Rendition Program Challenge Heard in 4th Circuit
Oral Arguments were heard yesterday in the 4th Circuit Court of Appeals in Virginia in a case arising out of the mistaken extraordinary rendition of a German citizen, Khaled el Masri.
Khaled el Masri, a German citizen was falsely arrested/abducted by the CIA on New Years Eve, December 31, 2003 in Macedonia. He was flown to a prison in Afghanistan, held for five months where he claims he was shackled, beaten and injected with drugs.
In May, a District Court Judge dismissed this lawsuit based upon the CIA argument that defending the suit would necessitate the disclosure of state secrets. Yet, many great attorneys have been busy since May. In its reply brief, the ACLU cited three separate District Court opinions that “have “rejected sweeping assertions of the state secrets privilege nearly identical to the” claim put forth by the CIA in this case. The ACLU argues that these other courts
have embraced a common-sense approach to accommodating the twin goals of security and accountability that is wholly at odds with the radical theory of executive power advanced by the United States in their defense of this suit.
The ACLU brief cites three arguments in support of its request that the District Court decision be reversed and the case reinstated and allowed to proceed.
I. Three recent district court decisions have rejected the government’s argument that the state secrets privilge justifies dismissal of a case at the outset.
The three cited cases are:
i. Al-Haramain Islamic Foundation Inc. v. Bush, 2006 WL 2583425 (D.Or. 9/7/06)
ii. ACLU v. NSA, 438 F.Supp.2d 754 (EDMich. 8/17/06) My First Ever Diary Summarized this decision
iii. Hepting v. AT&T, 439 F.Supp.2d 974 (N.D.Cal 7/20/06)
II. This case can be litigated without disclosure of means, methods, and operational details of the CIA’s clandestine activities
Similar to the creative tool raised in the ACLU v. NSA, 438 F.Supp.2d 754 (EDMich. 8/17/06) , the ACLU uses Bush’s words in support of their argument.
In fact, just ast the President’s confirmation that fourteen suspected terrorists had been detained and interrogated by the CIA did not reveal classified ‘means and methods’ that were unknown to the public, it is highly likey that Mr. El-Masri would be able to establish defendant’s liability without such revelations.
The ACLU, citing a recent Council of Europe report argues that the cat is already out of the bag.
Moreover, the manner in which the CIA operates its rendition programs is by now widely known and has been publicly aired not only in the media but in the official reports of foreign governments.
In its legal brief, it then restates chilling portions of the standard modus operandi of the extraoridnary rendition program.
i. it generally takes place in a small room (a locker room, a police reception
area) at the airport, or at a transit facility nearby.
ii. the man is sometimes already blindfolded when the operation begins, or
will be blindfolded quickly and remain so throughout most of the operation.
iii. four to six CIA agents perform the operation in a highly-disciplined,
consistent fashion – they are dressed in black (either civilian clothes or special
'uniforms'), wearing black gloves, with their full faces covered. Testimonies
speak, variously, of “big people in black balaclavas”, people “dressed in
black like ninjas”, or people wearing “ordinary clothes, but hooded”.
iv. the CIA agents “don’t utter a word when they communicate with one
another”, using only hand signals or simply knowing their roles implicitly.
v. some men speak of being punched or shoved by the agents at the beginning
of the operation in a rough or brutal fashion; others talked about being
gripped firmly from several sides
vi. the man’s hands and feet are shackled.
vii. the man has all his clothes (including his underwear) cut from his body
using knives or scissors in a careful, methodical fashion; an eye-witness
described how “someone was taking these clothes and feeling every part, you
know, as if there was something inside the clothes, and then putting them in a
bag”.
viii. the man is subjected to a full-body cavity search, which also entails a
close examination of his hair, ears, mouth and lips.
ix. the man is photographed with a flash camera, including when he is nearly73
or totally naked74; in some instances, the man's blindfold may be removed for
the purpose of a photograph in which his face is also identifiable75.
x. some accounts speak of a foreign object being forcibly inserted into the
man's anus; some accounts speak more specifically of a tranquiliser or
suppository being administered per rectum76 - in each description this practice
has been perceived as a grossly violating act that affronts the man’s dignity.
xi. the man is then dressed in a nappy or incontinence pad and a loose-fitting
"jump-suit" or set of overalls; “they put diapers on him and then there is some
handling with these handcuffs and foot chains, because first they put them on
and then they are supposed to put him in overalls, so then they have to
alternately unlock and relock them”.
xii. the man has his ears muffled, sometimes being made to wear a pair of
"headphones"
xiii. finally a cloth bag is placed over the man's head, with no holes through
which to breathe or detect light; they “put a blindfold on him and after that a
hood that apparently reaches far down on his body” .
xiv. the man is typically forced aboard a waiting aeroplane, where he may be
“placed on a stretcher, shackled”, or strapped to a mattress or seat, or “laid
down on the floor of the plane and they bind him up in a very uncomfortable
position that makes him hurt from moving”.
xv. in some cases the man is drugged and experiences little or nothing of the
actual rendition flight; in other cases, factors such as the pain of the shackles
or the refusal to drink water or use the toilet make the flight unbearable: “this
was the hardest moment in my life”.
xvi. in most cases, the man has no notion of where he is going, nor the fate
that awaits him upon arrival.
Tactially, attorneys writing Appellate Briefs often try to pepper their briefs with quotes for the Court to utilize in their opiinions. If this section of the ACLU brief is repeated in the legal opinion it will be, IMHO, historicdally important as it will be part of a legal opinion that will be read and re-read by future lawyers, teachers and historians.
The ACLU's third argument in its reply brief:
III. The United States misapprehends the significance of the widespread dissemination of information about Mr. El-Masri’s case and the rendition program, and entirely ignores substantial corroborating evidence of Mr. El-Masri’s allegations.
Again, attempting to prove that no state secrets will be disclosed as much of the ‘secrets’ have already been disclosed and other, undisclosed, facts are simply unnecessary to adjudicate this dispute.
Interestingly, Mr. Masri's attorney has stated that although he believes he is entitled to financial compensation, he is not necessarily seeking anything beyond some official expression of remorse.
Procedurally, Federal Lawsuits begin by a filing in District Court, as this matter was initially filed in the Western District of Virginia. Once the District Court Judge dismissed the case, an appeal was filed with the relevant Circuit Court of Appeals (4th). My experience with Circuit Court of Appeals is that a decision can be issued rather quickly, within a few weeks, or can be very slow and take more than one year.
For an amazing array of information and documents including flight logs and memorandum and briefs filed http://www.aclu.org/safefree/torture/rendition.html
Fantastically, the ACLU not only named the CIA and George Tenet as defendants in this suit, but also:
Premier Executive Transport Services,
located in Dedham, MA . PETS was the owner of the Boeing business jet 737-7ET, formerly registered with the Federal Aviation Authority as N313P and now registered as N4476S. The jet was used to transport Khaled El-Masri from Skopje, Macedonia to detention and interrogation in Afghanistan. The registration of the jet was changed shortly after media reports identified the aircraft's involvement in the CIA's rendition program. The company remains on the register of companies in Massachusetts.
Keeler and Tate Management LLC,
headquartered in Reno, Nevada. Records show that Keeler and Tate purchased the Boeing jet in December 2004; the company is being sued by the ACLU as the corporate successor to PETS. The ACLU has also charged that the transfer of the aircraft to Keeler and Tate was fraudulent because it was done in order to avoid detection and potential liablity for PETS' involvement in the illegal transport of El-Masri. In legal papers the ACLU said that the company is a "front" established to continue PETS' illegal transportation business.
Aero Contractors, Ltd.,
headquartered at the Johnston County Airport in North Carolina. Aero was contracted by PETS to operate the Boeing jet; the company handled the transport of Khaled El-Masri from Skopje to Afghanistan. According to The New York Times, Aero Contractors is "a major domestic hub of the Central Intelligence Agency's secret air service. The company was founded in 1979 by a legendary CIA officer and chief pilot for Air America, the agency's Vietnam-era air company, and it appears to be controlled by the agency, according to former employees." ("CIA Expanding Terror Battle under Guise of Charter Flights," The New York Times, May 31, 2005). Earlier this month, 12 members of North Carolina's State House wrote to the State Board of Investigations calling for an investigation of Aero's involvement in activities "that would not have been legal in the United States.
The ACLU has said that if they win the Appeal they may seek to amend their complaint to add Boeing as they have received information connecting Boeing to the rendition program. In a statement to the Spanish police, the head of a local aviation company, Mallorcair, confirmed that his company received instructions from Jeppessen International Trip Planning, a Boeing subsidiary, for handling local logistics for the plane used to transport Khaled El-Masri and others.
posted by senor_wylie @ 2:12 PM
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