'State Secrets' Case May Get Airing
WASHINGTON - The Supreme Court is set to decide as early as Tuesday whether the government can invoke the doctrine of "state secrets" to quash a legal claim that CIA bungling resulted in a man being abducted, imprisoned and tortured.
After five months of such treatment, CIA agents apparently realized that the man in custody, Khaled el-Masri, a German citizen of Lebanese descent, was not the wanted terrorist Khalid al-Masri.
The case has attracted wide public attention in Europe, but El-Masri has been unable to gain a court hearing in the United States because the government has so far successfully invoked the argument that it cannot be taken to court when doing so might expose state secrets.
For his appeal to get an airing in the Supreme Court, four of the nine justices will have to agree to hear it. The justices have been closely split in cases that challenge the administration's handling of the war on terrorism.
That El-Masri is the victim of a case of mistaken identity does not seem to be in doubt.
In 2005, German Chancellor Angela Merkel said after a meeting with Secretary of State Condoleezza Rice that the Bush administration "admitted this man had been erroneously taken."
In January, German prosecutors issued arrest warrants for 13 CIA agents for their roles in El-Masri's abduction and abuse.
Two years ago, El-Masri filed suit against George J. Tenet, who was CIA director at the time of El-Masri's kidnapping, and several private contractors involved in flying El-Masri from Macedonia, where he been on vacation, to a prison camp in Afghanistan.
He sought damages for his "unlawful abduction, arbitrary detention and torture by agents of the United States."
Administration lawyers said the suit must be dismissed because it could reveal state secrets. A federal circuit court judge in Alexandria, Va., and the U.S. Court of Appeals in Richmond, Va., agreed.
El-Masri's appeal came before the Supreme Court last week.
The case tests the outer reaches of the so-called state- secrets privilege, a rule established during the Cold War to block a lawsuit after the crash of a B-29 bomber. Three widows of crewmen sued and sought the official accident reports. The Air Force said the reports could not be revealed because the bomber was on a top-secret mission to test new equipment.
The Supreme Court ruled for the government in the 1953 case, U.S. vs. Reynolds, saying the reports must be suppressed because they could reveal military secrets.
(When the accident reports were declassified in 2000, they revealed only that the aircraft was in poor condition, evidence that might have helped the widows win their suit.)
Though the Supreme Court has not directly ruled on the state-secrets privilege in more than 50 years, the rule has been invoked regularly in the lower courts. The Bush administration has used it to block suits involving whistle-blowers, wiretapping and the firing of CIA agents.
Lawyers for the American Civil Liberties Union are urging the high court to take up El-Masri's case. They say the privilege has been transformed from a limited protection for military secrets to a broad shield for the government to hide behind when confronted with allegations of "grave executive misconduct."
It is particularly strange, they say, to allow the Bush administration to "invoke state secrets to protect the nation against the disclosure of information that the entire world already knows."
El-Masri, a car salesman and a father of four, says his ordeal began on New Year's Eve 2003 when he was pulled off a bus after it crossed the Serbian border into Macedonia. His passport was taken, and he was questioned for days by agents who said he was a terrorist. They refused his request to contact German authorities.
After 23 days, he was blindfolded, taken to the airport and turned over to U.S. authorities. In an interview in 2005 with the Los Angeles Times in Berlin, he described what had happened then:
"I was led into a room. The door closed behind me and I was beaten from all sides for about one minute. They bent my arms to my back and cut off my clothes. . . . I saw seven to eight men all dressed in black and wearing masks. . . . They put me in diapers and a dark blue sweatsuit with the legs and sleeves cut out."
His appeal to the court says he was then put in a plane, "chained spread-eagle to the floor," injected with drugs and flown to Baghdad and then on to Kabul, Afghanistan. He spent the next four months in a CIA-run prison, the appeal says.
In late May 2004, U.S. officials had apparently concluded they had the wrong man. El-Masri was loaded onto a plane, blindfolded, put into the back of truck and dropped off on a hillside in what turned out to be Albania. From there, he made it back to Germany, where an investigation was launched.
The ACLU's lawyers say the high court should not permit the "government to engage in torture, declare it a state secret and . . . avoid any judicial accountability."
U.S. Solicitor General Paul D. Clement has urged the court to turn away El-Masri's appeal. It amounts to an "extravagant request that the court overrule its settled precedents" permitting the government to protect-national security secrets, he argues. Allowing El-Masri's lawsuit to go forward will inevitably reveal details about the nation's "most sensitive intelligence operations," he argues.
Pepperdine Law professor Douglas Kmiec, who served in the Reagan administration, said the court should take up the issue and limit the reach of the state-secrets privilege.
The doctrine has become a broad rule that quashes lawsuits at the beginning, he said, rather than a privilege that limits evidence that can be revealed in court.
"The broader claim is not sustainable, in my judgment," Kmiec said.
"Thus, the court should take the petition to clarify that these precedents are being overextended."
The Constitution Project, which describes itself as a bipartisan group concerned about "unchecked presidential power," also urged the court to take up El-Masri's appeal.
"This is a good case to test the extreme reach of the state-secrets privilege," said Sharon Bradford Franklin, a lawyer for the group.
"By all accounts, this is the case of an innocent victim of the rendition policy, and the question is whether he will have his day in court."
Copyright 2007 Los Angeles Times
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29 Comments so far
Show AllCMECalton October 8th, 2007 5:27 pm said:
"I find it odd that people in America are so against America keeping their advantage on the world stage."
This is the limit of your powers of perception? You are quite certain, are you? that a singular viewpoint (world war based on manufactured intel and torture) is the way to achieve "America keeping" their advantage on the world stage"?
Obviously, you are not a student of history, for if you were you would realize that the great empires employing torture and ruioius spending did not last. I offer the demise of the empires of Rome, Spain, Britian and France as proof.
Quite the contrary, I think posters here adore America, otherwise they would not bother posting opinions about the wisdom of what this administration is doing. The long term survivablity of the USA is more important than short-term profit.
I find your "iron boot" viewpoint destructive to the interests of keeping America safe and solvent.
pacplyer
CMECalton has decided that one brand of lunatics make for better rulers than another brand of lunatics. It reminds me of the grade school question, 'Would you rather be deaf or blind?'
Personally, I would prefer that those who govern - not rule - my country weren't lunatics of any kind.
CMECalton
So.... you must like seeing death? Does it give you that special thrill, like a hard on when the blood flies? Your mom beat you too? She should have.
Isn't it passing strange that these guys all seem to embrace an omniscient god, that almost without fail, has selected dimwitted sociopaths and morally deficient duds as their chief messengers?
oh and I'm sure you will love this one, I'm pro Israel!!!
hybridoma2001,
Ahem,
Let's see have I ever been on an unguided tour in a country other than Canada, for longer than a month, Thank you so much for giving me this opportunity. Viet' Nam, Cambodia, Laos, Lebanon, Palestine, Israel, South Africa, Botswana, France, England, Ireland, Italy, I lived in Prague CZ, Slovakia and Russia. Oh and I have plans next year to live in South Africa for a little while and go on a self-guided safari from SA to Sudan. So any other smart comments?
Lobo Gris October 9th, 2007 10:53 am
"News flash, the Supreme Court has refused to hear the case."
Not at all surprised by this! They certainly wouldn't want to issue a constitutional decision that would reveal the total incompetence of this country under the direction of George Bush and his administration.
News flash, the Supreme Court has refused to hear the case.
Lobo Gris
Thanks for the posts here, containing some great historical background and commentary. Hopefully many more people read this but just didn't respond. It is so much more useful to share this type of posts than the cynical venting and hysteria we often read lately.
"Understanding leads to an open mind, which then leads to an open heart." I'm hoping the Supreme Court will rein in this broad policy of "State Secrets" protection that is being used as an umbrella for these illicit and immoral pratices. It's time for a change! Let's keep talking.
whateveryousay..the republican bush voters of my family,used to ask me to leave before dessert was served.....since then they have all called me one by one,and expressed sorrow over their misguided allegiance and even told me,i was on the right side and they wished they had listened.....it is small consolation...
"it cannot be taken to court when doing so might expose state secrets."
You gotta have brass ones to use that kind of defense, and a judge that defends it must have no stones at all.
Oughta try that one in traffic court sometime. "I can not plea either way your honor as it may divulge the secret of whether I really did it or not."
hybridoma2001 said;
"Well, I'm sorry to tell you that isn't what 95% of the world thinks. You are living in a myth that we have all been spoon-fed since we were children here in the USA. Your view of the real world is second hand; obtained through the media, educational system, government, and family."
So true. So true. Americans seem to think that their world view is the keystone of reality, failing to realize that the vast and overwhelming majority of human beings have different views on life and reality entirely.
And it is actually quite possible (though less likely) for someone to travel to other countries, even live in and marry a person native to an entirely different culture, and still be incredibly closed minded.
Just this morning, I received an email from my own brother, who lives as I just described and used to be open minded, and in it he angrily said "You are a Communist!" to me. This is because I had made some negative remarks about Bush, including my feelings on how bad it was to veto a health care bill for children.
My point is, some people are just 'trippin'.
Further, we must be willing to choose, even amongst our own families, whether we will be honest and speak out, or be silent and complicit. I'm not going to shut up.
And to CMECalton, have you ever left the USA and gone to any country other than Canada? And if you have done so, did you ever get away from the group of people on some guided tour and mix with the people living normal lives - people not connected with the tourist industry? If you have done that, then I would be very surprised to read what you have posted.
Leaving one's nation and going for at least a month to some other country opens one's eyes. You see for the first time what other people do and do not have compared with your native land. Some of it is good, and some of it is bad, and some of it is completely new.
If you were to be traveling about the world right now, you would sense and hear the almost universal disapproval of the USA.
Why? It's because of people such as yourself who believe that the USA has the right to rule the world - as if it were a priori and irrefutable.
Well, I'm sorry to tell you that isn't what 95% of the world thinks. You are living in a myth that we have all been spoon-fed since we were children here in the USA. Your view of the real world is second hand; obtained through the media, educational system, government, and family.
Being from the USA was bad enough when reagan was the president and you were abroad, but today, people are beginning to dislike US citizens for the simple fact that they are US citizens. It's now become a personal issue in most of the countries of the world.
We could and should be the role models of the world, but not the rulers.
Why do they hate us? Just read what CMECalton wrote at the beginning of this thread and you'll find part of the answer to that question.
i think cmecarlton has a point...i do not want to see my country wriggling like a worm under the foot of another,i do not wish for the downfall of my country...i do not have any objection to supremacy as long as we deliver the goods,walk the walk,talk the talk and at least make an attempt to take the high road,whenever possible....but it is the sad truth,the highest offices in our land are filled-up with criminals,the apocalyptic would say'devils'....and bush is the personification of the original and only sin=GREED....lust,gluttony,murder,pride, whatever,just different manifestations of greed.bush and his legions seem not to be expounding the principles of christianity..but the religion of the ancient pharoahs,and bush and his legions are inbred,their hearts are so light they have evolved into void black holes,and they sleep like babies on the blood and broken bodies of 'others'as above ,so below..you get the government,you deserve..god,i wish that was all just bullmanure....cause i sure have never believed that i deserved them,as my leaders !
Maybe they thought he was Senator Webb. (vague resemblance) Bu$h the inferior probably has him on a list somewhere.
c.i.a. the (newest) lair of an ancient tyrannical incarnate...hoover's bastard son...
Yeah, that's extremely sick. Israel's most illegal, racist, and brutal actions are embraced by this "Christian" group. So Hurricane Katrina was God's punishment to America for supporting Israel's giving up parts of the Gaza Strip? These people ought to crawl back into the woodwork. The power of religious brainwashing is astonishing.
Bill Moyers Journal from this last Friday. It's about 20 minutes long, but worth it:
http://www.pbs.org/moyers/journal/10052007/watch2.html
Christians United for Isreal (CUFI). This is scary stuff. Even get a vist from LIEberman. Now you will get a truely insightful picture of what is motivating Bush and the radicle neocons. Like I said, this is really terrifying stuff. At least to me.
Then go the discussion hosted by Moyers. This segment is about 25 minutes and may help you understand the first segment:
http://www.pbs.org/moyers/journal/10052007/watch3.html
I love Moyers for bringing the subject up. Most would not have the courage to take this on.
oldgoat
Your comment: The Abrahamic traditions teach the necessity of love from different perspectives...
Judaism, Christianity, and Islam all have this "operational story" in their background. If Bush doesn't destroy humanity, maybe someday, if we learn to study war no more, the three religions can make peace with each other based on this principle. Not because of any sentimental or religious reason but for a very practical one -- to survive.
Frank Herbert and poet, Bill Ransom, wrote a powerful trilogy, the "Pandora" series, not as well-known as the Dune books, but I think much more substantive. In it humanity learns survival only after many generations of horrific violence, bloodshed and devastation. For that reason, it was called "holy violence" -- because it was the only way humans could learn horrifically what peace is.
The root of the word 'apocalypse', G. 'apocalypsis' means 'to uncover'- 'to reveal'.
"The word 'sin' in its original Hebrew includes 'to miss', 'to mislead'. To advocate commission of sin a delusion. The root of delusion is 'deludere' to play to mislead.
Perhaps one might consider biblical text in that light. The flaws leading to the lies, the claims of omnipotence would seem to be based in precepts of 'possession'- me first. The Abrahamic traditions teach the necessity of love from different perspectives, not because its nice, but because it is the only way that humans can function at full capacity. We need to be able to function at full capacity, and as the good book admonishes... study war no more.
Another excerpt from the link above, well worth reading and remembering. Bush is insane:
=====
In "Bush at War" Bob Woodward writes, "Most presidents have high hopes. Some have grandiose visions of what they will achieve, and he was firmly in that camp."
"To answer these attacks and rid the world of evil," says Bush. And again, "We will export death and violence to the four corners of the earth in defense of this great nation." Grandiose visions. Woodward comments, "The president was casting his mission and that of the country in the grand vision of Gods Master Plan."
In dominionism we can see the theological source of Bush's monomania. Not to be distracted by the fact that he lost the popular election by a half a million votes, that the Joint Chief of Staff at the Pentagon were so concerned about his plans to invade Iraq that they leaked their unanimous objection, that he has systematically alienated much of the world, that roughly seventy percent of Americans remain unconvinced of the imminent threat of Saddam Hussein and the same percentage object to war if there will be significant American casualties--none of this is in the least relevant. He believes his mandate toward action is from God.
As humans we live within stories. Some stories, like apocalypse are thousands of years old. The scriptured text that informs Bush understanding of and enactment of the End of Days (Revelations 19) depicts Christ returning as the Heavenly Avenger. Revelations is the only New Testament book that justifies violence of any kind, and this it takes to the limit: Christ himself the agent of mass murder....
Such is "the glory of the coming of the Lord." Truth, carnage, and the ecstasy of vultures. In a ruined world the Messiah slays the antichrist and creates "a new heaven and a new earth." The dead are judged, the Christians saved and the rest damned to eternal torment. The New Jerusalem is established and the Lord rules it "with an iron scepter."
It is not inconceivable that Bush is literally and determinedly drawn, consciously and unconsciously, toward the enactment of such a scenario, as he believes, for God's sake. Indeed the stark relentlessness of his policy in the Middle East suggests as much.
It dishonors the profundity of the Christian tradition if one doesn't note that Revelations has always been a rogue text. Because of its association with the Montanist heresy (which like contemporary fundamentalists took it to be literal rather than allegorical) it was with great reluctance that it was made scripture three centuries after the death of Christ. Traditionally attributed to St. John, most Biblical scholars now recognize its literary style and its theology has little in common with John's gospel or his epistles and was likely written after his death. Martin Luther found the vindictive God of Revelations incompatible with the gospels and relegated it to the appendix of his German translation of the New Testament instead of the body of scripture. All the Protestant reformers except Calvin regarded apocalyptic millenialism to be heresy.
But Revelations is also a rogue text because it is unmoored from its origins, which are far from Christian. It is a late variant on a story that was pervasive in the ancient world: the defeat of the wild and the uncivilized by a superior order upon which a New World would be established. Two thousand years before Revelations depicted Christ slaying the antichrist and laying out the New Jerusalem, Marduk slayed Tiamat and founded Babylon.
This pagan myth recycled as a suspiciously unchristian Biblical test found new credence in the 19th century when John Darby virtually revived the Montanist heresy of investing it with a passionate literalism. Given to visions (he saw the British as one of the ten tribes of Israel) Darby left the priesthood of the Church of Ireland and preached Revelations as both prophecy and imminent history. In this he inaugurated a lineage in which Bush's mentors, the Reverend Billy Graham and Dr. Tony Evans are recent heirs. Revelations is much beloved by Muslim fundamentalists and like their Christian compatriots they also thrill to redemption through apocalypse. Jewish fundamentalists of course do not believe in Revelations but have nonetheless made common cause with the Christian Right. "It's a very tragic situation in which Christian fundamentalists, certain groups of them that focus on Armageddon and the Rapture and the role of a war between Muslims and Jews in bringing about the Second Coming, are involved in a folie a deux with extremist Jews," said Ian Lustick, the author of "For the Land and the Lord: Jewish Fundamentalism in Israel". The Judeo-Christian-Islamic tradition (and yes it is a single tradition) is being led by its fringe into the abyss and the rest of us with it.
The world has been readied for the fire but the critical element is the Bush Administration. Never in the history of Christendom has there been a moment when this rogue element has carried anything like the credibility and political power that it carries now.
CME: I try to be couteous when I post. But this time I just can't....ARE YOU NUTS!?! By what moral code do you operate? Ever heard of the UN Charter? Geneva Conventions? US Constitution? Bill of Rights? By invading and occupying a sovereign state, the US by definition is a terrorist state. Our "leaders" have committed WAR CRIMES and have committed treason to America!! America has no RIGHT to run the world.
I say again...ARE YOU NUTS?
CMECalton
Your statement: "I would rather a world ran by the united states then a religion that believes their savior will only come forth during the great jihad, after the blood has reached the kneecaps."
But that's JUST what Bush is doing, conducting war with blood up to the kneecaps to bring about the Christian Armageddon, the great battle of good and evil, after which the savior will appear.
http://www.counterpunch.org/hill01042003.html
An excerpt:
=====
That Bush would attack so many vital systems on so many fronts from foreign policy to the environment may seem confusing from the point of view of realpolitik but becomes transparent in terms of the apocalyptic worldview to which he subscribes. All systems are supposed to go down so the Messiah can come and Bush, seemingly, has taken on the role of the one who brings this to pass.
The Reverend Billy Graham taught Bush to live in anticipation of the Second Coming but it was his friendship with Dr. Tony Evans that shaped Bush's political understanding of how to deport himself in an apocalyptic era. Dr. Evans, the pastor of a large Dallas church and a founder of the Promise Keepers movement taught Bush about "how the world should be seen from a divine viewpoint," according to Dr. Martin Hawkins, Evans assistant pastor.
S.R. Shearer of Antipas Ministries writes, "Most of the leaders of the Promise Keepers embrace a doctrine of 'end time' (eschatology), known as 'dominionim.' Dominionism pictures the seizure of earthly (temporal) power by the 'people of God' as the only means through which the world can be rescued.... It is the eschatology that Bush has imbibed; an eschatology through which he has gradually (and easily) come to see himself as an agent of God who has been called by him to 'restore the earth to God's control', a 'chosen vessel', so to speak, to bring in the Restoration of All Things." Shearer calls this delusion, "Messianic leadership" -- that is to say usurping the role usually ascribed to the Messiah.
I find it odd that people in America are so against America keeping their advantage on the world stage.
As I am a bleeding heart for Darfur and Myanmar, among other humanist causes, I still am 100% for the country of which I'm a citizen, keeping an upper hand on the world stage. This enemy is unique in that they do not wear an armband with their military allegiance printed on it.
This is an enemy that hides, when I hear a report about "100 civilians killed" how do you know? really? Ask yourself how you tell the difference between a fighter and a civilian when they are clothed the same.
Not to mention guilt is a continuum so the civilian housing the militant has automatically given himself to a certain level of guilt and thus must accept the consequences of that.
I think it is impossible to imagine how hard this must be for our professionals in the field.
I would rather a world ran by the united states then a religion that believes their savior will only come forth during the great jihad, after the blood has reached the kneecaps. Whatever sins we incur along this path, I believe are for the greater good of our home.
So now CIA thugs are wanted in Italy and Germany wonder who is next
Rebel Farmer
Here's a months-old report about that German court ordering the arrest of 13 CIA agents, though you may already have read it. These people must be buddies of Blackwater, since all are said to be living in NC:
http://www.dw-world.de/dw/article/0,2144,2332581,00.html
Excerpt:
German Public broadcaster NDR had reported earlier that most of the CIA employees sought lived in the US state of North Carolina. NDR said Spanish authorities had learned the identities of all 13 agents on board and had copies of some of their passports.
Although all of the names were believed to be aliases, NDR said it was possible, using other data, to learn their real identities. The report said three of the suspects worked for Aero Contractors, believed to be the CIA's secret airline.
NDR noted that the German arrest warrants were not valid in the United States and that US authorities had refused to cooperate with the investigation. If the suspects were to travel to the European Union, however, they could be arrested.
Does anyone know what is going on with the case in Germany against the CIA? If I remember correctly, they also issued warrents for US administration officials.
And, I agree that this case should be heard. What "state secrets" are going to be revealed? It seems like most of these "secrets" are already in the public domain.
Let the trials begin!
Even with an unimaginable level of unbridled power to secretly spy on, abduct, and torture anyone who fits their self-created criteria, it still took our current administration 5 months to figure out that they had the wrong guy.
One minute, any citizen of the world could feel like a puppet or a pawn, only to see news like this which makes it appear as if there's no one at the wheel.