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Context of 'March-April 2004: Detainee, a German Citizen, and Others Stage Hunger Strike Protesting Detention'

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Chief Justice Fred Vinson.Chief Justice Fred Vinson. [Source: Kansas State Historical Society]The US Supreme Court upholds the power of the federal government’s executive branch to withhold documents from a civil suit on the basis of executive privilege and national security (see October 25, 1952). The case, US v Reynolds, overturns an appellate court decision that found against the government (see December 11, 1951). Originally split 5-4 on the decision, the Court goes to 6-3 when Justice William O. Douglas joins the majority. The three dissenters, Justices Hugo Black, Felix Frankfurter, and Robert Jackson, refuse to write a dissenting opinion, instead adopting the decision of the appellate court as their dissent.
'State Secrets' a Valid Reason for Keeping Documents out of Judicial, Public Eye - Chief Justice Fred Vinson writes the majority opinion. Vinson refuses to grant the executive branch the near-unlimited power to withhold documents from judicial review, as the government’s arguments before the court implied (see October 21, 1952), but instead finds what he calls a “narrower ground for defense” in the Tort Claims Act, which compels the production of documents before a court only if they are designated “not privileged.” The government’s claim of privilege in the Reynolds case was valid, Vinson writes. But the ruling goes farther; Vinson upholds the claim of “state secrets” as a reason for withholding documents from judicial review or public scrutiny. In 2008, author Barry Siegel will write: “In truth, only now was the Supreme Court formally recognizing the privilege, giving the government the precedent it sought, a precedent binding on all courts throughout the nation. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.” Siegel will call the Reynolds ruling “an effort to weigh competing legitimate interests,” but the ruling does not allow judges to see the documents in order to make a decision about their applicability in a court case: “By instructing judges not to insist upon examining documents if the government can satisfy that ‘a reasonable danger’ to national security exists, Vinson was asking jurists to fly blind.” Siegel will mark the decision as “an act of faith. We must believe the government,” he will write, “when it claims [the accident] would reveal state secrets. We must trust that the government is telling the truth.”
Time of Heightened Tensions Drives Need for Secrecy - Vinson goes on to note, “[W]e cannot escape judicial notice that this is a time of vigorous preparation for the national defense.” Locked in the Cold War with the Soviet Union, and fighting a war in Korea, the US is, Vinson writes, in a time of crisis, and one where military secrets must be kept and even encouraged. [U. S. v. Reynolds, 3/9/1953; Siegel, 2008, pp. 171-176]
Future Ramifications - Reflecting on the decision in 2008, Siegel will write that while the case will not become as well known as many other Court decisions, it will wield significant influence. The ruling “formally recognized and established the framework for the government’s ‘state secrets’ privilege—a privilege that for decades had enabled federal agencies to conceal conduct, withhold documents, and block civil litigation, all in the name of national secrecy.… By encouraging judicial deference when the government claimed national security secrets, Reynolds had empowered the Executive Branch in myriad ways. Among other things, it had provided a fundamental legal argument for much of the Bush administration’s response to the 9/11 terrorist attacks. Enemy combatants such as Yaser Esam Hamdi (see December 2001) and Jose Padilla (see June 10, 2002), for many months confined without access to lawyers, had felt the breath of Reynolds. So had the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists (see March 22, 2005). So had the Syrian-Canadian Maher Arar (see September 26, 2002), like dozens of others the subject of a CIA extraordinary rendition to a secret foreign prison (see After September 11, 2001). So had hundreds of detainees at the US Navy Base at Guantanamo Bay, held without charges or judicial review (see September 27, 2001). So had millions of American citizens, when President Bush, without judicial knowledge or approval, authorized domestic eavesdropping by the National Security Agency (see Early 2002). US v. Reynolds made all this possible. The bedrock of national security law, it had provided a way for the Executive Branch to formalize an unprecedented power and immunity, to pull a veil of secrecy over its actions.” [Siegel, 2008, pp. ix-x]

Entity Tags: William O. Douglas, Zacarias Moussaoui, US Supreme Court, Yaser Esam Hamdi, Robert Jackson, Jose Padilla, Felix Frankfurter, Bush administration (43), Fred Vinson, Barry Siegel, George W. Bush, Hugo Black, Maher Arar

Timeline Tags: Civil Liberties

To Khalid el-Masri’s astonishingly bad luck, his name closely resembles that of Khalid el-Masri, a man suspected to be involved in the planning of the 9/11 attacks. Born in Lebanon, he is a German citizen, legally living in Germany. On December 31, 2003, he travels by bus from Serbia to Macedonia on his way to Skopje for a weeklong vacation. At the border, Macedonian authorities take him in custody and interrogate him about possible involvement with terrorism. A few hours later, he is taken to a motel on the outskirts of Skopje, accompanied by armed police officers. For the next 23 days, he will be held there by a number of Macedonians, questioned repeatedly and accused of having a fake passport, being an Egyptian national, and having been to a training camp for terrorists in Jalalabad. After about ten days, one interrogator tells him, “[W]e’ll make a deal: you say you are an al-Qaeda member, and sign a paper saying that, and we’ll put you back on a plane and you will be deported to Germany.” El-Masri refuses, “naturally,” he recalls. “It would have been suicide to sign.” The man leaves, but two days later, the same man accuses him of not being cooperative, says he has only himself to blame for his troubles, and that they know everything about him. [Guardian, 1/14/2005]

Entity Tags: Khalid el-Masri

Timeline Tags: Torture of US Captives

Following the arrest of German national Khalid el-Masri in Macedonia (see December 31, 2003-January 23, 2004), a dispute breaks out at CIA headquarters over what to do with him. Alfreda Frances Bikowsky, a manager at Alec Station, the CIA’s bin Laden unit, argues that el-Masri should be rendered to Afghanistan. Author Jane Mayer will describe Bikowsky as a “tall, pale-skinned, spiky-haired redhead who wore bright red lipstick” and indicate she is a former Soviet analyst who had been at Alec Station during the pre-9/11 failures. Mayer will add that she “was particularly controversial among many of her male colleagues for her ferociousness,” and, that she was “reviled by some male colleagues for what they regarded as her aggression.” Lacking proof against el-Masri, Bikowsky argues that the man in custody is probably a terrorist and should be taken to a black site. [Mayer, 2008, pp. 35, 273, 282-283] A former CIA officer will say: “She didn’t really know. She just had a hunch.” [Washington Post, 12/4/2005] Mayer will attribute Bikowsky’s determination to having been part of the unit when it failed before 9/11. Other officers suggest they should wait to see whether el-Masri’s passport, suspected of being a forgery, is genuine or not, and point out there is no evidence he was anything but a tourist on holiday when he was arrested. However, Bikowsky does not trust the Germans, apparently thinking them soft on terrorism, and does not want to wait. Another problem is that these discussions occur during the holiday period and, by the time the CIA’s station in Germany looks at the paperwork, el-Masri is already on his way to Afghanistan (see January 23 - March 2004). [Mayer, 2008, pp. 282-283] Bikowsky will also make a sight-seeing trip to see alleged 9/11 mastermind Khalid Shaikh Mohammed waterboarded (see After March 7, 2003), will be considered for the position of deputy station chief in Baghdad (see (March 23, 2007)), and may be interviewed by the CIA’s inspector general during its investigation into torture (see July 16, 2003).

Entity Tags: Khalid el-Masri, Central Intelligence Agency, Alec Station, Alfreda Frances Bikowsky

Timeline Tags: Torture of US Captives

Khalid el-Masri.Khalid el-Masri. [Source: Reuters]In Macedonia, Khalid el-Masri is told he is free to return to Germany. His guards videotape him as evidence that he is in good health when he leaves their country. El-Masri steps out the door of the motel where he has been held, and walks a few meters, when a pick-up truck pulls up next to him. Several men pull him inside, handcuff him, and put a hood over his head. The truck appears to be driving towards the airport. [New York Times, 1/9/2005; Guardian, 1/14/2005] He hears the sounds of a plane, and the voice of one of his Macedonian minders saying he will receive a medical examination. [Guardian, 1/14/2005] He is then taken into a building. [New York Times, 1/9/2005] “I heard the door being closed,” he recalls. “And then they beat me from all sides, from everywhere, with hands and feet. With knives or scissors they took away my clothes. In silence. The beating, I think, was just to humiliate me, to hurt me, to make me afraid, to make me silent. They stripped me naked. I was terrified. They tried to take off my pants. I tried to stop them so they beat me again. And when I was naked I heard a camera.” He is then rectally examined by force. [Guardian, 1/14/2005] “After I was naked they took off my mask so I could see, and all the people were in black clothes and black masks. There were seven or eight people.” El-Masri is then dressed in a blue warm-up suit, and his hands are cuffed and tied to a belt; his feet shackled. Plugs are put in his ears and he is blindfolded. Next, they put him on a plane and force him to lie on the floor, while someone injects him with a drug that makes him fall asleep. [New York Times, 1/9/2005] But he vaguely notices the plane taking off. He receives a second injection during the flight. When he awakes, the plane has landed and he finds himself driven in the boot of car. Taken inside a building, he is thrown into the wall and onto to the floor of a small room that is to become his cell for the next five months. His head and back are stepped upon, while his chains are removed. [Guardian, 1/14/2005] “Everything was dirty, a dirty blanket, dirty water, like from a fish aquarium.” Guards and fellow prisoners will later tell him he is in Kabul, Afghanistan. [New York Times, 1/9/2005] On the first evening of his captivity in Afghanistan, El-Masri receives a visit from a masked man, he assumes is a doctor, who takes a blood sample and appears to be an American. Accompanying guards repeatedly punch El-Masri in the head and neck. El-Masri says he nevertheless has the nerve to ask the American for fresh water. “And he said: ‘It’s not our problem, it’s a problem of the Afghan people.’” [Guardian, 1/14/2005] He is also forced to run up and down a stairs while his hands are tied behind his back. The next morning, an interrogator shouts at him: “Where you are right now, there is no law, no rights; no one knows you are here, and no one cares about you.” [New York Times, 1/9/2005] Perhaps the same interrogator says, while seven or eight men with black masks watched silently, “Do you know where you are?” El-Masri answers: “Yes, I know. I’m in Kabul.” The interrogator replies: “It’s a country without laws. And nobody knows that you are here. Do you know what this means?” [Guardian, 1/14/2005] He discovers the identity of some of the other prisoners. There are two Pakistani brothers, who have Saudi citizenship, a man from Tanzania, who has been detained for several months, a Pakistani who has been there for nearly two years, a Yemeni, and a number of Afghans. [New York Times, 1/9/2005; Guardian, 1/14/2005] Comparing his situation to that of the others, El-Masri concludes: “It was a crime, it was humiliating, and it was inhuman, although I think that in Afghanistan I was treated better than the other prisoners. Somebody in the prison told me that before I came somebody died under torture.” The identity of his interrogators remains a secret, though after about a month, he is visited by two unmasked Americans. One, referred to by the prisoners as “the Doctor,” is tall, pale, in his 60s and has long grey hair. The other, named “the Boss,” has red hair and blue eyes and wears glasses. [Guardian, 1/14/2005] In the meantime, el-Masri’s wife, Aisha, completely unaware of her husband’s whereabouts, begins to think he has gone to marry another woman. Together with their children, she moves to Lebanon. [New York Times, 1/9/2005]

Entity Tags: Khalid el-Masri

Timeline Tags: Torture of US Captives, War in Afghanistan

A CIA review of the passport of Khalid el-Masri determines that it is genuine, not a forgery. El-Masri had been arrested in Macedonia (see December 31, 2003-January 23, 2004) and rendered to Afghanistan, where he is being tortured (see January 23 - March 2004), partly because the CIA thought he was traveling on a false German passport. However, the news that the passport is legitimate does not inspire the CIA to release him, as a manager at Alec Station, the CIA’s bin Laden unit, still wants him held. A former colleague will say that this is because of a “gut feeling” the manager, Alfreda Frances Bikowsky, has and because she “can’t admit a mistake.” Another former colleague will say, “She just looked into her crystal ball and it said that he was bad.” Although it is clear by now that there was no problem with el-Masri’s passport and that he is not an associate of the 9/11 hijackers (note: the hijackers knew a different man with the same name), Bikowsky insists el-Masri “had phone calls to people who were bad. Or to people who knew people who were bad.” Some other CIA officers are unhappy with this state of affairs. One CIA official comes in every morning and asks, “Is that guy still locked up in the Salt Pit?” [Mayer, 2008, pp. 284-285]

Entity Tags: Khalid el-Masri, Alfreda Frances Bikowsky, Alec Station, Central Intelligence Agency

Timeline Tags: Torture of US Captives

Khalid el-Masri and the other prisoners at the mysterious US-run prison in Kabul begin a hunger strike. An Afghan guard tells him: “The Americans don’t care if you live or die.” Two days later, according to one report, El-Masri is beaten and forcibly fed through a tube down his throat. [New York Times, 1/9/2005] 27 days into the hunger strike, El-Masri is taken to a room one night to meet the Americans and a senior Afghan. He demands to see a German representative, be put before a court or released. The “Boss,” according to El-Masri, is angry with the situation, saying: “He shouldn’t be here. He’s in the wrong place.” And also the “Doctor,” according to El-Masri, seems to think he is innocent. His living conditions improve a bit, with a bed instead of a plastic mat and a new carpet. But he continues his hunger strike. On the 37th day, he is force-fed. His captors then promise that he will be released within three weeks, at which point El-Masri starts to eat again. [Guardian, 1/14/2005]

Entity Tags: Khalid el-Masri

Timeline Tags: Torture of US Captives, War in Afghanistan

A manager at Alec Station, the CIA’s bin Laden unit, agrees that the agency can release an innocent German citizen named Khalid el-Masri who has been imprisoned in one of the CIA’s black sites for about two months (see December 31, 2003-January 23, 2004 and January 23 - March 2004). The CIA has known el-Masri is innocent for some time, but has not yet got around to releasing him (see (February 2004)). However, the manager, Alfreda Frances Bikowsky, makes his release conditional on the German intelligence services promising to follow him once he is free. She is told that as el-Masri is not a terrorist, but innocent, he cannot be put on a watch list, followed, or monitored when making phone calls. Therefore, she is reluctant to let him go and he remains in prison in Afghanistan. [Mayer, 2008, pp. 285]

Entity Tags: Khalid el-Masri, Alfreda Frances Bikowsky, Alec Station, Central Intelligence Agency

Timeline Tags: Torture of US Captives

Two officers in the CIA’s European division hatch a plan to free an innocent German named Khalid el-Masri who has been held at an agency black site since January (see January 23 - March 2004). The plan, which is termed a “reverse rendition,” is basically to take el-Masri out of prison, fly him somewhere, drive him round in circles for a few hours, and then let him go. However, a manager at Alec Station, the CIA’s bin Laden unit, is opposed to this plan. The manager, Alfreda Frances Bikowsky, had been the driving force behind el-Masri’s rendition to Afghanistan in the first place and had previously put obstacles in the way of his release (see Late March 2004). Now, she still argues that el-Masri is a terrorist. Author Jane Mayer will comment on why Bikowsky’s opposition carries weight: “She had an unusual amount of clout in the agency. She was smart and tough. And her trump card was that she sometimes personally briefed President Bush.” [Mayer, 2008, pp. 285-286] Despite Bikowsky’s opposition, a version of the “reverse rendition” plan will be implemented at the end of May (see May 29, 2004).

Entity Tags: Alfreda Frances Bikowsky, Khalid el-Masri, Alec Station, Central Intelligence Agency

Timeline Tags: Torture of US Captives

CIA Director George Tenet is informed that the agency has wrongly rendered an innocent German named Khalid el-Masri to a black site in Afghanistan and has been holding him there for several months (see January 23 - March 2004). Tenet receives this information at a meeting with all the main participants in the case: a bin Laden unit manager named Alfreda Frances Bikowsky who pushed the rendition in the first place; Counterterrorist Center head Jose Rodriguez and Deputy Director for Operations James Pavitt, who have known of the case for some time but done nothing about it (see (April 2004)); and two European Division officers who have a plan to free el-Masri (see (April 2004)). After they all say their piece, Tenet is, according to author Jane Mayer, “stunned.” He says: “Are you telling me we’ve got an innocent guy stuck in prison in Afghanistan? Oh sh_t! Just tell me—please—we haven’t used ‘enhanced’ interrogation techniques on him, have we?” The group then discusses what to do, and one suggestion is to let him go with a large quantity of cash. According to two of Mayer’s sources, Pavitt chuckles, “At least the guy will earn more money in five months than he ever could have any other way!” [Mayer, 2008, pp. 286] No definitive decision about what to do is taken, and Tenet goes to see National Security Adviser Condoleezza Rice (see (May 2004)).

Entity Tags: Khalid el-Masri, Jose Rodriguez, Jr., Counterterrorist Center, George J. Tenet, Alfreda Frances Bikowsky, Alec Station, Central Intelligence Agency, James Pavitt

Timeline Tags: Torture of US Captives

CIA Director George Tenet informs National Security Adviser Condoleezza Rice that the agency has been holding an innocent German named Khalid el-Masri at a black site for several months (see January 23 - March 2004). Rice’s demeanor during the meeting will be described as “very flat, as always,” and after hearing the story she says slowly, “Okay.” Tenet then explains the plan to conduct a “reverse rendition,” releasing el-Masri with a large amount of cash, but with no explanation to anyone, including the German government. Rice disagrees with the plan. “Your plan won’t work. We have to tell the Germans. We can’t put the president in the position of telling a lie to our allies,” she says. Deputy Secretary of State Richard Armitage is also consulted about the matter, and agrees with Rice’s assessment. [Mayer, 2008, pp. 286]

Entity Tags: Condoleezza Rice, Central Intelligence Agency, Khalid el-Masri, Richard Armitage, George J. Tenet

Timeline Tags: Torture of US Captives

The US Ambassador to Germany Daniel Coats tells German Interior Minister Otto Schily that the CIA has been holding an innocent German citizen named Khalid el-Masri at a black site for several months (see January 23 - March 2004) and shortly plans to release him (see May 29, 2004). The CIA had intended to keep this information from the German authorities (see (May 2004)), but the Germans are told at the suggestion of National Security Adviser Condoleezza Rice and Deputy Secretary of State Richard Armitage (see (May 2004)). According to author Jane Mayer, Schily is “extremely unhappy” at hearing the news and makes it clear that he would have preferred not to have known. “Why are you telling me this?” he asks. “My secretary is here—taking notes! Now there’s a record! It will get out—it will become a German political issue. I’ll have to face investigations—I’ll have to testify in front of the Bundestag! Why didn’t you just let him go, give him some money, and keep it quiet?” [Mayer, 2008, pp. 286]

Entity Tags: Otto Schily, Daniel Coats

Timeline Tags: Torture of US Captives

At the end of May, more than a week after the German’s visit (see Mid-May 2004), [Guardian, 1/14/2005] Khalid el-Masri is cuffed, blindfolded, and put on a small jet. After a bus ride of six or seven hours, he is left on the side of the road. He follows the instruction of a man who tells him to walk in a certain direction and arrives at a border crossing, which he discovers is in northern Albania close to the Macedonian border. Three Albanian border officers await him. When El-Masri tells them of his five months in captivity, one of them starts to laugh. He says, according to El-Masri, “Don’t tell that story to anyone because no one will believe it. Everyone will laugh.” El-Masri is then handed back the belongings that were taken from him on the first day of his captivity in Macedonia (see December 31, 2003-January 23, 2004), including his passport and money. His passport is then stamped with the date of May 29, 2004. He returns to Germany on June 3. [New York Times, 1/9/2005]

Entity Tags: Khalid el-Masri

Timeline Tags: Torture of US Captives

Alfred Frances Bikowsky (see September 21, 2011), the CIA officer responsible for the wrongful rendition and torture of the innocent German Khalid el-Masri (see Before January 23, 2004 and January 23 - March 2004), is promoted at some point after el-Masri is released from prison (see May 29, 2004). Writing in 2008, author Jane Mayer will say Bikowsky is appointed to “a top post handling sensitive matters in the Middle East.” [New York Review of Books, 8/14/2008] A February 2011 Associated Press article will state that at that time Bikowsky is head of the agency’s Global Jihad Unit, so presumably the promotion is to the position of head of this unit. [Associated Press, 2/9/2011]

Entity Tags: Global Jihad Unit, Central Intelligence Agency, Alfreda Frances Bikowsky

Timeline Tags: Torture of US Captives

The “Salt Pit” prison near Kabul, Afghanistan.The “Salt Pit” prison near Kabul, Afghanistan. [Source: Trevor Paglen.]Khalid el-Masri and the American Civil Liberties Union (ACLU) file a lawsuit against former CIA director George Tenet and three corporations. The suit alleges that all of the defendants were complicit in el-Masri’s abduction transfer to to a secret prison, and subsequent mistreatment (see December 31, 2003-January 23, 2004, January 23 - March 2004, and March-April 2004 ). Tenet is said to have known that the CIA had mistakenly detained an innocent man, but allowed el-Masri to remain in detention for two months. The three corporations are accused of owning and operating airplanes that transported el-Masri to a secret prison in Afghanistan known as the “Salt Pit.” [American Civil Liberties Union, 12/6/2005; Beeson, Wizner, and Goodman, 12/6/2005 pdf file]

Entity Tags: Khalid el-Masri, American Civil Liberties Union, Central Intelligence Agency, George J. Tenet

Timeline Tags: Torture of US Captives, Civil Liberties

The lawsuit brought forth by Khalid el-Masri and the ACLU (see December 6, 2005) is dismissed by US District Judge T.S. Ellis III in Alexandria, who rules that the state secrets privilege (see March 9, 1953) was properly invoked by the US Justice Department. The judge argues that Masri’s “private interests must give way to the national interest in preserving state secrets.” [Washington Post, 5/19/2006]

Entity Tags: American Civil Liberties Union, Central Intelligence Agency, T.S. Ellis III, Khalid el-Masri

Timeline Tags: Torture of US Captives, Civil Liberties

A group of German civil rights lawyers files a lawsuit against the German government, demanding that the government attempt to extradite 13 CIA agents named in the alleged kidnapping of a German citizen. Khalid el-Masri, a German citizen of Lebanese descent, says he was abducted in December 2003 at the Serbian-Macedonian border (see December 31, 2003-January 23, 2004 and January 23 - March 2004). He was flown by the CIA to a detention center in Kabul, Afghanistan, where he was interrogated and abused for months. El-Masri says he was released in Albania in May 2004, and told that he was the victim of mistaken identity (see May 29, 2004). No government or body has yet taken responsibility for el-Masri’s kidnapping and brutalization. US Secretary of State Condoleezza Rice and other US officials have refused to address the case, but German Chancellor Angela Merkel has said the US acknowledged making a mistake with el-Masri.
Accountability - “We are demanding accountability” with the lawsuit, says attorney Wolfgang Kaleck. For himself, el-Masri says, “I just want the German government to acknowledge what happened to me.” An American judge dismissed a lawsuit filed by el-Masri against the CIA and three US corporations in 2006 (see May 18, 2006). In January 2007, German prosecutors issued warrants for the arrests of 13 CIA agents, accusing them of wrongfully imprisoning el-Masri and causing him serious bodily harm. The US Justice Department refused the requests, citing “American national interests,” and the German Ministry of Justice dropped the request. The lawsuit seeks to force the German government to reconsider extradition for the CIA agents.
Extraordinary Rendition - According to human rights organizations, el-Masri’s case is an example of “extraordinary rendition,” where the US takes suspected terrorists to foreign countries where they are subjected to abuse and torture. A criminal lawsuit against CIA officers in conjunction with the el-Masri case is also ongoing in Macedonia; that case could end up before the European Court of Human Rights. And the American Civil Liberties Union has also filed a petition on el-Masri’s behalf through the Inter-American Commission on Human Rights, a body that seeks to establish international laws. [Associated Press, 6/9/2008]

Entity Tags: European Court of Human Rights, Condoleezza Rice, American Civil Liberties Union, German Ministry of Justice, Khalid el-Masri, US Department of Justice, Wolfgang Kaleck, Central Intelligence Agency, Angela Merkel

Timeline Tags: Torture of US Captives

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