Once rarely used, the "state secrets" privilege has over the past five years become a routine defense used by the U.S. Government to keep cases from being tried.
The current case involves a suit brought by Khalid El-Masri. El-Masri was on vacation in Macedonia when he was kidnapped and transported to a CIA-run "black site" in Afghanistan. After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation. He was never charged with a crime.
El-Masri, who is represented by the American Civil Liberties Union (ACLU), is seeking an apology and money damages from the CIA. The first - and perhaps the last -- hearing on the case took place last week before a federal court in Alexandria, Virginia.
The Lebanese-born Al-Masri says he took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days, without access to anyone, including his wife.
He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania. He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan.
The aviation companies accused of transporting him during his detention are also protected by the "state secrets" privilege. A federal judge must decide whether to grant the government's motion to dismiss the case, but an ACLU spokesperson told IPS this could take weeks or months.
A parliamentary inquiry into El-Masri's kidnapping is also currently ongoing in Germany.
Speaking from Germany during a telephone news conference called last Friday by the ACLU, El-Masri said in response to our question that his objective is an explanation and an apology from the CIA.
According to Dr. Beau Grosscup, professor of international relations at California State University and an expert on terrorism, "Diplomatic assurances are trumped by the military, police and intelligence 'counterinsurgency' programs that the two Cold War superpowers instituted and still run in many of these countries that train police and military personnel in torture."
"The real attitude driving the 'rendition' efforts is: 'Having paid to train them in torture, why not get our money's worth'," he told us.
During her first meeting with the newly-elected German chancellor Angela Merkel several months ago, Secretary of State Condoleeza Rice admitted El-Masri's kidnapping and detention was the result of a "mistake" by the CIA. The incident threatened to again sour US relations with Germany, which Rice traveled to Europe to repair following Germany's opposition to the American invasion of Iraq.
But Rice has defended the practice of rendition, saying it was a vital tool in the war on terror. However, she has said the U.S. does not "send anyone to a country to be tortured."
"The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured," she said. "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."
But most human rights and foreign affairs experts believe that such "diplomatic assurances" are worthless. They say there is ample evidence that detainees who are "rendered" to other countries are frequently subjected to torture. The US has rendered prisoners to a number of countries that have notoriously poor human rights records, including Egypt, Jordan, Syria, Afghanistan and Algeria, as well as to suspected CIA secret prisons in Eastern Europe.
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