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The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror'

HUMAN RIGHTS ADVOCACY STORIES, Hurwitz, Satterthwaite, & Ford, eds., 2009

NYU School of Law, Public Law Research Paper No. 08-64

45 Pages Posted: 8 Dec 2008 Last revised: 24 Dec 2008

Margaret L. Satterthwaite

New York University School of Law

Date Written: December 4, 2008

Abstract

Among the most notorious anti-terror techniques used by the U.S. government in the "War on Terror" are two shrouded in secrecy: extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States to countries such as Egypt, Syria, and Morocco, where torture is systematic. Slowly, information also emerged concerning the American use of secret "black sites" to hold suspected al-Qaeda leaders and their allies. While never denying that these practices were being used, U.S. government officials repeatedly offered a single justification for departing from both human rights protections and prisoner of war rules when apprehending such individuals: the United States was involved in a new, unprecedented type of war. The case of Khaled El-Masri brings these issues before a U.S court. In an apparent case of mistaken identity, a German man of Lebanese descent was abducted while on vacation in Macedonia, transferred to a secret U.S.-controlled prison in Afghanistan, and subjected to cruel, inhuman and degrading treatment over the course of five months. Released when then-National Security Advisor Condoleezza Rice discovered that he was being held by mistake, a stunned El-Masri made his way back to Germany. In December 2005, the ACLU filed suit on his behalf, alleging violations of due process under the Fifth Amendment of the U.S. Constitution, and human rights claims based on numerous human rights and humanitarian law treaties which are cognizable under the Alien Tort Statute. This Chapter, which appears in Human Rights Advocacy Stories, tells the story of the El Masri case from its inception to dismissal, and from U.S. court to the Inter-American Commission on Human Rights.

Keywords: human rights, international law, national security, litigation

JEL Classification: K33, K10, K40

Suggested Citation

Satterthwaite, Margaret L., The Story of El Masri v. Tenet: Human Rights and Humanitarian Law in the 'War on Terror' (December 4, 2008). HUMAN RIGHTS ADVOCACY STORIES, Hurwitz, Satterthwaite, & Ford, eds., 2009; NYU School of Law, Public Law Research Paper No. 08-64. Available at SSRN: https://ssrn.com/abstract=1311622

Margaret L. Satterthwaite (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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