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Carving Up the Constitution

Khaled el-Masri was vacationing in Macedonia when he was abducted by local police. Mr. el-Masri was then beaten, drugged, and interrogated at gunpoint…

  • Jonathan Hafetz
April 5, 2007

Co-authored with Susan Lehman

*Cross-posted from The Huffington Post

Khaled el-Masri was vacationing in Macedonia when he was abducted by local police. Mr. el-Masri was then beaten, drugged, and interrogated at gunpoint in a Skopje hotel room. After 23 days of incommunicado captivity, Mr. el-Masri was taken to the airport and turned over to masked CIA rendition agents. He was shackled and also diapered, and flown to a CIA-run secret prison near Kabul, Afghanistan. Once Mr. el-Masri was in Afghanistan, CIA officials soon realized they had made a mistake: Mr. el-Masri was not the man they were looking for; nor was there reason to suspect he was a terrorist. The U.S. nevertheless secretly jailed Mr. el-Masri for five months before deciding to deposit him, without explanation, on a hilltop in Albania.

During six years of the so-called “war on terrorism,” we have grown disturbingly used to stories like this one. What is most frightening about Mr. el-Masri’s ordeal, however, is not the news that U.S. officials may have conspired in torturing and imprisoning an innocent man for months on end. Instead, it is the news from a federal appeals court in Richmond, Virginia, last month that U.S. officials cannot be held accountable for engaging in such conduct.

In a unanimous decision, the appeals court ruled that Mr. el-Masri’s case had to be dismissed before a hearing took place. The court found that merely requiring the United States to respond to Mr. el-Masri’s claims that the CIA had masterminded his illegal kidnapping, abuse, and wrongful imprisonment could jeopardize national security by leading to a “cascading” of disclosures about the CIA’s “extraordinary rendition” program. The fact that the existence and details of this program have already been made public was deemed irrelevant. The bottom line consideration remained: US national security would be compromised if questions about the government’s possible complicity in wrongful detention and torture of Mr. el-Masri were allowed in open court..

Mr. el-Masri’s is not an isolated case, but it is part of a now familiar pattern. Time after time, the present administration has put itself above the law by carving out a series of exceptions to the essential liberties of our Constitution.

Maher Arar is another victim of these un-American practices. Mr. Arar, a Canadian, citizen, was catching a connecting flight through New York’s JFK International Airport in 2002, on his way back to Montreal after a family holiday in Tunisia. Mr. Arar was detained by airport security who questioned him about terrorist ties, and then taken to a federal jail. Ten days later, Mr. Arar was sent to Syria, where he was held in a dark, rat-infested cell that resembled a grave. Mr. Arar was beaten on palms, hips, and lower back with a two-inch-thick electric cable and threatened with electric shocks. He was released after almost a year. No charges were ever filed.

Like Mr. el-Masri, Mr. Arar sought to hold the United States accountable. He filed a lawsuit claiming that the United States had deliberately conspired to render him to Syria for torture. But a federal judge in Brooklyn dismissed the case last year without even requiring the government to so much as answer the allegations. Any inquiry into the U.S. government’s complicity in Mr. Arar’s illegal rendition, the court explained, could compromise national security by “embarrassing” the United States. To summarize: the more egregious the governmental wrongdoing, the more reason to prevent public exposure. This is the modus operendi of autocracies, not democratic governments committed to individual liberty and accountability.

Canada, notably, responded differently, mounting a full-scale investigation into Mr. Arar’s case. A specially appointed commission compiled a 1000-page report, which described Canada’s role in Mr. Arar’s detention, cleared Mr. Arar of any terrorism connections, and compensated him $9 million for the grave harms he endured. The United States, meanwhile, refuses even to apologize.

Then, there is Guantánamo, the living symbol of a prison beyond the law. Since September 11, the United States has detained more than 700 people at Guantánamo without due process or habeas corpus. Many of these individuals have been abused. Indeed, the treatment of one detainee was so bad, the Wall Street Journal recently reported, that a military officer refused to prosecute him for terrorism because interrogators had wrung his confession through measures that were both illegal and morally repugnant.

How does the United States justify Guantánamo? With more legal loopholes. It argues that Guantánamo detainees have no rights because they are foreign nationals held outside the sovereign territory of the United States. The fact that the United States has exercised complete and exclusive jurisdiction over Guantánamo for a century is irrelevant to this self-serving calculation. Remarkably, a federal appeals court in Washington, D.C., recently agreed with the government, finding that Guantánamo detainees lack even the most basic human rights, and the Supreme Court declined to review the case at this juncture.

Such end-runs around the Constitution present grave threats to the cornerstone principle that no one is above the law. Once we start finding that the normal rules do not apply, secret jails, torture, and prolonged detention without charge become a fixed and permanent part of our legal landscape.

American Exceptionalism once signified the values that made this country a beacon of liberty. Since 9/11, this phrase has come to mean something very different: a series of Kafkaesque carve-outs to the Constitution that tarnish the image of a country founded upon a commitment to justice and the rule of law.