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U.S. Court Rules Wrongfully Held Detainee Khalid El-Masri Can’t Sue CIA For Kidnapping Him

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German citizen Khalid El-Masri tried to sue the CIA for wrongfully kidnapping and abusing him. But last week, a U.S. District Court dismissed the case on the grounds it would jeopardize state secrets. We’re speak El-Masri’s attorney, Ben Wizner of the ACLU. [includes rush transcript]

We turn now to the case of Khalid El-Masri. He is the German citizen who sued the CIA for illegally kidnapping him in Macedonia two and a half years ago. After accusing him of being a member of al Qaeda, the CIA flew him to a secret prison in Afghanistan and held him for five months.

While in CIA custody, El-Masri says he was repeatedly beaten, drugged, roughly interrogated by masked men, detained in squalid conditions and denied access to an attorney or his family. He was only released after the CIA realized they had detained the wrong man, and left him alone on an abandoned road in Albania.

In December, El-Masri sued the United States but last week the U.S. District Court for the Eastern District of Virginia dismissed the case. Judge T.S. Ellis III ruled that holding the proceedings would jeopardize state secrets.

In a moment we will be joined by Khalid El-Masri’s attorney, Ben Wizner. But first we hear Khalid El-Masri describing his treatment at the hands of the CIA. He spoke publicly for the first time last December shortly after the American Civil Liberties Union filed a lawsuit on his behalf.

  • Khalid El-Masri, speaking December 6, 2005.

For more on this case, we are joined by El-Masri’s attorney:

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: In a moment we’ll be joined by Khalid El-Masri’s attorney, Ben Wizner. But first, we hear Khalid El-Masri himself describing his treatment at the hands of the C.I.A. He spoke publicly for the first time last December, shortly after the American Civil Liberties Union filed a lawsuit on his behalf.

KHALID EL-MASRI: [Translated] They took me to this room, and I had handcuffs and I had a blindfold. And when the door was closed, I was beaten from all sides. I was hit from all sides. I then was humiliated. And then I could hear that I was being photographed in the process, when I was completely naked. Then my hands were tied to my back. I got a blindfold, and they put chains to my ankles and a sack over my head, just like the pictures we have seen from Guantanamo, for example. Then I was dragged brutally into the airplane, and in the airport I was thrown to the floor. I was tied to the floor and to the sides of the airplane. At some point when I woke up again I found myself in Afghanistan. I was brutally dragged off the airplane and put in the trunk of a car. I was thrown into the trunk of a car.

AMY GOODMAN: That was Khalid El-Masri describing how the C.I.A. treated him after he was kidnapped in December of 2003. We’re joined now by his attorney, Ben Wizner of the American Civil Liberties Union, in our Firehouse studio. Ben, first tell us about this live video satellite feed that came into the ACLU conference. Wasn’t Khalid supposed to be with you live?

BEN WIZNER: He was. I have to say, I’m always moved to see him speaking. This is a man with real courage, and he was very excited to come to the United States to tell his story to the international media and to tell it to the American people, seeking principally an acknowledgement and an apology from our government that these terrible events had occurred. To add insult to injury, when he arrived at Hartsfield International Airport in Atlanta, for absolutely no reason he was turned back by immigration officials and put on a plane back to Europe, after being detained for a few hours.

AMY GOODMAN: Again? Detained again?

BEN WIZNER: Well, no, that’s right. That’s right. And, you know, it was going through his mind that he might be sent to Guantanamo. Although he did have courage, he did go back, and we were able to arrange for him to appear live at our press conference by satellite feed. And so, what you saw there was Khalid speaking live to the international media on December 6, 2005.

JUAN GONZALEZ : Now, as I understand it, when the CIA, after holding him for months, realized that they had the wrong person or had an innocent person, they still kept him incarcerated and detained for weeks on end? Could you talk about that?

BEN WIZNER: One of the really striking things about this case is that we don’t just have Khalid’s account, which is remarkably credible and consistent, but we have had reports on the front pages of the New York Times and the Washington Post that have really given us a blow-by-blow of what was going on behind the scenes in the CIA and the State Department. And so we know from Dana Priest, who just won a Pulitzer Prize for this work, that Condoleezza Rice and George Tenet were told that an innocent person was being held in the Salt Pit Prison outside Kabul.

And they debated: What are we going to do? He’s a German citizen. Is there a way that we can not tell the German government? They decided they had to tell the German government. Meanwhile, Khalid sat there for months. He went on a hunger strike and was force-fed after 37 days of having eaten nothing. And it’s my belief that, had he not gone on a hunger strike, his detention may well have lasted longer and longer. The last thing they wanted was a dead German citizen in a secret prison in Afghanistan.

AMY GOODMAN: Now, tell us about the court decision last week. Khalid El-Masri sued the U.S. government for illegally detaining him.

BEN WIZNER: What Khalid has wanted all along is an acknowledgement that he was a victim of this mistaken policy, an explanation for why an innocent person could have been subjected to this treatment, and an apology from the United States government. We filed a lawsuit in the federal court in Alexandria, Virginia, against former C.I.A. Director George Tenet, as well as the private aviation companies that run the rendition taxis that fly people around the world for torture.

AMY GOODMAN: Their names?

BEN WIZNER: Their names are — they’re always changing. You know, these are probably shell companies, and so Keeler and Tate Management is one of them. PETS is another. But again, these are usually post office boxes somewhere that link back to the C.I.A.

Interestingly, the defendants in this case did not come in and say, “We didn’t do this.” They didn’t come in and say Khalid El-Masri has no right to compensation. The C.I.A., through Director Porter Goss, intervened in the lawsuit and asserted something called the state secrets privilege. What the C.I.A. effectively said was it doesn’t matter if these allegations are true and false. In fact, we could never confirm whether they’re true and false. Any litigation of this matter will jeopardize national security, will harm the United States, and therefore this court must dismiss the lawsuit. We had a hearing on that allegation, and days later the federal judge in Alexandria did dismiss the case.

AMY GOODMAN: On the grounds of?

BEN WIZNER: On the grounds of state secrets. And it’s important for us to be talking about state secrets. This is the flavor of the month. Your viewers and listeners probably know of the case of Sibel Edmonds, the FBI translator turned whistleblower. When she brought a lawsuit about her termination, that was dismissed on the grounds of state secrets. In the Electronic Frontier Foundation’s lawsuit against the telecommunications for illegal NSA spying, the United States has moved to dismiss this case on the grounds of the state secrets privilege. We’re going to see the same thing in the ACLU’s and the Center for Constitutional Rights’ cases against the NSA. This is the way the government is trying to avoid not just accountability, but any judicial consideration of their illegality.

AMY GOODMAN: How often has state secrets been invoked by this president?

BEN WIZNER: Well, more and more is the answer. There was an article yesterday in the Chicago Tribune that maybe your producers can link to that mentioned six or seven cases in the last two years, but this is a doctrine that was only used a handful of times in the previous 25 years. And so, what we’re seeing is a privilege that would have validity if our government were run by honest people. We don’t want our lawsuits to expose, for example, undercover CIA agents. That’s not the intent. The question is why these lawsuits have to be dismissed altogether in order to protect against the possibility of those kinds of disclosures.

JUAN GONZALEZ: Now, what recourse is there for your client? Can he appeal this decision?

BEN WIZNER: We will appeal. We’ll appeal to the notoriously conservative Fourth Circuit in Richmond, Virginia. We have tried to raise this issue in the Supreme Court in the Sibel Edmonds case. Sooner or later the Supreme Court will have to take another look at the state secrets privilege. We are trying again to bring Khalid El-Masri to the United States. We hope to do that in late June, and we are going to bring him to Washington, and we are going to have him meet with members of Congress and to tell his story again. At the end of Judge Ellis’s opinion dismissing this lawsuit, he states, “If these allegations are true, this man has been wronged and he deserves a remedy, but that remedy can’t come from the courts.”

JUAN GONZALEZ: And what position has the German government taken on all this?

BEN WIZNER: Well, that’s another irony of this case, which is that the German government is actually investigating this case. There is an ongoing criminal investigation of Khalid El-Masri’s kidnapping and detention. There’s an ongoing parliamentary investigation of the role of the CIA and the role of the German government. We also have intergovernmental investigations from the Council of Europe from the European Parliament. The only government that is not investigating this at all is the government of the United States.

AMY GOODMAN: We’re talking to Ben Wizner. He is the attorney for Khalid El-Masri. I also want to ask you about the ACLU’s new campaign to end illegal government spying. On Tuesday, ACLU affiliates in 20 states filed complaints to demand investigations into whether local telecommunications companies allowed the National Security Agency to spy on their customers. Here in New York, the New York Civil Liberties Union’s Bill of Rights Defense Campaign spoke at a rally outside of Verizon’s offices in Manhattan.

NYCLU SPEAKER: It is not up to Verizon, it is not up to AT&T to act as a court of law. If Verizon and other phone companies handed over to the National Security Agency the phone records of millions of innocent Americans without absolutely any court oversight, then they violated the law. They are responsible for the creation of the largest database in American history, of billions of phone conversations and phone records of millions of innocent America, and they must be held accountable.

AMY GOODMAN: Ben Wizner, your final response on this campaign of the ACLU?

BEN WIZNER: Well, we’re trying to get somebody to look at the President’s illegal wiretapping campaign. We have brought a lawsuit against the NSA in a federal court in Michigan. We have now raised this issue under state law in at least 20 states around the country. The government is claiming secrecy. It’s their way of avoiding accountability. But we’re going to get a hearing on this some day. That’s the lesson of Watergate.

AMY GOODMAN: Ben Wizner, thanks so much for being with us.

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