New York Times
May 19, 2006
by Neil A. Lewis

A federal judge on Thursday dismissed a lawsuit brought by a man who says he was an innocent victim of the United States government's program transferring terrorism suspects secretly to other countries for detention and interrogation.

Judge T. S. Ellis 3d ruled in favor of the Bush administration, which had argued that the "state secrets" privilege provided an absolute bar to the lawsuit against a former C.I.A. director and transportation companies. Judge Ellis said the suit's going forward, even if the government denied the contentions, would risk an exposure of state secrets.

The case involves Khaled el-Masri, a Kuwaiti-born German, who was arrested on Dec. 31, 2003, in Macedonia, where he had gone for a vacation. From there, he was flown to a prison in Kabul, Afghanistan, where he was held for five months before being released. During his incarceration in Kabul, he has said, he was shackled, beaten and injected with drugs.

United States officials have acknowledged the principal elements of Mr. Masri's account, saying intelligence authorities may have confused him with an operative of Al Qaeda with a similar name. The officials also said he was released in May 2004 on the direct orders of Condoleezza Rice, then the national security adviser, after she learned he had been mistakenly identified as a terrorism suspect.

Judge Ellis said Mr. Masri's claim involved the clandestine program of transferring terrorism suspects known as "extraordinary rendition" and "the means and methods the foreign intelligence service of this and other countries used to carry out the program."

Citing an affidavit by Porter J. Goss, who will leave as director of the Central Intelligence Agency next week, Judge Ellis added, "Any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security."

Mr. Masri's lawyers from the American Civil Liberties Union had argued that there were no state secrets to protect as his story has been widely reported and officials had even acknowledged the existence of the rendition program. But Judge Ellis said there was an important distinction between "a general admission the program exists and the admission or denial of the specific facts at issue in this case."

Ben Wizner, an A.C.L.U. lawyer for Mr. Masri, said, "The idea that the court must close its eyes and ears to common sense and protect the nation from disclosure of information that the whole world knows is absurd." He said an appeal would be considered.

Judge Ellis said Mr. Masri's interests in having his rights vindicated in court must yield to "the national interest in preserving state secrets." But he noted that if Mr. Masri's account were true, he "suffered injuries as a result of our country's mistake and deserves a remedy." He said only the legislative or executive branches could provide such a remedy, presumably in the form of compensation or apology.