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Tilting at Windmills

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May 20, 2006
By: Kevin Drum

THE STRANGE CASE OF KHALED EL-MASRI....Back on New Year's Eve of 2003, a German citizen named Khaled El-Masri had a fight with his wife and decided to blow off steam by getting on a bus and going to Macedonia. Unfortunately for him, his name was similar to that of an associate of a 9/11 hijacker, so he was picked up at the border by Macedonian police, who in turn contacted the CIA.

There was apparently no evidence of any kind against Masri, but the CIA took custody of him anyway. He was handcuffed, blindfolded, drugged, and put on a plane for Afghanistan, where he was beaten, kicked, and interrogated by American agents for weeks. He says he was told, "You are here in a country where no one knows about you, in a country where there is no law. If you die, we will bury you, and no one will know."

Finally, in March of 2004, the CIA figured out they had screwed up. Masri's passport was genuine, and he was just some poor unemployed schmoe who had had a fight with his wife. But they kept him for two more months anyway because they weren't sure what to do. Eventually, they flew him to Albania and dumped him off at a narrow country road at dusk. "They asked me not to look back when I started walking," Masri said. "I was afraid they would shoot me in the back." Three men met him and drove him to an airport, where he was flown back to civilization.

Charming, no? But mistakes can happen. The important thing is that you fess up and make good on them, which is exactly what Condoleezza Rice promised a month after Masri's release:

When mistakes are made, we work very hard to rectify them. I believe that this will be handled in the proper courts, here in Germany and if necessary in American courts as well.

Well, guess what? It turns out the United States isn't quite as interested in judicial oversight as Rice claimed. When Masri went ahead and asked an American court to hear his case, the Bush administration argued that he should be denied a trial because it might compromise national security. On Thursday a judge reluctantly agreed. Nadezhda has the details.

Kevin Drum 1:49 PM Permalink | Trackbacks | Comments (60)

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Comments

yeah, justice for all under ther rule of law.

Posted by: mudwall jackson on May 20, 2006 at 1:53 PM | PERMALINK

Why do you continue to defend terrorists, Kevin?

Posted by: Al on May 20, 2006 at 1:57 PM | PERMALINK

This is small potatoes.

Wait until the Guantanamo shit comes out from under the carpet.

The USA will stink like a Gulag....

Posted by: koreyel on May 20, 2006 at 1:58 PM | PERMALINK

The Court upheld constitutional separation of powers. If the story happened the way El-Masri says it happened, then his remedy lies with a private bill via the legislative branch.

The United States government is completely immune from suit, thanks to the doctrine of soveriegn immunity. It generously waived that immunity with the FTCA half a century ago. It is no under obligation to allow itself to be sued; it chooses to do so under narrow circumstances as an act of charity.

Posted by: American Hawk on May 20, 2006 at 2:06 PM | PERMALINK

A mistake? Come on, Kevin, you think the only issue here was a mistake of identity? The end of American democracy is nigh when we take for granted that our country engages in kidnapping and torture, and we lament only the 'mistake' of kidnapping and torturing the wrong guy.

Posted by: huh on May 20, 2006 at 2:15 PM | PERMALINK

American Hawk, you're missing the point.

Our government has acted totally without intelligence, honor or dignity in this case. The US (including you and me) owe him big time.He shouldn't have to go to court, the US government should bend over backward to offer a generous compensation plan.

If you want to know why the US government isn't winning popularity contests, this is a big clue.

Posted by: michael farris on May 20, 2006 at 2:16 PM | PERMALINK

michael: That's exactly the point I'm making. His relief is properly a function of the legislative, or possibly executive branch. When you say the US government should bend over backward to offer a compensation plan, those are the parties authorized to do it (probably, however, it would be a congerssional issue). We agree completely.

Posted by: American Hawk on May 20, 2006 at 2:19 PM | PERMALINK

A very sad story with a sad outcome for justice.

Posted by: Powerpuff on May 20, 2006 at 2:39 PM | PERMALINK

This is total immunity with total impunity.

When the executive branch can use the security rationale to have the courts dismiss any case, it makes it impossible to hold the executive branch accountable for anything. Anyone in the executive branch can commit any crime, and he is simply unprosecutable.

Are we still a democracy?

Posted by: Aris on May 20, 2006 at 2:43 PM | PERMALINK

This is exactly the sort of thing that makes normal people feel a sense of shame and disgust. Not people like American Hawk, but normal people.

Posted by: LeisureGuy on May 20, 2006 at 2:43 PM | PERMALINK

... had a fight with his wife and decided to blow off steam by getting on a bus and going to Macedonia

If only I had a nickel for every time that's happened to me...

Posted by: tom on May 20, 2006 at 2:44 PM | PERMALINK

Here's the decision in the case from the court filing. Read it for yourself. (PDF file). Obtained from the court's Pacer system.

Posted by: fred on May 20, 2006 at 2:55 PM | PERMALINK

Bu$hCo justice.

Posted by: r on May 20, 2006 at 3:06 PM | PERMALINK

Boy, I'm sure glad those Republicans got rid of big government! [rimshot]

Posted by: Red on May 20, 2006 at 3:29 PM | PERMALINK

American Hawk ...then his remedy lies with a private bill via the legislative branch.

I often wonder whether conservatives are congenital idiots, or whether they simply pretend to be idiots to hide how sociopathic they truly are. Obviously this sociopathic American Chickenhawk feels no outrage at what happened to a presumably innocent person, but also has the audacity to pretend that his only concern is with upholding the separation of powers. Of course, anyone who bothered to read reports of the court case realizes that what our government is alleged to have done is already illegal. There's no need for any bills to make kidnapping and torture illegal. The question here was simply whether someone can sue the government in a US court in order to demonstrate that illegal activity took place. By throwing the case out, U.S. District Judge T.S. Ellis essentially stated that the executive branch is above the law and it is immune from prosecution as long as it makes the claim (merely the claim) that any prosecution will violate state secrets.

In simple words so sociopathic conservatives (is this a redundancy?) can understand: A government agent can come in your house and shoot you dead tomorrow, and when he's prosecuted, the government can just say that a court case will result in giving away state secrets and therefore the agent cannot be prosecuted. This is what happens in dictatorships. Which is what we are right now.

Posted by: Aris on May 20, 2006 at 3:31 PM | PERMALINK

As an American I say I'm sorry to the guy, and sincerely hopes he gets restitution. Anyone having to lose a year of their life and get treated like he did over a mistake needs to get an apology and restitution

Posted by: Boorring on May 20, 2006 at 3:34 PM | PERMALINK

Remember, this can happen to YOU, wingnuts! The government is just incompetent enough to make this mistake while you're on your way to visit grandma, and pretty soon you find yourself in a camp in Eastern Europe face down in a pool of your own piss.

Posted by: Speed on May 20, 2006 at 3:35 PM | PERMALINK

LeisureGuy wrote: "This is exactly the sort of thing that makes normal people feel a sense of shame and disgust."

Yup. The Bush administration acted without honor, without decency, without compassion, and without intelligence, in both senses of that word. And Condi's promises to "rectify" the mistake and to let the matter be "handled in the proper courts" have been shown to be the lies and empty promises that we are so accustomed to from this administration.

What's interesting about this case is not that the Bush administration did not ask for the case to be thrown out on the grounds that the U.S. government is immune from prosecution, as American Hawk would like us to believe, but rather on the grounds of "state secrets privilege."

What angers many of us is that this explanation defies logic. And that it is not a substantive argument in this case, but rather a convenient figleaf, and that it is a tactic that has been falsely employed by the Bush administration in the past (e.g., the Padilla case).

Posted by: PaulB on May 20, 2006 at 3:35 PM | PERMALINK

Talk about the mother of all bad days. And here I thought the President said we don't toture. Kind of blows up the pro-wiretapping defense of if you are not doing anything wrong you don't have anything to worry about, doesn't it?
The complete failure of this administration on almost every facet of governance is utterly staggering but none so more amazing than thier ability to undermine those qualities of life & liberty that we as a country hold so dear and used to serve as a shining example to the rest of the world.

Posted by: Nathan on May 20, 2006 at 3:54 PM | PERMALINK

When I get into fights with my special someone, I get on a moped and ride to Guatelemala where I am often mistaken for the man who played Harlin Arliss on the classic 1970s television program CHiPs.

Seriously though: this one is disturbing.

Posted by: Shadrack on May 20, 2006 at 4:01 PM | PERMALINK

Well, guess what? It turns out the United States isn't quite as interested in judicial oversight as Rice claimed.

No kidding; if the Bush Administration was at all interested in anything but avoiding the rule of law here, Masri's attempt at filing a civil case would be a sideshow: everyone involved in his torture would have been criminally prosecuted for violating -- among other applicable US criminal laws, of which there are several -- 18 USC § 2340A, which makes a felon out of "Whoever outside the United States commits or attempts to commit torture".

When the Bush Administration claims that things will be handled by the courts, all they are doing is disclaiming responsibility themselves, not embracing judicial oversight or the rule of law.

Of course, its also clear that the entire "extraordinary rendition" policy that the government overtly sought to protect by asserting the "state secrets" privilege is itself a massive criminal conspiracy in violation of, among other US laws, the above referenced torture provision, that reaches to the highest levels of the executive branch.

This case is just another in a long series of proofs that the United States has completely traded in the rule of law for the arbitrary rule of an unaccountable executive; that while the outward forms of indirect democratic government in the form of election of officers may still be observed, and may even sometimes have some substance, the principle of limited government is essentially dead and buried.

Posted by: cmdicely on May 20, 2006 at 4:14 PM | PERMALINK

Be nice to the little woman. When Momma's unhappy, everybody is unhappy.

Posted by: Hedley Lamarr on May 20, 2006 at 4:16 PM | PERMALINK

Yea, those domestic violence laws are a bitch

Posted by: Matt on May 20, 2006 at 4:30 PM | PERMALINK

This case is just another in a long series of proofs that the United States has completely traded in the rule of law for the arbitrary rule of an unaccountable executive

Succinctly put.

It's clear now that when the Bush campaign and its associated wingnuts clamored "rule of law, rule of law!" during the 2000 election proceedings it was nothing but opportunistic and Orwellian rhetoric.

Posted by: Windhorse on May 20, 2006 at 4:54 PM | PERMALINK

This is nothing. You should see the crap my ex-wife used to do to me when we got into a fight. Made me WISH I was being waterboarded.

Posted by: Pat on May 20, 2006 at 5:45 PM | PERMALINK

The court may want to believe that it is all about protecting international relations and such, but I'm sure the White House is more interested in seeing that nothing is adjudicated to reveal its hubris and mistakes and illegal actions. This is just another case of politics trumping justice. Again.

Posted by: DavidLA on May 20, 2006 at 6:10 PM | PERMALINK

god i hate bushcheneyrumsfeldrice and all the rest of these moral retards.

Posted by: Jones on May 20, 2006 at 6:11 PM | PERMALINK

Well, if you've done nothing wrong, you've got nothing to be afraid of.

And, after all, our government never makes a mistake. Unless the Demmycrats are in charge.

Posted by: LarryB on May 20, 2006 at 6:12 PM | PERMALINK

This is what I just sent to my Repub boss, who can't stand the Shrub:

"Look, I'm all for going after Muslim extremists (maybe even Christian extremists ;) like Osama bin Laden, (or Jerry Falwell ;) but imprisioning and torturing innocent people---Muslim people---does not help our cause! And KHALED EL-MASRI is not the only innocent Muslim to not only have been arrested by our government, but tortured, too. Casting a wide net in this situation, is bad stategy. Torturing on a whim is even worse. I just want to concentrate on the REAL terroists. Although, it may be too late. We have caused moderate Muslims to become wary of us. Consider this headline from, Pew Research, U.S. "Image Up Slightly, But Still Negative." And this graf from the 2nd paragraph, "Attitudes toward the U.S. remain quite negative in the Muslim world, though hostility toward America has eased in some countries." This is the article: http://pewglobal.org/reports/display.php?ReportID=247 What we are witnessing is simply bad foreign policy. It's just awful. Our current foreign policy, a la BushCo, is the polar opposite of what we should be doing. Arrrrgh! Jeebus!

Posted by: Babba on May 20, 2006 at 6:28 PM | PERMALINK

Thank you Kevin! Good timing with this one... I just used it for ammo against the supporters of our current regime.

Posted by: Psyberian on May 20, 2006 at 6:41 PM | PERMALINK

Money and power are all that really count in the BushReich. Decency, justice, and compassion are just words of occasional political utility.

Posted by: Michael7843853 G-O in 08! on May 20, 2006 at 6:45 PM | PERMALINK

A German citizen named Khaled El-Masri had a fight with his wife and decided to blow off steam by getting on a bus and going to Macedonia.

Huh?!!!

The guy doesn't deserve false imprisonment, but doesn't this sound a little odd?? Oh well, to each his own.

However, the people on this site want him to have a TRIAL for damages in AMERICAN COURT??!! Are you nuts?! You want to set that legal precedent??

I am completely floored by that. I understand that you'd support anything in the universe that could potentially make the President look bad, but this is crazy even for you guys.

Please though, go out and shout it from the rooftops. Actually, wait until right before the midterms, and then go out and start a crusade.

Posted by: sportsfan79 on May 20, 2006 at 6:47 PM | PERMALINK

You combine this with the admission by military intelligence officers in front of Congress when the torture story first broke that 70% to 90% of the people we have in Abu Ghraib had no business being there and you start to get an idea of how blind we are flying in a lot of cases. Put the issue of right & wrong to the side, how can anyone looking at this in a objective manner even think we are fighting this battle in a competent manner? As for the torture, I keep coming back to three things. By our civilian government saying we are exempt from international treaties regarding torture, we put our own soldiers at greater risk in the field of battle. Torture simply isn't a reliable method of extracting useful information and finally, what good is it to say as a country we stand for certain things if we are willing to sell our soul and those ideals to protect the things we are supposed to hold dear?

Posted by: Nathan on May 20, 2006 at 7:17 PM | PERMALINK

Sportsfan --
This guy has been seriously wronged by the US Government. What exactly "floors" you about the idea that he should be entitled to legal redress?

Posted by: SqueakyRat on May 20, 2006 at 7:20 PM | PERMALINK

It's clear now that when the Bush campaign and its associated wingnuts clamored "rule of law, rule of law!" during the 2000 election proceedings it was nothing but opportunistic and Orwellian rhetoric.
Posted by: Windhorse on May 20, 2006 at 4:54 PM | PERMALINK

Windhorse, the clarity of your thought process has had me in awe for quite a long time. This example is yet another cut-through-the-crap posting. I hope you are able to find the time to post more regularly. Thanks.

Posted by: jcricket on May 20, 2006 at 8:25 PM | PERMALINK

Thanks fred for providing the court document in .pdf form.

For all you wingnuts who are literacy challenged (alas, the Dumbing Down of America focuses on you), the court document merely says that Mr E-Masri's case cannot go forward because the discussion of the details would put others in danger. I.e., a security risk.

Now, the protection of our men and women in the field also happens to protect the lying sons of bitches who currently occupy the White House, including the "fabulous" Ms Condoleeza Rice. If this chick has political aspiration as some claim she has, then she is building the shittiest resume I have ever seen. Complacency in the face of the infamous PDB's in August of 2001, being one of the primary architects of the most failed military action in our history (Iraq) and now bold faced lying about an innocent's ability to pursue recourse when our men and women in the field are instructed to engage in what would be defined as criminal behavior anywhere in the world except certain parts of the US.

My money is against this bitch having an elective political future.

Posted by: jcricket on May 20, 2006 at 8:38 PM | PERMALINK

Fuck you, "American" Hawk.

you don't deserve to use the adjective.

Posted by: cleek on May 20, 2006 at 9:07 PM | PERMALINK

From Kevin's linked article:

"...administer an enema and sleeping drugs."

So the guy got a free enema!

Posted by: Matt on May 20, 2006 at 9:29 PM | PERMALINK

Ms. 'Don't these shows look FABULOUS?' Rice: When mistakes are made, we work very hard to rectify them. I believe that this will be handled in the proper courts, here in Germany and if necessary in American courts as well.

Mr. Hawk: His relief is properly a function of the legislative, or possibly executive branch. When you say the US government should bend over backward to offer a compensation plan, those are the parties authorized to do it (probably, however, it would be a congerssional issue).

So Ms. 'We never actually admitted to a mistake' Rice made noises with her mouth in response to a statement made by the Chancellor of Germany about this disgusting double display of American disregard for human rights and incompetence. Perhaps Ms. 'Who could have imagined planes flying into buildings?" Apparently Rice didn't care if what she said had any real content, so she just talked about hard work and made vague references to 'courts.' Ms Merkel didn't deserve a precise, legally grounded response to her concern over a German citizen's rights. Or maybe the Secretary of State doesn't know as much about international law as you, Mr. Hawk. Do you think that's true? Sadly, I think it might be true.

Posted by: cowalker on May 20, 2006 at 9:50 PM | PERMALINK

Same shit Hitler did.

Posted by: Where's osama on May 20, 2006 at 9:53 PM | PERMALINK

Sportsfan79: Are you familiar with the United States Court of Federal Claims? It exists entirely to deal with people who have been wronged by the federal government (i.e. "claims"). What's so damn odd about this person being able to litigate such a claim? As others here have pointed out, the only reason he has been denied this opportunity is because of the secrecy claim. Read the opinion.

Posted by: Pat on May 20, 2006 at 10:20 PM | PERMALINK

That'll teach him not to fight with his wife.

Posted by: Jay on May 20, 2006 at 11:12 PM | PERMALINK

Please though, go out and shout it from the rooftops. Actually, wait until right before the midterms, and then go out and start a crusade.

Please, 'sportsfan', post your address, so that we can play a little game that involves an involuntary trip to Afghanistan.

Posted by: ahem on May 20, 2006 at 11:40 PM | PERMALINK

any and all apologists for this atrocity are trash, and unworthy of response.

if you've gotten to the point where you're rationalizing the torture of an innocent man, and further justifying prevention of any legal recourse for reasons of "security," then you are, simply put, an inhuman piece of shit not worthy of dialogue.

Posted by: Nads on May 21, 2006 at 12:48 AM | PERMALINK

spotsfan79 gives us the usual insight to the Bushite mind. This is just seen as an attempt to "hurt the president". Facts and morality let alone the law doesn't come into play. Blinkered doesn't count. You have to be blind, deaf and dumb.

Let us just say that the President has done a very fine job of laying down his legacy. Let's hope it stops here, otherwise this country is in real trouble. God help us all. We're going down the toilet fast and I don't think even half the country knows it.

Posted by: notthere on May 21, 2006 at 12:53 AM | PERMALINK

The guy doesn't deserve false imprisonment, but doesn't this sound a little odd??

If you are unfamiliar with the map of Europe, or with the idea of a trip to the beach, yes, it may sound odd. Or is it the idea of having a fight with your wife that you find incomprehensible? Do you have romantic relationships?

As others have pointed out, the idea that anyone, American or foreign, who has been wronged by the federal government can sue in federal court is a "precedent" that was set, oh, a couple hundred years ago. But if you prefer to live in a country where this cannot be done, you might try moving to China, Burma, or Iran.

Posted by: brooksfoe on May 21, 2006 at 1:43 AM | PERMALINK

The U.S. should dave settled out of court, given him a big wad of sweaty cash.

Posted by: Matt on May 21, 2006 at 1:55 AM | PERMALINK

Has he sold the movie rights? This is a good story. It deserves to be made into a movie like Midnight Express. In fact it's a shame "Midnight Express" can't be the title.

George Clooney could play this guy. Especially if he gains those 30 pounds again. Yeah. I can totally see it. He even looks a little like him. Stick a pony tail on 30-pound-overweight Clooney and he could totally pass himself off as this guy.

Posted by: MillionthMonkey on May 21, 2006 at 3:47 AM | PERMALINK

I'm sure the Germans are relieved too, given their likely involvement with Masri's kidnapping.

Posted by: SocraticGadfly on May 21, 2006 at 4:35 AM | PERMALINK

There is nothing out of the ordinary in someone going back from Germany to the Balkans - there is a long-standing tradition of emigration from the latter to the former, and a lot of cheapo bus operators who are in business to help you do just that. Like most immigrant communities, there is also quite a lot of travelling back and forth between the two. Essentially, he was leaving on the midnight train to Georgia..., goin' to the country.

It does sound odd if you're the FBI man who was demanding of people arrested in New York whether they knew where Osama bin Laden was, but not if you've ever been to Germany or the Balkans, or for that matter anywhere in Europe since about 1994, when the flow of refugees from the Bosnian war began in earnest.

Posted by: Alex on May 21, 2006 at 5:28 AM | PERMALINK

I'm a bit naive on legal things, but this strikes me as an afront to separation of powers. If the executive branch can dismiss any legal case, doesn't this infringe on the powers of the court? Any chance this can be appealed?

Posted by: john d'oh on May 21, 2006 at 7:01 AM | PERMALINK

john, the executive branch didn't dimiss the case. They just asked the court to, and the court agreed, with apparent regret.

Posted by: Joe on May 21, 2006 at 8:37 AM | PERMALINK

The United States government is completely immune from suit, thanks to the doctrine of soveriegn immunity.

That there's some real astute legal analysis, Hawk. You learn that off the back of a cereal box?

Posted by: Brautigan on May 21, 2006 at 9:00 AM | PERMALINK

The problem in that sentence is "completely."

Posted by: Pat on May 21, 2006 at 10:46 AM | PERMALINK

Another sad day for America. I hope we survive these immoral bastards. I hope we have free elections in November, but I have my doubts. Whom would it surprise if our right to vote is comprimised?

I urge all concerned about our torture activity to read "A Question of Torture" by Alfred McCoy. It will make your skin crawl as you read about how psychologists professors were paid large sums to discover the psychological torture techniques our CIA teaches and uses. Psychological torture does far more harm than physical torture. Torture-lite is a hideous euphemism.

http://www.democracynow.org/article.pl?sid=06/02/17/1522228&mode=thread&tid=25

Posted by: John P on May 21, 2006 at 11:32 AM | PERMALINK

The reason the left is failing and will continue to fail is for reasons like this.

You are saying that you would like to start a precedent of foreign nationals redressing wrongs in our domestic courts. It is complete lunacy, and will have absolutely no end, once it gets started. It will create such a colossal mess, it will make the rest of our court system (already in serious need of reform) look perfect by comparison.

The average American understands this, and therefore you continue to lose ground in all branches of government. Keep at it, though. It's fun to watch.

Posted by: sportsfan79 on May 21, 2006 at 11:34 AM | PERMALINK

Well, as long as things like this make Al and sportsfan feel safe, that's okay then. Who's going to protect us from them, though?

Posted by: Kenji on May 21, 2006 at 2:19 PM | PERMALINK

Well, as long as things like this make Al and sportsfan feel safe, that's okay then. Who's going to protect us from them, though?
Posted by: Kenji

we don't need protection from cowards. for all their talk of liberals and treasons, these losers wouldn't and/or couldn't do much about it from their desktops.

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