Supreme Court Won’t Hear Torture Appeal

http://www.nytimes.com/2007/10/09/washington/09cnd-scotus.html

October 9, 2007
Supreme Court Won’t Hear Torture Appeal
By DAVID STOUT

WASHINGTON, Oct. 9 — A German citizen who said he was kidnapped by the Central Intelligence Agency and tortured in a prison in Afghanistan lost his last chance to seek redress in court today when the Supreme Court declined to consider his case.

The justices’ refusal to take the case of Khaled el-Masri let stand a March 2 ruling by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va. That court upheld a 2006 decision by a federal district judge, who dismissed Mr. Masri’s lawsuit on the grounds that trying the case could expose state secrets.

The Supreme Court’s refusal, without comment, to take the case was not surprising, given that a three-judge panel for the Fourth Circuit was unanimous. Nevertheless, today’s announcement prompted immediate expressions of dismay, and it could exacerbate tensions between the United States and Germany.

The Fourth Circuit acknowledged the seriousness of the issues when it dismissed Mr. Masri’s suit. “We recognize the gravity of our conclusions that el-Masri must be denied a judicial forum for his complaint,” Judge Robert B. King wrote in March. “The inquiry is a difficult one, for it pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”

The ordeal of Mr. Masri, who is of Lebanese descent and was apparently the victim of mistaken identity, was the most extensively documented case of the C.I.A.’s controversial practice of “extraordinary rendition,” in which terrorism suspects are abducted and sent for interrogation to other countries, including some in which torture is practiced.

The episode has already caused hard feelings between the United States and Germany, whose diplomatic ties were already frayed because of differences over the war in Iraq. Mr. Masri’s lawyer in Germany, Manfred Gnjidic, said the high court’s refusal to consider the case sends a message that the United States expects other nations to act responsibly but refuses to take responsibility for its own actions.

“We are very disappointed,” Mr. Gnjidic said in an interview today with The Associated Press. “It will shatter all trust in the American justice system.”

Mr. Masri contended in his suit that he was seized by local law enforcement officials while vacationing in Macedonia on New Year’s Eve 2003. At the time, he was 41 years old and an unemployed car salesman.

“They asked a lot of questions — if I have relations with Al Qaeda, Al Haramain, the Islamic Brotherhood,” Mr. Masri said in a 2005 interview with The New York Times. “I kept saying no, but they did not believe me.”

After 23 days, he said, he was turned over to C.I.A. operatives, who flew him to a secret C.I.A. prison in Kabul. There, Mr. Masri said, he was kept in a small, filthy cell and was shackled, drugged and beaten while being interrogated about his supposed ties to terrorist organizations. At the end of May 2004, Mr. Masri said, he was released in a remote part of Albania without ever having been charged with a crime.

The C.I.A. has never acknowledged any role in Mr. Masri’s detention. But investigations in Europe, as well as news reports in the United States, have bolstered his version of events. German prosecutors issued arrest warrants in January for 13 suspected C.I.A. agents believed to have taken part in the operation that swept up Mr. Masri.

As a practical matter, it is extremely unlikely that President Bush would ever agree to turn the 13 agents over to German authorities. But the warrants against them could hinder their ability to travel in Europe.

When the Fourth Circuit dismissed Mr. Masri’s suit, Anthony D. Romero, executive director of the American Civil Liberties Union, called the action “truly unbelievable” and “reminiscent of third-world countries.”

The Constitution Project, a nonpartisan organization that seeks to focus attention on constitutional issues, called the Supreme Court’s refusal to take up the case “profoundly disappointing.”

“The government’s treatment of Mr. El-Masri has been appalling, and the executive branch should not be permitted to hide its mistakes behind the so-called state secrets privilege,” said the organization’s senior counsel, Sharon Bradford Franklin. “Now that the court has declined to consider this issue, Congress should immediately take up legislation to reform the state secrets privilege and clarify that it does not authorize unchecked power to disregard individual rights.”

Representative Edward J. Markey, Democrat of Massachusetts, who has introduced legislation to ban extraordinary rendition, said today that “the Bush administration reflexively responds with the ‘state secrets’ defense whenever it is caught bending or simply ignoring the law.”

The chief White House spokeswoman, Dana Perino, said later that, on the contrary, the administration is “judicious” in citing state secrets to avoid lawsuits. “And the fact that the Supreme Court agreed with us is, in our opinion, a good thing,” Ms. Perino said.

For his part, Mr. Masri was arrested by the German police in May on suspicion of setting a fire that caused $675,000 in damage to a market in a Bavarian town. His lawyer said Mr. Masri had had a dispute with the store, and that his action was the result of not receiving psychological counseling that he had sought. A German judge ordered him held in a psychiatric ward.