New York Lawyers Urge Hearing of El-Masri Case

By SARAH PORTLOCK, Special to the Sun
September 6, 2007

The New York City Bar Association is calling on the U.S. Supreme Court to accept a case involving a Lebanese-born German citizen who was confused for a suspected Al Qaeda terrorist when it reconvenes next month. The detainee, Khaled El-Masri, was arrested in 2003 at the Macedonian border after he was confused for an alleged Al Qaeda terrorist, Khalid al-Masri.

He was taken to an American facility in Afghanistan where he was allegedly beaten and interrogated, according to court documents. The American government released Mr. El-Masri in 2004 when officials realized they had detained the wrong person, according to news reports.

In 2005, the American Civil Liberties Union filed a suit on behalf of Mr. El-Masri against the then-CIA director George Tenet in federal court in the Eastern District of Virginia.

"The brief stresses the fundamental role of the courts in our constitutional system of separation of powers," the president of the NYCBA, Barry Kamins, said. Attorneys at a top New York law firm — Paul, Weiss, Rifkind, Wharton & Garrison LLP — and a government policy watchdog group, the Brennan Center for Justice at New York University, wrote the brief.

The attorneys argue that the Supreme Court should hear the case in order to clarify the procedures available to protect state secrets while still allowing claims to be heard, and because accepting the dismissal would diminish the U.S. Constitution's system of checks and balances between the branches of government.

The U.S. District Court dismissed the original suit in 2006, agreeing with the Justice Department's claim that allowing the case to proceed would disclose "state secrets," according to court documents.

Mr. El-Masri appealed his case to the Fourth Circuit Court of Appeals in Richmond, Va., one month later, and in April, a panel of three judges there upheld the district court decision dismissing the case.

Hearing the case would ensure that alleged victims of American "torture" are heard in the American justice system, the attorneys said in a statement.