Justice denied

This case shows the state of justice in the USA as far as suspected terrorists are concerned even when they are obviously innocent. In El-Masri's case it was mistaken identity. El-Masri has met a stone wall in the US. The same excuse of national security was used as has been used against Arar in the US. In Canada the government refuses to release documents to Omar Khadr in Guantanamo and of course it has done zilch to have Khadr sent back to Canada. The US refuses to do it. Khadr was kept in prison without charge while still just a juvenile. The Canadian govt. apparently thinks that Khadr will get a fair trial at a military tribunal in Guantanamo.!

Justice Denied

By William A. Cohn

10/26/07 "ICH" --- - It was a case of mistaken identity. It could have happened to any one of us.

And yet, in 2007 it is hard for us to imagine the ongoing nightmare endured by Khaled El-Masri, the German citizen whose story helped to expose the ugly underbelly of the US-led global war on terror. On October 9th, Masri’s last hope at getting justice in the US was dashed when the Supreme Court declined to review the lower court rulings dismissing his case based on the government’s assertion that to give Masri his day in court would require the disclosure of state secrets and thus harm US national security.

His Kafkaesque plight brings to mind the inquisitorial “justice” meted out by totalitarian regimes. That the High Court refused to hear his case without comment is all too fitting for the silence and secrecy Masri encountered in his search for answers in the US. Now, Masri must turn to the European Court of Justice in the hopes that Europe will afford him the justice he was denied in America. Since the US is not a signatory to the European Convention on Human Rights, Masri should bring suit against Germany for its complicity in his mistreatment in order to obtain an adjudication affirming the mistreatment he received at the hands of US agents.

The Supreme Court decision, which the New York Times called a “Supreme Disgrace,” in essence accepted the Bush administration’s contention that the judiciary must ‘trust us’ that allowing Masri’s case to proceed would harm national security. But the constitutional rule of law is based on distrust, not trust. That is why, recognizing as axiomatic that ‘Power corrupts, and absolute power corrupts absolutely,’ the Constitution established a system of checks and balances by means of a separation of powers aimed at accountability. By rubber-stamping claims of executive privilege, the judiciary shirks its constitutional duty, and thus fails us all.

Masri’s story has been one of the most widely reported cases of so-called ‘extraordinary rendition’, the practice of secretly abducting suspected terrorists and indefinitely detaining them, often in countries known to torture prisoners. On December 6, 2005 Masri filed a lawsuit in US federal court against former CIA director George Tenet, and others, alleging that the defendants, acting as agents of the US government, kidnapped, wrongfully imprisoned, abused and tortured him. The 44-year-old married father of five alleges that on December 31, 2003 he was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to US agents, then beaten, drugged, and taken to a secret prison in Afghanistan, where he was interrogated in a cruel and inhuman manner. His allegations have been investigated and substantiated by the German state prosecutor and the Council of Europe, the continent’s human rights watchdog.

It seems that Khaled El-Masri was thought to be Khalid al-Masri, the name given to the CIA by the Hamburg-based terror suspect Ramzi Binalshibh as the person who helped Mohammed Atta’s 9/11 cabal make contact with a senior Qaeda member in Germany. Likely, the CIA’s ‘enhanced interrogation techniques’ produced false ‘intelligence’ and they chased a fictive person with reckless abandon. The validity of Masri’s German passport was never checked before he was flown to Afghanistan. German Chancellor Merkel told the press that US Secretary of State Rice acknowledged to her the mistake with Masri. Rice’s staffers subsequently denied any such admission having been made. Rice, like all Bush officials, has refused to comment on Masri’s claims.

Masri’s lawsuit sought an apology and monetary compensation. US District Judge T.S. Ellis III held that Masri’s “private interests must give way to the national interest in preserving state secrets,” adding that if the allegations are true “all fair-minded people must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” Indeed, there is no justice without a remedy for a legal wrong. But following the Supreme Court refusal to review his case, it is now a certainty that Masri will never obtain a remedy through the US legal system.

The Masri case reveals much of what has gone wrong in the ‘war on terror.’ The Supremes let stand the March 2nd Fourth Circuit Court of Appeals ruling which upheld Judge Ellis’ dismissal of the lawsuit because it could expose state secrets. These decisions have brought widespread disbelief, disappointment and disgust. Following the Fourth Circuit ruling, ACLU attorney Ben Wizener said: “This is doubly insulting. Everyone knows that Mr. El-Masri was a mistaken victim of the rendition program. He is now a victim of the misuse of the state-secrets privilege.”

Masri’s is not the only such case to be so dismissed. For instance, Maher Arar, the Canadian citizen taken to an Edgar Allan Poe-like secret prison in Syria, also had his case thrown out of US federal court by a state secrets ruling. The Canadian government substantiated Arar’s claims and offered an apology and compensation for its role in his ‘rendition’. Sadly, the current US administration lacks the strength to ever apologize.

The once-obscure state secrets privilege has been expanded and used ever-more since it was created in the 1953 case US v. Reynolds. Information declassified half a century later reveals that the state secrets claim in the Reynolds case was a lie – the government was seeking to hide its mistakes and protect against embarrassment, not to protect the country’s security. This revelation has fueled calls for reform by legal scholars, public interest groups and the American Bar Association. Since 1993, judges have required in-camera review of the disputed documents underlying state secrets claims in less than an eighth of cases, opting instead for blind deference.

On October 11th, the Times opined, “this administration has repeatedly relied upon [the state secrets doctrine] to avoid judicial scrutiny of its lawless action . . . courts need to apply a healthy dose of skepticism to state secrets claims.” Recently, parts of the judiciary have awakened. Federal judges have denied state secrets claims, noting that to defer to a blanket assertion of state secrets would be to abdicate their duty. On October 10th, a federal judge, citing domestic and international law prohibiting torture, barred the transfer of Guantanamo Bay inmate to Tunisia, marking the 1st time the judiciary has blocked the government transfer of a terror detainee. Perhaps this signals a new willingness to question claims of executive privilege.

As part of a community working to instill respect for the rule of law in post-communist Europe, these are challenging times. America should lead by example in assisting new democracies to root out corruption and establish transparency and accountability in governance. Yet its refusal to cooperate with German prosecutors in Masri’s case, the Canadians in Arar’s case, or the Italians in a rendition investigation there, erodes international cooperation. And revelations of secret torture memos, secret prisons, and secretive government under a novel ‘unitary executive’ theory undermine efforts advocating a rule of law agenda.

We owe Khaled El-Masri our gratitude for helping to expose human rights abuses committed in our name. By taking his claim to the European Court of Justice Masri can shed additional light on the self-defeating post-9/11 tactics employed in the US and Europe. Sunlight is the best disinfectant.

Masri was turned back at the airport without explanation when he flew to the US to appear at his first court hearing, and in the end he was denied review by the Supreme Court without comment. Mr. Masri is reportedly experiencing psychiatric problems today. Let us hope that he has the strength to continue his search for truth and fairness with the European Court of Justice. For we all have a stake in his struggle for justice.


William A. Cohn, who reported on the Masri case in the spring 2006 issue of The New Presence, is a writer, lawyer and lecturer at the University of New York in Prague

Arar's lawyers unfazed by court rejection of Al Masri case

Arar's suit had already been rejected because going forward might harm Canadian US intelligence relations. Apparently they are not harmed by lying or hiding info as the US operatives did to their Canadian counterparts. Apparently they are not harmed by Canada sending wads of raw data without caveats or verification that included portraying Arar and his wife as Islamic militants and Arar as part of an Al Qaeda cell in Canada! No harm in that!
I doubt that Arar's case will get anywhere. In the US he is still considered an Al Qaeda agent by virtue of an immigration court decision. Are they going to admit this is complete nonsense? Not likely.


Arar's lawyers unfazed by reversal in other rendition case

Steven Edwards
CanWest News Service


Wednesday, October 10, 2007


NEW YORK - Lawyers for Syrian-born Canadian Maher Arar say his bid to sue the U.S. government for secretly shipping him to Syria for torture is unaffected by a U.S. Supreme Court decision Tuesday to reject another high-profile "extraordinary rendition" case.

In a statement, they outline differences between Arar's case and that of Khaled al-Masri, a Lebanese-born German citizen who has also seen lower courts cite national security concerns for refusing to consider his accusation the CIA kidnapped and tortured him.

"The (government's) state secrets assertion in (Arar's) case seeks to protect the reasons U.S. officials sent him to Syria instead of Canada, not whether they were even involved in his rendition, as in Mr. al-Masri's case," says the statement from the Center for Constitutional Rights in New York.

The difference is significant, says the centre's executive director Vincent Warren, because its lawyers don't believe they need to know why the U.S. government deported Arar to Syria in order to win the case - only that they did so.

On the deportation itself, says Warren, exposing new government secrets is unnecessary because the long-running Canadian judicial inquiry into Arar's case exposed a "significant amount" of what had been secret about the U.S. involvement in his deportation.

"In the al-Masri case the U.S. government would never admit it was even involved in his rendition, whereas in Maher Arar's case it is quite clear that it was involved," said Warren. "We've got the goods on the U.S. government and the court doesn't need to rely on secret government information in order to determine what happened."

U.S. officials arrested Arar in 2002 as he returned to his Ottawa home via New York's John F. Kennedy Airport, claiming he had links to al-Qaida based on information provided by the RCMP.

They later deported him to Syria under its then-secret "extraordinary rendition" practice, whereby terrorist suspects were sent to regimes with poor human rights records for interrogation.

The Canadian government has agreed to pay Arar and his family $11.5 million in compensation after the Canadian judicial inquiry cleared him of having any terrorism links.

But in the U.S., a federal trial court judge threw out Arar's lawsuit claiming U.S. compensation in February 2006, on grounds that going ahead could damage national security relations with Canada.

His lawyers seek to have the ruling overturned in an appeal scheduled for Nov. 9 in New York.

Al-Masri says the CIA abducted him in Macedonia in 2003 and flew him to Afghanistan for interrogation.

The Supreme Court decision in his appeal means a lower court's ruling that his case can't be heard on national security grounds will stand.

"More than any government in our history, (the administration of George W. Bush) has hidden behind the state secrets privilege to avoid being held accountable for breaking the law," Warren said.

"Khaled al-Masri has been denied justice. Soon we will see if this truly is a country that sends innocent men to be tortured and then sweeps its mess under the carpet, or whether we will at least grant Maher Arar some small measure of justice for what he endured."

© CanWest News Service 2007

Democrat introduces bill to ban rendition in the US.

Hopefully, this bill will pass into law. It is rather ironic that El Masri was allowed to go to the US. The US has never admitted that his abduction was a case of mistaken identity but then if it were not how could the US let a known terror suspect into the US! Sen. Leahy is still trying to get answers re Arar.


Democrats renew Arar fight


First step in bid to ban `repugnant' practice of sending suspects to other lands for torture

Mar 06, 2007 04:30 AM
Tim Harper
WASHINGTON BUREAU

WASHINGTON–A Massachusetts Democrat, citing the "travesty'' of Maher Arar, will rekindle a bid today to outlaw the Bush administration practice of outsourcing torture.

Representative Ed Markey says he is optimistic a Democratic-controlled Congress can end the practice known as "extraordinary rendition'' in which detainees are transferred to countries where there are substantial grounds to believe they could be tortured.

The first step to ending the "repugnant and counterproductive'' rendition practice, Markey says, is a tough congressional investigation of the case of the B.C. software engineer.

Markey, under his bill in the House of Representatives, would compel the administration to compile a list of countries known to abuse and torture prisoners and prevent the deportation of anyone to any of them unless the secretary of state certified that the country in question no longer practised abuse.

A "diplomatic assurance'' from a country would no longer suffice.

Attorney-General Alberto Gonzales has cited such an assurance from Syria in attempting to justify Arar's 2002 rendition to Syria from New York's JFK airport, even though that country had been on a state department list of human rights abusers.

"It is simply shocking that today, the United States still refuses to apologize to Maher Arar,'' Markey said yesterday.

Canada issued a formal apology to Arar in January and awarded him $11.5 million in compensation.

Markey said despite the Canadian apology and compensation paid to Arar and his family, the Bush administration is keeping him on a "no-fly list'' without any justification.

The 16-term congressman is leading the effort to force action on Arar in the House of Representatives, while Democrat Patrick Leahy of Vermont and Republican Arlen Specter of Pennsylvania are leading efforts in the Senate.

Markey introduced his Outsourcing of Torture bill in the last Congress, but since then two countries, Germany and Italy, have started proceedings which would end with charges laid against CIA agents for the kidnappings of citizens.

And the European Parliament has since identified more than 1,000 CIA-operated "ghost flights'' that used European airspace and airports between 2001 and 2005.

U.S. President George W. Bush has also acknowledged the existence of secret CIA prisons and asserted his right to continue to use them.

Rendition victims are finding no satisfaction in U.S. courts.

Last Friday, a federal appeals court in Virginia ruled that American state secrets trumped the rights of a German rendition victim, in a decision that could forebode the difficulty faced by Arar as his case winds its way through the U.S. court system.

Khaled el-Masri, who says he was beaten and sodomized in a so-called "salt pit'' prison in Afghanistan after being kidnapped by CIA agents in Macedonia on New Year's Eve 2003, was again denied the opportunity to proceed with a lawsuit against former CIA chief George Tenet and other administration officials.

Ben Wizner, the American Civil Liberties Union lawyer who argued el-Masri's case, said the court's decision that such a lawsuit would expose "state secrets'' gives virtual immunity to the CIA.

But it does not necessarily sink the hopes of Arar, who is appealing a lower court ruling dismissing his lawsuit in New York.

Arar should get his day in court some time this summer, but legal analysts say he still has hope because his case is being heard in a more liberal circuit and because the judge who dismissed his earlier bid did not invoke the state secrets argument.

Wizner said the ACLU is strongly leaning toward an appeal of the el-Masri case to the U.S. Supreme Court.

"The question is where will this edifice of secrecy and unaccountability crack?'' Wizner said.

"I think it will be Khaled el-Masri and Maher Arar on Capitol Hill, testifying to Congressional committees, telling them that if innocent people cannot be vindicated in a court of law, there is something wrong in this system.

"I think el-Masri and Arar will be eventually seen as trailblazers and I think the day will come that we will see Maher Arar in Washington, D.C.''

El-Masri, unlike Arar, is allowed to travel to the U.S., apparently because he was never rendered from this country.

He was in the court last November to hear his case argued, and in an emotional piece he wrote in The Los Angeles Times last weekend, he said he hoped Americans would one day "see me as a human being – not a state secret.''