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U.S. Court Allows CIA Kidnapping and Torture
[Opinion] State secret doctrine prohibits judicial review
Darin Foster (dfoster)     Print Article 
Published 2007-03-06 16:59 (KST)   
Imagine the following. You are on vacation in a foreign country, walking along the street and admiring the sights, when a gang of unidentified men grab you, throw you in the back of a truck, blindfold you, cut your clothes away, put you in a jumpsuit, handcuff you, and finally administer a drug which causes you to lose consciousness.

You wake up in a small prison cell, where you are denied access to your government, your lawyer, and your family. You wait for weeks without being charged. Eventually, you are blindfolded (again), taken to an airfield and flown to an unknown location in an undisclosed country. Here you are kept for months, still cut-off from all contact with the outside world, as you are systematically interrogated, beaten, and drugged.

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Finally, when your captors decide that they are finished with their games, you are flown to yet another country, and dumped at the side of the road. You are left with nothing more than your passport and a return airplane ticket to your home country.

This tale of horrors is essentially what happened to Khaled El-Masri, a German citizen abducted by operatives of the United States Central Intelligence Agency in Macedonia in 2003. And according to a recent U.S. federal court decision, all of it -- the kidnapping, the beating, the forced administration of drugs -- is perfectly acceptable.

On March 2, the 4th Circuit Court of Appeals issued its ruling in the case of El-Masri v. United States of America. In his case, Mr. El-Masri argued that he had been the victim of a CIA program known as "extraordinary rendition," or, in less diplomatic terms, government-sponsored kidnapping.

The subject of extraordinary rendition and the related issue of covert CIA-sponsored prisons in various European countries has been the subject of intense debate and discussion since news of the programs first surfaced late 2005. Since then, the Bush administration has admitted the existence of both the kidnapping program and the CIA prisons.

The European Parliament issued a report in 2006 stating that El-Masri's account of his treatment is "substantially correct," and inquiries into the extraordinary rendition and detention programs are currently pending in 18 European countries. In a direct, if somewhat symbolic, challenge to the U.S. government, German prosecutors have taken the unprecedented step of issuing arrest warrants for 13 suspected CIA operatives who took part in the El-Masri kidnapping.

In the face of this evidence and world-wide condemnation of U.S. actions, the Court of Appeals simply threw up its hands and shirked all its responsibility. The Court claimed that even if everything El-Masri claimed were true, there is nothing the United States judicial system can do to correct the undeniable wrongs that he suffered. This is because the Bush administration has claimed that all information surrounding the extraordinary rendition program is protected from scrutiny by a U.S. legal rule known as the "state secrets doctrine."

In its basic form, the state secrets doctrine holds that in the course of a lawsuit, the U.S. government will not be required to present any evidence or produce any information that is reasonably likely to expose classified military matters related to national security. In this form, the doctrine is a rule of evidence that can be traced back at least to the treason trial of Aaron Burr in 1807.

In the past few decades, federal courts have taken this doctrine one step further, and transformed a rule of evidence into a de facto rule of executive branch immunity. These courts have found that where the subject matter of a lawsuit is intimately tied to issues of national security, and the case cannot be reasonably tried without risking exposure of national security secrets, the entire matter will be immediately dismissed.

The 4th Circuit held that El-Masri's case presented this type of intimate connection between purported state secrets and the subject matter of the case. The Court concluded that in order to defend themselves, the CIA and other executive agencies would be required to divulge the existence of certain programs, along with the operational details of these programs, their decision-making processes, and their operatives. The Court believed that these issues presented a significant the potential risk to U.S. national security, and the case was dismissed.

Understanding that his case faced significant obstacles under existing law, El-Masri urged the Court to re-interpret previous federal decisions and find that the state secrets doctrine did not extend to cases of "egregious executive misconduct." In less legal terms, El-Masri asked the Court to find that there was some boundary to CIA action, beyond which the appeal to national security could not justify rampant abuses of an individual's civil and human rights.

The Court refused to make such a determination. Instead, it gave full authority to the executive branch, the intelligence services, and the military to act without any concern for the Constitution of the United States, federal law, international law, or any form of judicial oversight.

The Court's decision does make an attempt to reassure the public that it has not completely abandoned its traditional role as a balance to the other political branches of government. The Court adamantly states that the state secrets doctrine "does not represent a surrender of judicial control over access to the court." Courts, and not the executive branch, determine whether the state secrets doctrine applies to a particular case.

These assurances of judicial authority and control are countered by numerous statements in the decision which clearly say that "the judiciary's role as a check on presidential action in foreign affairs is limited." At the same time, a federal court is required to give "utmost deference" to the executive branch in matters that touch on national security.

In a breathtaking example of judicial double-speak, the Court even goes so far as to assert that under certain circumstances, the executive branch would not even be required to explain why the state secrets doctrine exempted certain evidence, because the explanation itself could create an unacceptable danger of compromising national security. In these circumstances, a court would be "obliged to accept the executive branch's claim of privilege without further demand."

Apparently, the 4th Circuit believes that so long as the federal courts hold the rubber stamp to approve executive claims and actions, the public is well protected.

The language the Court uses in discussing El-Masri's claim is abundantly insulting to anyone who believes in civil and human rights. Rather than recognizing the CIA's actions as undeniable wrongs against both El-Masri and the German government, the Court dismisses them as nothing more than "executive excess" and examples of how the President's foreign policy may have "gotten out of line." The Court appears to go out of its way to diminish the severity of the claims raised by El-Masri so that it can say with a straight face that its ruling merely sacrifices the "fundamental principle of access to courts" in order to "protect a greater public value."

The question the Court refuses to answer, or even to acknowledge, is: If not you, then who? In the words of the old Roman question: Who will watch the watchmen? If the U.S. federal court system cannot be relied upon to pass judgment on the abuses perpetrated by the political branches of government, then where is justice to be found?

Perhaps appropriately, the only court system currently brave enough to stand against the United States is that of Germany. German prosecutors, not American, have issued arrest warrants for CIA kidnappers. German newspapers, not American, have stated clearly that the rule of law is paramount, and that lawless spaces and non-reviewable actions cannot be tolerated, even in the name of national security. The German people, and not the American, have sent a message to the U.S. government that gangs of thugs, kidnappers and torturers should not be allowed to use the trappings of government to abuse the most basic civil and human rights.

American courts should take these German warnings seriously. The German judiciary learned decades ago the dangers of abandoning its power to an over-zealous and authoritarian executive. In El-Masri, the 4th Circuit demonstrated the same type of deference to authority and refusal to acknowledge basic principles of human dignity that led German courts to uphold the infamous Nuremberg laws. When courts of any nation abandon their role as arbiters of justice in order to worship at the altar of national security, the future of democracy itself is put in danger.
©2007 OhmyNews
Other articles by reporter Darin Foster

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