El-Masri: Not Giving Up

By William Fisher

Thwarted by U.S. Courts, a German citizen who claims he was “rendered” by the U.S. and secretly detained and tortured for three months is taking his case to the Inter-American Commission on Human Rights.

The IACHR has accepted a petition filed by the American Civil Liberties Union (ACLU) on behalf of Khaled El-Masri. The U.S. government has two months to respond to allegations of kidnapping and torture which U.S. courts summarily rejected in 2007.

"The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program.

"The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date, the United States hasn't so much as acknowledged its involvement in El-Masri's extraordinary rendition."

In 2003, El-Masri, a German citizen, was kidnapped and flown to a CIA-run "black site" in Afghanistan, where he was secretly detained and tortured. Although his innocence was clear soon after his detention, the CIA continued to hold El-Masri for four months before flying him to Albania and abandoning him on a hillside in the dead of night. El-Masri has never been charged with a crime.

In 2005, the ACLU sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. Constitution and universal human rights laws.

In March 2007, a federal appeals court dismissed the lawsuit because of the government's assertion of the "state secrets" privilege. The U.S. Supreme Court let that decision stand when it refused to hear the case in October 2007.

"The United States, which has historically been a leader in ensuring access to justice for human rights violations around the world, has effectively closed the courtroom door to all victims of the Bush administration's torture regime," said Ben Wizner, staff attorney with the ACLU National Security Project.

"To date, not a single victim of torture by the U.S. has had his day in court. A review of Mr. El-Masri's case by the IACHR will shed much-needed light on the abuses perpetrated against him and will finally offer a victim of the U.S. torture and rendition program a venue in which his claims can be meaningfully addressed."

The Obama administration recently announced that it will continue to render individuals it suspects of involvement in terrorism to detention in other countries, but that it will monitor all cases to ensure that suspects are not mistreated. There is little difference between this policy and that of the previous administration. Neither stated what it would do if it found that “diplomatic assurances” were being violated.

"Any transfer of detainees in U.S. custody to other countries must fully comply with domestic and international human rights law," said Jennifer Turner, researcher with the ACLU Human Rights Program. "Examining the Bush administration rendition program and holding accountable those who broke the law will help to ensure that the same mistakes aren't repeated by the Obama administration."

The IACHR is an autonomous body created by mandate of the Organization of American States to promote and protect human rights in the Americas. The ACLU petition asks that the IACHR declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man; to find the U.S. responsible for violating El-Masri's rights under that declaration; and to recommend that the U.S. publicly acknowledge and apologize for its role in violating El-Masri's rights through forcible disappearance, arbitrary detention and torture.

The El-Masri case is beginning to attract almost as much media attention as perhaps the best-known rendition case: that of Maher Arar.

Arar, a dual Canadian-Syrian citizen, was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was held in solitary confinement in the U.S. for nearly two weeks, questioned, and denied meaningful access to a lawyer. The US government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture.

He was detained in Syria for almost a year, during which time he was tortured, according to the findings of a commission of inquiry established by Canada.

The commission concluded that Aar had been tortured. It publicly cleared Arar of any links to terrorism and gave him a $10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.

Despite the Canadian court ruling, the U.S. government has not exonerated Arar. It has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist, though former Secretary of State Condoleezza Rice acknowledged in testimony to Congress that the Arar affair was “not handled very well.” As of February 2009, Arar and his family remain on the U.S. “no-fly” watchlist.

His U.S. lawyers at the Center for Constitutional Rights (CCR) continue to pursue his case, Arar v. Ashcroft, which seeks compensatory damages on Arar’s behalf and also a declaration that the actions of the U.S. government were illegal and violated his constitutional, civil, and international human rights.