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State Secrets Privilege Protects U.S. in. Erroneous Rendition Suit

By Matthew T. Clarke

0n May 12, 2006, a federal district court in Virginia ruled that a German citizen who allegedly was mistaken for a terrorist, kidnapped, flown to a foreign country, isolated and tortured by CIA personnel could not sue the US government over his mistreatment without violating the government's privilege against revealing state secrets.

Khaled El-Masri, a German citizen of Lebanese descent, was seized by Macedonian officials as he attempted to cross the border between Serbia and Macedonia on New Years Eve, 2003. According to his lawsuit, for the next 23 days Masri was imprisoned in a Skopje hotel while being interrogated about his association with Al Qaeda, an association he firmly and continuously denied having. He was not allowed to contact anyone, including German consular officials, a translator or his wife. Thirteen days into this ordeal he began a hunger strike to protest his unjust imprisonment.

On January 23, 2004, several men in civilian clothing came into El-Masri's room. They forced him to make a videotaped statement that he had not been mistreated in exchange for the promise of a speedy repatriation to Germany. Afterward, he was blindfolded and driven to an airstrip about an hour from Skopje where he was taken into a room, stripped, beaten and sodomized with an object. He was dragged to a corner of the room where his blindfold was removed and he was photographed. In the room, he noticed seven or eight men dressed in black and wearing black ski masks who were members of a CIA "black renditions" team that operated under unlawful policies at CIA Director George Tenet's direction.

The team dressed El-Masri in a diaper, tracksuit and earmuffs, then blindfolded and shackled him and dragged him to a plane where they gave him a sedative injection that rendered him semi-conscious. He was flown in this drugged state to Kabul, Afghanistan, where he continued to be held incommunicado. Twenty-seven days into his hunger strike, El-Masri was brought before two men whom he believed to be CIA agents in charge of the "Salt Pit" prison. They admitted that he had been kidnapped by mistake but refused to release him or allow him to contact anyone. After another ten days of hunger striking, El-Masri's captors began force-feeding him via tubes inserted through his nose and mouth. Soon afterwards he was given canned food and books to read. On May 28, 2004 he was flown blindfolded to Albania and released on an abandoned roadside. El-Masri made his way back to Germany only to learn that his wife and four children -- believing themselves abandoned by him -- had moved to Lebanon.

El-Masri filed suit against former CIA Director George Tenent, ten unknown CIA agents, the companies that leased the jet used to transport him, and unknown employees of those companies. He alleged that he remains deeply traumatized by his abduction and mistreatment. This treatment, he alleged, violated international norms prohibiting cruel, inhumane or degrading treatment and prolonged arbitrary detention as well as El-Masri's Fifth Amendment due process rights. The United States filed a motion to intervene and a motion for summary judgment on the ground that allowing the lawsuit to continue would lead to the disclosure of state secrets.

The district court granted both motions. In so doing, it reasoned that the assertion of state secrets privilege was validly invoked and that even admitting or denying the specific facts of the case would result in a reasonable danger of secret military matters involving national security being exposed. It did not matter that there had already been many media reports of El-Masri's claims of mistaken extraordinary rendition. The state secrets privilege, the court held, was an evidentiary privilege to prevent such secrets from surfacing in court.
To prove his case, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment as a part of an official extraordinary rendition program, thus exposing secret espionage relationships between the United States and several foreign countries. Therefore, the motion to dismiss had to be granted.

However, the court noted, "putting aside all legal issues, if El-Masri's allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injury as a result of our country's mistake and deserves a remedy." Yet, the court stated, the only source of such a remedy must be the executive or legislative branch. See: El-Masri v. Tenet, 437 F.Supp.2d 530 (E.D.Va. 2006).

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Related legal case

El-Masri v. Tenet