Following a complaint from el-Masri, prosecutors in Munich opened an investigation into his allegations in June 2004. During the investigation, German officials verified from eyewitnesses that el-Masri did indeed travel to Macedonia by bus at the end of 2003, and that he had been detained shortly after entering that country.
Prosecutors also confirmed from stamps in his passport that he entered Macedonia on December 31, 2003, and exited on January 23, 2004. They conducted scientific tests of his hair that proved that he had spent time in a South Asian country and had been deprived of food for an extended period.
On December 6, 2005, German Chancellor Angela Merkel stated after meeting with U.S. Secretary of State Condolezza Rice that the United States had accepted that it had made an “error” in Mr. el-Masri’s case. On January 31, 2007, the German Prosecutor filed indictments against thirteen CIA agents for their alleged involvement in the rendition.
At about this time, other ominous signs began to appear to suggest that the US was working at the highest levels of the German Government to ensure that the prosecutions against the 13 CIA agents never went forward.
And, at the same time, leaks to the media began to appear in the local German press regarding el-Masri’s alleged criminal activities. CIA sources and others close to the prosecution, who requested that their names not be published, are said to have instigated a smear campaign against el-Masri. One of the consistent accusations was an el-Masri was a Muslim fundamentalist and a senior member of a terrorist group.
“That’s bogus,” says Scott Horton, counter-terrorism expert who writes for Harper’s Magazine. He explains, “Though the ‘good el-Masri’ has been involved in petty crime and has been diagnosed by court-appointed shrinks as having sociopath tendencies, the shrinks also believe that much of this psychopathology is attributable to his being held in abusive confinement by the CIA. This has been reported in the German press.”
And, given his ordeal, how could it not be so?
El-Masri was convicted of arson against a warehouse in his hometown and sentenced to two years probation because he had no criminal record. Later he was charged with a rage-filled physical assault that injured Mayor Gerald Nuremberg, the mayor of New-Ulm, Germany. The court found that while el-Masri’s rage could not be solely attributed to his CIA ordeal, that adventure did have a profound impact on his behavior.
Before his Macedonian adventure, el-Masri sold used cars and also worked as a green grocer. Now he was in prison, unable to live a normal life. His family had left him. El-Masri was coming unglued; he was falling apart at the seams.
Moreover, a set of WikiLeaks disclosures of confidential documents has caused an uproar in Europe by showing that U.S. officials pressured Germany and Spain to derail criminal investigations of Americans.
The more than 2,500 State Department cables that the anti-secrecy group has provided to news organizations since November include information about el-Masri case. More specifically, a February 2007 cable quoted the deputy U.S. chief of mission in Berlin as advising a German diplomat to “weigh carefully at every step of the way the implications for relations with the U.S.” if the agents were prosecuted; the German government withdrew the warrants five months later.”
The Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament have undertaken inquiries into the collaboration of European governments with the CIA “extraordinary renditions” program. Their inquiries corroborated the details of el-Masri’s rendition in its entirety, including his secret detention and interrogation in Macedonia and Afghanistan.
In the United States, the American Civil Liberties Union (ACLU) sued the director of the CIA, unknown CIA agents and several corporations seeking compensation and declaratory relief for violations of el-Masri’s rights. The US courts dismissed the complaint on the basis of the “state secrets privilege” on the ground that “the very subject of the litigation is itself a state secret.” The U.S. Supreme Court declined to accept jurisdiction.
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information that might endanger national security. Most legal scholars believe that when the privilege is invoked, it applies only to a suspect piece of evidence, and not to the entire evidence introduced.
In Spain, prosecutors have investigated the operations of the CIA rendition team that rendered el-Masri, whose itinerary included a stop in Palma de Mallorca before proceeding to pick him up in Skopje. In May 2010, a Spanish prosecutor asked a judge to issue international arrest warrants against members of the rendition team.
The government of Macedonia has been asked numerous times to explain what happened to el-Masri: by the German prosecutors, by the Spanish prosecutors, by the PACE inquiry, and by the European Parliament inquiry.
On October 6, 2008, el-Masri filed a formal request with the Office of the Skopje Prosecutor to carry out a criminal investigation of his illegal detention and abduction and to bring criminal proceedings against those responsible. The request alleged that unnamed personnel of the Macedonian Ministry of the Interior were responsible for the unauthorized deprivation of his liberty and for the crime of torture or other cruel, inhuman, or degrading treatment or punishment. The prosecutor took no action until the statutory time limit for commencing a criminal case expired in early 2009.
On January 24, 2009, el-Masri filed a civil lawsuit for damages against the Macedonian Ministry of Interior in relation to his unlawful abduction and ill treatment by its personnel in January 2004. The civil case is still pending at the Basic Court Skopje II.
The civil proceedings, however, are not capable of providing effective remedies for the violation of el-Masri’s rights under the European Convention on Human Rights.
Open Society Justice Initiative assisted Macedonian lawyer Filip Medarski to litigate the case through the Macedonian courts, and is acting as co-counsel before the European Court of Human Rights in a case that was filed in September 2009 on el-Masri’s behalf.
In October 2010, the European Court communicated the case to the Government of Macedonia. In January 2012, the case was referred to the Grand Chamber of the European Court, which will hold a hearing on May 16, 2012.
The Open Society Justice Initiative charges that “there has never been a proper investigation into how el-Masri was detained in Skopje and then handed over to the CIA, in violation of the requirement to undertake an investigation into violations of Article 3 European Convention on Human Rights (torture).”
Despite many attempts, it continues, “el-Masri has been unable to get a criminal court in Macedonia to hear his case, in violation of Article 13 European Convention on Human Rights (right to remedy).”
The Open Society adds that “Macedonia is hiding its role as one of the European governments that were secretly helping the CIA rendition program. el-Masri and society as a whole have a right to know the truth.”
People familiar with the case believe that el-Masri is close to his psychological breaking point. He is said to still have hope that he will be exonerated and his tormentors will be held to account, but that hope is fading fast.
Followers of the el-Masri debacle have been heard to speculate about what the US reaction would be if Iran, rather than Germany or Macedonia, was playing the puppet master in this geo-kabuki theater.
Well, maybe they have a point. How long would it be before the neocons were demanding drone strikes at the Iranian Supreme Court?
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