Precedent of the European Convention on Human Rights to the CIA'S high value detainees program in and through Europe.

• Author: Abdel-Monem, Tarik

1. INTRODUCTION: "THE SPIDER'S WEB"

   Rendering terror suspects to nations that permit the use of torture is one of several methods the United States has added to its national security arsenal in recent decades. News leaks and reports regarding the "outsourcing of terror" are not new, especially after September 11, 2001. According to a former CIA official, "[w]e pick up a suspect or we arrange for one of our partner countries to do it. Then the suspect is placed on civilian transport to a third country where, let's make no bones about it, they use torture. If you want a good interrogation, you send someone to Jordan." (1)

   Jordan is a United States ally that is--according to other former officials--"willing to help any way they can" and has "the most professional and sophisticated interrogators [the United States] can rely on." (2) Reports by Amnesty International and other news sources have identified Jordan as a transit or destination point for terror suspects apprehended in Afghanistan or Pakistan. (3) Allegations of torture associated with the rendition of terror suspects to Jordan should not be surprising. A U.S. State Department country report on human rights in Jordan that was released on March 6, 2007, referred to a number of torture allegations and other basic human rights violations committed by its government. (4)

   Recent charges that European nations have played a role in the United States' practice of rendition were much more surprising. A number of European nations have been sharp critics of United States' policies regarding the continued detention of inmates at Guantanamo Bay, including European nationals. (5) Most importantly, Europe arguably has the world's strongest regional human rights treaty in existence: The European Convention on Human Rights. (6)

   The first major account of alleged "black sites" on European soil was reported in a November 2, 2005, Washington Post story by Dana Priest. (7) According to the article, the CIA developed a global transit and detention system with little strategic planning or forethought shortly following September 11, 2001. Terror suspects captured in Afghanistan, Pakistan, or other nations by the U.S. military or intelligence services of partnering agencies were classified into two different groups. Those with questionable intelligence value were provided to the governments of Egypt, Jordan, and Morocco for interrogation. A second group of about thirty detainees, considered to be high value intelligence sources, were imprisoned in secret sites directly financed and operated by CIA personnel at Guantanamo Bay, a location in Thailand, (8) and undisclosed Eastern European nations. (9)

   Following the Washington Post's article, further revelations were reported about the extent of the CIA system by a variety of sources. On November 7, 2005, Human Rights Watch issued a press release stating that their independent research confirmed the Post's report. (10) According to its accounts, examination of flight records of a CIA operated airplane indicated that in 2003 and 2004, it had transported a number of detainees between Afghanistan, Guantanamo Bay, Morocco, Romania, and Poland. (11) The same day the Council of Europe appointed Dick Marty, a Swiss member of the Parliamentary Assembly, to lead an investigation into the alleged prisons in the Council's member-states. (12) Soon afterwards, Marty requested information on air traffic patterns from EuroControl, Europe's unified air traffic management organization, and the European Union's Satellite Centre. (13)

   The Council of Europe's Secretary General, Terry Davis, also sent a formal questionnaire to every member-state of the Council on November 21, 2005, requesting information on how the member-states' national laws prevented cooperation with foreign intelligence services to secretly detain individuals. (14) In December, Secretary of State Condoleezza Rice issued a statement intimating that any actions taken by the United States in Europe were conducted with regard to the full sovereignty of host nations, and that she could not "discuss information that would compromise the success of intelligence, law enforcement and military operations." (15) The statement was interpreted as an implied admission that the clandestine prisons did exist in Europe, and that such operations were conducted with the permission of European authorities. (16)

   While European investigations intensified, accounts of "erroneous renditions" were also made public. In another article written by Dana Priest in December of 2005, the Washington Post reported that the U.S. Ambassador to Germany told the German interior minister that the CIA had mistakenly detained a German national for five months. (17) Khaled Masri, the wrongfully detained German citizen, was arrested by local police while vacationing in Macedonia. The authorities turned Masri over to CIA operatives, who took him to Afghanistan, where the CIA held and allegedly tortured him. One of Masri's interrogators reportedly said, "[y]ou are here in a country where no one knows about you, in a country where there is no law. If you die, we will bury you, and no one will know." (18) Masri was later flown back to Europe and left on a remote Albanian hillside in the middle of the night without explanation. The authorities arrested Masri because he shared a name with a wanted 9/11-associated suspect. Priest's article further described an alleged account of how the CIA "rendition group" operates:

   Members of the Rendition Group follow a simple but standard procedure: Dressed head to toe in black, including masks, they blindfold and cut the clothes off their new captives, then administer an enema and sleeping drugs. They outfit detainees in a diaper and jumpsuit for what can be a day-long trip. Their destinations: either a detention facility operated by cooperative countries in the Middle East and Central Asia, including Afghanistan, or one of the CIA's own covert prisons--referred to in classified documents as "black sites," which at various times have been operated in eight countries, including several in Eastern Europe. (19) Similar stories were also reported in the European press. An Egyptian cleric living in Italy was allegedly kidnapped by CIA operatives in 2003, flown to Egypt, tortured, and later released. Italian prosecutors have since issued warrants for the suspected CIA agents, who no longer reside in Italy. (20) Following the July 7, 2005, London train bombings, a number of Pakistani migrant workers in Greece were allegedly detained, interrogated, and mistreated by a combination of Greek and British intelligence operatives. The Pakistani workers were later released, and the governments of Greece, the United Kingdom, and Pakistan denied any involvement, despite protests from Greek opposition parliamentarians. (21) Both the Italian and Greek situations continue to be investigated.

   On September 26, 2002, a Canadian citizen suspected of being an al-Qaida associate--Maher Arar--was arrested at JFK Airport while in transit from North Africa to Montreal. Arar was sent to Syria, where he was allegedly detained in a "grave-like" cell, beaten with fists and cords, and deprived of food and water. (22) After a diplomatic row between Canada, Syria, and the United States, he was released over a year later and reunited with his family. Arar's ordeal and subsequent media attention led to Time magazine naming him the "Canadian Newsmaker of the Year" in 2004. (23)

   In the January 2006 interim report on the Council of Europe's formal investigation into the detention centers, Dick Marty referenced an intercepted fax by Egyptian authorities that "black sites" had existed in Romania, Bulgaria, Macedonia, Kosovo and Ukraine. (24) Marty also stated that, if practices of rendition by CIA operatives occurred in Europe, it was "highly unlikely that European governments, or at least their intelligence services, were unaware [of them]." (25)

   Following an examination of information gathered from Council of Europe member-states, Secretary General Davis released a statement concluding that almost none of the member-states had adequate measures in place to prevent foreign intelligence operatives from violating human rights on Council of Europe member-states' soil. (26) Davis had previously noted that "Europe appears to be a happy hunting ground for foreign security services." (27) He also stated that "[w]e have received official acknowledgment of 'handing over' individuals to foreign officials through procedures which ignore the standards and safeguards required by the European Convention on Human Rights." (28)

   In a comprehensive report on the alleged detention system, issued on June 7, 2006, Marty described the CIA operation as "a network that resembles a 'spider's web' spun across the globe." (29) According to information gathered from member-state governments, witness accounts, satellite imagery, and air traffic records, Marty's report described hundreds of flights through European air space, abductions, and end-point destinations across the world where terror suspects were ultimately detained.

   The report identified four categories of locations composing the rendition network: (1) "Stopover points" in Athens, Greece; Prague, Czech Republic; Prestwick, Scotland; and Roma Ciampino, Italy where civilian and military aircraft stopped for refueling; (2) "Staging points," in Baku, Azerbaijian; Frankfurt and Ramstein, Germany; and Larnaca, Cyprus where operations were planned; (3) "Pick-up points" in Aviano, Italy; Skopje, Macedonia; Stockholm, Sweden; and Tuzla, Bosnia where individuals were arrested and flown to other nations; and (4) "Transfer/Drop-off points" in Amman, Jordan; Baghdad, Iraq; Cairo, Egypt; Guantanamo Bay, Cuba; Kabul, Afghanistan; Szymany, Poland; Tashkent, Uzbekistan; and Timisoara, Romania where detainees were transported. (30) By implication, Marty's report named a number of European nations...