Legal Commentary: The Case of Khalid El-Masri

There's a commentary worth reading over at Jurist.com concerning the case of Khalid El-Masri and his claims related to his extraordinary rendition.

According to Wikipedia:

Khalid El-Masri (born June 29, 1963) is a German citizen who was, in the course of the CIA's extraordinary rendition programme, detained, flown to Afghanistan, and interrogated and allegedly tortured by the CIA for several months as a part of the War on terror, and then released without charge. This illegal detention was apparently due to a misunderstanding that arose concerning the similarity of the spelling of El-Masri's name with the spelling of suspected terrorist al-Masri. [citation needed]

El-Masri was born in Kuwait to Lebanese parents. He grew up in Lebanon and moved to Germany in 1985 to escape the Lebanese Civil War. He became a German citizen in 1994, married a fellow Lebanese in 1996 and has several children.[1]

In his commentary, Ben Davis of the Toledo College of Law, compares El-Masri's situation with that of Joseph K. in Kafka's The Trial. As a result of a recent decision of the Fourth Circuit El-Masri was declared to be unable to litigate his claims because of the state secrets doctrine. As Decision of the Day reported:

El-Masri argued that the state secrets doctrine did not apply because he was challenging policies that were public knowledge – namely, Tenet’s well-publicized “extraordinary rendition” program for rounding up Middle Easterners around the world who have suspected ties to terrorists. The government countered that El-Masri’s law suit would require the CIA to disclose too many details about its program. The Fourth agrees. For one thing, El-Masri has sued the unknown individuals who held him in custody, which would require the CIA to disclose protected information about its staffing. In addition, El-Masri’s claims against corporations would require disclosure of highly confidential espionage contracts. Finally, the identities of many of the witnesses in this case would also be protected by the state secrets doctrine.

For these reasons, the Fourth Circuit concludes that El-Masri’s suit is one of the rare instances in which the state secrets doctrine operates to deny a plaintiff an opportunity to litigate his claims. Thus, the Fourth affirms the dismissal of all claims.

In his commentary, Davis pointed out the legal dilemma facing El-Masri:

This decision presents us with the lawlessness of the internal law situation we have. The Executive cannot be criminally prosecuted domestically (above a few low level soldiers - Abu Ghraib - or CIA interrogators - Passarro) for its acts because it controls the federal prosecutors. If the Executive charges someone in court, then as a defense the person can seek to have evidence of horrible treatment brought in but will be confronted with the state secrets doctrine (see Padilla). If the Executive charges the person in a military commission the evidence issues again will come up against the state secrets doctrine (watch Hicks). If the person injured brings a civil suit as did el-Masri, the Fourth Circuit has told us that the state secrets doctrine will be allowed to trump and dismissal will occur.

On the international plane, el-Masri can seek to have the German government raise his claims in a state to state manner with the United States by having his claims espoused by his government. However, if he does that it is expected that the state-to-state solution, if it does occur, will be binding on him. His claim will fall into the pile of issues that impact US-German relations. One poor schmuck in that situation is not usually considered very important. Secretary of State Rice has apparently apologized to Germany and if Germany accepts that as the remedy, that appears to be all that el-Masri can get - an apology to his country for the treatment that happened to him. The United States has not apologized to el-Masri. El-Masri might sue other countries that allowed this to happen and maybe even Germany but would be unable to get relief from the principal cause of his injury - the United States.

Davis concludes:

Not providing some mechanism in the United States for addressing this kind of official misconduct ordered at higher levels places us in the unfortunate situation of being an emperor with no clothes as regards our commitments.

Moreover, the person who has been treated this way, who is innocent, who is the iconic Joseph K., finds in the United States the exact type of trial of which Kafka wrote. Such a person can look to the left or to the right, to those above or around him, to all the powers that be, and the message that keeps coming back is that he has no rights which we will recognize. That is a recipe from Dred Scott for objectification of the human being that I thought we had long since transcended. Put another way, el-Masri ends up being just a poor schmuck that the judiciary will not hear. That might be fine in Pinochet's Chile, Argentina under the generals, or Soviet-era Russia, but it is not fine today, now, in the USA. Shame on us.

Shame on us, indeed.