COUNTERTERRORISM: Abuses

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1 Page 1 of 8 Future of European Foreign Policy Seminar Briefing paper COUNTERTERRORISM: Abuses Extraordinary Renditions and Human Right EVENT: Counterterrorism operations involving extraordinary rendition yield valuable intelligence capable of preventing potential terrorist attacks at the expense of infringing on international legal norms, national sovereignty and individual human rights. SIGNIFICANCE: The consequences of human right abuses from extraordinary renditions threaten diplomatic relations and erode public support for counterterrorism activities. Key international actors (i.e. the United States and multiple European member states) justify extraordinary renditions based on wartime exigencies while international regimes (i.e. the European Union and the United Nations) deem terrorism a criminal act necessitating due process and prosecution under civilian laws. These divergent transatlantic approaches imply a moral, judicial and political judgment between ensuring national security requirements and protecting fundamental personal freedoms these policies seek to preserve. ANALYSIS: Rendition Operations: U.S. and European intelligence services employ rendition operations as a mechanism for transferring individuals between international boundaries. For instance, the rendition practice is commonly used in drug-trafficking cases where suspects are transferred from South America to the United States for prosecution. In recent years, especially since the end of the Cold-War, renditions have became an essential tool for collecting intelligence in a security environment of non-conventional actors. Indeed, with the proliferation of non-state actors, transnational terrorism and the heightened security levels following the September 11 th terrorist attacks, renditions have become a key tactical tool in collecting human intelligence (HUMINT) in the global war on terrorism. Extraordinary Renditions: Renditions are considered legal when they coincide with internationally accepted rules of the law and are performed within the bilateral framework of nation states. However, the legality of renditions become less clear when individuals are transferred outside the bounds of legal norms and without due process. This presents the practice of what is commonly referred to as extraordinary renditions when suspects are transferred between nations without formal legal proceedings. [1] Government Consent: Extraordinary renditions involve a degree of classified cooperation between national intelligence services. The level of executive oversight, however, varies from limited knowledge to full complicity between administrations. This leads to the controversial

2 Page 2 of 8 issue of presidential oversight and responsibility when extraordinary rendition missions result in human right abuses. Extraordinary Renditions and the War on Terrorism: In response to the September 11 th terrorist attacks, U.S. legal rulings created an operating environment for high-risk counterterrorism activities. The possibility of preventing future terrorist attack was predicated on the ability of human intelligence (HUMINT) collection practices. Under such high potential payoffs or devastating consequences, extraordinary renditions became an operational norm straddling the legal boundaries of the law and respect for human rights. Rendering suspects to thirdparty states became an essential counter-terrorism tool in delivering the HUMINT to prevent the next attack on U.S. soil or the European homeland. Yet nuances remain in the context of interpreting the law in both the transatlantic setting and within internal U.S. and European national debates. The American Position: The U.S. argues that extraordinary renditions fall within the framework of the war on terrorism. The result has been a controversial mix of policies allowing U.S. officials to transfer suspects to third-party states for interrogation purposes. Moreover, U.S. policy interpretations of what defines torture and interrogation techniques have given carte blanche to the intelligence services. The U.S. administration, however, categorically denies infringing on human rights based on the exigencies of national security. In fact, in response to allegations of human-right abuses at the cost of counter-terrorism measures, Secretary of State, Condoleezza Rice stated:[2] The U.S. has respected and will continue to respect the sovereignty of other countries. The U.S. does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture. The U.S. does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured. The U.S. has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the U.S. seeks assurances that transferred persons will not be tortured. Presidential Constitutional Authority: With respect to the U.S. position of defining terrorist activities as acts of war, a memo written by Assistant Attorney General John Yoo, September 25, 2001, outlined the authority given to the President to conduct the war on terrorism. The document presents three key conclusions:[3] The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.

3 Page 3 of 8 The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected or harboring or supporting such organizations. The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. However, the U.S. Supreme Court has repudiated these interpretations stating a war is not a blank check for the President. Yet given national security concerns, it remains likely extraordinary renditions will continue to serve as an important measure in the war on terrorism. The Three Phases of Extraordinary Renditions: The extraordinary rendition process follows three stages: initial abduction by foreign or home country agents of a suspect, transfer from first and second-party states to a third-party state and interrogation in third-party states with less stringent human right records. Hence, the questions of human right abuses and unlawful detention originate from the initial abduction of suspects and continue through the three phases. All countries involved, first-party state members who plan the operation, second-party state members who assist in the transfer phase and third-party state members who interrogate, detain and torture the individuals are complicit in the operations. The Infrastructure of Renditions: U.S. extraordinary renditions utilize a network of military facilities, air bases, and pre-existing legal arrangements for operating in foreign countries. Status of Forces Agreements (SOFA), which defines the legal status of U.S. personnel and property in foreign nations, provide the pretext for basing U.S. personnel abroad.[4] The key components of this operating network include: Air Bases: U.S. military air bases, facilities and infrastructure in Europe are linked to NATO security cooperation. The largest populations of American forces reside in Germany, Italy and the United Kingdom, respectively. The presence of these bases allow for a corresponding network of other U.S. government agencies to work within the framework of these installations, either directly or indirectly. In addition to Western Europe, this network extends to include geographically separated facilities in the majority of NATO countries, to include the Alliance s Eastern members. Secret Prisons and Detention Centers : In the first phase of extraordinary renditions detainees are held in safe-houses or hotels that suffice for make-shift detention centers until second-phase transfers. The third phase involves detaining suspects in military prisons (i.e. Guantanamo Bay ), intelligence facilities (i.e. Middle Eastern intelligence services), or secret European prisons (i.e. the alleged prisons in Romania and Poland ). Stopovers: Alleged rendition stopovers occurred at U.S. main-operating bases in Germany, Italy and Turkey and national civilian airports throughout Europe. The use of the European theater for trans-flight missions highlight the geographic importance of Europe as a gateway for American extraordinary rendition transfers to the Middle East, Africa and Eastern Europe. In addition, other European nations to include Spain, United Kingdom, Greece and Cyprus are suspected of hosting stopover flights at either

4 Page 4 of 8 military or national civilian airfields. Third Phase Final Destinations: The non-european countries participating in extraordinary rendition detention, interrogation and torture include Egypt, Jordan, Morocco and Syria. These countries cooperate closely with the U.S. in counterterrorism policies, operations and intelligence sharing. The Key Case Studies: The following cases demonstrate the methodology of extraordinary renditions, the use of American infrastructure assets in Europe and the involvement of European intelligence services. Khaled El-Masri: A German citizen of Lebanese descent, abducted while traveling from Ulm, Germany to Skopje, Macedonia, in He was allegedly flown from Macedonia to Baghdad, Iraq, and to Kabul, Afghanistan, where he was interrogated by American officials concerning ties Al-Qaeda and Islamic Extremists operating in Germany.[5] Mr. El Masri was transferred to Albania, accompanied by a German intelligence officer through Tirana airport customs and immigration controls and returned to Germany where he was eventually released without charges. The Algerian Six : Six Bosnians of Algerian origin were arrested in October 2001 and held through January 2002 by order of the Supreme Court of the Federation of Bosnia and Herzegovina for suspected terrorist planning.[6] Upon release, the four Bosnian citizens and two Bosnian residents, were handed over to American military personnel at Tuzla Air Base, transferred to Guantanamo via an alleged stopover at Incirlik AB, Turkey. The six men remain in detention at Guantanamo pending charges or the intervention of Bosnia in requesting repatriation of the detainees. Ahmed Agiza and Mohammed Alzery (El Zari) Two Egyptian citizens seeking asylum in Sweden were handed over to American officials, transferred to Egypt and tortured in December, 2001.[7] The case led to the United Nations Committee against Torture (UN-CAT) condemning Swedish authorities for allowing the deportation, regardless of the official nature of the transfer or U.S. diplomatic reassurances against torture. Abu Omar An Egyptian citizen residing in Milan, Italy, as a political refugee, Mr. Omar was abducted by American agents in June 2003 and flown via U.S. military airbases in Italy and Germany to Egypt.[8] Accused of Islamic militancy, Mr. Omar was under Italian surveillance for potential extremist activities in northern Italy. The CIA abduction, allegedly in cooperation with elements of the Italian SISMI and elite Carabinieri units, is the best-documented open source case of extraordinary rendition to a third country for interrogation and torture.[9] Maher Arar A Canadian citizen of Syrian origin, Mr. Arar was arrested during a stopover at JFK airport in New York after returning from a holiday in Tunisia in September 2002.[10] American officials transferred Mr. Arar via stopovers in Italy, Greece and Jordan to Syria, where he was detained, interrogated and tortured at a Syrian military intelligence prison.[11] The European Perspective: For European officials the decision to transfer terrorist suspects

5 Page 5 of 8 and Islamic extremists to U.S. officials and third-party states is based on homeland security concerns. An extraordinary rendition removes suspected domestic terrorist cells and in bestcase scenarios, yields valuable intelligence to prevent a future attack on European soil. In worse case scenarios however, innocent suspects are detained, tortured and treated inhumanly at the hands of third-party interrogators. As a result, extraordinary renditions carry a high level of risk for political fallout. The European Response: The controversy over extraordinary renditions, secret prisons and Member state involvement was met with swift response from European institutions. At the supranational level, the European Union and the Council of Europe, immediately launched investigations and formed a Temporary Committee in November The lead investigator, Swiss lawmaker Dick Marty (Chairperson of the Committee on Legal Affairs and Human Rights) was charged with identifying the level of perpetration of rendition human right abuses by European member states.[12] The investigation lacked any real investigatory powers, but delivered a thorough report based on open source information, first-person interviews and Member state cooperation. The Council of Europe draft report released in June, 2006, titled, Alleged Secret Detentions and Unlawful Intern-state Transfers involving Council of Europe Member States, cited fourteen European states in violation of European human rights standards for alleged rendition activities. Human Rights: From an EU perspective, the idea of human right abuses on behalf of Member states involved in extraordinary renditions threatens the very principals of EU core values. The rule of law, right to a fair trial, protection of life, liberty and security are the fundamental foundations of European norms enshrined in national constitutions and EU treaties. Hence, the transgression of these moral principles is a serious offense by Member states. International Norms and Multilateral Agreements: The concentric rings of supranational oversight from the Council of Europe (COE) and the European Union (EU) both promoting the shared principles of fundamental freedoms, rule of the law, protection of democracy and respect for human rights serve as the collective European voices addressing opposition to extraordinary renditions.[13] In particular, the European Court of Human Rights and the Committee for the Prevention of Torture both of which fall under the purview of the Council of Europe condemned the involvement of Member states in extraordinary renditions and cited the following international regimes for precedent: International Human Rights Instruments: UN - Universal Declaration of Human Rights (Article 5) Geneva Convention relative to the Treatment of Prisoners of War Geneva Convention relative to the Protection of Civilian Persons

6 Page 6 of 8 European Human Rights Instruments: Charter of Fundamental Rights of the European Union (Article 1) International Covenant on Civil and Political Rights European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Charter of Fundamental Rights of the European Union (Article 4) European Commission for Democracy through Law ( Venice Commission) European Member states constitutions and laws Member State Responses: While the institutional European response condemned extraordinary renditions within the EU and beyond, discrete Member states were notably silent in addressing alleged abuses, admitting involvement or prior knowledge of rendition operations occurring within their borders. With the exception of several judicial verdicts described below, executive branches remained quiet for reasons of national security and state secrets. Part of this stems from the close level of counter-terrorism cooperation between U.S. and European states within intelligence circles, even if public opinion at-large suggests competing transatlantic agendas. However, transatlantic differences remain both at the institutional and member level vis-à-vis the U.S. over the legal approach to counter-terrorism policies. In this regard, the following case studies demonstrate the varying national judicial responses to extraordinary renditions: The German Response: A Munich-based public prosecutor issued arrest warrants for 13 suspected CIA agents in connection with the illegal abduction and wrongful imprisonment of Mr. El-Masri.[14] The arrest warrants represent a shift in counterterrorism cooperation given the American agents were working with German intelligence officials in a combined counter-terrorism effort. A second German public prosecutor initiated an investigation on the temporary detention and mistreatment of suspected terrorists at the U.S. military prison in Mannheim.[15] The rulings demonstrate a sovereign judicial motion to prosecute against alleged human right abuses perpetrated by U.S. agents within German jurisdiction. However, while judicial integrity was demonstrated, it appears unlikely the German government will compromise U.S.-German relations in pressing for the extradition of American agents for counter-terrorism human right abuses. The Italian Response: A Milan-based Public Prosecutor issued arrest warrants for 26 U.S. citizens and CIA agents allegedly involved in the abduction of Mr. Omar.[16] The Italian government has been assertive in suggesting it will seek the extradition of

7 Page 7 of 8 the U.S. agents and arrest any of the charged individuals upon entering sovereign Italian territory. Similar to the German case, this represents a marked shift for it supersedes SOFA clauses which previously gave the U.S. the primary right to exercise criminal jurisdiction over U.S. personnel for offenses arising out of the performance of official duty.[17] The Macedonia and Bosnia-Herzegovina Dilemma: For smaller states the dynamics vary, especially in the case of Macedonia and Bosnia-Herzegovina. While larger states are demonstrating a degree of autonomy in issuing arrest warrants, smaller states are unlikely to compromise bilateral-u.s. relations. On the other hand, smaller states are being criticized by European Member states for not intervening to stop extraordinary renditions within their territory. In response, these countries are taking a defiant stance against European criticism leveled at their human rights track record. This is especially worrisome for nations seeking EU membership. These nations are attempting to balance interests in fighting international terrorism, maintaining special relationships with the U.S. and striving to meet EU membership requirements for future accession consideration. However, with alleged rendition charges it is becoming increasingly difficult to manage all three interest areas and in the future, it may become an issue in future EU membership negotiations (when in fact other Member states are in violation too). CONCLUSION: As new information is released concerning secret prisons and extraordinary renditions in Europe, calls by international organizations, law experts and human right groups to end rendition policies will have little or no effect on American counter-terrorism practices. The U.S. administration views counterterrorism as a global mandate following September 11 th and will continue to depend on extraordinary renditions as a means for collecting intelligence. As a result, transatlantic security relations will remain divided over European approaches to treating terrorism as a criminal act requiring due process and American approaches along the line of extraordinary renditions. Any further European investigations will potentially constrain bilateral intelligence operations in Europe and shift American counter-terrorism initiatives to peripheral third-party states, in particular Northern Africa, the Horn of Africa and the broader Middle East. James Ballas Back to homepage [1] Daniel Byman, Rendition: Reject the Abuses, Retain the Tactic, Washington Post, 17 April [2] U.S. Department of State, Secretary Condoleezza Rice, Remarks Upon Her Departure for Europe. 5 December [3] John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Memorandum Opinion for the Deputy Counsel to the President, 25 September 2001.

8 Page 8 of 8 [4] Status of Forces Agreement, May 07. [5] Council of Europe, Committee on Legal Affairs and Human Rights, Alleged Secret Detentions and Unlawful Inter-state Transfers Involving Council of Europe Member States, 7 June 2006, p. 24. [6] Ibid, p. 33. [7] Ibid, p. 36. [8] Ibid, p. 38. [9] Ibid, p. 38. [10] Council of Europe, Alleged Secret Detentions and Unlawful Inter-state Transfers, p. 41. [11] Ibid, p. 66. [12] Ibid. [13] European Commission, External Relations, The EU s Relations with the Council of Europe: Core Areas of Cooperation, [14] Council of Europe, Alleged Secret Detentions and Unlawful Inter-state Transfers. [15] Claudio Fava, Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations, Briefing before the House Committee on Foreign Affairs, note 97. [16] Ibid, note 55. [17] Global Security, Status of Forces Agreement,