DoJ invokes 'state secrets' privilege to block case against CIA

Invoking the need to protect "state secrets," the Justice Department urged a federal judge on May 12 to dismiss a lawsuit brought by a man whose experience came to symbolize what some have called the unaccountability of a government program that secretly ships terrorism suspects to overseas prisons. Assistant US Attorney R. Joseph Sher said in the US District Court for the Eastern District of Virginia that the government cannot confirm or deny the allegations made by Khaled al-Masri, a Kuwaiti-born German citizen, who was held by the CIA for five months in Afghanistan. His allegations, Sher contended, "clearly involve clandestine activity abroad." Therefore, he said, "there is no way that the case can go forward without causing the damage to the national security." US District Judge T.S. Ellis said he will issue a ruling as soon as possible on whether the case will proceed. Ben Wizner, an American Civil Liberties Union lawyer representing Masri in his lawsuit against former CIA director George J. Tenet and 10 unnamed CIA officials, said "the government is moving to dismiss this case at the outset on the basis of a fiction: that discussion in this courtroom of the very same facts being discussed throughout the world will harm the nation." Granting the motion, he argued, would amount "to giving a broad immunity to the government to shield even the most egregious activities." "The central fact that Khaled al-Masri was a victim of the rendition program, and that the CIA was responsible for it, is not a state secret, and, in fact, is known to everyone in this courtroom and around the world," he said. Wizner argued that if the government were allowed to avoid Masri's lawsuit by invoking the state secrets privilege, it could make the same claim if it were confronted with a claim involving a clandestine murder of a US citizen. Masri had gone to Macedonia on vacation when he was arrested there on Dec. 31, 2003, and flown to Afghanistan, where he was "dragged off the plane and thrown into the trunk of a car." He was held at a CIA-run facility known as the "Salt Pit," an abandoned brick factory north of the Kabul business district used for detention of high-level terror suspects. During his incarceration in Kabul, he was shackled, beaten and injected with drugs. Masri said that when he became ill, "they didn't pay any attention." He said he went on a hunger strike that ended after 37 days when his captors force-fed him. He said he had lost more than 60 pounds. US officials have said that his case was one of mistaken identity, arguing that intelligence authorities may have confused him with an operative of al-Qaida with a similar name. After Tenet was notified that the CIA had the wrong man, Masri was held for two more months, his lawsuit alleges. Following a total of five months in captivity, Masri was flown to Albania and released without explanation. In a recent interview with the New York Times at his lawyer's office in Ulm, Germany, Masri said that he was insisting on a public apology from the US government before he would consider withdrawing the lawsuit. Asked about financial compensation, he did not respond directly but said, "The most important thing for me is to know why this happened and to get a public apology." Secretary of State Condoleezza Rice and other State Department officials have declined to address the al-Masri case. However, German Chancellor Angela Merkel has said the United States has acknowledged making a mistake in his arrest. The state secrets privilege being invoked by the Justice Department, which was created in the 1950s during the Cold War, allows the federal government to urge courts to dismiss legal cases that it asserts would damage foreign policy or national security. The courts have usually accepted the government's request. The state secrets privilege was invoked about 55 times from 1954 to 2001, according to the Reporters Committee for Freedom of the Press. In the first four years after the Sept. 11, 2001, attacks, it was invoked 23 times.