Government Seeks Court's Dismissal of Abduction Case

A federal court hears a government motion to dismiss a suit brought by a German citizen who alleges he was abducted in Europe. The man says he was handed over to U.S. agents, beaten and then transferred to a secret prison in Afghanistan. He was released without explanation five months later. The CIA says evidence in the case is protected by the state secrets privilege and can't be brought to trial.

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RENEE MONTANGE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

JOHN YDSTIE, host:

And I'm John Ydstie. The government today is expected to urge federal courts to dismiss two lawsuits related to the war on terror saying they could expose government secrets. The Administration says there's solid legal precedent for this tactic. But civil liberties groups feel these cases show that protecting secrecy has become a legal trump card that's used to avoid public scrutiny of controversial programs. NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

On December 31, 2003, Kahled El-Masri boarded a bus in his adopted country of Germany headed for Macedonia. It would be a long time before he made it home again. He says local authorities turned him over to the CIA. He was then transported to Afghanistan, he says, beaten and held without charge for five months. He protested his innocence to no avail. Then he was released as suddenly has he had been detained. Ben Wizner is an attorney for the ACLU.

Mr. BEN WIZNER (Attorney, ACLU): This was apparently a case of mistaken identity. And when the CIA realized that it was holding the wrong person, rather than release him with an apology, they blindfolded him, flew him back to Europe and left him on a hilltop in Albania to find his way back.

ABRAMSON: The ACLU says El-Masri was a victim of a CIA tactic known as Extraordinary Rendition. Now the organization is representing El-Masri in a lawsuit. He wants an apology and money damages. But if El-Masri thought the government played rough before, he was in for a surprise. Ben Wizner says the Administration is asking the judge to block the case because it might reveal state secrets.

Mr. Wizner: Effectively, what the CIA is arguing is that discussion in a courtroom of facts that have already in been on the front page of The Washington Post will threaten national security. And I hope that judge looks with some skepticism at the CIA's claim.

ABRAMSON: The Administration only has to convince the judge that sensitive information is at risk. Plaintiffs can't see the information because it's, well, secret. The government won't discuss individual cases, but Justice Department spokesperson Katheia Scolinos(ph) says the privilege is used sparingly and only after careful review.

Ms. KATHEIA SCOLINOS (Spokesperson, Justice Department): And if the agency head determines that disclosure of that information would cause harm to the country, the Justice Department would review the proposed state secrets privilege claim and determine whether its assertion is appropriate in the litigation.

ABRAMSON: Plaintiffs find cold comfort in that procedure. The Electronic Frontier Foundation has sued AT&T, saying that the phone giant has been collaborating with the National Security Agency to eavesdrop on the communications of millions of innocent Americans. The case makes some of the same charges contained in an USA Today report released yesterday which has renewed controversy over NSA domestic surveillance. But the government intends to assert the state secrets privilege in this case too and that could kill the suit. Electronic Frontier Foundation attorney Kevin Bankston says the government's argument could stifle scrutiny of NSA's surveillance.

Mr. KEVIN BANKSTON (Attorney, Electronic Frontier Foundation): The Executive could, unchecked by the courts, conduct widespread surveillance of the population and no one could ever litigate it because it might reveal state secrets.

ABRAMSON: Like El-Masri's attorneys, Kevin Bankston cannot see the secrets the government says it wants to protect. Paradoxically, his court case rests on the idea that his group has in fact uncovered those secrets and wants the judge to stop a secret program. Bankston hopes to persuade the judge that even if the privilege is granted, the case should go head.

Mr. BANKSTON: And that we can prove our case and it shouldn't be dismissed without getting into state secrets.

ABRAMSON: In recent years the Administration has used this legal doctrine to protect patents and to stop a suit by a fired by an FBI translator, and generally it works. Law Professor Scott Silliman of Duke University says the privilege rests on a 50-year-old Supreme Court decision, one the judges are reluctant to question.

Professor SCOTT SILLIMAN (Professor, Duke University): The government comes with a very large hammer. And it's saying to the judge, you cannot risk allowing this information to be disclosed because even though you may not understand it, there is grave damage that will be caused to the national security.

ABRAMSON: Larry Abramson, NPR News, Washington.

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