American Torturers on Trial, But Not in the United States

Washington Spectator Torture creditAlmost 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 government 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.”

A sometime car salesman from Germany, El-Masri was stopped and detained by local security officers in Macedonia on Dec. 31, 2003, while crossing the border from Serbia by bus. He had hoped to take a short vacation.

At Washington’s request, El-Masri was held incommunicado, in unacknowledged detention, for 23 days, then turned over to the CIA at Skopje airport, where, the European Court found, he was “stripped and sodomised with an object … [s]hackled and hooded, and subjected to total sensory deprivation.” The “aim” of these “measures,” the court observed, was “to cause severe pain or suffering in order to obtain information, inflict punishment or intimidate” him. After being “forcibly marched to a CIA aircraft,” El-Masri “was thrown to the floor, chained down and forcibly tranquilised,” then flown to Kabul, where he was kept for more than four months 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 stated in December 2005 after meeting with Condoleezza Rice, then secretary of state, the CIA simply blundered in seeking El-Masri’s capture. As became clear shortly after his unlawful detention began, El-Masri was the innocent victim of mistaken identity, apprehended because his name resembled that of an Al Qaeda suspect.

But El-Masri was imprisoned long after Washington realized its error. It was only on May 28, 2004, that he was reverse-rendered by the CIA to Albania, another American ally. There he was set free and placed on a commercial flight back to Germany, where he immediately commenced his long, lonely struggle for justice.

Although numerous European inquiries have revealed the facts, the American government has never publicly admitted what happened. To the contrary, U.S. officials sought to block German and Spanish criminal inquiries and obtained dismissal of El-Masri’s claims in United States courts on the spurious ground of state secrets.

The European Court has done what even the U.S. Supreme Court refused to do. It has called to account those responsible for the erroneous and brutal mistreatment of an innocent man and affirmed a basic principle forgotten in too many discussions in Washington: though challenging and vitally important, “the investigation of terrorist offences” does not give the authorities “carte blanche…to arrest suspects and detain them in police custody, free from effective control by the…courts.”

And it has reminded us why the prolonged failure to acknowledge, let alone correct, the abuse of a German national of Arab descent should matter to all American citizens: “Impunity must be fought as a matter of justice for the victims, as a deterrent to prevent new violations and to uphold the rule of law and public trust in the justice system.”

The Obama Administration should revisit its discredited policy of “look forwards as opposed to looking backwards.” As a first step, Washington should publicly admit what it did to El-Masri, issue an apology and provide reasonable compensation. But it should not stop there.

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. Washington should commit to uncovering the truth and bringing those responsible to account.

The Obama administration should abandon the excessive secrecy that has diminished the moral authority of its counterterrorism program. It should 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 criminal investigations where warranted. And it should endorse de-classification and release of a recently approved Senate Intelligence Committee report on the CIA’s detention and interrogation program.

Other governments implicated in executive overreach and breaches of fundamental rights since 9/11 have begun to make amends. It is time for the United States to join them.

James A. Goldston, an attorney and executive director of the Open Society Justice Initiative, represented Khaled El-Masri before the European Court of Human Rights.

Also in this issue: The Anti-Torture Lobby and Learning to Love Torture.