Tuesday, October 09, 2007

Secrets Are No Fun

This is the tale of Khaled El-Masri, a German national taken into custody by we-who-do-not-torture:
El-Masri, a car salesman and a father of four, says his ordeal began on New Year's Eve 2003 when he was pulled off a bus after it crossed the Serbian border into Macedonia. His passport was taken, and he was questioned for days by agents who said he was a terrorist. They refused his request to contact German authorities.

After 23 days, he was blindfolded, taken to the airport and turned over to U.S. authorities. In an interview in 2005 with the Los Angeles Times in Berlin, he described what had happened then:

"I was led into a room. The door closed behind me and I was beaten from all sides for about one minute. They bent my arms to my back and cut off my clothes. . . . I saw seven to eight men all dressed in black and wearing masks. . . . They put me in diapers and a dark blue sweatsuit with the legs and sleeves cut out."

His appeal to the court says he was then put in a plane, "chained spread-eagle to the floor," injected with drugs and flown to Baghdad and then on to Kabul, Afghanistan. He spent the next four months in a CIA-run prison, the appeal says.

In late May 2004, U.S. officials had apparently concluded they had the wrong man. El-Masri was loaded onto a plane, blindfolded, put into the back of truck and dropped off on a hillside in what turned out to be Albania. From there, he made it back to Germany, where an investigation was launched.

Lest we think this is he-said/she-said about El-Masri being a terrorist, according to German officials we have already admitted we got "the wrong guy." And Germany actually went so far as to issue arrest warrants for 13 CIA agents involved in his abduction (they have since dropped the effort).

El-Masri sued the US, but the Supreme Court just denied cert, upholding rulings by lower courts that allowing the case to proceed would violate the "state secrets" doctrine -- a doctrine that even conservative law professor Douglas Kmiec, who has emerged as one of the Bush administration's most prominent academic defenders, said was "not sustainable" in its current breadth.

Also, fun fact: the LA Times dug up the case which originally established the "state secrets" doctrine:
The case tests the outer reaches of the so-called state- secrets privilege, a rule established during the Cold War to block a lawsuit after the crash of a B-29 bomber. Three widows of crewmen sued and sought the official accident reports. The Air Force said the reports could not be revealed because the bomber was on a top-secret mission to test new equipment.

The Supreme Court ruled for the government in the 1953 case, U.S. vs. Reynolds, saying the reports must be suppressed because they could reveal military secrets.

(When the accident reports were declassified in 2000, they revealed only that the aircraft was in poor condition, evidence that might have helped the widows win their suit.)

I suspect that hearing this case would reveal similarly valuable information that would put American lives at risk.

In any event, just remember: This Country Does Not Torture People (tm). But occasionally, it does pluck random folk off the street, hold them incommunicado, beat them up for several months, them drop them off blindfolded on an Albanian hillside.

Some other blogs:

Captain Ed says to El-Masri: "Tough luck." Ed's commenters to him: "I hope this happens to you in the near future, then." I do give him a little credit for admitting in updates that he was too glib. But only a little, since I don't really accept that we can call ours a legal system and have no remedy for torturing innocent people for several months.

The Plank: "You'd think if it really were a case of mistaken identity, the Bush administration would want to just pay him whatever damages he's asking for and dispose of the whole thing, rather than going through the trouble (and bad publicity) of fighting him in the courts, even if they've ended up winning. But apparently not."

Michael Dorf tries to read some tea-leaves behind the cert denial. But whatever small comforts can be drawn, they won't "do El-Masri any good."

1 comment:

PG said...

Given the history you recount, you may appreciate this title of a YLJ Pocket Part piece: Protecting National Security or Covering Up Malfeasance: The Modern State Secrets Privilege and its Alternatives.