October 9, 2007

Supremes To El-Masri: Tough Luck

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.

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MSNBC: ” The Supreme Court on Tuesday terminated a lawsuit from a man who claims he was abducted and tortured by the CIA, effectively endorsing Bush administration arguments that state secrets would be revealed if the case were allowed to proceed. Kh... [Read More]

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Comments (29)

Posted by Bill M | October 9, 2007 11:14 AM

Absolutely agree -- correct decision. Suspect the usual suspects will start howling in 5...4...3...2...1...

Posted by gab | October 9, 2007 11:44 AM

So... let me get this straight Captain. We can just grab some guy off the streets of Skopje, hold him indefinitely, torture him, and then let him go somewhere in Albania after 5 months without explanation, and that's ok with you? Because we "have to err on the side of safety (?)"
Because it's a "war issue (?)"

My most fervent desire is that this would happen to you.

Posted by Ludwig | October 9, 2007 11:52 AM

according to the available evidence,which no one seem to be able to refute, Mr Khaled el-Masri's rights and human dignity were violated in a most vicious manor...abduction,unlawfull imprisonement,torture. Now we all know that everyone,including Mr Bill M would be reacting the same way if it happened to them...i can only hope that whoever did this to Mr El-Masri gets to experience first hand the same violation,since no other form of justice seems to be forthcomming.

Posted by NahnCee | October 9, 2007 11:58 AM

Too bad there doesn't seem to be any court in England that is able to protect their system against these frivolous lawsuits.

Non-Americans, including terrorists, really need to start wrapping their beady little brains around the fact that they are not citizens and therefore not protected by our Constitutional guarantees.

The two previous posters seem delighted to be able to leap into the assumption that this guy was a totally innocent Arab, who was just bopping along whistling a happy song and minding his own business. Furthermore, the previous two posters have never heard of the war on terror, which means they must have also been in a coma on 9/11/2001, and in their eyes, the United States, the government, the CIA and the American military must always, ipso facto, be wrong, cruel, heartless and guilty.

I can only hope for those two entities that they do have the chance, doubtless at the very end of their short useless lives, to meet as Islamic jihadist up close and very personal.

BTW, this lawsuit was brought by a German national. Can you say "international law", any one?

Posted by Carlos | October 9, 2007 11:59 AM

These are Gestapo tactics. Instead of doing the correct thing and trying to provide some form of cash award to partially rectify the wrong, we deny his lawsuit. What country are we living in now, the USA or NAZI germany?

Posted by Jazz | October 9, 2007 12:03 PM

While I generally like to give Ed the benefit of the doubt, I have to agree with some previous comments, at least to a point. This is a very disappointing post. When this story originally broke, it was reported that Masri's name matched that of another "person of interest" who was later captured. It was a foulup of mistaken identity. If Masri had been the right guy, he would still be in Gitmo.

Saying, as it does in the title of this post, that "Too Bad" is the correct answer for something like this boggles the mind. It harkens back to an attitude of "Because of 9/11 anything we do is justfied, anywhere, any time. We're making omlettes here and you're bound to break a few eggs."

Not good. If this excuse can stand as legal precedent for Masri, it can stand if it happens to an American right here on our home soil. (And already did happen at least once in Seattle.) This is bad.

Posted by RBMN | October 9, 2007 12:05 PM

As human beings we all make mistakes, but that's never grounds not to defend ourselves from attack, or at least try to defend ourselves.

If Khaled el-Masri had actually been an al-Qaeda member (in the custody of the United States) with important information, his life would be in danger most from his al-Qaeda comrades trying to "martyr him" and keep him safely quiet with a missile. The collateral damage would be to everyone guarding him. That's why you don't tell al-Qaeda where he is.

Posted by Carlos | October 9, 2007 12:08 PM

Nahn Cee,

Your arrogance and stupidity really galls me. This attitude is what makes the rest of the world hate us.

For your information, you ignorant cow, he WAS a totaly innocent Arab who was mistaken as a jihadist and kidnapped. Hopefully, this will happen to you in the near future. Please try to rememeber that not all Arabs/Islamist are terrorist,just not like not all Americans are blithering idiots.

Posted by Captain Ed | October 9, 2007 12:10 PM

Well, it didn't happen in Seattle, for one thing -- it happened outside the US. It's outside the jurisdiction of the American courts, especially regarding torts, which is the reason I suspect the court denied relief, although it would be nice they would have said so.

I agree that if the man was innocent, he deserved some compensation, but 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.

Posted by Ludwig | October 9, 2007 12:13 PM

"NahnCee "


my sole point is that he was wronged. I dont know what woulkd be the legality of his presenting a case against the US in US courts for what was done to him nor would i feel compelled to speculate on the issue....but the fact is that he was released without any explanation after 5 months...if he was in fact guilty of any terrorism related charges or a member of a terrorist group,he obviously would not have been released to be allowed to resume his terrorist activities at his leisure. I m going from the available facts here...if you know something i dont concerning this case then i ll be glad to read it but my concern for what happened here is completely legitimate and your comments speak volume to the despicable character that is obviously your nature.

Posted by Jazz | October 9, 2007 12:24 PM

Well, it didn't happen in Seattle, for one thing

That was a different case, and fortunately the guy wasn't shipped out of the country for "questioning" in that case. But with this case as precedent, it certainly could in the future. While I understand your concern (and apparently the court's) for not wanting our intelligence agencies being "sued to a standstill" I would hardly settle for calling this a less than "optimal" situation. I don't want things like this happening in my country. An avenue of compensation could most certainly have been reached without compromising national security information, and it should have been.

This is another black eye for our country in the international community and, quite frankly, should be viewed as pretty barbaric by others.

Posted by Carlos | October 9, 2007 12:43 PM

Captain Ed,

While I respect your Website (its the only conservative Site I have bookmarked) and frequently agree with your viewpoints, I must respectfully disagree with you on this.
The man was innocent and was wrongly subjected to excruciating torture. I don't see any comment from the Bush administration or any monetary settlement being offered for his troubles. Instead, he is being ignored in the hopes that he will go away. It's plain wrong to treat Masri in this manner. Instead we should admit that a mistake was made, and offer him some form of monetary settlemnt for his troubles.

Posted by Captain Ed | October 9, 2007 12:50 PM

Carlos,

As I wrote in my updates, I'm not necessarily disagreeing with you. I suspect that the German government will press the issue diplomatically, and that the State Department will arrange some sort of settlement. That's really the proper process for this kind of issue.

I was a little too glib in the original post, and should have run through the nuances a little more carefully.

Posted by David Schraub | October 9, 2007 1:38 PM

I'm also disappointed in this post, and while I think the updates salvage it a little bit, I think you also need to figure out some form of legal mechanism for addressing this sort of behavior. In general, grabbing random folks off the street, beating them up for a few months, then dropping them off blindfolded in an unknown country isn't something that's settled with a few diplomatic niceties. It's a criminal act. I suppose some degree of play in the joints is necessary in a war environment. I also suppose that this play cannot be infinite, lest we gain the unchecked authority to...grab random people off the street, hold them incommunicado, beat them up for a few months, and then drop them off blindfolded in an unknown country. There has to be limits to the "we're fighting evil-doers, dammit!" legal trump card, and I'd feel a lot more comfortable with posts like this if there was some indication of what those borders are.

It's worth noting that the case was dismissed not on jurisdiction (international citizen) grounds, but on the "state secrets" grounds -- the US argued that even hearing the case could jeopardize state secrets. Even Douglas Kmiec, one of the administration's more prominent academic legal defenders, says that's taking the principle too far (he argues that it should instead be a sort of "exclusionary rule" that allows certain pieces of evidence to be suppressed). The jurisdictional argument I suspect would be pretty weak, since there are vehicles for suing the US for rights violations we do abroad, and the citizen argument is very weak, since the relevant constitutional clauses apply to "persons", not "citizens," (and even German Arabs are "persons", can we not agree?).

More at my blog.

Posted by whippoorwill | October 9, 2007 2:58 PM

"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."

Hell, let's just round up all the suspicious looking characters and run a round the clock rendition program. That way we're sure to pick up at least one two bad apples. We'll just dump the innocent duds in any old god forsaken place, no sweat off our backs. And we might not wet the bed tonight, to boot.

I can't wait till 2008 when neoconservative cowards will be defeated and dumped on the ash heap of history. It matters not to me if their democrats, republicans, or the Bull Moose party as long as they can this nonsense.

Posted by PG | October 9, 2007 3:03 PM

What exactly does "sued to a standstill" mean in legal terms? According to Captain Ed's post, el-Masri was "demanding an apology from the Untied States and 75,000 dollars in compensation." That doesn't sound like an injunction or any other type of interference in the CIA and other intel operations' workings. Heck, they can keep kidnapping and torturing anyone they like even if el-Masri wins his suit; they just have to apologize and fork over the cost of a single luxury car to each person whom they get wrong. I devoutly hope that the number they're getting wrong is small enough that $75k to each of them won't bankrupt our defense budget.

If the concern is what would be revealed in a trial where there's a real dispute over whether the CIA got it wrong or not (i.e. whether there was reason to suspect the plaintiff or if this was a true mistaken-identity screwup), the U.S. courts could just set a rule that in cases where there's a factual dispute as to whether the plaintiff is in fact under suspicion, the court will refuse the case. However, in cases where the U.S. government would concede at a summary judgment point that it screwed up and the only remaining factual question is the appropriate level of damages, plaintiffs ought to be able to go to trial.

As for the jurisdictional question, good grief, we let people come to the U.S. to sue OTHER governments for their misdeeds under the Alien Tort Claims Act. Where the heck do you want them to sue the U.S. government if not in U.S. courts?

Posted by Davebo | October 9, 2007 3:05 PM

So Skipper Ed (of the Hobie Cat) after being chastized believes that the US should pay the guy some compensatory damages, but that those damages should be at the discretion of the Executive branch and the victim shouldn't be allowed to sue for said damages (which despite Ed's ignorance, is normally the right in such a case even if it occurs outside the US borders). I'm guessing you didn't notice how the court ruled Ed.

It wasn't that this man had no standing in US civil courts (hint hint) it was that his story, though publicly known, would affect national security. Seriously, if legal ignorance is indeed bliss Eddie is changing his underwear about now.

And for this we're supposed to give special Ed some props?

No thanks. He ran off a post based on pure ignorance of both the law and common decency and when even his own readers said "What the F#ck"? he backtracked about a half inch.

Thanks Ed. You're a swell American. No Captain mind you, but a freakin peachy American.

It makes me glad the tanking dollar forced me to cancel my two weeks in Europe this summer. How the hell would I try to explain this?

Posted by PollM | October 9, 2007 3:06 PM

What kind of state secrets are we hiding - Thant we torture people!

Sending the wrong message around the world. Not only can Americans be subjected & treated in an unjust way, but they can be denied in any country the rule of law.

Wrongly abducted, imprisoned and tortured by the CIA, mistaken identity. Supreme Court refuses to hear case, Just or Unjust?
---> http://www.youpolls.com/details.asp?pid=670

.

Posted by MarkD | October 9, 2007 3:28 PM

I'm as conservative as they come, but this is wrong. I'll go so far as to agree he isn't entitled to redress under our courts seeing he isn't a citizen and the crime didn't happen here.

However, we wronged the man. We owe him compensation, and an apology.

The CIA? I'm agreeing with the late Daniel Patrick Moynihan. Abolish it and start over. It boggles the mind that someone can do this in our name, and there are no consequences.

Posted by Maetenloch | October 9, 2007 3:51 PM

These are Gestapo tactics. Instead of doing the correct thing and trying to provide some form of cash award to partially rectify the wrong, we deny his lawsuit. What country are we living in now, the USA or NAZI germany?

We're living in a country at war that is far more open and free than the U.S. was during WWII. When we were, you know, fighting actual Nazis.

I do think that we have a moral obligation to compensate el-Masri, but keeping his lawsuit out of the U.S. courts was the right decision. If we open the U.S. tort system to foreign nationals (even if they were actually wronged), it'll just open a whole new front in lawfare. It's much better to just pay him off quietly.

Posted by bob | October 9, 2007 3:51 PM

Troubles? For his troubles? The guy said he was tortured, and could probably prove it. 75k? Simply addressing the monetary question, let us ask Nahncee how much she would be demanding?

Posted by Carlos | October 9, 2007 5:29 PM

"We're living in a country at war that is far more open and free than the U.S. was during WWII. When we were, you know, fighting actual Nazis."

Maetenloch, If we're at war, then where is the draft to enlist soldiers to fight our enemies?
Instead we're relying on an all volunteer armed forces which is finding it harder and harder to recruit new fodder. How much are they giving soldiers these day to enlist? $50,000? Where are the added taxes to pay for the war? No, we get tax cuts instead. That's just great for the economy. The dollar keeps sinking in value and we can't do a dammed thing about it.
Even in Vietnam which was called a "police action", we had a draft. In Vietnam, we rarely sent Reserve units to fight. Otherwise George would probably have done something else besides joining the Air National Guard to fly F-102s.

What we have in Iraq is an aberration which should never have happened. Please don't insult my intelligence by saying its because of 9-11. Last time I heard, Osama was in Afgahnistan or Pakistan, not Iraq.

Posted by lexhamfox | October 9, 2007 5:39 PM

This is bad. It seems the United States can rule on Swiss Banks and their handling of insurance policies of third party nationals in World War 2 but the justice system balks when it comes to someone being kidnapped, put in danger, and essentially dissapeared.

This is does not enhance our security. It makes us look like we are hypocrites and the enemy of free humane people. It undermines our international reputation and our opbjective of winning over much needed support for the war on terror.

I'm all for fighting the good fight. I'm also for making amends when innocent people are violated in our name. Pay the man $1M now and make a very public apology. It is the right thing to do here.

Posted by Maetenloch | October 9, 2007 6:37 PM

Maetenloch, If we're at war, then where is the draft to enlist soldiers to fight our enemies?

You realize, of course, that it's possible to be at war and not have a draft (or need one), for example Gulf War I and the Spanish-American war. Conscription is worth doing only if it makes military sense. With the high level of training and technical expertise expected of soldiers today, it's not clear that drafting civilians would be a net benefit. So far our volunteer military is making all of its annual recruiting targets, and this is with a war going on and during a good economy.

I can't tell if you're arguing that we're not really at war or are you complaining that we're not being aggressive enough? Both?

What we have in Iraq is an aberration which should never have happened. Please don't insult my intelligence by saying its because of 9-11. Last time I heard, Osama was in Afgahnistan or Pakistan, not Iraq.

I don't know where this came from - you seem to be responding to something I never said. Sounds like it would have been an interesting comment though. :-)

Posted by PG | October 9, 2007 8:26 PM

Maetenloch,

I do think that we have a moral obligation to compensate el-Masri, but keeping his lawsuit out of the U.S. courts was the right decision. If we open the U.S. tort system to foreign nationals (even if they were actually wronged), it'll just open a whole new front in lawfare.

We opened the U.S. tort system to foreign nationals in 1789. As I noted above, the Alien Tort Claims Act (aka Alien Tort Statute, 28 U.S.C. § 1350, part of the Judiciary Act of 1789) says, "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Foreign national = alien. Pretty sure that torture = violation of the law of nations AND treaties of the United States. Please explain why el-Masri's claim is not cognizable by a U.S. district court under the ATCA, Torture Victims Protection Act and/or Federal Tort Claims Act. There's a reason that the Bush Administration's excuse was "state secrets," not "lack of jurisdiction." (And it's not just that they enjoy saying "state secrets," as their lawyers are at least smart enough to know that you cite the narrow jurisdictional reason before going on to a broader substantive one.)

Posted by Dalibor Topic | October 10, 2007 6:51 AM

The US administration has already denied the request from a court in Germany to extradite this guy's kidnappers and torturers (who have been tracked down, and publicly exposed about two years ago by a German TV team) and that's the end of that. The US administration denies him a fair trial against the criminals that it employs both on German and on US soil.

The more important thing is that it's another juicy anecdote that will be picked up and used to radicalize people feeling wronged by the current administration's actions. As obtaining justice is obviously not an option any more, it'll be easier for ideologues to manipulate them to extract some twisted, warped form of 'revenge' for whatever they think they have suffered through.

Tough luck all around, I guess.

Posted by MarkD | October 10, 2007 7:56 AM

Carlos,

The Army continues to meet its recruiting goals. You are entitled to your opinions, but not your facts.

I served with the last of the marine Corps' draftees. Most were great. But the morale and disciplinary problems caused by even 5% are something we cannot afford.

Charlie Rangel is the only one who wants a draft.

Posted by Rafar | October 10, 2007 8:32 AM

I'm confused. The man was kidnapped and tortured (or at least claims to have been). This is not a mistake in the sense that someone being imprisoned for a crime he did not commit, nor is it a mistake like having your name published on a sex offenders list when your name simply matched that of a real offender. These mistakes can be rectified with an apology and compensation, if appropriate.

This was an innocent man who was (he claims) kidnapped and tortured.

That is an illegal act. To suggest that an apology is appropriate is like suggesting that you could rob someone, then apologise and pay them compensation and thus escape any form of punishment.

Kidnapping and torturing guilty people is illegal.

Kidnapping and torturing innocent people is illegal.

Kidnapping and torturing people is illegal.

I can't believe we can actually sit down and talk about what sorts of torture are OK, splitting legal hairs about it...

Posted by Carlos | October 10, 2007 10:44 AM

MarkD/Maetenloch,

I think both of you are missing the "Big Picture"
Yes, obviously we can (and do) have a war without conscription. I find it amusing that you have to go back to the Spanish-American war to find a war in which we had no conscription, but nevertheless, this is a true statement
However, this sidesteps the question of the will of the country. If you rely solely on an all volunteer Armed forces to fight a war, you will have no public comitment to fighting and winning the war. Part of the reasons we have won wars in our past is that we had a armed citizenry who fought our enemies and won the war so they could go home.

Why not just set up a private Army (Think Blackwater Unlimited) to do your fighting? Then anyone who dies in combat would be seen as just a pure mercenary. This, I'm afraid, is what our current situation is. No disrespect to the Army et al. They have been placed in an untenable position and will suffer after this war is over. Remember, this "war" has gone on longer than WWII.

Also, I'm amused by the fact that no one has touched the war tax issue. How long can we go on using deficit spending to fund our military effort?

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