Khaled El-Masri. (Photo: AP)
A week after the Justice Department released documents that described in extraordinary detail the CIA's top secret rendition program, an international human rights tribunal has agreed to take up the case of a German citizen who was "rendered" to a CIA black site prison in Afghanistan and tortured in a case of mistaken identity.
The American Civil Liberties Union filed a petition in April with the Inter-American Commission on Human Rights (IAHCR) on behalf of Khaled El-Masri, a truck driver, detained for four months. El-Masri was first detained in December 2003 in Macedonia by law enforcement authorities of that country for 23 days before being turned over to the CIA.
El-Masri was beaten, stripped and drugged prior to being loaded onto a plane bound for Afghanistan, according to the petition. After several interrogation sessions at the black site prison, the CIA realized they had captured the wrong person. In May 2004, the CIA blindfolded El-Masri, put him on a plane and abandoned him on a hillside in Albania. He was never charged with a crime.
The ACLU's petition calls on the IAHCR to declare that the CIA's rendition program violates the American Declaration of the Rights of Duties and Man, a six-decade old human rights instrument that predated the Universal Declaration of Human Rights, which the US signed, and to find that the US violated El-Masri's rights under that declaration, to recommend that the US publicly acknowledge and apologize for kidnapping and torturing El-Masri.
The US government has two months to respond to the kidnapping and torture allegations. The rendition case made international headlines when law enforcement officials in Germany, after spending three years probing El-Masri's claims, filed indictments against 13 CIA agents directly involved in his rendition. The investigation and an inquiry by the German Parliament are ongoing.
"The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program. "The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date, the United States hasn't so much as acknowledged its involvement in El-Masri's extraordinary rendition."
The civil liberties group filed a lawsuit in 2005 against ex-CIA Director George Tenet and three aviation companies based in the US that owned and/or operated the airplanes the CIA used to render El-Masri, alleging they violated the US Constitution and human rights laws. But a federal appeals court dismissed the case in March 2007 when the Bush administration asserted state secrets privilege. The US Supreme Court refused to hear the case in October of that year.
A report from the Council of Europe substantially confirmed all of El-Masri's claims. It's unknown how the Obama administration intends to respond to the petition, but the IAHCR as the tribunal doesn't recognize state secrets privileges should the Obama administration choose to make that argument. Obama's Justice Department has invoked state secrets in several federal court cases since taking office.
Earlier this month, in an ongoing lawsuit involving the Bush administration's domestic surveillance program, Obama's Justice Department invoked state secrets privileges in a friend-of-the-court brief with the US Supreme Court, arguing against disclosing information to a now defunct Muslim charity that said it was illegally monitored by government agents without a court order.
The filing adopted a legal argument asserted by the Bush administration: State secrets privilege was firmly rooted in the US Constitution. Typically, courts have said state secrets are rooted in common law. The Obama administration cited just one example of when that argument was raised and it turned out to be the case involving El-Masri's rendition.
But Monday's release of a 20-page background paper that laid bare the CIA's rendition program would appear to put to rest any further attempts to invoke state secrets, as it relates to rendition, unless the Obama administration decides to argue to the IAHCR the merits of the decision made by the federal appeals court back in 2007 without disclosing details of El-Masri's kidnapping and torture.
The background paper says the use of torture at the CIA's "black site" prisons "is essential to the creation of an interrogation environment conducive to intelligence collection."
Previously, the CIA has refused to disclose any details of its rendition program citing state secrets.
High-value detainees "are well-trained, often battle-hardened terrorist operatives, and highly committed to jihad. They are intelligent and resourceful leaders and able to resist standard interrogation approaches."
The background paper reads as an instructional manual for interrogators on how and when to implement the "combined use of interrogation techniques" after a terror suspect is captured and "renditioned" to a "black site" prison in another country.
"However, there is no template or script that states with certainty when and how these techniques will be used in combination during interrogation," the background paper stated. "The interrogators' objective is to transition the HVD to a point where he is participating in a predictable, reliable, and sustainable manner. Interrogation techniques may still be applied as required, but become less frequent.
"This transition period lasts from several days to several weeks based on the HVDs response and actions. The entire interrogation process outlined above, including transition may last for thirty days."
The CIA prepared the December 30, 2004, document for Dan Levin in the Justice Department's Office of Legal Counsel. The background paper includes an unsigned note on the fax cover sheet that said, "Dan, A generic description of the process. Thank you."
"The purpose of interrogation is to persuade High-Value Detainees (HVD) to provide threat information and terrorist intelligence in a timely manner, to allow the US Government to identify and disrupt terrorist plots and to collect critical intelligence on al-Qa'ida," the background paper said. "In support of information previously sent to the Department of Justice, this paper provides additional background on how interrogation techniques are used, in combination and separately, to achieve interrogation objectives."
The background paper then described what happens after a terror suspect is captured and turned over to the CIA. The background paper described this as "rendition."
"The HVD is flown to a Black Site ... A medical examination is conducted prior to the flight," according to the background paper. "During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures."
The so-called "Reception at Black Site" that follows involves a medical assessment and "administrative procedures." Detainees' head and faces are then shaved and they are photographed while nude to "document the physical conduction of the HVD."
"The medical officer also determines if there any contraindications to the use of interrogation techniques."
Contraindications is defined as a pre-existing condition or other factors that would increase the risk of either using a specific drug, carrying out a medical procedure or engaging in a particular activity.
That description matched what El-Masri said he endured after he was rendered.
According to the ACLU's petition, he was boarded on a bus in Ulm, Germany, on December 31, 2003, bound for Skopje, Macedonia, for a brief vacation. When the bus crossed the Serbian border into Macedonia, El-Masri was detained by Macedonian law enforcement officials for several hours and was transferred to a hotel in Skopje by plainclothes officers, where he remained for 23 days and was questioned about a meeting he was alleged to have had in Jalalabad, Afghanistan, with an Egyptian man about possible Norwegian contacts.
El-Masri said he had never been to Jalalabad and did not know anyone from Norway.
"On the seventh day of his confinement, a man who appeared to be in charge of the interrogators proposed to Mr. El-Masri that if he confessed his involvement with Al Qaeda, he would be returned to Germany," according to the ACLU petition. "Mr. El-Masri refused."
Two weeks later, "seven or eight Macedonian men whom Mr. El-Masri had not seen before, and who were dressed in civilian clothes entered the hotel room ... recorded a fifteen-minute video of Mr. El-Masri" and instructed him to say that he had been treated well, had not been harmed in any way, and would shortly to be flown back to Germany."
El-Masri was then taken to a building an hour away where he was told he would be medically examined. Instead, the petition said he was severely beaten, stripped, photographed, and thrown to the floor where he "then felt a firm object being forced into his anus." After his blindfold was removed he saw "seven or eight men dressed in black and wearing black ski masks."
"One of the men placed him in a diaper and placed in a belt with chains that attached to his wrists and ankles. The men put earmuffs and eye pads on him, blindfolded him, and hooded him," the petition said. "Mr. El-Masri was marched to a waiting aircraft. Once inside, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. He felt an injection in his shoulder, and became lightheaded. He felt a second injection that rendered him nearly unconscious.
"The men dressed in black clothing and ski masks were members of a United States Central Intelligence Agency ('CIA') 'black renditions' team, who were operating pursuant to directives given to them by senior officials in the CIA, including then Director of Central Intelligence, George Tenet, as part of the US rendition program ..."
He was then taken to the black site prison in Afghanistan known as the "Salt Pit," where he was subjected to harsh interrogations that included "threats, insults, pushing, and shoving." He went on a 27-day hunger strike to protest his detention.
He then met with the prison director, who agreed El-Masri should not be detained, but told him that he could not be released without specific instructions from Washington. He continued his hunger strike for another 14 days and his health rapidly deteriorated. Interrogators then tied El-Masri to a chair and force-fed him through a tube. By this point, he had lost 60 pounds.
"Media reports quoting unnamed US officials, published after Mr. El-Masri's eventual return to Germany, note that CIA officials at the 'Salt Pit' believed early on that they had detained the wrong person," the petition said. "According to those reports, in March, Mr. El-Masri's passport was examined by CIA officials in Langley, Virginia, and determined to be valid.
"Then Director of US Central Intelligence George Tenet was notified in April that the CIA had detained the wrong person. By early May, Condoleezza Rice, then [George W. Bush's] National Security Advisor, had also been informed that the CIA was detaining an innocent German citizen. Nonetheless, Mr. El-Masri was detained in the 'Salt Pit' until May 28 ."
Prior to his release, a psychologist, "who traveled from Washington, D.C.," evaluated El-Masri and told him not to discuss details of his detention after he was released because the US was determined to keep the incident secret.
"In June, 2007, based on its examination of flight records, the Council of Europe confirmed that on May 28, 2004 at 7:04 a.m. Mr. El Masri was flown out of Kabul [...] on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called Bezat-KuÃ¡ova Aerodrome, arriving there at 11.34 a.m. local time. These records also show that the aircraft was owned and operated by a US-based corporation, Richmor Aviation."
Earlier this week, the Obama administration announced that it will continue to render suspected terrorists to other countries, but it will monitor each case to ensure the detainees are not tortured.
Jennifer Turner, a researcher with the ACLU Human Rights Program, said that pledge doesn't go far enough.
"Any transfer of detainees in US custody to other countries must fully comply with domestic and international human rights law," she said. "Examining the Bush administration rendition program and holding accountable those who broke the law will help to ensure that the same mistakes aren't repeated by the Obama administration."