El-Masri v. U.S.

• Decision Date: 02 March 2007
• Docket Number: No. 06-1667.,06-1667.
• Citation: 479 F.3d 296
• Parties: Khaled EL-MASRI, Plaintiff-Appellant, v. UNITED STATES of America, Intervenor-Appellee, and George J. Tenet; Premier Executive Transport Services; Keeler & Tate Management Group, LLC; Aero Contractors, Limited; Does 1-20, Defendants. Morton Abramowitz; F. Allen "Tex" Harris; William C. Harrop; Sam Hart; Edward L. Peck; William D. Rogers; Pierre Shostal; E. Michael Southwick; Ward Thompson; Peter Wolcott, Former United States Diplomats, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

479 F.3d 296

Khaled EL-MASRI, Plaintiff-Appellant, v. UNITED STATES of America, Intervenor-Appellee, and George J. Tenet; Premier Executive Transport Services; Keeler & Tate Management Group, LLC; Aero Contractors, Limited; Does 1-20, Defendants Morton Abramowitz; F. Allen "Tex" Harris; William C. Harrop; Sam Hart; Edward L. Peck; William D. Rogers; Pierre Shostal; E. Michael Southwick; Ward Thompson; Peter Wolcott, Former United States Diplomats, Amici Supporting Appellant.

No. 06-1667.

United States Court of Appeals, Fourth Circuit.

Argued November 28, 2006.

Decided March 2, 2007.

ARGUED:

Ben Wizner, American Civil Liberties Union, New York, New York, for Appellant. Gregory George Katsas, United States Department of Justice, Civil Division, Appellate Section, Washington, D.C., for Appellee.

ON BRIEF:

Ann Beeson, Melissa Goodman, American Civil Liberties Union, New York, New York; Victor M. Glasberg, Victor M. Glasburg & Associates, Alexandria, Virginia; Paul Hoffman, Schonbrun, Desimone, Seplow, Harris & Hoffman, Venice, California; Rebecca Glenberg, American Civil Liberties Union of Virginia, Richmond, Virginia, for Appellant. Peter D. Keisler, Assistant Attorney General, Jeffrey S. Bucholtz, Principal Deputy Assistant Attorney General, Douglas Letter, Terrorism Litigation, H. Thomas Byron, III, Attorney, Appellate Staff, United States Department of Justice, Washington, D.C.; John A. Rizzo, Acting General, Central Intelligence Agency, Washington, D.C.; Chuck Rosenberg, United States Attorney, R. Joseph Sher, Assistant United States Attorney, Dennis C. Barghaan, Jr., Assistant United States Attorney, Larry Lee Gregg, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee. Sidney S. Rosdeitcher, David M. Cave, Colin McNary, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, New York; Aziz Huq, Brennan Center for Justice at NYU School of Law, New York, New York, for Amici Supporting Appellant.

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge SHEDD and Judge DUNCAN joined.

KING, Circuit Judge.

Khaled El-Masri appeals from the dismissal of his civil action against former Director of Central Intelligence George Tenet, three corporate defendants, ten unnamed employees of the Central Intelligence Agency (the "CIA"), and ten unnamed employees of the defendant corporations.¹ In his Complaint in the Eastern District of Virginia, El-Masri alleged that the defendants were involved in a CIA operation in which he was detained and interrogated in violation of his rights under the Constitution and international law. The United States intervened as a defendant in the district court, asserting that El-Masri's civil action could not proceed because it posed an unreasonable risk that privileged state secrets would be disclosed. By its Order of May 12, 2006, the district court agreed with the position of the United States and dismissed El-Masri's Complaint. See El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va.2006) (the "Order"). On appeal, El-Masri contends that the district court misapplied the state secrets doctrine and erred in dismissing his Complaint. As explained below, we affirm.

I.

A.

On December 6, 2005, El-Masri, a German citizen of Lebanese descent, filed his Complaint in this case, alleging, in substance, as follows: on December 31, 2003, while travelling in Macedonia, he was detained by Macedonian law enforcement officials; after twenty-three days in Macedonian custody, he was handed over to CIA operatives, who flew him to a CIA-operated detention facility near Kabul, Afghanistan; he was held in this CIA facility until May 28, 2004, when he was transported to Albania and released in a remote area; and Albanian officials then picked him up and took him to an airport in Tirana, Albania, from which he travelled to his home in Germany. The Complaint asserted that El-Masri had not only been held against his will, but had also been mistreated in a number of other ways during his detention, including being beaten, drugged, bound, and blindfolded during transport; confined in a small, unsanitary cell; interrogated several times; and consistently prevented from communicating with anyone outside the detention facility, including his family or the German government. El-Masri alleged that his detention and interrogation were

carried out pursuant to an unlawful policy and practice devised and implemented by defendant Tenet known as "extraordinary rendition": the clandestine abduction and detention outside the United States of persons suspected of involvement in terrorist activities, and their subsequent interrogation using methods impermissible under U.S. and international laws.

Complaint ¶ 3.

According to the Complaint, the corporate defendants provided the CIA with an aircraft and crew to transport El-Masri to Afghanistan, pursuant to an agreement with Director Tenet, and they either knew or reasonably should have known that "Mr. El-Masri would be subjected to prolonged arbitrary detention, torture and cruel, inhuman, or degrading treatment in violation of federal and international laws during his transport to Afghanistan and while he was detained and interrogated there." Complaint ¶ 61. El-Masri also alleges that CIA officials "believed early on that they had the wrong person," and that Director Tenet was notified in April 2004 that "the CIA had detained the wrong person" in El-Masri. Id. ¶ 43.

The Complaint alleged three separate causes of action. The first claim was against Director Tenet and the unknown CIA employees, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of El-Masri's Fifth Amendment right to due process. Specifically, El-Masri contends that Tenet and the defendant CIA employees contravened the Due Process Clause's prohibition against subjecting anyone held in United States custody to treatment that shocks the conscience or depriving a person of liberty in the absence of legal process. El-Masri's second cause of action was initiated pursuant to the Alien Tort Statute (the "ATS"), and alleged that each of the defendants had contravened the international legal norm against prolonged arbitrary detention. The third cause of action was also asserted under the ATS, and maintained that each defendant had violated international legal norms prohibiting cruel, inhuman, or degrading treatment.

On March 8, 2006, the United States filed a Statement of Interest in the underlying proceedings, pursuant to 28 U.S.C. § 517, and interposed a claim of the state secrets privilege.² The then Director of the CIA, Porter Goss, submitted two sworn declarations to the district court in support of the state secrets privilege claim. The first declaration was unclassified, and explained in general terms the reasons for the United States' assertion of privilege. The other declaration was classified; it detailed the information that the United States sought to protect, explained why further court proceedings would unreasonably risk that information's disclosure, and spelled out why such disclosure would be detrimental to the national security (the "Classified Declaration"). Along with its Statement of Interest, the United States filed a motion to stay the district court proceedings pending resolution of its privilege claim; the next day, March 9, 2006, the court granted the requested stay. On March 13, 2006, the United States formally moved to intervene as a defendant in the district court proceedings. Contemporaneous with seeking to intervene as a defendant, the United States moved to dismiss the Complaint, contending that its interposition of the state secrets privilege precluded the litigation of El-Masri's causes of action.

El-Masri responded that the state secrets doctrine did not necessitate dismissal of his Complaint, primarily because CIA rendition operations, including El-Masri's alleged rendition, had been widely discussed in public forums. In support of this contention, Steven Macpherson Watt, a human rights adviser to the American Civil Liberties Union, filed a sworn declaration in the district court, dated April 7, 2006, in which he asserted that United States officials—including Secretary of State Condoleezza Rice, White. House Press Secretary Scott McClellan, and Directors Tenet and Goss—had publicly acknowledged that the United States had conducted renditions.³ Watt also observed that international human rights organizations had issued statements on various United States rendition operations, including El-Masri's alleged rendition, and that at least one such release had described the use of privately owned aircraft in the renditions of El-Masri and others. Additionally, according to Watt, the European Parliament and the Council of Europe had commenced investigations into possible European cooperation in United States renditions, and similar inquiries were pending in eighteen European countries.

Watt further asserted that "[m]edia reports on the rendition program generally, and Mr. El-Masri's rendition specifically, are too numerous to assemble." Watt Declaration ¶ 26. According to Watt, these media reports revealed the existence of secret CIA detention facilities , where some rendition, subjects were held, as well as the United States'"modus operandi" for conducting renditions: "masked men in an unmarked jet seize their target, cut off his clothes, put him in a blindfold and jumpsuit tranquilize him and fly him away." Id. ¶ 26(vi). And, Watt represented, the news media had documented some of the details of El-Masri's alleged rendition, including the underlying "decision-making process" and the roles of the German and Macedonian governments. Id. ¶ 26(viii).

On May 12, 2006, after receiving the parties' memoranda and declarations, and after oral argument of the matter, the...