Khaled El-Masri with two of his children

Perhaps it is time to stop asking “Why do they hate us?” and consider “why do we hate ourselves?” America does stand for something, as it has for generations of immigrants (including my grandfather from Sicily and my wife from Lebanon). That something, enshrined in our sacred documents promoting liberty and justice for all, is a much-needed system of checks and balances to keep any particular part of our governing system from monopolizing its power at the expense of the citizens. If, as President Bush insists, they hate us because we have liberty, then the decision Tuesday by the Supreme Court not to hear the case of Khaled al-Masri must be good news. We no longer have liberty, so “they” should have nothing to hate. Let’s declare an end to the War of Terrorism, keep our shoes on the next time we board a flight, and take all those with the suspicious name of Muhammad or Ali off the Homeland Security list of the unwanted.

The editorial in today’s New York Times cuts through the liberal vs. conservative crap shoot of opinion mongering to a sober assessment of the case in question. Take a look for yourself, before I comment further.

Supreme Disgrace

The Supreme Court exerts leadership over the nation’s justice system, not just through its rulings, but also by its choice of cases — the ones it agrees to hear and the ones it declines. On Tuesday, it led in exactly the wrong direction.

Somehow, the court could not muster the four votes needed to grant review in the case of an innocent German citizen of Lebanese descent who was kidnapped, detained and tortured in a secret overseas prison as part of the Bush administration’s morally, physically and legally abusive anti-terrorism program. The victim, Khaled el-Masri, was denied justice by lower federal courts, which dismissed his civil suit in a reflexive bow to a flimsy government claim that allowing the case to go forward would put national security secrets at risk.

Those rulings, Mr. Masri’s lawyers correctly argued, represented a major distortion of the state secrets doctrine, a rule created by the federal courts that was originally intended to shield specific evidence in a lawsuit filed against the government. It was never designed to dictate dismissal of an entire case before any evidence is produced.

It may well be that one or more justices sensitive to the breathtaking violation of Mr. Masri’s rights, and the evident breaking of American law, refrained from voting to accept his case as a matter of strategy. They may have feared a majority ruling by the Roberts court approving the dangerously expansive view of executive authority inherent in the Bush team’s habitual invocation of the state secrets privilege. In that case, the justices at least could have commented, or offered a dissent, as has happened when the court abdicated its responsibility to hear at least two other recent cases involving national security issues of this kind.

Mr. Masri says he was picked up while vacationing in Macedonia in late 2003 and flown to a squalid prison in Afghanistan. He says he was questioned there about ties to terrorist groups and was beaten by his captors, some of whom were Americans. At the end of May 2004, Mr. Masri was released in a remote part of Albania without having been charged with a crime. Investigations in Europe and news reports in this country have supported his version of events, and German Chancellor Angela Merkel has said that Secretary of State Condoleezza Rice acknowledged privately to her that Mr. Masri’s abduction was a mistake, an admission that aides to Ms. Rice have denied. The Masri case, in other words, is being actively discussed all over the world. The only place it cannot be discussed, it seems, is in a United States courtroom.

In effect, the Supreme Court has granted the government immunity for subjecting Mr. Masri to “extraordinary rendition,” the morally and legally unsupportable United States practice of transporting foreign nationals to be interrogated in other countries known to use torture and lacking basic legal protections. It’s hard to imagine what, at this point, needs to be kept secret, other than the ways in which the administration behaved irresponsibly, and quite possibly illegally, in the Masri case. And Mr. Masri is not the only innocent man kidnapped by American agents and subjected to abuse and torture in a foreign country. He’s just the only one whose lawsuit got this far.

This unsatisfactory outcome gives rise to new worries about the current Supreme Court’s resolve to perform its crucial oversight role — particularly with other cases related to terrorism in the pipeline and last week’s disclosure of secret 2005 Justice Department memos authorizing the use of inhumane interrogation methods that just about everyone except the Bush White House thinks of as torture. Instead of a rejection, the Masri case should have occasioned a frank revisiting of the Supreme Court’s 1953 ruling in United States v. Reynolds. That case enshrined the state secrets doctrine that this administration has repeatedly relied upon to avoid judicial scrutiny of its lawless actions.

Indeed, the Reynolds case itself is an object lesson in why courts need to apply a healthy degree of skepticism to state secrets claims. The court denied the widows of three civilians, who had died in the crash of a military aircraft, access to the official accident report, blindly accepting the government’s assertion that sharing the report would hurt national security. When the documents finally became public just a few years ago, it became clear that the government had lied. The papers contained information embarrassing to the government but nothing to warrant top secret treatment or denying American citizens honest adjudication of their lawsuit.

In refusing to consider Mr. Masri’s appeal, the Supreme Court has left an innocent person without any remedy for his wrongful imprisonment and torture. It has damaged America’s standing in the world and established the nation as Supreme Enabler of the Bush administration’s efforts to avoid accountability for its actions. These are not accomplishments to be proud of.

What makes this an intriguing case (as if those that reach the Supreme Court would ever be ordinary) is that no credible source is disputing the fact that Khaled was mistaken as a “terrorist” and tortured abroad after being apprehended by U.S. intelligence forces. The fact that the agencies responsible for the mistake are silent speaks a lot. So the question revolves around the easily manipulated rationale of protecting state secrecy. In other words, the individuals directing or following out an undercover policy in the interests of national security should not be held accountable for mistakes lest the way such agents operate come out into the open in a federal court. But the problem with this argument is that this is not just a case of dirty linen not to be hung out in public, but something so dirty that it stinks and needs a thorough washing.

So many strands weave into this case that it would certainly have been prudent of the Court to weigh in, even if only for the appearance of balance. The legal issue is about the denial of rights to an individual. President Bush says that America does not torture anyone. Of course, once torture is redefined to include just about anything short of killing, that is an easy claim to make. But in this case “we” did not do the torturing, “we” just delivered a person to be tortured as part of a policy. It is the policy, more than its mistake, that is the real problem. What happened to an innocent man is not unusual, as the DNA clearance of death-row inmates has proven a number of times. But it will happen again, just as yesterday there were reports of a new drive-by security shooting of Armenian women in a car that got too close for comfort of trigger-happy mercenary guards in liberty-deprived Baghdad. The Supreme Court does not make policy; that is the job of Congress. Unfortunately it is a job that the spineless Congress, even with a slim Democratic majority in the Senate, has passed on. So the decision not to set the record straight on the role of government to infringe on basic rights under the cloak of secrecy (surely an issue dealt with on numerous occasions in the past) is a fumble to go along with the dropped passes on both sides of the congressional aisle.

Innocent until proven guilty: this is what the world used to think America stood for in principle and tried to preserve in the quotidian public sphere where citizens live and die. Now we have a case of innocent with no chance to be proven guilty for a man whose primary fault was being a Lebanese Muslim with a German accent. Ironically, before his ordeal Mr. el-Masri was a carpenter. Interesting occupation for a man accused of a crime he did not commit and tortured in the process. I wonder if President Bush had consulted the Higher Carpenter of his faith before letting loose the lapdogs of his Justice Department before the highest court in the land.

Daniel Martin Varisco

For more information, check out a “liberal” view at ACLU page and a “conservative” view at Captain’s Quarter.