Image: El-Masri
Chip Somodevilla  /  Getty Images
With protesters following behind, Khaled el-Masri walks to his hotel after leaving the U.S. court of appeals on Tuesday.
updated 11/28/2006 6:41:26 PM ET 2006-11-28T23:41:26

Courts can consider a German man's claims that the CIA tortured him in an Afghanistan prison without exposing state secrets, the man's lawyer told a federal appeals court Tuesday.

Attorney Ben Wizner urged a three-judge panel to reinstate Khaled el-Masri's lawsuit against former CIA Director George Tenet and others. A federal judge dismissed the case in May, ruling a trial could divulge state secrets and harm national security.

At the heart of the case is the CIA's "extraordinary rendition" program, in which terror suspects are captured and taken to foreign countries for interrogation. The program has been heavily criticized by human rights groups.

"The world is watching this case — not to learn intelligence secrets but to see whether we give justice to an innocent victim of our anti-terror policy," Wizner said.

In his lawsuit, the Lebanese-born el-Masri says he was mistakenly identified as an associate of the Sept. 11, 2001, hijackers and was kidnapped while attempting to enter Macedonia on New Year's Eve 2003. He claims he was flown to a CIA-run prison known as the "salt pit" in Kabul, Afghanistan, where he was beaten and sodomized with an object during five months in captivity.

"I have confidence in the American judicial systems and its courts," el-Masri said through a translator after the hearing Tuesday. "What I really want is that they admit to me that an injustice was done to me. I would like an explanation and I would like an apology."

The lawsuit seeks damages of at least $75,000.

Greg Katsis, a lawyer for the U.S. Department of Justice, argued the government properly invoked its state secrets privilege to protect information outlined in a classified affidavit that Judge T.S. Ellis III read before dismissing the lawsuit.

"Just because some facts are in the public domain does not eliminate protection of other facts not in the public domain," Katsis said.

Appellate Judge Robert King suggested Wizner faced an uphill battle in challenging a ruling that a judge based largely on a secret affidavit.

"He knew things you didn't know," King told Wizner.

Conditions 'not fit for human beings'
"It is not exaggerated to say the conditions were not fit for human beings at all," el-Masri told reporters outside the courthouse. "After five months, they simply took me back and dropped me like a piece of luggage in the woods of Albania and said they didn't want to know anything about this, they didn't want to hear anything about this anymore."

Katsis noted that the government has neither confirmed nor denied el-Masri's account.

"This is a situation where there may be a wrong without a remedy — or without a judicial remedy," King said, noting that Ellis said in his ruling in May that any relief for el-Masri might have to come from the executive or legislative branch.

After the hearing, Wizner told reporters: "If we shut the courthouse doors to Khaled el-Masri, that will have a terrible effect on the willingness of other countries to cooperate with our government and the belief of other countries that we are a model of democracy and fair play."

Along with Tenet, defendants include corporations that allegedly owned and operated the airplanes used to transport el-Masri and several unknown employees of those corporations and the CIA.

King was joined on the panel by Judges Allyson Duncan and Dennis Shedd. The appeals court usually takes several weeks to issue its ruling.

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