A Symbol of "Extraordinary Rendition" Returns to the U.S.
*Cross-posted from The Huffington Post
Tomorrow, a German
man arrives at John F. Kennedy international airport. This seemingly
unremarkable event is in fact a moment of personal bravery that ought
to spur national contrition.
Khaled E-Masri, the
arriving German national, tried to come to the United States once
before. When he arrived, he was hauled aside, imprisoned, and then
promptly deported back to his home in Germany.
His crime? Being a danger to the United States? On one of the
federal government famous (and multitudinous) watch lists? Hardly.
Khaled El-Masri was declined entry because he had been mistakenly
kidnapped by the United States in 2003, taken to a U.S. base in
Afghanistan, brutally interrogated, and detained long after the
government--at its highest levels--knew him to be wholly innocent of
any wrongdoing, or even tangential connection to terrorism. Khaled
El-Masri was refused entry because he was an embarrassment: A public
symbol, renowned across the world outside American borders, of the
wretched consequences of America's "extraordinary rendition" policy.
Despite Secretary of State Condoleezza Rice's promise that
intelligence errors would be addressed, and when necessary remedied
through the federal courts, Mr. El-Masri has been denied any meaningful
acknowledgment of his ordeal. While declining to comment on the
El-Masri case in particular, the American ambassador to Germany has
offered regrets for any mistakes that "may have been made." And the
German government reports that American officials tried to buy Mr.
El-Masri's silence, rather than acknowledging their terrible
incompetence.
The Bush Administration's approach to national security is one of
"take no prisoners, have no regrets." Claims of unfettered executive
power, after all, fit ill with the mounting evidence of incompetence
and sloppiness that the El-Masri case too acutely illustrates.
And since acknowledging its error would undermine its recklessly
unilateral vision of national-security policy-making, the
Administration is twisting other branches of government to hide its
sins.
If Mr. El-Masri is allowed to enter the United States he will have the chance to see his case argued in court. Lawyers from the ACLU
who represent Mr. El-Masri will argue on Tuesday before the United
States Court of Appeals for the Fourth Circuit that Mr. El-Masri is
entitled to a remedy for his nightmare. (Full disclosure: in my
capacity at the Brennan Center, I am counsel for a group of retired
American diplomats who have filed an amicus brief arguing that the
denial of a judicial forum to Mr. El-Masri causes grievous harm to
American standing in the world).
The ACLU lawyers in question are superlative--but they face an
uphill slog. The District Court denied Mr. El-Masri's case on national
security grounds before any discovery had began, and the Government
will argue that it was right to do so.
Before the (notoriously conservative) Fourth Circuit, government
lawyers will contend that any confirmation or denial by the United
States or its officials of the facts in Mr. El-Masri's case will harm
the nation's security.
This is despite the fact that Mr. El-Masri has told his tale to the
world's press without rebuttal from the United States. It is despite a
plethora of physical evidence--including chemicals found in Mr.
El-Masri's hair that prove he was taken to Afghanistan and flight logs
that confirm his tale. Despite the fact that another prisoner held in
Afghanistan has confirmed Mr. El-Masri's story. Despite the fact that
several other governments and the intergovernmental Council of Europe
are conducting active inquiries into his case. Despite all this, the
Government insists that to say one word about this most shameful of
public tales would undercut our collective well-being by violating
"state secrets."
The "state secrets" argument that the Government makes in the
El-Masri case has recently been rejected by three district courts in
litigation concerning the NSA wiretapping. In these case, judges
pointed out that Government cannot take a fact that is squarely in the
public domain and simply recharacterize it as "secret." The same logic
should allow Mr. El-Masri his day in court.
Indeed, the "state secrets" privilege has from its inception been
more about covering up government malfeasance and incompetence than it
has been about protecting national security. Historian Louis Fisher
has recently shown that the 1953 Supreme Court case in which the
government first successfully pressed the "state secrets" privilege
involved no real national security issue: Rather, the privilege was
used to conceal government incompetence that would have been the basis
of tort liability.
More recently, the Government invoked the state secrets privilege
last month in the case of Guantánamo detainee Majid Khan, arguing that
Khan not be allowed to talk to his lawyer because he might reveal the techniques used to interrogate him. State secrets, in other words, is a nice euphemism for "how we torture."
Imagine what it takes for Mr. El-Masri to get on a plane to the
United States--to the country that tore a months-long hole in his life,
that treated him as less than a human being, but something disposable,
something close to a nullity. He deserves better than this. He deserves
better than a "state secrets" argument that adds insult to the injuries
already inflicted, an argument that wrongly discards the human
entitlements of Mr. El-Masri, but also treats the American people, and
the broader world public, as fools and an irrelevance.
Aziz Huq: "A Symbol of 'Extraordinary Rendition' Returns to the U.S." (pdf)
