional right to challenge their detention in federal court.
Torture Alleged
El-Masri, who is of Lebanese descent, said he was kidnapped in December 2003 while vacationing in Macedonia and interrogated by local officials for three weeks about his alleged al-Qaeda membership. He said he was turned over to U.S. officials, stripped naked, beaten and sodomized with a hard object.
El-Masri said he then was drugged and flown to Afghanistan, where he spent four months in a CIA-run prison. In May 2004, according to his lawsuit, el-Masri was flown to Albania and released on a remote mountain.
His treatment has become a source of diplomatic tension between U.S. and German officials. In 2005, German Chancellor Angela Merkel said Secretary of State Condoleezza Rice privately conceded that the U.S. had made a mistake in detaining el-Masri. A Bush administration official disputed that characterization.
In January a German court ordered the arrest of 13 possible CIA agents suspected of involvement in el-Masri's detention and abuse. The German government last month said it was abandoning plans to seek extradition of the group after the Bush administration said it would refuse the request.
Similar Name
El-Masri said the CIA continued to hold him long after then- agency director George Tenet learned he was innocent. El-Masri's name is similar to that of Khalid al-Masri, who is wanted in connection with the Sept. 11 terrorist attacks.
A federal appeals court in Richmond, Virginia, threw out el- Masri's lawsuit on a 3-0 vote, upholding a trial judge's ruling. The appellate panel said el-Masri could win his case only by showing ``how the CIA organizes, staffs and supervises its most sensitive intelligence operations.''
El-Masri said many of the circumstances surrounding his detention are already public. In his appeal, he cited Rice's December 2005 defense of ``extraordinary rendition,'' the practice of transferring terrorism suspects to a different country. El-Masri also pointed to Tenet's denial of the lawsuit's accusations earlier this year on CNN.
``The government wholly failed to demonstrate how formal confirmation of what the entire world already knows would reasonably cause harm to American security,'' the appeal argued.
Reviewing Evidence
El-Masri contended that, at a minimum, a judge should review any evidence the government contends is covered by the state- secrets privilege before deciding whether the case can go forward.
The government said it gave the trial judge a statement by then-CIA director Porter Goss laying out the need for secrecy.
``Where a sworn declaration of the head of the department makes clear that an entire category of information is protected, there is no reason to require the government to provide further classified documents or logs to the court,'' Clement argued in his brief.
The case is el-Masri v. United States, 06-1613.
