The CIA's unlawful detention and torture of Khaled El-Masri has left him "a broken man," according to a published yesterday.
The story of El-Masri, an ACLU client, is especially poignant following the release of the Senate torture report summary – and the CIA response to it. The reports include the first public acknowledgement by the United States that the CIA's abduction, rendition, and detention of Khaled, a German citizen, were based on colossal mistakes. The reports also reveal the lengths to which the CIA went to cover up those mistakes and to avoid accountability for them.
Most of the facts of Khaled's case and the CIA's responsibility for wrongdoing were well-known long before the publication of the Senate torture report. They made headline news around the world shortly after he returned to Germany some five months after he was kidnapped in Macedonia and then stripped, beaten, sodomized, drugged, and flown halfway around the world to a fetid, secret CIA-run prison in Afghanistan. Khaled's case has also been the subject of a criminal investigation in Germany, numerous intergovernmental inquiries in Europe, and a of the European Court of Human Rights in December 2012. That ruling, in a case against Macedonia, found that Khaled had been unlawfully rendered and tortured by the CIA.
But until the release of the Senate report and the CIA's response, U.S. officials had steadfastly refused to either confirm or deny the United States' role. Although the two reports do not reveal all the gruesome details, they do provide important new information.
The public has learned that the CIA knew of its mistakes very shortly after it had wrongfully detained Khaled. According to the CIA inspector general, CIA officers "quickly concluded" that "[Khaled] was not a terrorist" after first questioning him in January 2005. Despite this conclusion, Khaled wasn't immediately released because, according to the Senate torture report, "different components within the CIA disagreed on the process for his release." It took the intervention of the National Security Council to settle the dispute and secure Khaled's repatriation to Germany in May 2005. That would confirm that, despite her claim to the contrary, Condoleezza Rice, a member of the council then and later secretary of state, that mistakes had been made resulting in Khaled's wrongful rendition and detention when she visited Germany in December 2005.
That month Khaled sued the U.S. government over what had happened to him. Compensation was never his priority. He wanted an explanation, an apology, and reassurance that what he had endured wouldn't happen to anyone else.
In March 2006, Department of Justice lawyers sought immediate dismissal of the case, arguing that it involved state secrets that could not be disclosed in court. Porter Goss, then director of the CIA, told the court he could neither confirm nor deny the CIA's role in Khaled's rendition and detention, because doing so would harm U.S. national security by revealing means, methods, and operational details of the CIA's foreign intelligence interests.
The district court bought the government's arguments, dismissing the case in May 2006 without considering any of the voluminous and publicly available information confirming U.S. involvement in Khaled's rendition, secret detention, and torture. After the ACLU appealed, in November 2006, Justice Department lawyers pursued the same state secrecy arguments. In July 2007, the Bush Justice Department was persuading the U.S. Supreme Court not to review Khaled's case.
The Senate torture report reveals the deceit that's missing from this timeline, which helped deny Khaled his day in court.
As far back as January 2005, the CIA knew that it had made mistakes. The National Security Council knew of them shortly thereafter. In February 2006, the agency admitted to the House Permanent Select Committee on Intelligence that it had wrongfully detained five individuals. (The Senate report, based on the CIA's own records, puts that figure at 26.) One of the five was Khaled. The next month, on March 8 – the very day Goss was signing his state secrets declaration – the CIA admitted to five members of the Senate Intelligence Committee that it had detained and subsequently released Khaled "'when [they] reached a point in debriefings that required [foreign government] assistance' that was not forthcoming."
In other words, they released Khaled after interrogating him, realizing their mistakes, and failing to get German authorities to assist in his continued detention. In July 2007 – the same month that Justice Department lawyers were telling the Supreme Court it should not hear Khaled's case on secrecy grounds – the CIA's inspector general concluded that "[a]vailable intelligence information did not provide a sufficient basis to render and detain Khalid al-Masri (sic)," and that the "Agency's prolonged detention of al-Masri (sic) was unjustified." The CIA only responded to this finding in October 2007, admitting to the Senate Intelligence Committee that there had been no basis for Khaled's rendition and detention, and that the agency had wrongfully detained an innocent man. That same day, on October 9, the Supreme Court declined to review his case.
Despite all this, the Obama administration has so far declined to acknowledge Khaled's wrongful detention and abuse, and State Department lawyers have yet to respond to his petition to the Inter-American Commission on Human Rights, filed over six years ago. Protecting legitimate state secrets wasn't the CIA's primary interest. It invoked secrecy to cover up its embarrassing mistakes – which included egregious human rights violations – and to avoid accountability.
Now that the CIA's mistakes and atrocities are a matter of public record, the government should take responsibility for them and make amends. As an important first step, the United States should provide Khaled – and other victims of CIA torture – with a full, official, and public accounting of what the CIA did to him, and grant him an apology, compensation, and counseling for rehabilitation.
The law and basic decency demand no less. And it might help a broken man start to heal.
Learn more about torture and other civil liberty issues: Sign up for breaking news alerts, , and .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.