On December 6, 2005, a German citizen of Lebanese descent filed this lawsuit in the U.S. District Court for the Eastern District of Virginia, under Bivens and the Alien Tort Statute, against the former Director of the Central Intelligence Agency and three corporations. The plaintiff, represented by private counsel, claimed that he was illegally detained as part of the CIA's "extraordinary rendition" program, tortured, and subjected to other inhumane treatment that violated his rights under the Constitution and international law. Specifically, the plaintiff claimed that, while travelling in Macedonia, he was detained by Macedonian law enforcement officials; after twenty-three days in Macedonian custody, he was handed over to CIA operatives, who flew him to a CIA-operated detention facility near Kabul, Afghanistan; he was held in this CIA facility until May 28, 2004, when he was transported to Albania and released in a remote area; and Albanian officials then picked him up and took him to an airport in Albania, from which he travelled to his home in Germany. The plaintiff also alleged that he had been beaten, drugged, bound, and blindfolded during transport; confined in a small, unsanitary cell; interrogated several times; and consistently prevented from communicating with anyone outside the detention facility, including his family or the German government.

The United States intervened as a defendant in the district court, asserting that El-Masri's civil action could not proceed because it posed an unreasonable risk that privileged state secrets would be disclosed that would hurt national security. On March 13, 2006, the Government. filed a motion to dismiss or in alternative a motion for summary judgment.

The plaintiff countered that the state secrets doctrine did not necessitate dismissal of his complaint, primarily because CIA rendition operations, including El-Masri's alleged rendition, had been widely discussed in public forums. In support of this contention, a human rights adviser to the American Civil Liberties Union filed a sworn declaration in the district court, dated April 7, 2006, in which he asserted that United States officials--including Secretary of State Condoleezza Rice, White House Press Secretary Scott McClellan, and Directors Tenet and Goss--had publicly acknowledged that the United States had conducted renditions.

On May 12, 2006, Judge T.S. Ellis held that the Government's claims of state secret privilege was valid. Given the application of the privilege to this case, Judge Ellis granted the U.S.'s motion to dismiss because the plaintiff's claims and the Government's defenses could not be fairly litigated without disclosure of state secrets. El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006).

The plaintiff appealed this decision. On March 2, 2007, the Fourth Circuit affirmed the judgment of the District Court. In an opinion by Judge Robert King, the Fourth Circuit wrote that it recognized the "gravity" of the conclusion that the plaintiff must be denied a judicial forum for his complaint, and reiterated "past observations that dismissal on state secrets grounds is appropriate only in a narrow category of disputes." Nonetheless, the Fourth Circuit held that it was "plain" that this matter "fell squarely within that narrow class." El-Masri v. United States, 479 F.3d 296, 313 (4th Cir. 2007).

Jessica Kincaid - 06/16/2014


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