By Jerry Markon
Washington Post Staff Writer
Friday, May 19, 2006
A federal judge yesterday threw out the case of a German citizen who says he was wrongfully imprisoned by the CIA, ruling that Khaled al-Masri's lawsuit poses a "grave risk" of damage to national security by exposing government secrets.
U.S. District Judge T.S. Ellis III in Alexandria acknowledged that Masri "has suffered injuries" if his allegations are true and that he "deserves a remedy." Sources have said Masri was held by the CIA for five months in Afghanistan because of mistaken identity. Masri says he was beaten, sodomized and repeatedly questioned about alleged terrorist ties.
But Ellis said the remedy cannot be found in the courts. Masri's "private interests must give way to the national interest in preserving state secrets,'' the judge wrote in dismissing the lawsuit filed last year against former CIA director George J. Tenet and 10 unnamed CIA officials.
Masri had sought an apology and monetary compensation.
The ruling was a victory for Justice Department prosecutors, who had invoked the once rarely cited state-secrets privilege to argue for dismissal. Created in the 1950s, it allows the government to urge courts to dismiss cases on the grounds of damage to foreign policy or national security. The privilege has been used far more frequently since the Sept. 11, 2001, terrorist attacks.
Judges have usually acceded to the government's request. Last year, for example, the government won dismissal of a lawsuit by a Canadian citizen who claimed that he was taken to Syria by U.S. officials for detention and was tortured.
Ben Wizner, an American Civil Liberties Union attorney defending Masri, said Ellis "was precisely wrong that the judicial branch should not be involved here." He said the case was an opportunity to examine the CIA's program of secretly detaining suspects in one country and moving them to another for interrogation and detention -- a process known as "rendition."
"This is doubly insulting,'' Wizner said. "Everyone knows that Mr. al-Masri was a mistaken victim of the rendition program. He is now a victim of the misuse of the state-secrets privilege."
A Justice Department spokesman, Charles Miller, said the department was reviewing the ruling and would not comment.
Ellis said that his ruling was not a commentary on the substance of Masri's allegations but that if they are true, "all fair-minded people . . . must also agree that [Masri] has suffered injuries as a result of our country's mistake and deserves a remedy.''
But if the government even responded, the judge wrote, it could compromise intelligence sources and methods. "Such a revelation would present a grave risk of injury to national security," Ellis concluded.
Masri, a German citizen of Lebanese descent, was arrested by police in Macedonia in December 2003 because his name was the same as that of another man suspected of terrorist links and because Macedonian police believed he was carrying a false passport, according to former and current intelligence officials and U.S. diplomats.
He was held for five months largely because the head of the CIA's Counterterrorist Center's al-Qaeda unit "believed he was someone else," a former CIA official last year said on condition of anonymity.
German investigators have confirmed most of Masri's allegations, which have received extensive publicity in Europe. In December, a senior Bush administration official traveling with Secretary of State Condoleezza Rice said U.S. officials had told the Germans that Masri was released because the intelligence was insufficient to justify his detention.
Staff writer Dana Priest contributed to this report.