18 May Another Rendition Lawsuit Dismissed
18.05.06
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2 Comments
The U.S. District Court for the Eastern District of Virginia has dismissed a lawsuit by Khalid El-Masri, a German citizen who alleged he had been kidnapped by the CIA in an “extraordinary rendition” in Macedonia and Afghanistan. I can’t find a copy of the opinion online, but the basis of the dismissal appears to be the “state secrets” privilege which was also invoked in the decision dismissing a similar lawsuit by Canadian citizen Maher Arar.
I have more thoughts about the merits of the “State secrets” theory but I’ll save them for later. For now, it is worth pointing out that the U.S. government has won both lawsuits challenging its rendition policy – but of course appeals are certainly forthcoming.
Julian,
It all depends on what your definition of “won” is. The government threw down a trump card which, almost by definition, cannot be challenged by the plaintiff in any manner besides an appeal to the court of public opinion. The court in the El-Masri studiously observed that it was *not* ruling on the merits. Indeed, it said it could not possibly rule on the merits given the invocation of this privilege. A verdict may have technically been reached. But I don’t know that justice has been done here… only delayed.
Nothing was won – America lost. A card was invoked by one brnach and the other branch was willing to consider the card a trump card – no matter how egregious the situation. This is a kind of American judicial cravenness that is regrettable and itself a possible violation of our international law obligations. With the Executive, Legislative and Judiciary playing this game together, it is pretty damning and says a great deal about how bad we have become. Court of public opinion is not good enough.
Best,
Ben Davis
Associate Professor of Law
University of Toledo College of Law