For a presidential administration overwhelmed by humiliating mistakes, the Khaled el-Masri debacle is one of the most mortifying. Masri, a German citizen of Lebanese descent, was taken into custody in 2003 in a case of mistaken identity — he just happens to have a name similar to a terrorist sought by American officials.
Actually, “taken into custody” is the wrong phrase. He was abducted in Macedonia, drugged, beaten, and then flown to Afghanistan, where he faced more abuse. Five months of detention and torture later, the CIA, realizing they took the wrong man, dumped him in Albania. During those five months, Masri’s wife had no idea what had happened to him.
With help from the ACLU, Masri filed a lawsuit against the Bush administration, and the complaint described his treatment as “constituting prolonged arbitrary detention, torture and other cruel, inhuman, or degrading treatment.”
The Bush administration insisted that the federal courts dismiss the case, not because of the merits, but because, administration lawyers argued, to even respond to the lawsuit would require divulging state secrets. Today, the Supreme Court decided not to hear Masri’s case.
The Supreme Court on Tuesday terminated a lawsuit from a man who claims he was abducted and tortured by the CIA, effectively endorsing Bush administration arguments that state secrets would be revealed if the case were allowed to proceed.
Khaled el-Masri, 44, alleged that he was kidnapped by CIA agents in Europe and held in an Afghan prison for four months in a case of mistaken identity.
The administration has not publicly acknowledged that el-Masri was detained, and lower courts dismissed his suit after the administration asserted that state secrets would be revealed if the lawsuit were not blocked. The justices rejected his appeal without comment.
The ACLU said “the entire world already knows” the information the government said it is seeking to protect. Solicitor General Paul Clement said Masri’s lawyers were making an “extravagant request.” By turning down the case, the administration’s position stands.
That’s not good news.
For one thing, Bush’s approach to state secrets needs a court hearing.
This is unfortunate. Far from being “extravagant,” this was an ideal opportunity to take a fresh look at a badly-constructed precedent that cries out for reexamination. The Bush administration has invoked the state secret privilege at triple the rate of any previous administration, and they don’t use it solely to get specific pieces of evidence tossed out. They use it, as they’re doing with el-Masri case, to keep cases from coming to trial at all, and they’re almost certainly doing it as much to prevent the release of merely embarrassing information as they are to prevent the release of genuine secrets.
For another, if anyone deserved to have his case heard, it was Masri. From a Reuters article that is no longer online.
Masri said that he was repeatedly beaten, kicked, photographed naked and forced to live in a cement cell with a filthy blanket for a bed. He said he was given brackish water to drink and boiled chicken bones to eat.
“When the door was closed, I was beaten from all sides,” Masri said in describing events he says occurred just before he was dragged aboard the plane to Afghanistan. “I was humiliated and I could hear that I was being photographed when I was completely naked … They put chains to my ankles and a sack over my head, just like the pictures I have seen of Guantanamo,” Masri added.
Josh Patashnik added, “You’d think if it really were a case of mistaken identity, the Bush administration would want to just pay him whatever damages he’s asking for and dispose of the whole thing, rather than going through the trouble (and bad publicity) of fighting him in the courts, even if they’ve ended up winning. But apparently not.”