Congress and Judges Gagged


Arlen Specter, a Republican and an unusually independent chairman of the Senate Judiciary Committee, has been publicly and insistently charging that the president violated the Foreign Intelligence Surveillance Act by authorizing the National Security Agency’s secret, warrantless eavesdropping on our phone calls and e-mails. The administration’s answer, however, was underlined on May 8 by John Negroponte, chief of all the intelligence agencies:

This government, he said, is “absolutely not” engaging in warrantless monitoring of domestic calls. Negroponte ignored, as does the president, the further revelation that AT&T and Verizon are collaborating with the NSA to collect millions, actually, trillions, of our phone records (the numbers we call and those who call us)—which are then also linked to FBI, CIA, and other agencies’ databases.

Despite the concerted opposition of Dick Cheney (who is in charge of the administration’s “dark arts,” as he calls them), Chairman Specter wants to subpoena AT&T and Verizon to find out who in the administration told them that their complicity—absent any judicial supervision—with the lawless NSA is legal.

Even if Specter issues those subpoenas, he appears resigned to the blank wall he’ll find, since he says the telephone companies will refer to the “state secrets” privilege and refuse to answer any of his questions that have to do with the NSA. And Dick Cheney has ordered them not to testify.

So, once again, as USA Today noted in a May 18 editorial, “Congress may as well be deaf and blind.” Arlen Specter has been the only congressional chairman who keeps trying to investigate these felonies committed by the president and NSA. Now he has been blocked by the administration’s escape from accountability through “state secrets.” (In most of these dismissals, the lawyers for the plaintiffs are not even told what “the secrets” are.)

But what of the independent judiciary in our constitutional separation of powers? On May 12, Federal District Judge T.S. Ellis III in Virginia killed a suit by Khaled el-Masri—Khaled el-Masri v. George Tenet, et. al—whose kidnapping and “rendition” by the CIA to be tortured has been repeatedly reported—in detail—in this country and around the world, including the Voice.

A broken man because of his ordeal, el-Masri seeks a mere $75,000 in compensation from our government for five months of torture, beginning in December 2003. Moreover, this German citizen was kidnapped by mistake. The agent in charge of the Al Qaeda division of the Counterterrorist Center screwed up because el-Masri has the same name as a person suspected of links to terrorism.

“The government is moving to dismiss this case at the outset on the basis of a fiction that discussion in this courtroom of the very same facts being discussed throughout the world will harm [this] nation.” If the ruling is upheld on appeal—and it very likely will be, given the two justices Bush has placed on the Supreme Court—the total disappearance of Khaled el-Masri v. Tenet will, as the ACLU’s Ben Wizner says, “give a broad immunity to the government to shield even the most egregious activities.”

Judge Ellis’s 17-page ruling is dramatically unusual in showing his discomfort at being shackled by the precedent of previous judges allowing the government to whisper to them, “state secrets” and usurp their roles as judges of the facts and the law.

As if to expiate his surrendering of his independence to the administration, Ellis gives a lot of space to el-Masri’s claims. He calls them allegations, but they strike me as weighing on his conscience.

For example, says Judge Ellis, a “blindfolded” El-Masri—after first having been snatched to Macedonia—”was led to a building where he was beaten, stripped of his clothing, and sodomized with a foreign object [and] dragged naked to a corner of the room [where] he claims he saw seven or eight men dressed in black and wearing black ski masks.

“[El-Masri] contends that these men were members of a CIA ‘black renditions’ team, operating pursuant to unlawful CIA policies at the direction of defendant [then CIA director George] Tenet.”

The judge continues: “After being dressed in a diaper . . . shackled and dragged to an airplane . . . his captors injected him with a sedative,” and he wound up in the notorious CIA interrogation facility, the “Salt Pit,” an abandoned brick factory in Afghanistan. For the next four months, “in a small, cold cell,” he was repeatedly (and forcibly) interrogated. His hunger strike was broken—like those of the prisoners in Guantánamo—by force-feeding. (This brutal practice, as I have written in previous columns, locks the prisoner in a metal chair where, while being “fed” through a tube, he urinates and defecates on himself.)

At last, the CIA, knowing it had the wrong man, flew el-Masri, blindfolded, to Albania where he was dumped on the side of an abandoned road. Albanian authorities got him back to Germany where he found his wife and four children had gone to Lebanon because his wife thought he had abandoned them.

Says Judge Ellis: “El-Masri asserts he remains deeply traumatized.” He hasn’t been able to work. One of his children is frightened if his father goes out alone.

At the end of his decision, Judge Ellis, somewhat traumatized himself, writes: “Putting aside all the legal issues, if el-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe . . . that this lawsuit cannot proceed [because it involves “state secrets”] must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” (Emphasis added.)

The judge continued: “Yet . . . the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.”

But the executive branch, brandishing “state secrets,” has forced this judge to dismiss the case! And the legislative branch has repeatedly refused to conduct an investigation into these “renditions” that kidnap suspects to be tortured—as has been verified in meticulously documented reports by Human Rights Watch, Human Rights First, Amnesty International, and NYU’s Center on Law and Security.

So there is no remedy for Khaled el-Masri in this country which holds its “values” and rule of law as a model to the world.