Torture and the State Secret Doctrine
Gordon Waldron,
Chicago Council of Lawyers,
Civil Liberties Committee.
In 2005, the Chicago Council of Lawyers issued a statement urging the United States to comply with the Convention against Torture, a treaty that the United States ratified in 1994. In 2013, the Council issued a Position Statement calling for a modification of the State Secret Doctrine, which the federal government under both the Bush and Obama Administrations has used to persuade courts to dismiss lawsuits by victims of torture, “extraordinary rendition,” and illegal electronic surveillance. The Council concluded that the “dismissal of a suit brought by a person who has alleged he was the victim of abusive and illegal government conduct leaves the victim with no remedy, and undermines our constitutional system of checks and balances . . .”
The recent Senate Committee Report on the CIA detention and interrogation programs illustrates the importance of these matters. An example is Khaled-El-Masri, a German citizen of Lebanese descent, who in December 2003 was seized by Macedonian border guards, having confused him with an Al-Qaeda operative with a similar name. A month later, he was turned over to a CIA rendition team. They beat him, stripped off his clothing, and sodomized him with a foreign object. He was then flown to Afghanistan, where he was imprisoned in a CIA-run facility known as the “Salt Pit,” an abandoned brick factory in Kabul, where he was interrogated, beaten, drugged, bound, blindfolded and barred from communicating with anyone outside the building. Four months later, he was flown to Albania (which shares a border with Macedonia) and dropped by the side of a road. When he got back to Germany, he learned that his family had moved to Lebanon, thinking he had abandoned them.
In December 2005, he sued the CIA in federal court. The United States argued that the case should be dismissed under the State Secret doctrine. The trial court agreed, El-Masri v Tenet et al., 437 F.Supp.2d 530 (E.D.Va.2006), and the Court of Appeals affirmed, concluding that the suit could not be litigated without revealing the identities of CIA agents and CIA tactics and procedures. El Masri v. United States, 479 F. 3d 296 (4th Cir. 2007).
On July 16, 2007, about four months after the court of appeals had affirmed the dismissal of El-Masri’s case, the CIA informed the Senate Intelligence Committee that it had lacked sufficient basis to seize and detain him. During its investigation of the CIA, the Senate Intelligence Committee sought and the administration produced over six million pages of CIA material, including documents relating to El-Masri. In 2012, El-Masri received a judgment against Macedonia in a suit before the European Court of Human Rights.
Because tactics the CIA used against El-Masri have now been revealed, he may have an argument that the United States has waived its claim that the CIA actions involving him are still secret. But even if that is not the case, he should receive compensation from the United States.
One way for that to happen is for Congress to pass a bill authorizing the administration to establish a compensation fund consisting of a fixed amount to be allocated among the 26 innocent victims of torture, and/or detention identified in the Senate Report, based on the severity of their injuries. Congress should do this whether or not it considers the government was right or wrong in taking those actions initially, or later invoking the State Secret doctrine to bar such claims. Congress should do it because it is the right thing to do.
Sources:
Report of Senate Select Committee on Intelligence, “Study of CIA’s Detention and Interrogation Program,” (2014). (See in particular, pages 14, 127, 128.)
“Court Finds Rights Violation in C.I.A. Rendition Case,” New York Times December 13, 2012.
El Masri v. United States, 479 F. 3d 296 (4th Cir. 2007).
El Masri v. Tenet et al., 437 F. Supp.2d 530 (E.D.Va. 2006).
El-Masri v The Former Yugoslav Republic of Macedonia, European Court of Human Rights, 2012; http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115621#{“itemid”:[“001-115621”]}
12/19/14