Khaled El-Masri, an unemployed German car salesman who sued the United States for allegedly ordering his abduction and secretly detaining him for months in a dingy Afghanistan prison, has been dealt another setback in the U.S. courts.
On Friday, the Fourth Circuit federal appeals court in Richmond, Va., rejected arguments made by the American Civil Liberties Union to reinstate his lawsuit for damages.
A three-judge panel was unanimous in a 24-page ruling that the suit could jeopardize national security by disclosing "state secrets" - sensitive military intelligence information that remains classified.
"We must reject El-Masri's view that the existence of public reports concerning his alleged rendition (and the CIA's rendition program in general) should have saved his complaint from dismissal," the appeals panel wrote, "because the public information does not include the facts that are central to litigating his action."
Presenting those facts, the court said, would expose how the CIA organizes, staffs and supervises its most sensitive intelligence operations; the existence and details of CIA espionage contracts; and the means and methods by which the CIA gathers intelligence and makes its personnel assignments.
The appeals court noted President Bush's speech last September acknowledging secret CIA-run prisons overseas and last June's European Parliament report finding that El-Masri's story was "substantially accurate." But the judges said their hands were tied.
"El-Masri envisions a judiciary that possesses a roving writ to ferret out and strike down executive excess," the judges wrote. "We decline to follow such a course, and thus reject El- Masri's invitation to rule that the state secrets doctrine can be brushed aside on the ground that the President's foreign policy has gotten out of line."
The order upheld last May's ruling by a federal judge in Alexandria, Virginia, who dismissed the case for virtually the same reasons.
"Regrettably, today's decision allows CIA officials to disregard the law with impunity by making it virtually impossible to challenge their actions in court," ACLU Executive Director Anthony Romero said in a written statement. "With today's ruling, the state secrets doctrine has become a shield that covers even the most blatant abuses of power."
The ACLU is considering an appeal to the United States Supreme Court.
Three years ago, El-Masri was snatched while traveling by bus to Skopje, Macedonia. After being locked in a hotel room for 23 days, he was flown secretly to Kabul, Afghanistan — beaten, bound, and drugged, he says — and then detained, incommunicado, in a CIA-run former brick factory known as the Salt Pit. It was four months before he was sent back — dropped off in Albania with a commercial plane ticket home but no explanation.
Besides CIA officials, including former CIA director George Tenet, El-Masri sued three U.S.-based aviation corporations that his attorneys believed to be involved in the prisoner traffic.
As CBS News reported last November, if the case were to be green-lighted, the ACLU was considering adding aviation giant Boeing as a defendant because Spanish flight records reveal a Boeing subsidiary, Jeppesen, handled numerous rendition trips, including El-Masri's Boeing 737 flight from Macedonia to Afghanistan. Many rendition flights and crews made rest stops in Mallorca, Spain, the records show.
German prosecutors relied on those records in levying criminal charges last month against 13 CIA agents and contractors — 11 men and 2 women — for false imprisonment and serious bodily injury.
"Today the appeals court gave the CIA complete immunity for even its most shameful conduct," said ACLU attorney Ben Wizner, who argued El-Masri's case before the 4th Circuit last November, which El-Masri traveled to the U.S. to attend. "Depriving Khaled El-Masri of his day in court on the ground that the government cannot disclose facts that the whole world already knows only compounds the brutal treatment he endured."
El-Masri, 44, who was born in Kuwait to Lebanese parents, has lived in Germany for the past 20 years.