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[UPDATED] Commission Inquiry Into Rendition May Rankle Obama Administration

Today’s news that the Inter-American Commission on Human Rights will hear the claims of kidnapping and torture filed against the United States by the American Civil Liberties Union on behalf of Khaled El-Masri, an innocent German citizen and car salesman subjected to the Bush administration’s extraordinary rendition program in 2003, may not go over so well with the Obama administration.

That’s because the current administration announced earlier this week that it will continue the rendition program, albeit under the authority of a broader inter-agency team. But the administration has not ruled out sending terror suspects to countries that are known to torture them in custody.

A Justice Department release on Monday clarified that the U.S. government will obtain “assurances from foreign countries” that they’ll treat the prisoners humanely, and will “insist on a monitoring mechanism” to check up on the prisoner every once in a while, although it may provide some “advance notice to the detaining government.”

Whether or not that “trust me” approach is really worth trusting, given the similar assurances provided by the Bush administration, it does suggest that the Obama team may not welcome an Inter-American Commission inquiry into rendition.

Although the original El-Masri court case that Spencer referred to was brought against the Bush administration, more recent attempts to sue the government on behalf of innocent victims of extraordinary rendition have been similarly rebuffed by the Obama Justice Department, and on the same “state secrets” grounds.

As a result, not one victim of the Bush administration’s rendition program has had his day in court.

El-Masri, a German citizen, was kidnapped in 2003 in Macedonia and flown by U.S. agents to a CIA-run “black site” in Afghanistan. There, he claims he was beaten, drugged, blindfolded, confined in a tiny dirty cell, and prevented from communicating with anyone in the outside world, including his own family or the German government. About four months later, after apparently concluding that they had captured the wrong person, the CIA flew him to Albania and left him on a hillside in the dead of night. El-Masri has never been charged with a crime.

Update: According to Steven Watt, El-Masri’s lawyer, the Obama administration probably couldn’t make the “state secrets” claim in the Inter-American Commission, which does “not recognize blanket prohibition on accessing courts to assert fundamental rights.” However, ” Obama can try to argue that the state secrets privilege was legitimately raised before domestic courts and El Masri thus wasn’t denied access to a remedy (one of El Masri’s claims before the IACHR) but in our view, based on our assessment of international law, Obama wouldn’t prevail.”

He adds: “there is no equivalent of the state secrets privilege recognized under international human rights law to bar a human rights victim accessing an international tribunal such as the Commission. ”

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