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Committee on Legal Affairs and Human Rights

Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states Draft report – Part II (Explanatory memorandum)

Rapporteur: Mr Dick Marty, Switzerland, ALDE

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On 24 April 2006 the Temporary Committee presented its draft interim report, which confirmed strong indications of illegal actions carried out by the CIA in Europe. Its in initial analysis, the report largely supported the observations we made in our own Information Memorandum II on 24 January 2006. The TDIP rapporteur Claudio Fava, in presenting his interim report, spoke of “more than a thousand flights chartered by the CIA [that] have transited through Europe, often in order to carry out extraordinary renditions”[13]. In a press conference, Mr Fava clarified that, according to information given to him in confidence by an intelligence source, “30 to 50 people have been rendered by the CIA in Europe” and that “the CIA could not have carried out such renditions without the agreement of European states”[14]. The Temporary Committee proposes to continue its work[15].

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265. In May 2006 the United States sent its first state delegation to the United Nations Committee against Torture (UN CAT) since the Bush Administration came to power. The delegation was headed by the Chief Legal Advisor to the Department of State, Mr John Bellinger.

266. Mr Bellinger oversaw the presentation of a 184-page submission to UN CAT, in which the United States set out its ‘exhaustive written responses’ to most of the Committee’s list of issues. The United States should certainly be commended for this level of engagement, notwithstanding that its policy regarding secret detentions and intelligence activities remained, for the most part, at a firm “no comment”[230].

267. There can have been few more opportune times at which to engage Mr Bellinger on discussion of pertinent legal issues than in the week of his return from the UN CAT to Washington, DC. In a briefing lasting about one hour[231], Mr Bellinger and his colleague Dan Fried, Assistant Secretary of State for European Affairs, provided us with a range of valuable perspectives, which I think it worthwhile to reflect fully in this report as the best contemporary first-hand portrayal of the US legal position.

268. Mr Bellinger made clear on several occasions that a programme of renditions remains a key strand of United States’ foreign policy:

“As Secretary Rice has said, we do conduct renditions, we have conducted renditions and we will not rule out conducting renditions in the future.”

269. He was very decisive, however, in drawing a distinction between the original meaning of rendition and the popular, media-driven notion of Extraordinary Rendition:

“To the extent that extraordinary rendition – as I have seen it defined – means the intentional transfer of an individual to a country, expecting or intending that they will be mistreated, then the United States does not do extraordinary renditions to begin with. The United States does not render people to other countries for the purpose of being tortured, or in the expectation that they will be tortured.”

270. Dan Fried used the briefing to explain some of the underlying considerations for the United States in pursuit of its ’war on terror’:

“We are attempting to keep our people safe; we are attempting to fight dangerous terrorist groups who are active and who mean what they say about destroying us. We are trying to do so in a way consistent with our values and our international legal obligations. Doing all of those things in practice is not easy, partly because – as we’ve discovered as we’ve gotten into it – the struggle we are in does not fit neatly either into the criminal legal framework, or neatly into the law of war framework.”

271. With regard to the question of fitting into legal frameworks, I find it particularly noteworthy that the United States does not see itself bound to satisfy anyone’s
interpretation of international law but its own. Mr Bellinger continually expressed this view:

“We have to comply with our legal obligations. None of this can be done in an illegal way. We think from our point of view that we comply with all the legal obligations we have.”

272. Similarly, in one of his longer explanations, Mr Bellinger defended the United States’ record in the eyes of its European partners:

“For those who say we’re not following our international obligations in certain cases, I have to say that sometimes it comes down to a disagreement on what the obligation is. With regard to Article 3 of CAT, this is a technical issue. The obligation under Article 3 of the Convention Against Torture requires a country not to return, expel or refouler an individual. For more than a decade, the position of the US Government, and our courts, has been that all of those terms refer to returns from, or transfers out from the United States. So we think that Article 3 of the CAT is legally binding upon us with respect to transfers of anyone from the United States; but we don’t think it is legally binding outside the United States. Similarly the Senate of the United States and our courts for more than ten years have taken a position that the words ’substantial grounds’ means ’more likely than not’. If we transfer a person from one point outside the United States to another point outside the United States then, as a policy matter, if we think there are substantial grounds to believe that the individual will be tortured or mistreated, we follow the same rules. I think it is a reasonable position for our courts to have set – that ’substantial grounds’ means ‘more likely than not’. What I can say, though, is that there are different legal regimes between the European Court of Human Rights and our courts, and you can’t ‘beat up’ our courts and our Senate based on some things that they said ten years ago as how they interpret the law. You may wish that the ECtHR interpretation of the CAT was the same position that we have here, but it is not. We do, though, take our legal obligations seriously. And there needs to be a recognition that there may be different interpretation of the terms, but nonetheless the United States still takes our legal obligations seriously – and we do that.”

Mr Bellinger’s interpretation also serves to explain why a detention facility like Camp Delta is situated at Guantanamo Bay, in Cuba, and not in the desert of Arizona. The United States’ formalistic and positivist approach shocks the legal sensibilities of Europeans, who are rather influenced by ‘teleological’ considerations. In other words, the European approach is to opt for an interpretation that affords maximum protection to the values on which the legal rule is based.

273. Mr Bellinger was predictably reluctant to discuss the legal issues surrounding any of the cases of rendition that are alleged to have occurred, including the case studies treated in this report. He cited a considered policy on the part of the US Government to refrain from commenting:

“We have thought seriously about whether we can answer specific questions publicly and say that there were one, two, or three renditions and where they went through. But we have concluded that, due to the nature of intelligence activities, we simply cannot get into the business of confirming or denying specific questions – as much as we would like to. I’m not going to confirm or deny whether there have been any renditions that have gone through Europe at all.”

274. The United States Government is always prepared, however, to explain the “hard choices” it feels it has to make to protect its citizens[232]. Mr Bellinger, for his part, described a hypothetical “policy dilemma” based loosely on a real-life scenario, where a member of Al-Qaeda is captured at the Kenyan border, “trying to enter the country but the Kenyans don’t want him there”. The captive is known to be wanted by “some other country such as Egypt, Pakistan or Jordan” and the United States has an aircraft it could use to render him back. Mr Bellinger concluded his briefing by characterising the choice:

“If the choice is between letting a person go who’s suspected of involvement in terrorism, or taking them back to their country of nationality, or some other country where they’re wanted – then that’s your choice, because there’s no extradition treaty and you obviously don’t want us to put more people in Guantanamo. If the choice is whether the person will disappear and be let go, or the country of his nationality or some other country wants him back, and the US is able to provide that – what should be done? That’s your choice. The United States says there are cases where in fact rendition might make sense.”

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177. Maher Arar, a Canadian citizen of Syrian origin, came to testify in public before the temporary committee of the European Parliament[157]. During a stopover on return from holiday in Tunisia, in September 2002, he was arrested at JFK airport in New York by American agents. After being detained in a high-security prison and interrogated for two weeks by the New York police, the FBI and the American immigration service, he was allegedly transported from New Jersey airport via Washington, Rome and Amman to a prison belonging to Syrian military intelligence[158]. He spent more than ten months there, during which he says he was tortured, abused and forced to make false confessions. During his stay in Syria, he says, he also heard the voice of a German prisoner being tortured. After a tenacious campaign by his wife, Mr Arar was able to have irregular contacts with Canadian diplomats in post in Syria. He says he has never been the subject of criminal charges in any country. Mr Arar stills suffers from a post-traumatic stress syndrome following his terrible experience.

178. The American Government considers the ‘rendition’ of Arar as a legitimate procedure in conformity with its immigration rules[159].

179. According to Mr Arar, the agents on board the aircraft never identified themselves, but he heard that they belonged to a “special removal unit”. In this specific case, the handing over of Mr Arar to Syria seems to be a well established example of ‘outsourcing of torture’, a practice mentioned publicly by certain American officials[160].

180. The question which interests us more particularly, in view of our terms of reference, is to whether and if so, to what extent the European states concerned (in particular Italy and Greece) were aware of the illegal transport of Mr Arar and perhaps even gave logistic support[161].

181. Another question is the role of the Canadian authorities in the matter. This question is the subject of a very thorough investigation by a special commission[162].

182. The initial report of the investigator Stephen J. Toope was published on 14 October 2005[163]. Mr Toope, who has lengthy experience of working with torture victims, has convincingly established the truthfulness of Mr Arar’s depositions, which he has compared with those of other former Syrian prisoners held in the same prison run by Syrian military intelligence (Far Falestin). His report, which also mentions the findings of specialist doctors whom Mr Arar consulted on his return, describes in detail Mr Arar’s treatment in Syria, which he unhesitatingly regards as torture within the meaning of the United Nations Convention against Torture. However, that report does not cover the part played by the Canadian authorities in the matter. This point will be covered in the final report of the Commission, which is expected to be published by the end of the summer of 2006 [164]. It is thus premature to draw any conclusions at this stage[165].

183. The working methods of this commission, a genuine commission of inquiry with real powers of investigation, empowered to take cognisance of classified information, strike me as very interesting. However, Mr Paul Cavalluzo, Mr Arar’s principal lawyer on the Commission, deplores the tendency of the Canadian authorities to hide behind ’official secrets'.

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280. Our analysis of the CIA 'rendition' programme has revealed a network that resembles a 'spider’s web' spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as on other information including from sources inside intelligence services, in particular the American. This 'web', shown in the graphic[239], is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft.

281. These landing points are used for various purposes that range from aircraft stopovers to refuel during a mission to staging points used for the connection of different 'rendition circuits' that we have identified and where “rendition units” can rest and prepare missions. We have also marked the points where there are known detention centres (Guantanamo Bay, Kabul and Baghdad…) as well as points where we believe we have been able to establish that pick-ups of rendition victims took place.

282. In two European countries only (Romania and Poland), there are two other landing points that remain to be explained. Whilst these do not fall into any of the categories described above, several indications have us believe that they are likely to form part of the ’rendition circuits’[240]. These landings therefore do not form part of the 98% of CIA flights that are used solely for logistical purposes[241], but rather belong to the 2% of flights that concern us the most. These corroborated facts strengthen the presumption – already based on other elements - that these landings are detainee drop-off points that are near to secret detention centres.

283. Analysis of the network’s functioning and of ten individual cases allows us to make a number of conclusions both about human rights violations – some of which continue – and about the responsibilities of some Council of Europe member States.

284. It must be emphasised that this report is indeed addressed to the Council of Europe Member states. The United States, an observer state of our Organisation, actually created this reprehensible network, which we criticise in light of the values shared on both sides of the Atlantic. But we also believe to have established that it is only through the intentional or grossly negligent collusion of the European partners that this “web” was able to spread also over Europe.

285. The impression which some Governments tried to create at the beginning of this debate – that Europe was a victim of secret CIA plots – does not seem to correspond to reality. It is now clear – although we are still far from having established the whole truth - that authorities in several European countries actively participated with the CIA in these unlawful activities. Other countries ignored them knowingly, or did not want to know.

286. In the draft resolution, which sums up this report’s conclusions, I have not directly named the countries responsible simply because there is not enough room in such a text to adequately develop the nuances of each individual case. In addition, we only know part of the truth so far, and other countries may still turn out to be implicated in light of future research or revelations. This explanatory note, however, explains the discovered facts in far greater detail. Finally, the purpose of this report is not to attribute ‘grades’ to different member states, but to try to understand what really happened throughout Europe and to stop certain violations shown from reoccurring in future. I would add that a key element seems to be the urgent need to improve the international response to the threat of terrorism. This response presently appears today as largely inadequate and insufficiently coordinated.

287. Whilst hard evidence, at least according to the strict meaning of the word, is still not forthcoming, a number of coherent and converging elements indicate that secret detention centres have indeed existed and unlawful inter-state transfers have taken place in Europe. I do not set myself up to act as a criminal court, because this would require evidence beyond reasonable doubt. My assessment rather reflects a conviction based upon careful examination of balance of probabilities, as well as upon logical deductions from clearly established facts. It is not intended to pronounce that the authorities of these countries are ‘guilty’ for having tolerated secret detention sites, but rather it is to hold them ‘responsible’ for failing to comply with the positive obligation to diligently investigate any serious allegation of fundamental rights violations.

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In short, there's plenty of blame to go around. While no one can force the U.S. to abide by statues it does not consider binding, presumably the E.U. can force its member states to abide by the statutes that are binding to those states. Similarly, in the specific case of Maher Arar, if Canadian authorities were complicit in what happened to him then they violated the spirit, if not the letter, of the Canadian Charter of Rights and Freedoms. I certainly don't think that the Canadian judiciary would consider rendering an innocent for torture on foreign soil a "reasonable limit" that "can be demonstrably justified in a free and democratic society."

In a roundabout way, if the European nations that have been complicit in the CIA's extraordinary renditions begin to comply with the relevant laws, we might even see an overall reduction in the practice. There's no guarantee that the U.S. wouldn't re-route the current rendition flight paths through more amenable countries, of course, but until someone does something about this within the U.S., that's really all "the rest of us" can do.
 

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Posted by Jim-Me (Member # 6426) on :
 
Twinky,

I'm really impressed that you took the time to go through all that.

Thanks for so doing.
 

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Posted by twinky (Member # 693) on :
 
Well, I've been following the Arar case, because (1) I'm horrified that something like that could happen to a citizen of my country, and want to know who's to blame, and (2) as a Canadian of partly Arab descent who frequently travels to and within the U.S., I think I have some cause to be concerned (in the latter regard, my main "advantage" is that I look Anglo-Saxon).

Like I said, though, I didn't read the entire report -- of the numerous case examples presented, I only thoroughly read the Arar one.
 

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