Supreme Court el-Masri rejection undermines accountability for renditions Commentary
Supreme Court el-Masri rejection undermines accountability for renditions
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Aziz Huq [Director, Liberty and National Security Project at the Brennan Center for Justice at the NYU School of Law]: "This Monday, the Supreme Court denied the petition for certiorari review filed by the American Civil Liberties Union in the case of Khaled El-Masri, a German citizen who had been subject to the U.S. practice of "extraordinary rendition." The denial,which was made without comment by the Justices (the usual practice), means that no four Justices on the Court believed that Mr. El-Masri's case merited review. It also means that Mr. El-Masri now has no judicial remedy in the United States. And it means that almost every formal channel for accountability for the practice of "extraordinary rendition"—and accountability for the errors it can involve—has been blocked.

Even the undisputed details of the El-Masri case provide scant room for moral ambiguity. At the end of 2003, Mr. El-Masri was seized while on holiday in Macedonia, and transported to a prison where he was held incommunicado and questioned with coercive means about his alleged involvement in terrorism. In May 2004, he was abruptly released without explanation or apology. He was, in short, an innocent man "disappeared" for five months and given neither an iota of explanation, nor a jot of compensation.

Thanks to the diligence of the Washington Post and El-Masri's counsel in the United States and Germany, more details have emerged. According to these accounts (summarized in Chapter 5 of my book Unchecked and Unbalanced: Presidential Power in a Time of Terror), El-Masri was taken to a U.S. facility in Afghanistan, an abandoned brick factory north of Kabul. His detention there has been confirmed via chemical analysis of his hair, which still contained traces of the soil and particulate matter of the area, and also through the testimony of another detainee, who met and talked to El-Masri. It appears that the CIA learned that Mr. El-Masri was wholly innocent of any connection to terrorism no more than three months after his initial detention; but they still held him for two further months as they debated what to do with him.

Represented by the ACLU, Mr. El-Masri filed suit in federal court, seeking restitution and an apology. His case, always a long-shot, was rejected even before Mr. El-Masri was properly in the courthouse door. Both the district court and the Court of Appeals for the Fourth Circuit rejected Mr. El-Masri's tort claims on the ground that any litigation of the case would implicate "state secrets" (a doctrine discussed at greater length here).

The denial of certiorari review may be explicable by the simple strategic logic of the Justices' conference. At least four Justices, who favor broad conceptions of executive power and are little concerned with the availability of individual remedies when rights are violated, likely thought the case correctly decided. Perhaps four others, while troubled by the case, might have thought that pushing for a grant of certiorari would be unwise because of the risk of an adverse judgment. Call it a "defensive denial." They might have thought that the Court should confront the "state secrets" doctrine in a less fraught context, e.g., in commercial and employment cases, where it occasionally arises.

But whatever the narrow strategic reasons for the denial, this week's decision has broader consequences: It means not only that Mr. El-Masri is denied a remedy for a fragrant and wholly unjustified wrong. It also means that one of the best devices for securing accountability is lost.

The denial of judicial remedies must be viewed against the larger failure of congressional oversight of extraterritorial detention operations in general and "extraordinary rendition" in particular. Both chambers of Congress have held a series of hearings on detention policies. But the public hearings have largely been heated rehearsals of the debating points from both sides of the aisle. And the indications are that the closed, classified briefings have not been any more illuminating. A briefing earlier this year on extraordinary rendition left Senators, including Patrick Leahy (D-VT) and Arlen Specter (R-PA) scratching their heads in bafflement. It seems fair to guess that the executive has effectively shut Congress out of any careful investigation of specific cases.

And now it has done the same in the courts.

This means that the heart of the problem goes unaddressed: The government's decision to seize people and hold them based on evidence that would not and could not permit criminal prosecution. This core policy leads inexorably to wrongful detention. It also sets into motion troubling incentives for government employees. Having seized a person, and made them "disappear" from human society, a government official is under powerful moral, psychological, and bureaucratic pressure to justify her action. The obvious recourse once someone is detained is the person themselves. Hence the slippery slope of abuse, and then torture. And since extraordinary renditions are conducted in the absence of any meaningful external scrutiny (or even, as far as we know, ex post audit), there is every reason to belief this slope becomes steep and extraordinarily slippery.

The absence of scrutiny is all the more troubling due to what is known of the process whereby extraordinary renditions are authorized. In El-Masri's case, for example, it has been reported that the chief of operations in Skopje, Macedonia, who initially authorized the rendition "really wanted a scalp" and that the director of the al Qaeda unit at CIA headquarters in Langley, VA, who signed off on the operation moved forward despite the fact the evidence was slip from the beginning. It was, in short, more Jack Bauer than John Le Carré.

Further, the evidence suggests that senior political leaders abdicated their proper responsibility for careful oversight. According to the former director of CIA European operations Tyler Drumheller, what political oversight there was proved self-interested, preoccupied by the risk of negative publicity, and callously unconcerned with the possibility that a wholly innocent person might be swept up. Drumheller added, "This was no way to run a covert policy. If the White House wants to take extraordinary measures to win, it can't just let things go through without any discussion about their value and morality."

Available evidence, in short, strongly suggests that the processes that the executive branch has in place to forestall error are feeble. Absent new accountability measures, the net consequence will be obvious: more erroneous renditions (although in the future the Agency may be more careful about leaving evidence behind), and increasing worldwide skepticism about the morality of the United States' position.

Accountability is not impossible. After the rendition of a Canadian-Syrian citizen, for example, Canada established a national commission headed by former Supreme Court Justice Dennis O'Connor. The O'Connor inquiry looked not only at the particular case of rendition, but also synoptically at the oversight mechanisms for the Canadian intelligence agencies: It thus wisely used a moment of public attention and outrage as a lever for a more through analysis of systemic failures. One consequence was an award of millions of dollars to the rendition victim—a proper and just remediation of a terrible wrong. Perhaps an equally important consequence was the careful reflection on how the same wrong could be stopped from happening once more.

The Supreme Court's decision not to take the El-Masri case should not be the end of the story: There is a continuing need, animated both by human rights and by security concerns, for accountability over rendition operations. Until such measures are in place, it is impossible to say that these abusive policies have even a jot of security benefit.

Disclosure: The author acted as counsel for the Association of the Bar of the City of New York in an amicus brief filed in support of the El-Masri petition for certiorari.

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