American Torturers on Trial, But Not in the United States
February 2, 2013
James A. Goldston / The Washington Spectator & The New York Times
Washington has been trying for almost a decade to hush up what it did to Khaled el-Masri, a German citizen whose story of mistaken identity, abduction and abuse was one of the low points in the CIA's post 9/11 "war on terror." The cover-up has now ended. The European Court of Human Rights held that Masri's kidnapping, detention and horrific torture violated the most basic guarantees of human decency.
American Torturers on Trial, But Not in the United States
James A. Goldston / The Washington Spectator
(February 1, 2013) -- Almost a decade after he was kidnapped and forcibly disappeared by Macedonian officials acting at the behest of the CIA, Khaled El-Masri has finally secured a measure of redress.
After years of denial in Skopje (capital of the former Yugoslav Republic of Macedonia), stonewalling in Berlin and silence in Washington, the European Court of Human Rights ruled in December that El-Masri's persistent and horrifying allegations that he was abducted and tortured as part of the CIA's post-9/11 "war on terror" were "established beyond reasonable doubt."
The United States was not on trial in Strasbourg, where the court sits. Macedonia, a member of the Council of Europe, was. But the unanimous ruling by 17 judges provided the most comprehensive judicial condemnation to date of extraordinary rendition and secret detention -- CIA practices the Obama Administration has yet to formally repudiate.
The court specifically concluded that the ill treatment suffered by El-Masri in January 2004 "at the hands of the special CIA rendition team… amounted to torture."
(Note: Goldston's complete essay is available online to Washington Spectator subscribers.)
James A. Goldston / Op-Ed, the New York Times
LONDON (December 13, 2012) -- The United States government has been trying for almost a decade to hush up what it did to Khaled el-Masri, a German citizen whose story of mistaken identity, abduction and abuse was one of the low points in the CIA's post 9/11 "war on terror."
This morning, the cover-up ended. The European Court of Human Rights held that Mr. Masri's forcible disappearance, kidnapping and covert transfer without legal process to United States custody nine years ago violated the most basic guarantees of human decency.
Notably, the court found that the treatment suffered by Mr. Masri in 2003 "at the hands of the special CIA rendition team," at an airport in Skopje, the capital of the former Yugoslav republic of Macedonia, "amounted to torture."
Although the case was filed against the Macedonian government and the court does not have jurisdiction over the United States, the ruling is a powerful condemnation of improper CIA tactics and of the abject failure of any American court to provide redress for Mr. Masri or the other victims of Washington's discredited policy of secret detention and extraordinary rendition.
The 17 judges in the European court's grand chamber, several of whom grew up under Communism, have done what the United States Supreme Court has declined to do: condemn an egregious abuse of an innocent man by out-of-control security services.
Mr. Masri was seized by local security officers in Macedonia on Dec. 31, 2003, while crossing the border from Serbia by bus. At the American government's request, he was held incommunicado for 23 days, then turned over to the CIA at Skopje airport, where, according to the court ruling, he was "severely beaten, sodomized, shackled and hooded," and flown to Kabul, Afghanistan.
He was kept for four months in a putrid, unheated cell in a secret American-run prison known as the Salt Pit. He was never charged with a crime or given access to his family, a lawyer or German consular officers.
In fact, as the German chancellor, Angela Merkel, declared in December 2005 after meeting with Condoleezza Rice, then the secretary of state, the CIA blundered in seeking Mr. Masri's capture. As became clear shortly after his forced disappearance commenced, Mr. Masri was the wrong guy; he was detained because his name resembled that of an Al Qaeda suspect.
But Mr. Masri was kept in prison long after Washington realized its error. It was only on May 28, 2004, that Mr. Masri was reverse-rendered by the CIA to another American ally, Albania. There, he was told not to tell anyone what had happened to him, then placed on a commercial flight back to Germany.
Although inquiries by the Council of Europe and the German Parliament pointed to the United States' responsibility, the American government has never publicly admitted what happened. To the contrary, American officials sought to block German and Spanish criminal inquiries and obtained dismissal of Mr. Masri's attempts to engage United States courts on the grounds that "state secrets" precluded consideration of his claims.
Now that the European Court of Human Rights has ruled, the key governments implicated in the affair must make good.
Macedonia should commit to the establishment of a commission of inquiry capable of leading to the identification and punishment of the Macedonian officials who participated in his extraordinary rendition.
Germany should disclose its own role, and its ministry of justice should transmit to the United States authorities arrest warrants issued in January 2007, but never sent, for 13 CIA operatives accused of involvement in the case.
The Obama administration should seize the opportunity to reinvigorate a national security policy long plagued by the absence of legal accountability. President Obama should immediately and publicly acknowledge the wrong that was done to Mr. Masri, apologize on behalf of the American people and offer reasonable compensation to Mr. Masri.
And beyond this case, the administration should abandon the policy of excessive secrecy that has diminished the moral authority of, and public support for, its counterterrorism program.
It should formally repudiate the CIA practice of transferring detainees without meaningful legal process; establish an independent, impartial commission of distinguished persons to examine and disclose the full record of human rights abuses associated with these operations; and launch genuine criminal investigations where warranted.
The total number of persons subjected to covert detention or extraordinary rendition since 9/11, some of whom have ended up in the American-run prison at Guantánamo Bay, Cuba, remains unknown. It is in the interest of the United States to uncover the truth about this sordid chapter in our history and to hold those responsible to account.
Other governments have begun to do just that. Italy has criminally convicted some of its own officials, as well as a number of CIA officers in absentia, for their involvement in a notorious extraordinary rendition operation. Canada has apologized to Maher Arar, who, with the help of the United States, was sent to Syria in a case of extraordinary rendition in 2002, and then tortured. Australia, Britain and Sweden have all provided compensation to extraordinary rendition victims.
It is time for the United States to join them.
In January 2009, on the eve of taking office, Barack Obama said of alleged wrongdoing: "We need to look forward as opposed to looking backwards." Over the past four years, adherence to this policy has left a blight on the reputation of the United States. So long as Washington refuses to examine its own conduct, it will fall to courts in other countries to uphold the rule of law. And, as today's decision makes clear, they will.
James A. Goldston is the executive director of the Open Society Justice Initiative who represented Khaled el-Masri before the European Court of Human Rights.
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