The New York Times on the el-Masri case

October 11, 2007

Editorial New York Times

Supreme Disgrace

The Supreme Court exerts leadership over the nation’s justice system, not
just through its rulings, but also by its choice of cases — the ones it agrees
to hear and the ones it declines. On Tuesday, it led in exactly the wrong
direction.

Somehow, the court could not muster the four votes needed to grant review in
the case of an innocent German citizen of Lebanese descent who was kidnapped,
detained and tortured in a secret overseas prison as part of the Bush
administration’s morally, physically and legally abusive anti-terrorism program.
The victim, Khaled el-Masri, was denied justice by lower federal courts, which
dismissed his civil suit in a reflexive bow to a flimsy government claim that
allowing the case to go forward would put national security secrets at risk.

Those rulings, Mr. Masri’s lawyers correctly argued, represented a major
distortion of the state secrets doctrine, a rule created by the federal courts
that was originally intended to shield specific evidence in a lawsuit filed
against the government. It was never designed to dictate dismissal of an entire
case before any evidence is produced.

It may well be that one or more justices sensitive to the breathtaking
violation of Mr. Masri’s rights, and the evident breaking of American law,
refrained from voting to accept his case as a matter of strategy. They may have
feared a majority ruling by the Roberts court approving the dangerously
expansive view of executive authority inherent in the Bush team’s habitual
invocation of the state secrets privilege. In that case, the justices at least
could have commented, or offered a dissent, as has happened when the court
abdicated its responsibility to hear at least two other recent cases involving
national security issues of this kind.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003
and flown to a squalid prison in Afghanistan. He says he was questioned there
about ties to terrorist groups and was beaten by his captors, some of whom were
Americans. At the end of May 2004, Mr. Masri was released in a remote part of
Albania without having been charged with a crime. Investigations in Europe and
news reports in this country have supported his version of events, and German
Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice
acknowledged privately to her that Mr. Masri’s abduction was a mistake, an
admission that aides to Ms. Rice have denied. The Masri case, in other words, is
being actively discussed all over the world. The only place it cannot be
discussed, it seems, is in a United States courtroom.

In effect, the Supreme Court has granted the government immunity for
subjecting Mr. Masri to “extraordinary rendition,” the morally and legally
unsupportable United States practice of transporting foreign nationals to be
interrogated in other countries known to use torture and lacking basic legal
protections. It’s hard to imagine what, at this point, needs to be kept secret,
other than the ways in which the administration behaved irresponsibly, and quite
possibly illegally, in the Masri case. And Mr. Masri is not the only innocent
man kidnapped by American agents and subjected to abuse and torture in a foreign
country. He’s just the only one whose lawsuit got this far.

This unsatisfactory outcome gives rise to new worries about the current
Supreme Court’s resolve to perform its crucial oversight role — particularly
with other cases related to terrorism in the pipeline and last week’s disclosure
of secret 2005 Justice Department memos authorizing the use of inhumane
interrogation methods that just about everyone except the Bush White House
thinks of as torture. Instead of a rejection, the Masri case should have
occasioned a frank revisiting of the Supreme Court’s 1953 ruling in United
States v. Reynolds. That case enshrined the state secrets doctrine that this
administration has repeatedly relied upon to avoid judicial scrutiny of its
lawless actions.

Indeed, the Reynolds case itself is an object lesson in why courts need to
apply a healthy degree of skepticism to state secrets claims. The court denied
the widows of three civilians, who had died in the crash of a military aircraft,
access to the official accident report, blindly accepting the government’s
assertion that sharing the report would hurt national security. When the
documents finally became public just a few years ago, it became clear that the
government had lied. The papers contained information embarrassing to the
government but nothing to warrant top secret treatment or denying American
citizens honest adjudication of their lawsuit.

In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an
innocent person without any remedy for his wrongful imprisonment and torture. It
has damaged America’s standing in the world and established the nation as
Supreme Enabler of the Bush administration’s efforts to avoid accountability for
its actions. These are not accomplishments to be proud of.