Indemnity for Extraordinary Rendition
CIA Gets Free Pass on Torture
Pierre Tristam/Candide’s Notebooks, March 8, 2007
His rights are not applicable
Most people still think the United States doesn’t engage in the sort of tactics usually associated with totalitarian regimes. Most people think that overall, this is still a pretty decent country. Most people think that when the United States does engage in those tactics, it’s probably justified, and if it isn’t, it’s usually corrected. Most people, of course, are wrong, otherwise we wouldn’t be in the various morasses we’re in now. Nor would the morass keep piling on: if most people were willing to own up to what their government is doing in their name, and in the name of “national security,” they’d have demanded the scalp of those enacting these tactics long ago. They’d have demanded the scalp of every members of the Bush junta enabling and justifying these tactics, up to and including that of our Lord and Savior president. That there are no such demands proves what I wrote a few lines above: most people are happy with the way things are, and if not, they’re not so unhappy as to want to question it too much. So when federal courts hand down decisions that are indistinguishable from something Josef Stalin or Saddam Hussein might have condoned, the reaction is nil. The absence of reaction condones the offense and encourages the Bush junta to press on. Take the case of Khaled el-Masri. He is a German citizen of Lebanese descent. Here’s how the Court of Appeals for the 4 th Circuit, in Richmond, summarized his case. I relate the court’s words because the facts are undisputed. They’re not my or el-Masri’s spin. They’re the official record:
[O]n December 31, 2003, while travelling [sic.] in Macedonia, [el-Masri] was detained by Macedonian law enforcement officials; after twenty-three days in Macedonian custody, he was handed over to CIA operatives, who flew him to a CIA-operated detention facility near Kabul, Afghanistan; he was held in this CIA facility until May 28, 2004, when he was transported to Albania and released in a remote area; and Albanian officials then picked him up and took him to an airport in Tirana, Albania, from which he travelled [sic.] to his home in Germany.
One thing the court doesn't detail: el-Masri was also stripped naked, given an enema and made to wear a diaper before his flight to Afghanistan. Naturallly, el-Masri sued the CIA and the corporations that helped the CIA by flying him to Afghanistan, knowing through their contract with the CIA, that they were involved in the “extraordinary rendition” program we’ve come to know and not revile enough. Back to the 4 th Circuit’s words:
The Complaint asserted that El-Masri had not only been held against his will, but had also been mistreated in a number of other ways during his detention, including being beaten, drugged, bound, and blindfolded during transport; confined in a small, unsanitary cell; interrogated several times; and consistently prevented from communicating with anyone outside the detention facility, including his family or the German government. El-Masri alleged that his detention and interrogation were carried out pursuant to an unlawful policy and practice devised and implemented by defendant Tenet known as “extraordinary rendition”: the clandestine abduction and detention outside the United States of persons suspected of involvement in terrorist activities, and their subsequent interrogation using methods impermissible under U.S. and international laws. […] El-Masri also alleges that CIA officials “believed early on that they had the wrong person,” and that Director Tenet was notified in April 2004 that “the CIA had detained the wrong person” in El-Masri. [emphasis mine; …] El-Masri contends that Tenet and the defendant CIA employees contravened the Due Process Clause’s prohibition against subjecting anyone held in United States custody to treatment that shocks the conscience or depriving a person of liberty in the absence of legal process.
On Friday, the 4 th Circuit declared el-Masri’s suit null and void. He can sue all he wants, the court said. But the court’s hands are tied, it essentially ruled, because one man’s rights are trumped by national security. The court doesn’t deny that el-Masri’s rights have been offended. It doesn’t deny that he’s being denied due process, that the CIA may very well have acted illegally, that he was tortured, that he was the wrong man, that he’s essentially being screwed. But none of that, the court says, overrides the requirements of state secrecy for national security’s sake. He won’t be allowed to prove his case because the evidence supporting his claims is all secret, and will remain so. The court’s reasoning, and the cases it cites to support it, are straight out of Kafka. Or the “Gulag Archipelago”:
As we have observed in the past, the successful interposition of the state secrets privilege imposes a heavy burden on the party against whom the privilege is asserted. See Sterling, 416 F.3d at 348 (“We recognize that our decision places, on behalf of the entire country, a burden on Sterling that he alone must bear.”). That party loses access to evidence that he needs to prosecute his action and, if privileged state secrets are sufficiently central to the matter, may lose his cause of action altogether. Moreover, a plaintiff suffers this reversal not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security. See id. (“[T]here can be no doubt that, in limited circumstances like these, the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk.”); Fitzgerald, 776 F.2d at 1238 n.3 (“When the state secrets privilege is validly asserted, the result is unfairness to individual litigants — through the loss of important evidence or dismissal of a case — in order to protect a greater public value”). 7 In view of these considerations, we recognize the gravity of our conclusion that El-Masri must be denied a judicial forum for his Complaint, and reiterate our past observations that dismissal on state secrets grounds is appropriate only in a narrow category of disputes. See Sterling, 416 F.3d at 348; Fitzgerald, 776 F.2d at 1241-42. Nonetheless, we think it plain that the matter before us falls squarely within that narrow class, and we are unable to find merit in El-Masri’s assertion to the contrary.
This is what we’ve become. It’s a routine case, relatively speaking. But it’s the sort of case that piles on many like it, each one slowly burying deeper the sort of rights that might have once stood unquestioned, each one becoming a precedent that a subsequently totalitarian-tinted ruling will rely on to tighten the screws further on due process and individual rights. One last note: Keep in mind that in deciding against el-Masri, the 4 th circuit relied, for its reasoning about “state secrets,” dates back to a 1953 Supreme Court case (United States v. Reynolds), where three widows sued the federal government to find out why their civilian husbands had crashed aboard a B-29 testing “secret” electronic equipment in Georgia in 1948. A fire had broken out in one of the plane’s engines. Six of the nine crew members and three of the four civilian observers were killed in the crash. The federal government moved to quash the suit, claiming state secret privileges, and won.
Of course, the B-29 and the civilians aboard were not involved in anything outwardly illegal, as in the rendition program. That doesn’t justify the government’s response to the widows: no state secret is ever justifiable in the end, even when national security is claimed, unless there’s a clear and present danger of immediate deaths. I cannot think of a single case involving press leaks or lawsuits requiring the opening of secrets where that has been the case. “National security” is a canard, the government’s blanket justification for hiding what it will and shirking accountability. The point of the B-29 decision is that, even if we accept the claim of secrecy for national security’s sake, the case has no similarity to el-Masri, who was illegally kidnapped, illegally detained, illegally tortured, illegally denied his every right for more than a year, and was now being illegally denied due process under the law. But the assumption that judges have to be honest in their cherry-picking of precedents is another one of those quaint beliefs that don’t have much of a place outside Frank Capra movies.