The War Profiteers - War Crimes, Kidnappings, Torture and Big Money
November 28th, 2006 - Appeals Court Hears Case Alleging CIA Torture of German Man
By Larry O'Dell
Associated Press Writer
November 28, 2006
Richmond, Va. - Courts can consider a German man's claim that the CIA tortured him in a prison in Afghanistan without divulging secrets about the U.S. government's war on terror, the man's lawyer told a federal appeals court Tuesday.
Attorney Ben Wizner of the American Civil Liberties Union urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to reinstate Khaled el-Masri's lawsuit against former CIA director George Tenet and others. A judge dismissed the case in May, ruling that a trial could expose state secrets and harm national security.
The Lebanese-born el-Masri listened to the appeals court's 50-minute hearing from the front row of a packed courtroom.
"I have confidence in the American judicial systems and its courts," el-Masri, speaking through a translator, said after the hearing. "What I really want is that they admit to me that an injustice was done to me. I would like an explanation and I would like an apology."
At the heart of the case is the CIA's "extraordinary rendition" program, in which terror suspects are captured and taken to foreign countries for interrogation. The program has been heavily criticized by human rights groups.
"The world is watching this case--not to learn intelligence secrets but to see whether we give justice to an innocent victim of our anti-terror policy," Wizner told the appeals court.
He said the basics of the rendition program already are common knowledge and provide the necessary framework for determining whether el-Mazri's due process and human rights were violated.
"Khaled el-Masri is the public face of a publicly acknowledged program," Wizner said.
Greg Katsis, a lawyer for the U.S. Department of Justice, argued that the government properly invoked its privilege to protect state secrets outlined in a classified affidavit that Judge T.S. Ellis III read before dismissing the lawsuit.
"Just because some facts are in the public domain does not eliminate protection of other facts not in the public domain," Katsis said.
Katsis acknowledged that the director of central intelligence must justify his assertion of the state secrets privilege, adding that "he has done that in spades in this case in the classified affidavit."
Appellate Judge Robert King suggested Wizner faced an uphill battle in challenging a ruling that a judge based largely on a secret affidavit.
"He knew things you didn't know," King told Wizner.
In his lawsuit, el-Masri alleges he was mistakenly identified as an associate of the Sept. 11 hijackers and was kidnapped while attempting to enter Macedonia on Dec. 31, 2003. He claims he was flown to a CIA-run prison known as the "salt pit" in Kabul, where he was beaten and sodomized with a foreign object during five months in captivity.
"It is not exaggerated to say the conditions were not fit for human beings at all," el-Masri told reporters outside the courthouse. "After five months, they simply took me back and dropped me like a piece of luggage in the woods of Albania and said they didn't want to know anything about this, they didn't want to hear anything about this anymore."
Katsis noted that the government has neither confirmed nor denied el-Masri's account.
"This is a situation where there may be a wrong without a remedy - or without a judicial remedy," King said, noting that Ellis said in his ruling in May that any relief for el-Masri might have to come from the executive or legislative branch.
After the hearing, Wizner told reporters: "If we shut the courthouse doors to Khaled el-Masri, that will have a terrible effect on the willingness of other countries to cooperate with our government and the belief of other countries that we are a model of democracy and fair play."
The lawsuit seeks damages of at least $75,000. Along with Tenet, defendants include corporations that allegedly owned and operated the airplanes used to transport el-Masri and several unknown employees of those corporations and the CIA.
King was joined on the panel by Judges Allyson Duncan and Dennis Shedd. The appeals court usually takes several weeks to issue its ruling.
Associated Press writer Michael Felberbaum contributed to this report.