Two high profile cases of extraordinary rendition and torture in the ‘war on terror’ were back in the news today when one advanced procedurally before the European Court of Human Rights and the other reached the end of road before U.S. courts.
The Open Society Justice Initiative announced today that its application on behalf of Khaled El-Masri will be considered by the European Court of Human Rights. El-Masri, a German citizen, was allegedly subjected to the practice of extraordinary rendition while in Macedonia and spent approximately four months in inhumane conditions in a secret detention center in Afghanistan while in the custody of U.S. agents before being deposited in Albania (read more on El-Masri v. Macedonia). As summarized by OSJI, the basic allegations presented in the application are the following:
Illegal Detention. The government of Macedonia is responsible for illegally detaining El-Masri for 23 days in the Skopski Merak hotel, without charge and without bringing him before a Judge, in violation of Article 5 ECHR (liberty and security).
Handover to the CIA. Macedonia knew that by handing El-Masri to the CIA he would be flown to Kabul where he would be detained without trial and in conditions that were inhuman, in violation of Article 3 (torture) and Article 5 ECHR (liberty and security).
No investigation. There has never been a proper investigation into how El-Masri was detained in Skopje and then handed over to the CIA, in violation of the requirement to undertake an investigation into violations of Article 3 ECHR (torture).
No remedy. Despite many attempts, El-Masri has been unable to get a court in Macedonia to hear his case, in violation of Article 14 ECHR (right to remedy).
The Right to Establish the Truth. Macedonia is hiding its role in the network of European governments that were secretly helping the CIA program. El-Masri and society as a whole have a right to know the truth.
El-Masri’s petition for writ of certiorari before the U.S. Supreme Court was rejected in 2007, and a 2008 petition filed on his behalf by the ACLU against the United States government is apparently pending before the Inter-American Commission on Human Rights (see more on the ACLU litigation here).
In the case of Canadian citizen Maher Arar, the Center for Constitutional Rights announced today that the U.S. Supreme Court had declined to review the Second Circuit Court of Appeal’s decision which held that, as no civil remedy for damages was available to individuals in Arar’s situation, it would be up to the legislature to devise one before Arar could seek relief.
As the Second Circuit summarized in its 2009 opinion:
We have no trouble affirming the district court’s conclusions that Arar sufficiently alleged personal jurisdiction over the defendants who challenged it, and that Arar lacks standing to seek declaratory relief. We do not reach issues of qualified immunity or the state secrets privilege. As to the [Torture Victims Protection Act], we agree with the unanimous position of the panel that Arar insufficiently pleaded that the alleged conduct of United States officials was done under color of law. We agree with the district court that Arar insufficiently pleaded his claim regarding detention in the United States… Our attention is therefore focused on whether Arar’s claims for detention and torture in Syria can be asserted under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (19730) (“Bivens”).
To decide the Bivens issue, we must determine whether Arar’s claims invoke Bivens in a new context; and, if so, whether an alternative remedial scheme was available to Arar, or whether (in the absence of affirmative action by Congress) “’special factors counsel[] hesitation.’” … This opinion holds that “extraordinary rendition” is a context new to Bivens claims, but avoids any categorical ruling on alternative remedies—because the dominant holding of this opinion is that, in the context of extraordinary rendition, hesitation is warranted by special factors. We therefore affirm. (…)
Our ruling does not preclude judicial review and oversight in this context. But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress…
Arar v. Ashcroft et al., 06-4216-cv, 7-10 (2nd Cir. 2009), 7-10 (internal citations omitted).
Arar had been detained in New York before being rendered to Syria, where he endured a year of torture and detention (read more on Arar v. Ashcroft). However, CCR also announced that the Royal Canadian Mounted Police are investigating U.S. and Syrian involvement in Arar’s abduction.