Last week, after the prosecutor of the International Criminal Court charged six senior Kenyan officials with orchestrating widespread violence following the 2007 national elections, President Obama rightly called on all Kenya’s leaders to “cooperate fully” with the court.
Similarly, declaring that “there has to be accountability,” Obama called on Sudan to cooperate with the court after it accused President Omar Hassan al-Bashir of Sudan of genocide in Darfur in July.
To its credit, this U.S. administration has repeatedly affirmed the centrality of international justice to U.S. foreign policy. But many wonder at the apparent disconnect between American support for justice abroad and Obama’s determination to “look forward not backward” at home.
Resistance to judicial scrutiny of post-9/11 U.S. government abuses, from torture to extraordinary rendition to unlawful surveillance, has made the president’s solemn exhortations to others ring hollow, and it has undercut the credibility of U.S. aspirations to global leadership on human rights.
This month’s WikiLeaks disclosure that the Bush administration pressured Germany not to pursue 13 C.I.A. operatives suspected of involvement in the unlawful 2003-2004 abduction and mistreatment of Khaled el-Masri, a German citizen of Lebanese descent, is yet another reminder that the U.S. must change course. And Masri’s pathbreaking lawsuit before the European Court of Human Rights offers a timely opportunity for Washington to do just that.
As is now well known, Masri was seized by security officers in Macedonia on Dec. 31, 2003, while crossing the border by bus from his home in Germany. He was detained incommunicado for 23 days, during which time he was threatened, interrogated and denied permission to contact a lawyer, a consular officer or his wife. On Jan. 23, 2004, he was handcuffed and blindfolded, driven to Skopje airport and turned over to the C.I.A.
Told he would be medically examined, Masri was instead severely beaten. His clothes were sliced from his body and his underwear forcibly removed. He heard the sound of photographs being taken, he was thrown to the floor, his hands were pulled back and a boot was placed on his back. A firm object was forced into his anus.
With chains attached to his wrists and ankles, Masri was flown to Kabul, Afghanistan, where he was locked up for more than four months in a secret prison known as the “Salt Pit.” During this time, he was beaten and kicked, force-fed following a 27-day-long hunger strike and denied medical care. He was never charged or given access to his family or German representatives.
On May 28, 2004, long after U.S. officials knew they had the wrong man, Masri was flown in a C.I.A.-chartered aircraft to a military airbase in Albania, then driven several hours in a car, dumped on the side of the road and instructed not to look back.
After meeting with Secretary of State Condoleeza Rice in December 2005, German Chancellor Angela Merkel declared that the U.S. government had admitted that Masri had been “erroneously taken.” Official inquiries by the Council of Europe, the European Union, and the German Parliament have all pointed to U.S. involvement. Nonetheless, Washington has never publicly acknowledged its role in Masri’s mistreatment.
Instead, senior U.S. officials have persistently denied responsibility and obtained dismissal of Masri’s attempts to secure judicial redress in U.S. courts on the grounds that “state secrets” precluded consideration of his claims.
In 2009, represented by my organization, Masri filed a complaint in Europe’s highest court against Macedonia for its part in the affair. Last month, the court confirmed that this case will go forward.
The Masri case provides the United States a chance to back up President Obama’s accountability rhetoric with substance. Although the U.S. is not a party to the proceedings, it may assist the court by acknowledging that Masri’s rendition was a mistake and providing information about what happened.
There are many good reasons for the U.S. to use the case to signal a new direction. Masri was victim of a practice — extraordinary rendition to torture — that the U.S. has since repudiated.
The European Court is a symbol of another time in which governments recommitted themselves to the rule of law after having gone astray. Most important, we can’t preach justice to others without practicing it ourselves.
James A. Goldston, executive director of the Open Society Justice Initiative who served as coordinator of prosecutions and senior trial attorney in the office of the prosecutor at the International Criminal Court.