by David G. Savage

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