Dec. 7, 2005 – The American Civil Liberties Union has filed a lawsuit against the CIA and three US-based corporations for violating human rights laws by abducting, interrogating, and detaining a foreign national in a secret overseas prison.
Filed in a federal court in Alexandria, Virginia on Tuesday, the suit claims former CIA director George Tenet, other unnamed CIA officials and three companies violated due-process and human rights protections under the US Constitution.
The suit charges that the defendants broke these laws by abducting Khaled El-Masri and detaining him for five months in what El-Masri says was a tiny, squalid prison cell in Afghanistan. The ACLU says foreign nationals have the right to pursue human rights violations in US courts under the Alien Tort Statute.
Legal documents also charge that Tenet and other Bush administration officials discovered El-Masri was innocent, yet they kept him imprisoned for another two months.
"It should go without saying that forcibly kidnapping foreign citizens, holding them without access to a lawyer and brutalizing them is not only illegal but also immoral," said Anthony Romero, executive director of the ACLU, speaking at a press conference in Washington, DC. "That is precisely, however, what the US government did to our client," Romero said.
Since 2001, the CIA has reportedly abducted an estimated 100-150 people using its policy of "extraordinary rendition." Numerous investigations have established that the Agency secretly flew captives to third-party countries for detention and interrogation. Those destinations include Syria, Jordan, and Egypt â€“ nations the US State Department consistently criticizes for the use of torture.
El-Masri spent part of his captivity refusing to eat, the only form of protest available to him.
"Our client was an innocent victim of a program devised by the CIA to enable the US to detain suspects without legal process, to hold them outside the law, and then to subject them to interrogation techniques that are contrary to American laws and values," said Stephen Watt, the ACLU's human rights advisor on the case.
El-Masri, who has never been charged with a crime, attempted to attend Tuesday's press conference, but his lawyers said the US government denied their client entry into the country after he arrived at the Atlanta airport.
Speaking instead from Germany through a satellite video system, El-Masri briefly summarized his five-month disappearance, saying the Macedonian agents who first abducted him beat, drugged and threatened him for three weeks before forcing him, blindfolded and shackled, onto an airplane.
When El-Masri arrived at the new destination, which he later learned was a prison in Afghanistan, his captors allegedly confined him to a tiny concrete cell with no bed and without access to clean water. El-Masri also said that masked American and foreign questioners regularly interrogated him.
They returned his belongings and finally let him go on a dark, deserted road and told him to walk away without looking back.
El-Masri spent part of his captivity refusing to eat, the only form of protest available to him. "After a hunger strike of 27 days, an American arrived with the director of the prison, also American," El-Masri explained to reporters through a translator. El-Masri recounted telling his visitors that he would starve himself to death if they refused to bring him in front of a court, contact a German authority or release him immediately.
El-Masri said the American replied that he could not grant those requests and would need to pass the information on to Washington.
"After 37 days of the hunger strike, I was carried away from the prison cell, because I couldn't stand upright, and then I was force-fed through a tube through the nose into the stomach," recounted El-Masri. "They told me that I should stop the hunger strike, and if I would start a hunger strike anew, they would use other methods against me."
Around that same time, the ACLU alleges, CIA analysts in Langley, Virginia were examining El-Masriâ€™s passport and determined it to be valid. The lawsuit goes on to state that CIA officials notified then-Director Tenet in April that the CIA had detained the wrong person. In early May, according to the ACLU's legal documents, Condoleezza Rice â€“ at the time President Bushâ€™s national security advisor â€“ was informed that the CIA was detaining an innocent German citizen.
El-Masri said that on several occasions, his captors promised to release him.
In May, a German speaker identifying himself only as "Sam" and refusing to say who he represented, notified El-Masri he would be freed "in eight days." But according to El-Masri, Sam also told him that the US government did not want to admit it had wrongly detained El-Masri and wanted to obscure the evidence leading to and from his detention before releasing him.
When El-Masri's release finally began on May 28, according to legal documents, his ordeal was not yet over. El-Masri's captors transported him by plane, hooded and deafened, and then by automobile, to a remote area near the borders of Macedonia and Serbia. There, El-Masri says, they returned his belongings and finally let him go on a dark, deserted road and told him to walk away without looking back.
Three armed men picked up El-Masri and took him to a building flying an Albanian flag. They eventually escorted him through customs and immigration at the Tirana airport, where he boarded a plane to Frankfurt.
After his return to Germany, El-Masri retained a lawyer to investigate his abduction and detention. German authorities conducted scientific tests that confirmed El-Masri's claims of having been in a South Asian country and deprived of food for an extended period. They also traced the trail of his release back to Balkans.
Other Victims of CIA Rendition
Human rights groups have closely monitored the US government's use of extraordinary renditions. This week, Amnesty International stated that partial flight records from the US Federal Aviation Administration show that six planes used by the CIA made about 800 flights in and out of European airspace between September 2001 and September 2005. Amnesty believes the stops in Europe were for refueling before taking suspects on to other countries where the planes in the logs are known to have flown in the past.
In a 95-page report issued last April, Human Rights Watch detailed the experiences of several other rendition survivors. In 2002, US authorities detained Maher Arar, a Syrian-born Canadian, in New York and "rendered" him to Syria. As previously reported by The NewStandard, which interviewed Arar in February, Maher alleges that he was repeatedly tortured there, often with cables and electrical cords.
Like El-Masri, Arar filed a lawsuit against US government officials involved in his extraordinary rendition. The suit, filed in a New York federal court in January 2004, names former Attorney General John Ashcroft, Homeland Security Secretary Tom Ridge, and FBI director Robert Mueller. Filed under the Torture Victims Protection Act, the lawsuit charges those and other officials with deporting Arar to Syria under the full understanding that the country engaged in torture of prisoners.
The Human Rights Watch report also tells the story of two Egyptian suspects abducted in Sweden in 2001 and transferred to Egypt by a US government-leased airplane. They say they were tortured with electrical shocks in a detention facility there. In another case outlined in the report, Mamdouh Habib, an Egyptian-born Australian in American custody, said he was suffered beatings, electric shocks, and was hung from the walls by hooks during a six- month detention in Egypt.
Legality of Renditions
In a carefully crafted statement Monday, Rice defended the rendition policy, calling it a "vital tool in combating transnational terrorism." She also stated that when a terrorist suspect cannot be extradited through traditional judicial procedures, and a foreign government decides to cooperate in a rendition, it is permissible under international law.
"In conducting such renditions, it is the policy of the United States â€“ and I presume of any other democracies who use this procedure â€“ to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture," said Rice. "Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate or condone torture under any circumstances."
But critics say Rice is using "verbal contortions" and that her statements are "morally dubious."
International law expert Scott Horton told The NewStandard he suspects there would be little public objection to terror suspects being transferred to countries with cleaner human rights records. "But the countries they've picked for cooperation â€“ there's one thing they all have in common: they're extremely known for the practice of torture," he said.
Horton, who worked on a report on renditions for the New York City Bar Association and the NYU Law School, said there is no question that extraordinary renditions are unlawful. He cites the Convention Against Torture, which the US ratified in 1994.
That treaty includes a provision banning the return of a foreign national to a country "where there are substantial grounds for believing that he would be in danger of being subjected to torture" â€“ a procedure called "refoulement,"
Horton believes the ACLU has a strong case against the CIA based on factual merit. "There really seems to be little question that [El-Masri] was taken, kidnapped and severely mistreated and probably tortured," Horton said.
But he cautions that any case against an agency shrouded in secrecy will be extremely difficult, and the CIA will try to seal or withhold information in the name of national security.
The lawsuit also names as defendants three corporations: Premier Executive Transport Services, Keeler and Tate Management, and Aero Contractors. Plaintiffs argue the companies knowingly used their aircraft and personnel to illegally transport El-Masri to detention in Afghanistan and are legally responsible for assisting in the violation of his civil and human rights.
Two of the companies â€“ Premier Transport and Keeler & Tate â€“ are themselves mysterious entities. Recent reports published by the Washington Post and the Boston Globe suggest they may have been set up by the CIA and that the firms appear to exist only on paper.
Robert Blowers, assistant manager of Aero Contractors, the only company that appears to operate out of a physical building, did not return calls from TNS before press time.
Horton speculates that the companies are listed as defendants in order to uncover more information about the US government's use of extraordinary rendition, and to bring more public attention to the issue.
The lawsuit requests a jury trial as well as compensatory and punitive damages and payment of attorneys' fees and costs.
The ACLU advisor Watts said they are bringing this issue to court because there are many things that need explaining and potentially many other victims.
"When it comes to rendition there can be no stronger argument for the adherence to the rule of law," he said yesterday. "What [El-Masri] seeks above all is an acknowledgement from the government that it made a mistake, an explanation for why this happened, and an apology for the abusive treatment he suffered at the hands of US agents. If Mr. Tenet is willing to engage in that discussion, this lawsuit might not be difficult to settle."