El-Masri himself was never brought before a judge during the 149 days he spent in secret Macedonian and U.S. captivity. These included three weeks of unauthorized detention by Macedonian intelligence agents in a private hotel room in Skopje, only a few miles from the German embassy. On trial before the European Court of Human Rights in Strasbourg will instead be the actions of the Macedonian government, which held and handed over El-Masri in a callous, calculating contribution to the CIA’s “global war on terror.” The favor reportedly earned the then-head of the Macedonian intelligence service a special trip to CIA headquarters in Langley, Virginia to receive an award from the hands of George Tenet, who headed the agency at the time.

The Wednesday hearing has been a long time coming for El-Masri himself. It is in fact, the first time that a court anywhere will conduct a full hearing on the merits of his claims, even though various criminal and civil proceedings related to his case have been initiated in Germany, the United States, Macedonia and Spain. In the U.S. his bid to seek damages from Tenet and the CIA was thrown out by the courts under the now-infamous “state secrets” doctrine, which allowed the U.S. government to have the case dismissed without ever getting to the merits.

The Strasbourg hearing, at which El-Masri will be represented by a team of lawyers from the Open Society Justice Initiative, is also a vindication for the many other groups and individuals who took up his cause and helped shed light on his story over the years. The list is long, another kind of “coalition of the willing.” There is his German lawyer, Manfred Gnjidic, who requested a criminal and parliamentary investigation within weeks of his client’s release and tirelessly represented him over the years—assisted also by the Berlin-based European Centre for Civil and Constitutional Rights. There are the reporters at Reuters, the Washington Post, Der Spiegel and countless other outlets who broke the story and helped keep it alive, and researchers at the UK group Reprieve who pursued details of rendition flights.

In the US, lawyers with the American Civil Liberties Union took his case all the way to the Supreme Court. When that failed, they filed an international petition against the U.S. with the Inter-American Commission on Human Rights, making El-Masri the first person to have brought cases before both the European and the American human rights systems.

Back in Europe, two parallel international inquiries, led by Swiss Senator Dick Marty for the Council of Europe and Italian MEP Claudio Fava for the European Parliament, produced a compelling body of evidence corroborating El-Masri’s story -- as did a multi-year investigation by the German Bundestag. More recently, Spanish investigating judges—following on the footsteps of a local investigative reporter—are considering issuing arrest warrants for the CIA rendition team that stopped in a Palma de Mallorca luxury hotel in the middle of a flight circuit that involved rendering both Khaled El-Masri and Binyam Mohamed, the British detainee recently released from Guantanamo.

Freedom of information requests and advocacy also played a role in establishing the facts and discrediting the versions provided by the governments involved. Thus a FOI request filed by the Justice Initiative with the Macedonian civil aviation authority triggered an official confirmation—the first public one in Macedonia—of the Skopje landing and departure of the rendition flight, and the fact that it arrived with no "passengers' and left with one. Similar requests filed with the authorities in Albania—where El-Masri was reverse-rendered when the CIA realized it had the wrong man—confirmed his account that he was placed on a commercial flight from Tirana to Frankfurt, with just a ticket put in his hand.

The Wednesday hearing is, of course, a testament above all to Khaled El-Masri’s own courage and tenacity in his eight-year-old quest for justice and the truth. As he said on the steps of a Manhattan courthouse, what he wants most is “an explanation and an apology.” He has yet to receive one from either the US or the Macedonian government. But, finally at least, a court will sit in judgment over what was done to him. That hearing will be public and will go forward, any state secrets notwithstanding.

On April 3, the top body of the European Court of Human Rights upheld the right of two social science researchers to access research data held by a public university. This is the first time that the Grand Chamber of the court, its top adjudicating body, has recognized a self-standing right of access to information held by public authorities.

Interestingly, the case, Gillberg v. Sweden, did not come to Strasbourg as a pure access case – in fact, it involved the refusal of a university administrator to comply with a Swedish court order granting the two independent researchers access to methodological data related to a study on child hyperactivity (for a more detailed summary of the facts and other aspects of the case see this blog by Prof. D. Voorhoof). Mr. Gillberg, who had overseen the study, argued that making the data public would breach confidentiality promises made to the parents of the participating children.

The welcome Grand Chamber ruling represents a significant, if incomplete, reversal of its earlier approach on the right to know. For much of its history, the European Court has refused to recognize a general right of access to state-held information, which is not explicitly provided for in the court’s treaty.

The court had only accepted limited access rights where denial of information by the government affected another fundamental right, such as the right to health, personal integrity, or a family life. As recently as October 2005, the Grand Chamber held that it saw “no reason” to depart from the interpretation that the convention did not impose on state parties any “positive obligations to … disseminate information of [their] own motion” (Roche v. UK).

In the last three years, however, that timid approach has been upended by several sections of the court, which have entertained and, in some cases, upheld “pure” access to government information claims, unrelated to corollary violations of other convention rights.

Most significant are two 2010 cases against Hungary, known as Tarsasag (or the Hungarian Civil Liberties Union case) and Kenedi, in which the same section of the court held that a civil rights group and an individual historian, acting in the public interest, were entitled to access government records.

The recent Gillberg judgment marks the beginning of a possible turnaround by the Grand Chamber itself, which found that the university administrator’s withholding of the records “impinged on [the two requesters’] rights … to receive information in the form of access to the public documents concerned.” While the court has yet to fully and expressly embrace a general and unconditional right of access, the three noted cases would appear to create a presumption under Article 10 of the convention that state-held information of clear public interest must, in principle, be disclosed.

One curious aspect of the three cited cases is that they all involve different branches or parts of government: a national court required to release a petition filed by a member of parliament (Tarsasag); an intelligence agency asked to provide access to its historical files from the Communist era (Kenedi); and a public university holding research data (Gillberg). In the last two cases, the local authorities had refused to comply with disclosure orders issued by national courts.

There was no indication that the Strasbourg Court was prepared to grant any special deference in these cases, despite the sensitive nature of intelligence activities or the internal autonomy of a court of law or public university. This suggests that the nature of the requested information and its relation to the public interest are the main elements the court will consider. It also confirms recent trends in the development of right to know laws toward the inclusion of the broadest possible range of public authorities within the scope of FOI.

The conclusion of confidentiality agreements between public authorities and private parties, which seek to shield information from public scrutiny, can be a major obstacle to transparency and accountability, e.g. in the procurement or natural resource exploitation context. Such secrecy carve-outs are usually defended as necessary to protect legitimate private or even public interests, but can be easily abused to cover up corruption, favoritism or insider dealing.

The Gillberg case involved similar, if more benign, confidentiality promises made by the university to the children’s parents. The European court found, on the facts, that Mr. Gillberg was not bound by professional ethics to maintain confidentiality and was not entitled to the kind of privileges enjoyed by doctors in relation to their patients or journalists to their sources. Furthermore, the researchers requesting the data had agreed to certain measures to preserve the children’s privacy.

As a result, the European Court upheld the finding of Swedish courts that any confidentiality promises made by public authorities must be subject to the application of the national FOI regime, and as such cannot be absolute. Private parties who do business with the state must assume the risk that a court of law may lift the veil of confidentiality in the name of a greater public interest in transparency.

December 16 marks the seventh anniversary of the killing of Deyda Hydara, the dean of Gambian journalism. It is also the 20th anniversary of the first issue of The Point, the courageously independent-minded daily that Hydara founded and directed for many years. He was murdered in a drive-by shooting as he drove himself and two staff members home from an evening of somber celebration at The Point's premises. He had received multiple death threats in the preceding weeks and months. In his last column, he vowed to keep fighting to the end for Gambians' right to speak their minds.

The illegal eavesdropping by News of the World, a British tabloid owned by Rupert Murdoch, with new revelations coming out on an almost daily basis, has placed media ethics under the most intense scrutiny in decades.

Tabloid investigators stand accused of having criminally hacked the voicemail messages of scores of celebrities and ordinary people, including a murdered teenager and members of the royal household. They bribed police and other security personnel to obtain salacious details sometimes from pending criminal investigations.

When journalistic ethics themselves become headline news, the media industry needs to take a hard look in the mirror.

But the scandals seem to have also prompted a race by politicians and others to promote sweeping proposals for new media regulation. While details of these plans remain scant, statements by senior officials, including Prime Minister David Cameron, give cause for worry.

The obvious danger is that the pendulum will swing too far in the other direction, making it more difficult for the media, and the general public, to hold politicians and other public figures accountable for their actions. Sometimes media enquiries must legitimately veer into these persons' otherwise private lives – as when a senior minister is found to have sped up a visa application for his lover's nanny, or made personal investments in conflict with his official position.

The extent to which public figures are entitled to privacy is a function of varying legal and cultural traditions. In the US, for example, the nation is dutifully informed of every presidential colonoscopy that would put the commander-in-chief out of commission for a few hours. In France, on the other hand, former president François Mitterrand treated his cancer ailment as a “state secret” for more than ten years, before coming clean in 1992.

But some basic European standards have emerged in recent years, even though in the less-than-ideal context of celebrity legal fights against tabloid coverage.

In 2004, the Strasbourg-based European Court of Human Rights (ECHR) caused a stir when it overruled Germany's top court in finding that Princess Caroline of Hanover was entitled to go shopping with her children without being trailed by paparazzi. The ruling was surprising, in part, because Germany was thought to have struck a careful balance between privacy rights and the demands of a free press. Following the Caroline case, German courts have had to give up the concept that an “absolute person of contemporary history” is entitled to little privacy outside the home, in favour of a more calibrated, case-by-case balancing. But they continue to take seriously the need for the press to remain a vigorous watchdog on matters of genuine public interest.

So does the ECHR itself. Thus, it has ruled that French courts should have allowed the circulation of a tell-all book by Mitterrand's doctor nine months after the former president's death, despite the clear breach of doctor-patient confidentiality. And in May 2011, the ECHR dismissed a claim by Max Mosley, the former president of the Formula One association and the subject of tabloid attention, that British law should be reformed to give potential privacy victims a right of prior notification by the media before stories on them are even published. That would go, in the words of the Court, beyond “the limited scope ...for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest”.

Britain needs no new laws on privacy; it should simply enforce the laws already in the books. And despite the temptation – and perhaps some schadenfreude among a British political class badly shaken by the recent scandal over the expenses of members of parliament – it should resist the urge for tighter media regulation.

Instead, the Cameron government should speed up the libel law reforms under consideration, which would undo London's reputation as libel capital of the world. And it is always worth recalling that it was the dogged investigation of another newspaper (The Guardian), rather than any efforts by the UK police, that ultimately brought down the News of the World.

The good news, unfortunately, ends there.

Instead, the AP reporters, Adam Goldman and Matt Apuzzo, pick up the story begun in The Dark Side, Jane Mayer's celebrated account of George W. Bush’s “war on terror.” In her book, Mayer reconstructs how El-Masri’s fate was decided during the three long weeks he spent in extralegal detention in a Skopje hotel:

Back in Langley, the head of the Al Qaeda Unit, the same hard-driving woman who had been scolded for her voyeuristic trip to watch the waterboarding of Khalid Sheikh Mohammed, agitated for the CIA to take custody of Masri. She had no proof, but she argued that he was probably a terrorist. Having been in the Bin Laden Unit that failed to connect the dots before September 11, she was doubly determined to let no terrorist slip through the cracks again.

Except that Khaled El-Masri was never a terrorist.

El-Masri’s abduction became one of the most embarrassing diplomatic incidents in recent memory. And yet, as  Goldman and Apuzzo report, the then-head of the Al Qaeda Unit, who almost single-handedly pushed for El-Masri’s rendition, was never disciplined for her mishandling of the case. In fact, she was promoted under Obama to “one of the premier jobs in the CIA's Counterterrorism Center.” Even the staff lawyer, the only person ever reprimanded over the El-Masri debacle, has reportedly moved up the CIA ranks to legal adviser to a key regional division.

In the meantime, both the Bush and Obama administrations have steadfastly refused to publicly acknowledge that the U.S. ever held El-Masri or offer apologies. El-Masri has not even been granted a proper day in court, as a lawsuit brought on his behalf by the American Civil Liberties Union was thrown out by U.S. courts, including the Supreme Court, on state secrets grounds. Now it appears now that El-Masri was not only unable to receive public justice—he was denied even the secret justice of the CIA’s murky internal sanctions.

El-Masri’s case has found better traction in Europe. In September 2009, the Open Society Justice Initiative filed an action with the European Court of Human Rights against Macedonia, in connection with that country’s role in El-Masri’s ordeal. Last October, that court took the key step of formally communicating the case to the Macedonian government, requesting detailed explanations on El-Masri’s allegations.

Last Friday, a civil court in Skopje, Macedonia, heard the testimony of a human rights investigator on the CIA flight circuit that was used to render El Masri from Skopje to Kabul. Because the CIA rendition crew stopped twice in Palma de Mallorca for some rest and recreation during that circuit, using false identities, Spanish prosecutors have announced that they will issue international arrest warrants against the crew members.

These actions provide some hope for accountability, as well as a sharp contrast to the U.S. political and justice systems, which have utterly failed an innocent victim of the global war on terror—in the name of “not looking back.”  The Justice Initiative has repeatedly called on the Obama Administration to bring an end to this injustice, which continues to take a heavy toll on Khaled El-Masri and his family. The first step would be for the U.S. government to publicly own up to the truth—a truth they have accepted in private conversations, for example with German officials, and in embassy cables disclosed by Wikileaks.

Earlier this week, former President George W. Bush canceled a trip to Geneva over alleged concerns that rights groups might use the opportunity to bring legal actions over his authorization of the use of torture by CIA interrogators. That may be small consolation for El-Masri, who was subjected to several of the “enhanced interrogation” techniques Bush personally approved, by his own admission in a recent memoir. But it may be the beginning of the end of complete impunity.

It is a measure of democracies that they must “look back,” even when the view in the mirror is a painful distortion of the founding promise.

The visit of Hungary's prime minister, Viktor Orbán, to a session of the European parliament on January 19 was greeted by a protest in which some members of the body taped their mouths and displayed signs reading "Censored."

The parliamentarians were showing opposition to the Hungarian government’s controversial new media "reform" laws. But their concern is not shared widely enough across the European Union, where an inadequate response to Budapest’s legislation raises troubling questions about the union’s willingness to stand up for democratic values in its member-states.

The government’s reforms are part of a broader partisan effort to radically reshape the country's democracy that has followed the victory of Viktor Orbán’s Fidesz party in the elections of April 2010 (see Anton Pelinka, “Hungary’s Election, and Viktor Orbán’s Choice,” April 15, 2010).

The ground for the new laws­—which took effect on January 1, 2011, the day that Hungary assumed the presidency of the European Union for the first half of the year­—was well prepared: by a series of constitutional amendments and a limitation of the powers of the constitutional court, then by the placing of Fidesz loyalists atop many of the country's independent institutions. Janos Kornai, perhaps Hungary’s most respected economist and political commentator, compares the Orbán's government approach with that of Vladimir Putin’s regime in Russia.

Viktor Orbán, whose country holds the presidency of the European Union in the first half of 2011, argues that all elements of the media laws have already been adopted in one EU member-state or another. This assertion is misleading, for no state has adopted a systematic package of this kind that is so clearly driven by political concerns. In fact, the most problematic aspects of the laws—including provisions granting arbitrary powers to new media watchdogs to deny or revoke licenses to media companies - are reminiscent of the authoritarian ways of the Soviet world’s information ministries.

An incremental process has created a situation where the whole of the reform is more insidious than the sum of its parts. It began in July 2010 with an amendment to Hungary’s constitution, which Viktor Orbán's Fidesz was able to make thanks to its parliamentary majority of more than two-thirds. The change removed a provision that obliged the state to prevent the formation of media monopolies and thereby promote media pluralism, and replaced it with a somewhat Orwellian formula about the citizens’ right to "adequate information about public life."

This was but the prelude: since then, the government has used its control of parliament to establish three separate media statutes which grant the new media-monitoring authorities unprecedented powers.

They require all media—print, broadcast, and online, and whether publicly or privately owned—to provide "true and objective" coverage of national and European affairs; obtain official registration in order to operate, and refrain from offending (unspecified) social groups or (undefined) family and religious values.

The vagueness of these standards leaves the press at the mercy of the new media council’s interpretation. The council’s composition, moreover, is wholly one-sided: its chair and four other members are Fidesz appointees, leaving no room for opposition or independent representation. In addition, its sanctioning powers are subject only to limited judicial review - a provision that appears to be inconsistent with the European convention on human rights.

If the council finds that media outlets have violated the new conditions, they could face serious sanctions. These include the loss of their licenses, punitive fines, the closure of web-based news platforms for violating content requirements, and it the demand that any press outlet hands over commercially or professionally sensitive information.

This new media regime in Hungary poses clear threats to media freedom. It is worrisome then that the EU’s response is failing adequately to address the problem. Instead, the union is showing the same kind of indecision that has already undermined tits ability to push for press freedom and democratic openness in (for example) Armenia and Turkey.

The EU’s digital-affairs commissioner Neelie Kroes did formally notify the Hungarian authorities on 21 January 2011 that three aspects of the media package, including the “over-extensive” registration rules, appear to violate EU regulations. The problem is that this kind of response, by focusing narrowly on the issue of compliance with the union’s audiovisual legislation, is both too limited in itself and likely to backfire - for it gives the Viktor Orbán government an opportunity to tweak the new laws and then claim that they conform to Brussels’s rules.

This indeed is the import of the “compromise” formula reached following a letter sent to Neeli Kroes on January 31, 2011 by Hungary’s deputy prime minister Tibor Navracsics, which pledged that the government would amend the legislation to ensure that the media law "is in full compliance with (European Union law) requirements."

The EU needs to raise its sights. It must show that it takes seriously its own charter of fundamental rights, which guarantees respect for "freedom and pluralism of the media". It must do so by treating the matter at the proper level: not of technicalities, but of non-negotiable democratic values.

Such treatment should shock the conscience of any nation governed by the rule of law. But U.S. courts, all the way to the Supreme Court, have refused to give Khaled El-Masri a chance to tell his story and receive justice. His case was thrown out under the “state secrets” doctrine—essentially telling El-Masri and other rendition victims that whatever U.S. government agents do in the name of the “war on terror” may be entirely outside the reach of the law. Even if that means handing someone over to foreign torturers for proxy interrogation, which was the fate of Binyam Mohamed, the other rendition victim featured in this video. (Mohamed was recently released from the Guantanamo prison, also without redress or apology.)

By taking Khaled El-Masri’s case to the European Court of Human Rights, the Open Society Justice Initiative is seeking to ensure that his rights, and his humanity, are finally vindicated. It is time that the Obama Administration act to remedy the terrible injustice done to him. It should start by owning up to the truth.

For the past thirty years, Italian Prime Minister Silvio Berlusconi’s family has controlled Italy’s top three national TV channels, known as the Mediaset empire. As head of government, Berlusconi has also maintained a tight grip on the “public service” national broadcaster, Radiotelevisione Italiana (Rai). Together, Mediaset and Rai control roughly 90 percent of national audience and advertising revenue shares.

To get a rough idea of the decline since Berlusconi entered politics in the early 1990s, imagine the media mogul Rupert Murdoch, whose News Corporation already owns one of the UK’s top networks, Sky Television, also buying controlling shares in ITN and Channel 4, finding a way to become Britain’s Prime Minister, and then systematically dismantling the independence of the BBC. That’s basically what has happened in Italy.

This has made broadcast media coverage increasingly partisan. Berlusconi and his government have repeatedly attempted to muzzle critical Italian media and avoid scrutiny. Now, the only significant criticism of the government comes from a handful of print outlets and a few isolated voices within Rai.

Let’s just look at this past year:

• In June 2009, Berlusconi called publicly on businesses not to advertise in newspapers critical of his handling of the economy, singling out his old nemesis, the left-leaning La Repubblica. In the meantime, his government channeled roughly 90 percent of its own annual advertising to the Mediaset networks.
• In August 2009, he sued La Repubblica for libel over its publication of ten questions to Berlusconi about his allegedly improper relationship with a minor; he also threatened to sue French and Spanish media over similar stories.
• The government proposed and pushed through the lower house a bill that would criminalize publishing transcripts of wiretapped conversations leaked by law enforcement agencies. Italian journalists criticized the government’s proposal as overbroad and self-interested, and the proposal was sidelined temporarily. However, it was reactivated in the upper house earlier this month, when allegations emerged that prosecutors had stumbled upon conversations between Berlusconi, a member of the broadcast regulator overseeing Rai (Agcom), and a top Rai director. Berlusconi allegedly complained about critical voices within Rai and put pressure on the directors to silence dissent. Past disclosures leaked to the media have implicated Berlusconi and his allies in various corruption affairs.
• In late 2009, the government introduced another bill that would require all websites carrying any video content, such as YouTube or any typical news site, to be licensed by the government and treated as regular broadcasters. No other Western democracy has attempted to regulate websites in this way. The proposal was only dropped after a barrage of international and domestic criticism.
• In July 2009, the Italian Parliament approved a government proposal to re-introduce the criminal offense of insulting public officials, which had been repealed in 1999 after years of deliberation.
• Another initiative is promoting a constitutional amendment that would prohibit, in drastic terms, “printed publications, shows and other displays ... that violate human dignity or the right to privacy.” The intent seems to be to provide a constitutional basis for prior restraint of media stories.
• In a recent submission to the European Court of Human Rights, the Open Society Justice Initiative argued that consolidated ownership and control of broadcasting in Italy violates the right to pluralistic information guaranteed to all Italians by the continent’s bill of rights.
• To top it off, ahead of this week’s municipal elections, a parliamentary committee controlled by the government majority imposed content restrictions that made it impossible for Rai’s political talk shows and investigative programs to maintain their regular formats during the campaign. This was followed by a decision of the Rai board that outright suspended an array of talk shows, including those most critical of the government.

The blatant and unprecedented conflict of interest between Berlusconi’s media holdings and his government position has remained unresolved since the early 1990s. Italy’s highest tribunal, the Constitutional Court, has ruled multiple times that such media concentration is illegal. Yet its decisions have not been enforced. For example, a decree from an earlier Berlusconi cabinet allowed Mediaset to hold on to all three of its channels, for nearly a decade, in open defiance of a Constitutional Court order.

At the continental level, the European Court of Justice has found Italy in violation of EU broadcast competition laws. This year, the Council of Europe requested, for the second time since 2004, an expert opinion on Italy’s compliance with European media freedom and pluralism principles. In January, the European Parliament came just three votes short of passing a measure criticizing the consolidated control of Italian media.

It is time for the democratic world to denounce the limitations on media freedom in Italy even more forcefully. This situation is a serious embarrassment to the idea of democratic pluralism, and a terrible model for emerging democracies around the globe.