High court refuses case on rendition

Justices decline German's lawsuit

October 10, 2007|By James Oliphant | James Oliphant,CHICAGO TRIBUNE

WASHINGTON -- The Supreme Court declined yesterday to allow a lawsuit to go forward that questions the government's use of rendition, the practice of capturing suspected terrorists and sending them to other countries for a more intense form of interrogation than is permitted under U.S. law.

In doing so, the court implicitly endorsed the Bush administration's use of a sweeping legal defense that prevents claims of abuse and torture at the hands of U.S interrogators from ever being heard in court.

The high court said it will not take up the case of a German citizen who alleges that he was held in a so-called "black site" in Afghanistan run by the Central Intelligence Agency. Khaled al-Masri says he was detained and tortured for months before being released on a hilltop in Albania with no explanation.

Al-Masri's lawsuit against former CIA Director George J. Tenet and other U.S. officials was dismissed in 2006 by a federal judge on the grounds of the "state secrets privilege," a doctrine in which the government asserts that litigation of a claim will expose classified secrets critical to national security. The dismissal was upheld this year by the U.S. Court of Appeals in Richmond, Va., and al-Masri and his lawyers at the American Civil Liberties Union asked the Supreme Court to take the case.

The court's refusal effectively lets the appeals decision stand without questioning the government's assertion of the privilege. The Bush administration applauded the move. Critics say the government is using the privilege to shield abusive practices.

"It's one of the most alarming cases from a civil liberties perspective we've seen in the past 10 years," said Jonathan Turley, an expert on national security law at George Washington University. The privilege, he said, "is being used to protect the U.S. from embarrassment and potential liability."

Al-Masri says he was kidnapped in Macedonia in 2003 and interrogated there for three weeks about alleged ties to Islamic extremists. He says, in a petition filed with the Supreme Court, that he was then turned over to U.S. agents, stripped, beaten, injected with drugs and flown first to Iraq and then to Kabul, Afghanistan. He says he was held there in a filthy cell for four months while being interrogated. After he provided no useful information, he says, he was dropped in Albania and then escorted back to Germany.

His claims quickly became public after the German government began an investigation of the alleged U.S. actions. In January 2007, German prosecutors issued arrest warrants for 13 CIA agents over their alleged roles in al-Masri's detention.

Al-Masri sued Tenet and others in December 2005, seeking punitive damages and a public airing of his treatment. The U.S. government asserted to the court that any lawsuit involving clandestine CIA activities must be dismissed without an inquiry, and the federal judge in the case agreed. In March 2007, the appeals court agreed.

"This case isn't about secrecy," said Ben Wizner, a lawyer for al-Masri. "This is about immunity for executive misconduct." It means, he said, that "the government can engage in torture, declare it a state secret and avoid liability and accountability."

In its filing before the high court, the government argued that while "at a high level of generality, the government has disclosed the CIA's participation in a program involving detention and interrogation of suspected terrorists," al-Masri could not proceed in his claim without exposing critical details of the top-secret rendition program.

The White House did not address the specifics of the case yesterday but said the privilege is properly asserted when necessary to protect national security. "This is a country that's facing unprecedented threats that we've not dealt with before, in terms of al-Qaida and other terrorists," said White House spokeswoman Dana Perino. "I believe that the Justice Department is judicious in applying the state secrets act when it goes in front of the courts. And the fact that the Supreme Court agreed with us is, in our opinion, a good thing."

The ACLU said it will continue to push to have the Supreme Court address the state secrets privilege, which the government has also asserted in continuing lawsuits over its domestic eavesdropping program.

James Oliphant writes for the Chicago Tribune.

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