Tomorrow, the European Court of Human Rights (ECtHR), Europe's top human rights court based in Strasbourg, France, will hear arguments in El-Masri v. "the former Yugoslav Republic of Macedonia." Tomorrow's hearing marks the first case to come before the court against a European nation for complicity in the CIA's "extraordinary rendition" program.
The case was brought against Macedonia by the Open Society Justice Initiative on behalf of Khaled El-Masri. El-Masri, a German citizen, who was abducted by Macedonian authorities at a border crossing in December 2003 and held incommunicado for 23 days. He was then handed over to CIA operatives who drugged, hooded, and strip-searched him before putting him on a secret flight to Afghanistan where he was secretly held, tortured and abused for about four months, only for the U.S. government to realize that they had the wrong person. Instead of acknowledging their mistake and sending him back to Germany with an apology, CIA operatives put El-Masri on another secret flight and dumped him on a hill in Albania, leaving him to make his own way home to Germany.
To add insult to El-Masri's long-lasting injury, according to State Department diplomatic cables, the Bush administration pressured Germany not to prosecute CIA officers responsible for his kidnapping and abuse. Despite the fact that the former President Bush and other senior government officials acknowledged the existence of the U.S. rendition program, and the details of El-Masri's rendition and torture are widely known, the U.S. continues to deny responsibility and has invoked the "state secrets privilege" to protect government officials, CIA operatives and corporations from civil accountability. A 2005 ACLU lawsuit on behalf of El-Masri against former CIA director George Tenet was dismissed by lower courts on state secrecy grounds, and the U.S. Supreme Court declined to hear the case. Because of the U.S. government's failure to provide redress for El-Masri, in 2008 the ACLU filed a petition on his behalf against the United States with the Inter-American Commission on Human Rights. Over four years later, the U.S. government is yet to respond. Thus while his torturers enjoy impunity for their crimes, El-Masri has yet to receive an apology — or any other form of legal redress.
Not only have the architects of the torture program so far enjoyed impunity for their crimes, some have even been rewarded. According to an Associated Press report published in 2011, some of the CIA officers determined by the Office of Inspector General to be responsible for El-Masri's mistaken detention and torture were promoted. As of February 2009, according to the AP report, the CIA analyst who pushed for El-Masri's rendition was holding a premier job in the CIA's Counterterrorism Center, running the CIA's Global Jihad unit dedicated to disrupting al-Qaeda. And the lawyer who signed off on El-Masri's rendition was serving as a legal advisor to the CIA's Near East division.
Tomorrow's hearing marks an historic occasion both for El-Masri, providing him at last with his day in court and the opportunity to clear his name, and for human rights and the rule of law, demonstrating that nobody is above the law and those who were responsible for the abuses from which El-Masri continues to suffer will be held to account. But this hearing also serves as a stark reminder of the U.S. government's failure to hold its own officials accountable for violations of both U.S. and international law. Khaled El-Masri's illegal rendition, detention and torture will continue to haunt the United States until the right thing is done and justice is served at home, not just abroad.
Jamil will be live-tweeting the hearing starting at 3:15 a.m. EDT. Follow us at @ACLULive.