Federal Appeals Court to Hear Arguments by CIA-Held German Captive

RICHMOND, Va. – A federal appeals court will hear arguments Tuesday in the case of a German man who claims the CIA held him captive and tortured him in Afghanistan after mistakenly identifying him as an associate of the Sept. 11 hijackers.

Khaled El-Masri wants the 4th U.S. Circuit Court of Appeals to reinstate his lawsuit against former CIA director George Tenet and others. A federal judge in Alexandria dismissed the suit in May, ruling that a trial could expose government secrets and jeopardize national security.

Ben Wizner, the American Civil Liberties Union lawyer representing El-Masri, said the workings of the CIA's "extraordinary rendition" program in the war on terror already are so widely known that the case could be tried without divulging any state secrets.

The rendition program, in which terror suspects are captured and taken to foreign countries for interrogation, has been heavily criticized by human rights groups and has been the subject of worldwide newspaper and magazine articles.

"We say there's no reason a federal court cannot adjudicate this claim when so much information has been made public," Wizner said in a telephone interview.

The U.S. attorney's office in Alexandria had no comment on the case, spokesman Jim Rybicki said.

The Lebanese-born El-Masri alleges he was kidnapped while attempting to enter Macedonia on New Year's Eve 2003 and was flown to a CIA-run prison known as the "salt pit" in Kabul, where he was beaten and sodomized with a foreign object during five months in captivity.

El-Masri says he was denied permission to contact a lawyer, a German government official and his wife. He says he was dumped on a desolate road in Albania long after the CIA realized it had made a mistake.

The lawsuit claims the CIA violated international human rights laws and El-Masri's due process rights and seeks damages of at least $75,000. El-Masri also has said he wants an apology.

In dismissing the lawsuit, U.S. District Judge T.S. Ellis III made no findings on the validity of El-Masri's claims. Ellis said a secret written briefing from the director of central intelligence convinced him that allowing the case to proceed would harm national security.

"In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy," Ellis wrote. "Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit."

Wizner said the decision "really is a blank check" for the government to do whatever it wants under the guise of protecting state secrets.

"What the government is asking for here is to have absolutely no judicial role in the protection of human rights," Wizner said.

He acknowledged that courts generally must defer to executive branch decisions in conducting wars, but added: "Deference does not mean abdication."

In addition to Tenet, defendants named in the lawsuit include corporations that allegedly owned and operated the airplanes used to transport El-Masri.