Mistaken Identity, Abuse, and Rendition: The Khaled El-Masri Case at the European Court

Judges at Europe’s top human rights court on Wednesday, May 16, heard the first case to come before them arising from the U.S. Central Intelligence Agency’s program of ‘extraordinary rendition,’ the campaign of covert cross-border transfers of terror suspects launched by the agency after the attacks of September 11, 2001. The case has been brought by Khaled El-Masri, a German citizen of Lebanese descent who was abducted by Macedonian agents at a border crossing in 2004, and transferred to CIA custody in a Kabul dungeon.

El-Masri himself was never brought before a judge during the 149 days he spent in secret Macedonian and U.S. captivity. These included three weeks of unauthorized detention by Macedonian intelligence agents in a private hotel room in Skopje, only a few miles from the German embassy. On trial before the European Court of Human Rights in Strasbourg will instead be the actions of the Macedonian government, which held and handed over El-Masri in a callous, calculating contribution to the CIA’s “global war on terror.” The favor reportedly earned the then-head of the Macedonian intelligence service a special trip to CIA headquarters in Langley, Virginia to receive an award from the hands of George Tenet, who headed the agency at the time.

The Wednesday hearing has been a long time coming for El-Masri himself. It is in fact, the first time that a court anywhere will conduct a full hearing on the merits of his claims, even though various criminal and civil proceedings related to his case have been initiated in Germany, the United States, Macedonia and Spain. In the U.S. his bid to seek damages from Tenet and the CIA was thrown out by the courts under the now-infamous “state secrets” doctrine, which allowed the U.S. government to have the case dismissed without ever getting to the merits.

The Strasbourg hearing, at which El-Masri will be represented by a team of lawyers from the Open Society Justice Initiative, is also a vindication for the many other groups and individuals who took up his cause and helped shed light on his story over the years. The list is long, another kind of “coalition of the willing.” There is his German lawyer, Manfred Gnjidic, who requested a criminal and parliamentary investigation within weeks of his client’s release and tirelessly represented him over the years—assisted also by the Berlin-based European Centre for Civil and Constitutional Rights. There are the reporters at Reuters, the Washington Post, Der Spiegel and countless other outlets who broke the story and helped keep it alive, and researchers at the UK group Reprieve who pursued details of rendition flights.

In the US, lawyers with the American Civil Liberties Union took his case all the way to the Supreme Court. When that failed, they filed an international petition against the U.S. with the Inter-American Commission on Human Rights, making El-Masri the first person to have brought cases before both the European and the American human rights systems.

Back in Europe, two parallel international inquiries, led by Swiss Senator Dick Marty for the Council of Europe and Italian MEP Claudio Fava for the European Parliament, produced a compelling body of evidence corroborating El-Masri’s story -- as did a multi-year investigation by the German Bundestag. More recently, Spanish investigating judges—following on the footsteps of a local investigative reporter—are considering issuing arrest warrants for the CIA rendition team that stopped in a Palma de Mallorca luxury hotel in the middle of a flight circuit that involved rendering both Khaled El-Masri and Binyam Mohamed, the British detainee recently released from Guantanamo.

Freedom of information requests and advocacy also played a role in establishing the facts and discrediting the versions provided by the governments involved. Thus a FOI request filed by the Justice Initiative with the Macedonian civil aviation authority triggered an official confirmation—the first public one in Macedonia—of the Skopje landing and departure of the rendition flight, and the fact that it arrived with no “passengers’ and left with one. Similar requests filed with the authorities in Albania—where El-Masri was reverse-rendered when the CIA realized it had the wrong man—confirmed his account that he was placed on a commercial flight from Tirana to Frankfurt, with just a ticket put in his hand.

The Wednesday hearing is, of course, a testament above all to Khaled El-Masri’s own courage and tenacity in his eight-year-old quest for justice and the truth. As he said on the steps of a Manhattan courthouse, what he wants most is “an explanation and an apology.” He has yet to receive one from either the US or the Macedonian government. But, finally at least, a court will sit in judgment over what was done to him. That hearing will be public and will go forward, any state secrets notwithstanding.