Illegal CIA Kidnappings Hurt America, Say Experts in Court Brief
NEW YORK -- Former United States diplomats and State Department officials today told a federal appeals court that denying a judicial forum to an innocent German citizen who was kidnapped by the CIA further "damages U.S. standing in the world community and our ability to obtain international cooperation in combating terrorism."
Ten former officials and the Brennan Center for Justice at New York University School of Law filed a friend-of-the-court brief in a case brought by the American Civil Liberties Union on behalf of Khaled El-Masri, who was seized by the CIA and transported to a secret prison in Afghanistan where he was abused. A Virginia federal district court dismissed El-Masri's lawsuit based on the government's assertion that allowing the case to proceed would expose state secrets, even though the basic facts of the case have been widely reported in the media. The case is currently on appeal before the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia.
"The former diplomats who filed this brief care passionately about the United States and have spent years thinking deeply about how to protect the United States in the international arena," said Aziz Huq, director of the Brennan Center's Liberty & National Security Project. "Their experience is that when we break our own laws, we not only inflict needless harm on others, but also damage our own national security."
The brief submitted by the former diplomats states: "America's reputation -- and thus its ability to rally international coalitions to overcome terrorism -- is critically wounded when one of its own agencies apparently violates laws enacted by Congress to protect basic rights, America's stated foreign policies, and the nation's treaty obligations -- but the federal courts permit invocation of the state secrets privilege to give immunity for unlawful and notorious conduct."
The brief's co-signers, who include officials who have served in every administration since President Eisenhower, are:
"Denial of a forum at the outset of litigation to Mr. El-Masri and the use of the state secrets privilege to immunize kidnapping, torture and unlawful detention from judicial scrutiny are likely to send a message to our foreign allies that will exacerbate those effects," states the brief. "When the courthouse door is slammed shut in the face of such notorious allegations… the work of diplomacy is rendered more difficult, and the damage to our reputation and our counter-terrorism goals, becomes incalculable."
The El-Masri case and similar kidnappings have already had a strong negative impact on the standing of the United States in the world community, explain the diplomats. Several nations have responded critically to the CIA's "rendition" policy and, in the face of broad public revulsion overseas at torture or abusive treatment, some democratic governments are abstaining from cooperating with the United States.
Last week, the United Nations Human Rights Committee called for an end to illegal rendition and a remedy for its victims, including El-Masri, and stated that so-called "diplomatic assurances" that detainees will not face torture provide inadequate protection.
The former diplomats brief was prepared with the aid of Sidney S. Rosdeitcher, David M. Cave and Colin McNary of Paul, Weiss, Rifkind, Wharton & Garrison LLP. The brief is online at:
El-Masri is represented by Ben Wizner, Ann Beeson, Melissa Goodman and Steven Watt of the ACLU. A hearing date has not yet been set by the court of appeals.