Scotus On State Secrets

by The New Republic Staff, The New Republic Staff | October 9, 2007

The Supreme Court today declined to hear the case of Khaled el-Masri, a German car salesman who was detained--and, he claims, tortured--by the CIA in an unfortunate case of mistaken identity (it took the CIA five months to realize that he was not, in fact, the terrorist Khalid al-Masri). The basic facts of the case don't seem to be in dispute, but the Bush administration successfully argued under the so-called state secrets doctrine that classified information would be revealed to the public had the case been allowed to proceed. This result seems to be at least somewhat unexpected: since only four votes are required for the Court to take up a case, at least one (and possibly more) of the liberals on the Court must have sided with the administration. And the Los Angeles Times reported yesterday that Pepperdine law professor Doug Kmiec, a conservative former Reagan administration official, thought the state secrets doctrine shouldn't have applied in this case. That piece also has a pretty startling description of what el-Masri says happened to him:
"I was led into a room. The door closed behind me and I was beaten from all sides for about one minute. They bent my arms to my back and cut off my clothes. ... I saw seven to eight men all dressed in black and wearing masks. ... They put me in diapers and a dark blue sweatsuit with the legs and sleeves cut out." His appeal to the court says he was then put in a plane, "chained spread-eagle to the floor," injected with drugs and flown to Baghdad and then on to Kabul, Afghanistan. He spent the next four months in a CIA-run prison, the appeal says. In late May 2004, U.S. officials had apparently concluded they had the wrong man. El-Masri was loaded onto a plane, blindfolded, put into the back of truck and dropped off on a hillside in what turned out to be Albania. From there, he made it back to Germany, where an investigation was launched.
You'd think if it really were a case of mistaken identity, the Bush administration would want to just pay him whatever damages he's asking for and dispose of the whole thing, rather than going through the trouble (and bad publicity) of fighting him in the courts, even if they've ended up winning. But apparently not. --Josh Patashnik

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