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Home > Opinion
Rendition condemned

James A. Goldston (Issues) / 18 December 2012

The US 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 marks one of the low points of the CIA’s post 9/11 “war on terror.”

Last week the cover-up ended. The European Court of Human Rights held that Masri’s forcible disappearance, kidnapping and covert transfer without legal process to US custody nine years ago violated the most basic guarantees of human decency. Notably, the court found that the treatment suffered by Masri at Skopje Airport “at the hands of the special CIA rendition team ... amounted to torture.” Although the court does not have jurisdiction over the United States, its ruling is a powerful condemnation of improper CIA tactics and of the abject failure of any US court to provide redress for 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 our own Supreme Court declined to do: condemn an egregious abuse of an innocent man by out-of-control security services.

Masri was seized by local security officers in Macedonia on December 31, 2003, while crossing the border from Serbia by bus. At Washington’s request, he was held incommunicado for 23 days, then turned over to the CIA at Skopje airport, where he was beaten by US officials, drugged, sodomised with an object, and flown to Kabul, Afghanistan. He was kept for four months in a putrid, unheated cell in a secret US 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 Chancellor Angela Merkel declared in December 2005 after meeting with then-secretary of state Condoleezza Rice, the CIA blundered in seeking Masri’s capture. As became clear shortly after his forced disappearance commenced, Masri was the wrong guy; he was detained because his name resembled that of an Al Qaeda suspect. But Masri was kept in prison long after Washington realised its error. It was only on May 28, 2004 that Masri was reverse-rendered by the CIA to US 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 US responsibility, Washington has never publicly admitted what happened. To the contrary, US officials sought to block German and Spanish criminal inquiries, and obtained dismissal of Masri’s attempts to engage US courts on the grounds that “state secrets” precluded consideration of his claims. Now that the European Court 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 US authorities arrest warrants previously 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. Most immediately, President Obama should publicly acknowledge what was done to Masri, apologise on behalf of the American people, and offer reasonable compensation.

And beyond this case, the administration should abandon the policy of excessive secrecy, which has diminished the moral authority of, and public support for, its counterterrorism programme.

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 and/or extraordinary rendition since 9/11, some of whom have ended up in Guantanamo, 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 apologised to Maher Arar, who, with the help of the United States, was extraordinarily rendered to and tortured in Syria. 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, then President-elect 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. For 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 this decision makes clear, they will.

James A. Goldston, executive  director of the Open Society Justice Initiative, served as counsel for Khaled el-Masri in the European Court of Human Rights


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