Tuesday, May 15, 2012

Who'll Have the Last Laugh?

By William Fisher

Andrew Rosenthal, the editor of the editorial pages for the New York Times, was practically ecstatic. He wrote: “Over the last several years, two private military contractors linked to prisoner abuse at Abu Ghraib have been pleading for the same treatment afforded to Pentagon execs. CACI and L-3 have asserted that their wartime activities are beyond the review of courts and have claimed “absolute official immunity” from litigation. But on Friday, the Court of Appeals for the Fourth Circuit ruled 11-3 that lawsuits against CACI and L-3 can proceed to a discovery phase.”

Likewise, Baher Azmy, legal director of the Center for Constitutional Rights, who helped argue the case on behalf of Abu Ghraib detainees, said it was finally “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court.” It might also shed some light on the Bush administration’s practice of outsourcing warfare in Iraq and Afghanistan to independent contractors.”

But will this case in fact provide “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court?”

Or will the Obama Administration, like the Bush lawyers before it, once again turn to the so-called “State Secrets Privilege” to get this case thrown out of court? Given its past performances, that would seem to be the logical culmination of this prosecution. Both the Bush and Obama legal teams have invoked “state secrets” on numerous occasions, proclaiming that revelation of any piece of the evidence in this case would subject the entire case to public scrutiny, thus revealing classified material whose disclosure would compromise U.S. national security.

As a result, we may find a human rights organization like the American Civil Liberties Union in the awkward position of defending contractors as they deny attempt to deny any public access to descriptions of activities the contractors will be desperate to suppress.

If the judiciary takes its customary position vis a vis the state secrets privilege, the contractors will have little to fear. Evidence needed to gain a conviction will likely never be heard in court because it is precisely the evidence that the government will contend compromises national security.

Meanwhile, legislative efforts to introduce changes into the state secrets law have come to a screeching halt, like just about everything in Congress at this time. There is unlikely to be any progress before the election.

Kidnapped in Macedonia, Tortured in Afghanistan, and Dumped in Albania: The Forgotten Case of Khaled Ed-Masri

By William Fisher

To the pitifully few who have followed him over the years, Khaled El-Masri is the man who arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.

This Wednesday he will try one more time. He will pursue Justice in the Grand Chamber of the European Court, which will hold a hearing on May 16, 2012. At the last hearing of this case, Macedonia entered an unbroken series of denials – no, it did not collude with the CIA to kidnap El-Masri from Germany. No, it did not seize his passport and force him to spend a month in a Macedonian hotel, interrogated without a lawyer, without contact with his family, and without the foggiest idea of why he was being held.

What El-Masri is seeking from the Macedonians is a fullblown investigation into his kidnapping and abuse. And while he is waiting, there are grim signs that El-Masri, the human being, is continuing his descent into chaos and confusion.

But even Macedonia’s denials – whether true or not – don’t begin to paint even a remotely accurate picture of what has happened to this Lebanese-born German citizen. To understand how he has come to where he has come to, it’s necessary to go back in history to a time when the never-ending black clouds began to gather over El-Masri’s head.

Rewind to 2004:

The Open Society Justice Initiative, (OSJI), which is El-Masri’s counsel for the Macedonia case, charges that the Macedonians stopped him at the border, confiscated his passport and other papers, and held him without charge for 23 days, accusing him of being a member of Al-Qaida.

They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew El-Masri to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four
months. The government of Macedonia denies any involvement in his abduction.

Every attempt at justice has failed. El-Masri seeks an investigation to discover the truth.

The following is based on notes prepared by The Open Society Justice Initiative.

On December 31, 2003, Khaled El-Masri traveled from his home in Ulm, Germany, to Skopje in Macedonia, by bus. When he reached the border, Macedonian law enforcement officials confiscated his passport and detained him for several hours.

He was then transferred by armed officers in plainclothes to the Skopski Merak hotel in Skopje, where he was detained for 23 days, guarded at all hours by rotating shifts of armed Macedonian officers. The curtains were closed day and night, and he was not permitted to leave the room. He was interrogated repeatedly, and told to admit that he was a member of Al Qaeda.

His frequent requests to see a lawyer, translator, or German consular official, or to contact his wife, were denied. When he once moved toward the door and attempted to leave, three of his captors pointed pistols at his head and threatened to shoot him. He went on hunger strike to protest his innocence.

On January 23, 2004, seven or eight Macedonian men entered the hotel room, handcuffed and blindfolded El-Masri and placed him in a car. He was driven to Skopje airport. He was removed from the vehicle, still handcuffed and blindfolded, and was led to a building. Inside, he was told that he would be medically examined. Instead, he was beaten severely from all sides with fists and what felt like a thick stick.

His clothes were sliced from his body with scissors or a knife, leaving him in his underwear. He was told to remove his underwear and he refused. He was beaten again, and his underwear was forcibly removed. He heard the sound of photographs being taken. He was thrown to the floor. His hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.

El-Masri was pulled from the floor and dragged to a corner of the room. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a diaper. He was then dressed in a dark blue short-sleeved tracksuit and placed in a belt, which was connected to chains that attached to his wrists and ankles. The men put earmuffs and eye pads on him, blindfolded him, and hooded him.

El-Masri was then marched to a waiting aircraft, with the shackles cutting into his ankles. Once inside, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. He felt an injection in his shoulder, and became lightheaded. He felt a second injection that rendered him nearly unconscious.

The men dressed in black clothing and ski masks were members of a United States Central Intelligence Agency (CIA) “black renditions” team, who were operating under the U.S. “extraordinary rendition” program.

Flight records show that on January 23, 2004, a Boeing 737 business jet owned by a U.S.-based corporation, Premier Executive Transportation Services, Inc., operated by another U.S.-based corporation, Aero Contractors Limited, and registered by the U.S. Federal Aviation Administration as aircraft N313P, flew El-Masri from Macedonia via Baghdad to Afghanistan.

The same plane has been identified as being involved in other rendition flights. El-Masri was detained in conditions that were inhuman and

degrading, beaten by armed guards, subjected to violent and prolonged interrogations, force-fed following a 27-day hunger strike, and denied medical treatment. He was never charged, brought before a judge, granted access to German government representatives, or allowed to communicate with his family or anyone else in the outside world. He lost some thirty kilograms while in detention.

On May 28, 2004, El-Masri’s belongings were returned to him, including his passport, and he was flown on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called Berat-Kuçova Aerodrome. On arrival he was driven in a car for several hours and then let out and told not to look back.

Almost immediately he was arrested by the Albanian authorities and driven to Mother Theresa Airport near Tirana where he was put on a commercial flight to Frankfurt. When he arrived at his home in Ulm, Germany, he learned that his wife and children had relocated to Lebanon, not having heard from him for more than four months.

Following a complaint from El-Masri, prosecutors in Munich opened an investigation into his allegations in June 2004. During the investigation, German officials verified from eyewitnesses that El-Masri did indeed travel to Macedonia by bus at the end of 2003, and that he had been detained shortly after entering that country.

Prosecutors also confirmed from stamps in his passport that he entered Macedonia on December 31, 2003, and exited on January 23, 2004. They conducted scientific tests of his hair that proved that he had spent time in a South Asian country and had been deprived of food for an extended period.

On December 6, 2005, German Chancellor Angela Merkel stated after meeting with U.S. Secretary of State Condolezza Rice that the United States had accepted that it had made an “error” in Mr. El-Masri’s case. On January 31, 2007, the German Prosecutor filed indictments against thirteen CIA agents for their alleged involvement in the rendition.

At about this time, other ominous signs began to appear to suggest that the US was working at the highest levels of the German Government to ensure that the prosecutions against the 13 CIA agents never went forward.

And, at the same time, news items began to appear in the local German press regarding El-Masri’s alleged criminal activities. CIA sources and others close to the prosecution, who requested that their names not be published, are said to have instigated a smear campaign against El-Masri. One of the consistent accusations was an El-Masri was a Muslim fundamentalist and a senior member of a terrorist group.

“That's bogus,” says Scott Horton, counter-terrorism expert who writes for Harper’s Magazine. He explains, “Though the ‘good El-Masri’ has been involved in petty crime and has been diagnosed by court-appointed shrinks as having sociopath tendencies, the shrinks also believe that much of this psychopathology is attributable to his being held in abusive confinement by the CIA. This has been reported in the German press.”

And, given his ordeal, how could it not be so?

El-Masri was convicted of arson against a warehouse in his hometown and sentenced to two years probation because he had no criminal record. Later he was charged with a rage-filled physical assault that injured Mayor Gerald Nuremberg, the mayor of New-Ulm, Germany. The court found that while El-Masri’s rage could not be solely attributed to his CIA ordeal, that adventure did have a profound impact on his behavior.

Before his Macedonian adventure, El-Masri sold used cars and also worked as a green grocer. Now he was in prison, unable to live a normal life. His family had left him. El-Masri was coming unglued; he was falling apart at the seams.

Moreover, a set of WikiLeaks disclosures of confidential documents has caused an uproar in Europe by showing that U.S. officials pressured Germany and Spain to derail criminal investigations of Americans.

The more than 2,500 State Department cables that the anti-secrecy group has provided to news organizations since November include accounts of three cases that shed new light on U.S. responses to allegations of wrongdoing by its agents abroad:

-- The El-Masri case itself; after German prosecutors issued arrest warrants for 13 CIA agents allegedly involved in el-Masri's abduction, a February 2007 cable quoted the deputy U.S. chief of mission in Berlin as advising a German diplomat to "weigh carefully at every step of the way the implications for relations with the U.S." if the agents were prosecuted; the German government withdrew the warrants five months later.

-- The case of four Spanish residents who said they were tortured by U.S. interrogators at Guantanamo Bay before being released without charges and returned to Spain.

-- A Spanish judge announced a criminal investigation in January 2009 into whether six lawyers in President George W. Bush's administration had approved torture. They included former Attorney General Alberto Gonzales and John Yoo, the UC Berkeley law professor whose memos as a Justice Department attorney authorized the near-drowning technique called waterboarding.

-- WikiLeaks cables from April and May 2009 said Spanish officials were being warned about the case by diplomats from the Obama administration and by a visiting U.S. senator, Mel Martinez, R-Fla., who allegedly told Spain's foreign minister that the prosecution would have "an enormous impact on the bilateral relationship." The Miami Herald has reported that Martinez was carrying that message for the Obama administration.

The documents also quoted U.S. diplomats as urging Spain to transfer the case from Judge Baltasar Garzón, known for far-reaching investigations of suspected international law violations and for criticism of U.S. policies.

The cables described Garzón as a "publicity-loving" jurist with an "anti-American streak" and said Spain's chief prosecutor was trying to remove him.

Spain's government has since suspended Garzón for allegedly exceeding his authority in another case.

The Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament have undertaken inquiries into the collaboration of European governments with the CIA “extraordinary renditions” program. Their inquiries corroborated the details of El-Masri’s rendition in its entirety, including his secret detention and interrogation in Macedonia and Afghanistan.

In the United States, the American Civil Liberties Union (ACLU) sued the director of the CIA, unknown CIA agents and several corporations seeking compensation and declaratory relief for violations of El-Masri’s rights. The US courts dismissed the complaint on the basis of the “state secrets privilege” on the ground that “the very subject of the litigation is itself a state secret.” The U.S. Supreme Court declined to accept jurisdiction.

Those cases came to be known as Jeppesen DataPlan, a company that is a subsidiary of The Boeing Company, and specializes in flight planning and logistical support services for aircraft and crews, including those used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.

In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – sued Jeppesen for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process.

The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement.

The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information that might endanger national security. Most legal scholars believe that when the privilege is invoked, it applies only to a suspect piece of evidence, and not to the entire evidence introduced.

United States v. Reynolds, which involved World War Two military secrets, was the first case that saw formal recognition of the privilege. It proved an embarrassment to the government as it vindicated the position taken by the plaintiffs.

In April 2009, the 9th Circuit Court of Appeals reversed the district court dismissal of the case, ruling that the government cannot invoke the state secrets privilege to dismiss the entire suit, rather, the privilege can only be invoked with respect to specific evidence. The case is remanded back to district court. This was the first and only near-victory achieved by the plaintiffs – but it didn’t stand very long.

By December 2010, the ACLU filed a cert petition, asking the U.S. Supreme Court to review the lower court's decision dismissing the lawsuit. In May 2011, the Supreme Court denied the request to hear the lawsuit.

Following a claim of "state secrets privilege", the court rarely conducts an in- camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.

In April 2008, the ACLU filed a complaint against the United States with the Inter-American Commission on Human Rights. This action is still pending.

In Spain, prosecutors have investigated the operations of the CIA rendition team that rendered El-Masri, whose itinerary included a stop in Palma de Mallorca before proceeding to pick him up in Skopje. In May 2010, a Spanish prosecutor asked a judge to issue international arrest warrants against members of the rendition team.

The government of Macedonia has been asked numerous times to explain what happened to El-Masri: by the German prosecutors, Spanish prosecutors, the PACE inquiry, and the European Parliament inquiry.

On October 6, 2008, El-Masri filed a formal request with the Office of the Skopje Prosecutor to carry out a criminal investigation of his illegal detention and abduction and to bring criminal proceedings against those responsible. The request alleged that unnamed personnel of the Macedonian Ministry of the Interior were responsible for the unauthorized deprivation of his liberty and for the crime of torture or other cruel, inhuman, or degrading treatment or punishment. The prosecutor took no action until the statutory time limit for commencing a criminal case expired in early 2009.

On January 24, 2009, El-Masri filed a civil lawsuit for damages against the Macedonian Ministry of Interior in relation to his unlawful abduction and ill treatment by MoI personnel in January 2004. The civil case is still pending at the Basic Court Skopje II.

The civil proceedings, however, are not capable of providing effective remedies for the violation of El-Masri’s rights under the European Convention on Human Rights.

Open Society Justice Initiative assisted Macedonian lawyer Filip Medarski to litigate the case through the Macedonian courts, and is acting as co-counsel before the European Court of Human Rights in a case that was filed in September 2009 on El-Masri’s behalf.

In October 2010, the European Court communicated the case to the Government of Macedonia. In January 2012, the case was referred to the Grand Chamber of the European Court, which will hold a hearing on May 16, 2012.

The government of Macedonia is responsible for illegally detaining El-Masri for 23 days in the Skopski Merak hotel, without charge and without bringing him before a Judge, in violation of Article 5 ECHR (liberty and security).

Macedonian government agents stood by and did nothing while El-Masri was ill-treated by the CIA rendition team in a process that was designed to break his spirit, in violation of Article 3 (torture and inhuman or degrading treatment). In addition, Macedonia knew that by handing El-Masri to the CIA he would be flown to Kabul where there was a real risk that he would be detained without trial and in conditions that were inhuman, in further violation of Article 3 (torture) and in violation of Article 5 ECHR (liberty and security).

The Open Society Justice Initiative charges that “there has never been a proper investigation into how El-Masri was detained in Skopje and then handed over to the CIA, in violation of the requirement to undertake an investigation into violations of Article 3 ECHR (torture).”

Despite many attempts, it continues, “El-Masri has been unable to get a criminal court in Macedonia to hear his case, in violation of Article 13 ECHR (right to remedy).”

The Open Society adds that “Macedonia is hiding its role as one of the European governments that were secretly helping the CIA rendition program. El-Masri and society as a whole have a right to know the truth.”

People familiar with the case believe that El-Masri is close to his psychological breaking point. He is said to still have hope that he will be exonerated and his tormentors will be held to account, but that hope is fading fast.

Followers of the El-Masri debacle have been heard to speculate about what the US reaction would be if Iran, rather than Germany or Macedonia, was playing the puppet master in this geo-kabuki theater.

Well, maybe they have a point. How long would it be before the neocons
were demanding drone strikes at the Iranian Supreme Court?

This article originally appeared in Prism Magazine