CIA Rendition: The Beginning of the End of Impunity?

The recent Associated Press investigation into the CIA accountability process, a chronicle of botched missions and staggering impunity, held one piece of encouraging information—that the agency had conducted a previously undisclosed inquiry, led by its own inspector general, into the extraordinary rendition of Khaled El-Masri. The inquiry found that the rendition of El-Masri, a German citizen detained in Macedonia on New Year’s Eve 2004 and transferred to CIA secret detention in Kabul, had been not only erroneous, but illegal. After the internal investigation, the agency disciplined a staff lawyer.

The good news, unfortunately, ends there.

Instead, the AP reporters, Adam Goldman and Matt Apuzzo, pick up the story begun in The Dark Side, Jane Mayer's celebrated account of George W. Bush’s “war on terror.” In her book, Mayer reconstructs how El-Masri’s fate was decided during the three long weeks he spent in extralegal detention in a Skopje hotel:

Back in Langley, the head of the Al Qaeda Unit, the same hard-driving woman who had been scolded for her voyeuristic trip to watch the waterboarding of Khalid Sheikh Mohammed, agitated for the CIA to take custody of Masri. She had no proof, but she argued that he was probably a terrorist. Having been in the Bin Laden Unit that failed to connect the dots before September 11, she was doubly determined to let no terrorist slip through the cracks again.

Except that Khaled El-Masri was never a terrorist.

El-Masri’s abduction became one of the most embarrassing diplomatic incidents in recent memory. And yet, as  Goldman and Apuzzo report, the then-head of the Al Qaeda Unit, who almost single-handedly pushed for El-Masri’s rendition, was never disciplined for her mishandling of the case. In fact, she was promoted under Obama to “one of the premier jobs in the CIA's Counterterrorism Center.” Even the staff lawyer, the only person ever reprimanded over the El-Masri debacle, has reportedly moved up the CIA ranks to legal adviser to a key regional division.

In the meantime, both the Bush and Obama administrations have steadfastly refused to publicly acknowledge that the U.S. ever held El-Masri or offer apologies. El-Masri has not even been granted a proper day in court, as a lawsuit brought on his behalf by the American Civil Liberties Union was thrown out by U.S. courts, including the Supreme Court, on state secrets grounds. Now it appears now that El-Masri was not only unable to receive public justice—he was denied even the secret justice of the CIA’s murky internal sanctions.

El-Masri’s case has found better traction in Europe. In September 2009, the Open Society Justice Initiative filed an action with the European Court of Human Rights against Macedonia, in connection with that country’s role in El-Masri’s ordeal. Last October, that court took the key step of formally communicating the case to the Macedonian government, requesting detailed explanations on El-Masri’s allegations.

Last Friday, a civil court in Skopje, Macedonia, heard the testimony of a human rights investigator on the CIA flight circuit that was used to render El Masri from Skopje to Kabul. Because the CIA rendition crew stopped twice in Palma de Mallorca for some rest and recreation during that circuit, using false identities, Spanish prosecutors have announced that they will issue international arrest warrants against the crew members.

These actions provide some hope for accountability, as well as a sharp contrast to the U.S. political and justice systems, which have utterly failed an innocent victim of the global war on terror—in the name of “not looking back.”  The Justice Initiative has repeatedly called on the Obama Administration to bring an end to this injustice, which continues to take a heavy toll on Khaled El-Masri and his family. The first step would be for the U.S. government to publicly own up to the truth—a truth they have accepted in private conversations, for example with German officials, and in embassy cables disclosed by Wikileaks.

Earlier this week, former President George W. Bush canceled a trip to Geneva over alleged concerns that rights groups might use the opportunity to bring legal actions over his authorization of the use of torture by CIA interrogators. That may be small consolation for El-Masri, who was subjected to several of the “enhanced interrogation” techniques Bush personally approved, by his own admission in a recent memoir. But it may be the beginning of the end of complete impunity.

It is a measure of democracies that they must “look back,” even when the view in the mirror is a painful distortion of the founding promise.