The price of secrecy

With no explanation, the Supreme Court has denied a day in court to a German citizen of Lebanese descent who says he was kidnapped by the CIA and imprisoned and tortured, all because he was mistaken for a terrorist with a similar name. The justices on Tuesday refused to review a decision by a federal appeals court that Khaled El-Masri couldn’t sue former CIA Director George J. Tenet for damages because a trial might reveal “state secrets.”

It’s disappointing that the court, which repeatedly has reproached the Bush administration for cutting legal corners in the war on terror, decided to remain on the sidelines in this case. Perhaps the justices thought El-Masri’s lawsuit against Tenet was not the best vehicle for a pronouncement on the state secrets privilege asserted by the government. They may prefer to address the scope of that privilege, first announced by the high court in 1953, in a different case. One possibility is a lawsuit involving the administration’s electronic surveillance program that is now before a federal appeals court in California.

Whatever the explanation, the court’s refusal to hear El-Masri’s appeal shouldn’t be the end of the story. This country has an obligation to apologize to – and compensate – victims of an anti-terrorist operation gone awry. And judicial inaction actually strengthens the case for action by Congress to prevent the CIA from committing such outrages in the future. Even when there is no case of mistaken identity, the United States shouldn’t be spiriting suspects away to secret prisons abroad where they can be subjected to “enhanced interrogation techniques.”

Aside from its inhumanity, this so-called rendition policy has blackened America’s image abroad and complicated relations with allies. The El-Masri case has been a source of friction between the Bush administration and Germany. Meanwhile, Canada’s prime minister has pleaded with the administration to “come clean” about the case of Maher Arar, a Canadian citizen who was sent to his native Syria by the United States after erroneously being placed on a watch list by Canadian officials. Arar, who says he was tortured in Syria, filed a lawsuit against former Atty. Gen. John Ashcroft that also was dismissed on state secrets grounds. Ashcroft’s successor, Alberto R. Gonzales, defended the transporting of Arar to Syria, calling it a deportation, not a rendition.

It may be that it would be impossible for these lawsuits to be tried without the exposure of national secrets, though judges should do their utmost to make such trials possible. But the courts aren’t the only remedy for the outrageous rendition policy. As with so many aspects of the war on terror, Congress has been just as compliant as the courts, allowing the administration to persist with a double standard that allows the CIA more leeway in interrogations than the U.S. military. It must be more assertive in the future.

For the moment, however, the need is simpler. El-Masri deserves an apology from the president and compensation from Congress. Just because the courts can’t help him does not mean that the government doesn’t owe him at least that.