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Secrecy trumps torture appeal

Times Staff Writer

In a victory for the Bush administration and its use of the “state secrets” defense, the Supreme Court refused Tuesday to hear a lawsuit from a German car salesman who said he was wrongly abducted, imprisoned and tortured by the CIA in a case of mistaken identity.

The court’s action, taken without comment, was a setback for civil libertarians who had hoped to win limits on the secrecy rule, a legacy of the Cold War.

Since the Sept. 11, 2001, attacks, the so-called state secrecy privilege has been invoked regularly to bar judges or juries from hearing claims of those who say they were beaten, abused or spied upon by the government during its war on terrorism. Administration lawyers have argued successfully that hearing such claims in open court would reveal national security secrets.

Civil libertarians said Tuesday that the government was using the secrecy defense to cover up its own wrongdoing. They also said the broad use of this rule was doing further damage to the nation’s image, already sullied by international condemnation of its “extraordinary rendition” program of arresting terrorism suspects and transporting them to foreign countries for interrogation.

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“In a nation committed to the rule of law, the government’s unlawful activity should be exposed, not hidden behind a state secrets designation,” said Steven R. Shapiro, legal director for the American Civil Liberties Union, which had urged the high court to hear the case of Khaled el-Masri, a German citizen of Lebanese descent.

The White House said it had no comment on the court’s decision. Though the Bush administration has not publicly acknowledged El-Masri’s account, the German government has said that the U.S. admitted it made a mistake.

The Supreme Court dismissed El-Masri’s appeal in a one-line order but may consider the state secrets rule in a future terrorism case. The justices are due next month to hear a challenge to the administration’s continuing detention of several hundred men at Guantanamo Bay, Cuba. They also are likely to act in the months ahead on other appeals that raise the secrecy rule in cases challenging the warrantless wiretapping of Americans.

The state secrets rule dates to 1953 with a case involving the crash of a B-29 bomber. When the widows of three crewmen sued and sought the official accident report, the Air Force refused, saying the plane was on a mission to test secret electronics equipment.

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The court ruled, in U.S. vs. Reynolds, that the need to protect the nation’s security outweighed the widows’ claim. Recent disclosures show that the justices apparently had been misled. When the accident reports were declassified, they revealed the plane had been poorly maintained but did not contain military secrets.

Since then, the state secrets privilege has been invoked by every president to shield certain evidence from being disclosed in court.

In recent years, the secrecy rule has been used more often and more broadly, said Amanda Frost, an assistant professor at American University’s Washington College of Law. “Before, it was used to limit discovery. Now, they seek an immediate dismissal of the complaint,” she said.

For example, administration lawyers have said judges cannot hear challenges to the warrantless wiretapping of Americans because doing so would expose secret details about the National Security Agency’s program.

Civil libertarians had hoped the Supreme Court would reconsider the secrecy rule in El-Masri’s case because U.S. officials had acknowledged privately that he was an innocent man.

El-Masri was on vacation in the Balkans in 2003 when he was stopped at a border crossing in Macedonia and his passport was taken. He said he was questioned intensely and accused of associating with Islamic radicals.

According to his complaint, he was then blindfolded, taken to an airport and stripped of his clothes by a team of masked men. He said they drugged him and chained him inside an airplane, and he was flown to Afghanistan, where he was held in a CIA-run prison for five months.

Only then did intelligence agents conclude they had the wrong man. He was not Khalid al-Masri, a wanted terrorist and a member of Al Qaeda’s Hamburg cell that organized the Sept. 11 attacks on New York and Washington.

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American officials did not apologize to El-Masri for the mistake or return him to his home. Instead, he was dropped from a truck on a hillside in Albania. From there, he returned to Germany and contacted a lawyer.

Two years ago, German Chancellor Angela Merkel said after a meeting with Secretary of State Condoleezza Rice that U.S. officials “admitted this man had been taken erroneously.” In January of this year, German prosecutors issued arrest warrants for 13 CIA agents for their roles in the abduction and abuse of El-Masri.

In 2005, El-Masri filed suit against George J. Tenet, CIA director at the time of El-Masri’s kidnapping, and the private contractors who flew him to Afghanistan. He sought damages for his “unlawful abduction, arbitrary detention and torture by agents of the United States.”

In response, administration lawyers said the suit must be dismissed without a hearing “to protect classified intelligence sources.” A federal judge in Alexandria, Va., agreed and threw out the suit. This decision was upheld by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

In their appeal, ACLU lawyers said it made little sense to use secrecy as a reason to throw out a case whose facts had been broadcast and discussed throughout the world.

“This is a sad day,” said Ben Wizner, an ACLU lawyer for El-Masri. “By denying justice to an innocent victim of this country’s anti-terror policies, the court has provided the government with complete immunity for its shameful human rights and due process violations.”

david.savage@latimes.com

Times staff writer James Gerstenzang contributed to this report.

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