Supreme collusion

October 12, 2007

Step by step, the freedoms, the accountability and the confidence in justice that Americans used to take for granted are being shorn away, and that "What next?" feeling leads too often to shrugged shoulders rather than real outrage.

This week, the Supreme Court colluded with the administration to give the government legal immunity even when it abducts and tortures innocent people. All the government lawyers have to do is utter the magic phrase "state secrets" and apparently even the most appalling cases of misconduct can be granted a free pass, and draped in a cloak of darkness.

The abuse of Khaled el-Masri - a German citizen who was kidnapped, flown to Afghanistan, subjected (according to his lawyers) to "enhanced interrogation techniques," kept in custody for three months until the CIA realized his was a case of mistaken identity, and then kept in custody for two months more, and finally dumped, bewildered, on a hillside in Albania - was bad enough.

But the abuse of the American legal system - confirmed this week when the Supreme Court refused to take up the case and thereby let stand a lower court ruling dismissing his lawsuit on secrecy grounds - was in many ways more deeply troubling, because of the license it gives the government to act unilaterally and recklessly in the future.

The lower court had relied on the precedent of a 1950s case in which some evidence was excluded during a lawsuit because of government claims that sensitive intelligence was involved. (That was apparently a lie.) But with Mr. el-Masri's lawsuit, the courts are tossing out an entire case because the government doesn't want it litigated. The whole world knows about the CIA's practice of "extraordinary rendition," and the whole world knows about the American use of torture, so it's alarming to think that there may be further outrages that would be revealed if the case went to trial.

A German court charged 13 CIA agents with Mr. el-Masri's abduction (which took place in Macedonia). Last month, the German government said it wouldn't pursue those charges - but given the abdication of the American legal system, it might want to reconsider. It seems now that the only place to look for justice in this case would be in a German courtroom.

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