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Lost Opportunity to Review Government's Abuse of "State Secrets" Privilege to Avoid Accountability for Illegal Actions

WASHINGTON - The American Civil Liberties Union today expressed its disappointment with the United States Supreme Court's decision not to review the case of Khaled El-Masri, an innocent victim of the CIA's "extraordinary rendition" program.

Khaled El-Masri, an innocent German citizen who was kidnapped, detained, and tortured in a secret overseas prison, had sued former CIA Director George Tenet and others, seeking compensation and an apology for his ordeal. The Court's refusal to hear the case lets stand a federal appeals court's decision in March based upon the government's assertion of the "state secrets" privilege.

"This is a sad day not only for Khaled El-Masri, but for all Americans who care about the rule of law and our nation's reputation in the world," said Ben Wizner, an ACLU staff attorney who argued El-Masri's case before the Fourth Circuit Court of Appeals last November. "By denying justice to an innocent victim of this country's anti-terror policies, the Court has provided the government with complete immunity for its shameful human rights and due process violations."

El-Masri, a father of six young children, was traveling to Macedonia when he was kidnapped, abused, and rendered to a CIA-run "black site" in Afghanistan. He was forbidden from contacting a lawyer or any member of his family. After several months of confinement in squalid conditions, he was flown from Afghanistan and abandoned on a hill in Albania with no explanation, never having been charged with a crime. According to the ACLU, even after realizing El-Masri was innocent, the CIA continued to hold El-Masri for two more months. The ACLU's lawsuit charges Tenet, other CIA officials and U.S.-based aviation corporations with violations of U.S. and universal human rights laws.

It has been fifty years since the Supreme Court has reviewed the use of the "state secrets" privilege. In recent years, the U.S. government has asserted state secrecy to justify the refusal to disclose information about its illegal wiretapping program, the use of torture, and other breaches of domestic and international law. Just last week, it was disclosed that the Justice Department produced secret memos, which it refuses to release, authorizing the use of inhumane interrogation practices widely believed to constitute torture.

"Today's decision will not end the debate over the government's use of the ‘state secrets' privilege to avoid judicial scrutiny for illegal actions carried out in the name of fighting terrorism," said Steven R. Shapiro, Legal Director of the ACLU. "In a nation committed to the rule of law, the government's unlawful activity should be exposed, not hidden behind a ‘state secrets' designation."

In addition to Khaled El-Masri, the ACLU represents five other victims of the government's "extraordinary rendition" program in a case against Boeing subsidiary Jappesen Dataplan, Inc. That case charges that Jeppesen knowingly provided direct logistical support to CIA flights used in the rendition program. The case is pending in federal court in the Northern District of California.

The ACLU also continues to urge Congress to review and dismantle the rendition program.

More information on the El-Masri case, the Jeppesen case, and the ACLU's rendition fight is online at www.aclu.org/rendition

In addition to Shapiro and Wizner, El-Masri is represented by Jameel Jaffer, Melissa Goodman and Steven Watt of the national ACLU, Paul Hoffman of Schonbrun DeSimone Seplow Harris &Hoffman, LLP, Rebecca Glenberg of the ACLU of Virginia and Victor Glasberg & Associates.