The Supreme Court sent a message today about the use of American civil courts to attack war policy, and that message is not The Customer Is Always Right. Khaled el-Masri sued the US for what he claimed was an illegal detention and rendition that cost him five months in an Afghan jail, but the Supreme Court dismissed the case:
The US Supreme Court on Tuesday threw out a lawsuit from a Lebanese-born German national who claimed he was tortured after being kidnapped and detained for several months by the CIA.
The court did not give any reason for rejecting the case brought by Khaled el-Masri, an unemployed former car salesman and father of six, who says he was abducted by US agents in the Macedonian capital Skopje on December 31, 2003.
He was demanding an apology from the Untied States and 75,000 dollars in compensation, alleging he was flown to a prison in Afghanistan for interrogation before being released five months later in Albania, without any explanation.
The US administration had called on the Supreme Court to reject the case for reasons of national security, arguing it would reveal the secret activities of the CIA which could not be either confirmed or denied.
Seventy-five thousand doesn't seem like a lot of money, but the US couldn't allow Masri to set a precedent. The intel efforts would come to a standstill if every jihadi could file lawsuits against us for every slight, real or perceived. It would tie the intel bureaucracy in knots, keep analysts and covert operators pinned down for depositions, and shift focus from defending the country to defending the blizzard of court motions. That precedent could turn the judicial system into one of the most productive fronts of the war for our enemies,
Masri may well have had a good case for his lawsuit, under other circumstances. If, as he claims, he has no connection to terrorism and got abducted by the CIA in Macedonia and held for almost half a year of interrogation, he should be due some compensation. Unfortunately, with the kind of war we're fighting, we have to err on the side of our safety -- and we have to learn from our mistakes, too.
The Supreme Court made the correct decision in this case. This isn't a tort issue, it's a war issue, and the Supreme Court rightly protected the American civil system from becoming another venue for attack by terrorists.
UPDATE: I'll cop to being a little too glib about this. I think that Masri got screwed by the CIA and that some compensation wouldn't be out of order, and that $75K seems like a fair amount. However, the courts rightly determined that they can't give jurisdiction to anyone around the world for lawsuits in American courts for actions outside the US, especially against agents that are defending our national security.
The US can't just allow people all over the world to sue our intel operations to a standstill. It's not the optimal situation, but we do have a national interest in keeping personal-injury lawyers from wrecking our homeland defense systems. That to me outweighs the interest of Masri and the precedent his suit would have set.
UPDATE II: Now that the court has correctly denied this a tort venue, my guess is that it will shortly become a diplomatic issue -- which is where it probably belonged in the first place. The State Department will likely work out compensation when the Germans demand some satisfaction, and the matter will quietly disappear.