By William Fisher
The U.S. Government has once again invoked the "state secrets" privilege, arguing that a public trial of a lawsuit against a former head of the Central Intelligence Agency for abducting and imprisoning a German citizen would lead to disclosure of information harmful to U.S. national security.
Once rarely used, the "state secrets" privilege has over the past five years become a routine defense used by the U.S. Government to keep cases from being tried.
The current case involves a suit brought by Khalid El-Masri. El-Masri was on vacation in Macedonia when he was kidnapped and transported to a CIA-run "black site" in Afghanistan. After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation. He was never charged with a crime.
El-Masri, who is represented by the American Civil Liberties Union (ACLU), is seeking an apology and money damages from the CIA. The first - and perhaps the last -- hearing on the case took place last week before a federal court in Alexandria, Virginia.
The lawsuit charges former CIA director George Tenet, other CIA officials and four U.S.-based aviation corporations with violations of US and universal human rights laws. It claims El-Masri was "victimized by the CIA's policy of 'extraordinary rendition'."
The Lebanese-born Al-Masri says he took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days, without access to anyone, including his wife.
He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania. He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan.
The aviation companies accused of transporting him during his detention are also protected by the "state secrets" privilege. A federal judge must decide whether to grant the government's motion to dismiss the case, but an ACLU spokesperson told IPS this could take weeks or months.
A parliamentary inquiry into El-Masri's kidnapping is also currently ongoing in Germany.
Speaking from Germany during a telephone news conference called last Friday by the ACLU, El-Masri said in response to our question that his objective is an explanation and an apology from the CIA.
According to Dr. Beau Grosscup, professor of international relations at California State University and an expert on terrorism, "Diplomatic assurances are trumped by the military, police and intelligence 'counterinsurgency' programs that the two Cold War superpowers instituted and still run in many of these countries that train police and military personnel in torture."
"The real attitude driving the 'rendition' efforts is: 'Having paid to train them in torture, why not get our money's worth'," he told us.
During her first meeting with the newly-elected German chancellor Angela Merkel several months ago, Secretary of State Condoleeza Rice admitted El-Masri's kidnapping and detention was the result of a "mistake" by the CIA. The incident threatened to again sour US relations with Germany, which Rice traveled to Europe to repair following Germany's opposition to the American invasion of Iraq.
But Rice has defended the practice of rendition, saying it was a vital tool in the war on terror. However, she has said the U.S. does not "send anyone to a country to be tortured."
"The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured," she said. "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."
But most human rights and foreign affairs experts believe that such "diplomatic assurances" are worthless. They say there is ample evidence that detainees who are "rendered" to other countries are frequently subjected to torture. The US has rendered prisoners to a number of countries that have notoriously poor human rights records, including Egypt, Jordan, Syria, Afghanistan and Algeria, as well as to suspected CIA secret prisons in Eastern Europe.
The existence of the Eastern European prisons was revealed by the Washington Post. The Post reported that prisoners were routinely tortured, using such techniques as "waterboarding" - submerging a prisoner in restraints in water to convince him he was drowning -- mock execution, prolonged shackling, being threatened with dogs, and "cold cell," in which prisoners are held naked in low temperatures and doused with cold water.
Last week, a special committee of the European Parliament issued an interim report concluding that the CIA has on several occasions illegally kidnapped and detained individuals in European countries. The report also found that the CIA detained and then secretly used airlines to transfer persons to countries like Egypt and Afghanistan, which routinely use torture during interrogations.
Rendition is known to have been a CIA practice for some years. But its frequency increased exponentially after 9/11, with reportedly dozens of prisoners being kidnapped from Italy, Sweden and other European countries. Italy is currently suing the US for kidnapping an Italian citizen on Italian soil.
The US Senate has passed an amendment mandating that the Defense Secretary inform Congress about U.S.-run secret prison facilities in foreign countries.
Last week, the US again refused the International Committee of the Red Cross (ICRC) access to terrorism suspects held in secret detention centers.
Jakob Kellenberger, President of the ICRC, deplored the fact that the U.S. authorities had not moved closer to granting the ICRC access to persons held in undisclosed locations," the Geneva-based agency said.
Kellenberger said: "No matter how legitimate the grounds for detention, there exists no right to conceal a person's whereabouts or to deny that he or she is being detained."
The former senior Swiss diplomat said that the ICRC would continue to seek access to such people as a matter of priority.
Earlier, a report by investigators for the European Parliament said last month they had evidence that the CIA had flown 1,000 undeclared flights over Europe since 2001, in some cases transporting terrorist suspects abducted within the European Union to countries known to use torture.
But in an appearance before the UN Committee on Torture, the body that monitors compliance with the Geneva Convention, the lead State Department attorney labeled as "absurd" charges that prisoners being rendered were on all these flights.
He added that terrorist suspects could pose a threat to security if allowed to meet with ICRC representatives.
Addressing reporters after the hearing concluded, Bellinger said that provisions in the torture convention that prohibit transferring detainees to countries where they could be tortured do not apply to detainee "transfers that take place outside of the United States." He added, however, that the U.S. has "as a policy matter, applied exactly the same standards" to such transfers.
The "state secrets" privilege being used by the Government in the El-Masri case is a series of U.S. legal precedents allowing the federal government to dismiss legal cases that it claims would threaten foreign policy, military intelligence, or national security.
A relic of the Cold War with the then-Soviet Union, it has been invoked several times since the Sept. 11, 2001, attacks on the World Trade Center and the Pentagon. Judges have denied the privilege on only five occasions.
It was used against Sibel Edmonds, a former FBI translator, who was fired in retaliation for reporting security breaches and possible espionage within the Bureau. Lower courts dismissed the case when former Attorney General John Ashcroft invoked the state secrets privilege and the Supreme Court upheld that decision. It has also been used to block legal actions by other "whistleblowers" who work in the national security field.
The ACLU told us, "There is an acute need for clarification of the state secrets doctrine because the government is increasingly using the privilege to cover up its own wrongdoing and to keep legitimate cases out of court."
One of the hallmarks of the Bush Administration has been its use of legal opinions to block the due process protections that are basic to the American justice system. It can apparently find lawyers who will agree with just about any position the White House wishes to take. This dubious and secretive process - plus the abdication of any meaningful oversight by the Congress - has contributed to and continues to attempt to justify practices such as "rendition."
These practices have steadily eroded the credibility the US once had in observing the rule of law and championing the cause of human rights. This is a problem that won't be resolved through so-called public diplomacy. It goes to the heart of President Bush's foreign policy.