Render unto Washington

By Daniel Dombey, Hugh Williamson and Jimmy Burns

Financial Times

Published: December 14 2005

It began as America’s embarrassment. Now it is Europe’s dilemma.

For six weeks the administration of President George W. Bush has been forced on to the defensive over prisons allegedly run by the US Central Intelligence Agency in eastern Europe and reports of “ghost planes” ferrying abductees across the continent.

Now a dispute over the alleged kidnapping, detention and mistreatment of a German citizen by CIA agents, and a court ruling in the UK banning the use of evidence obtained by torture, have prompted Europeans to confront a question avoided since the attacks of September 11 2001: how far should they co-operate with the US in the war on terror?

At the heart of the quandary lies extralegal abduction, or “rendition”, which the US says is vital for taking terrorist suspects to countries where they can be questioned, held or brought to justice. Its critics allege it paves the way for torture, by allowing detainees to be flown to countries known for brutal methods of interrogation or to jurisdictions where it can be carried out by the US.

For 10 days, Germany’s newly elected government has rebuffed questions about Khaled el-Masri, a 42-year-old German of Lebanese descent who claims (see below) that he was the victim of such tactics. Germany has justified its reticence on the grounds that public statements would endanger efforts to rebuild ties with the US.

The stances of governments across Europe – including anti-war administrations such as in France and Spain – have displayed a similar degree of realpolitik. “The fundamental principle in the fight against terrorism is that we are defending values,” says Gijs de Vries, counter-terrorism co-ordinator for the EU. “That means we always have to strike a balance between protecting security in the broad sense and protecting other liberties.”

On Wednesday, however – in Berlin, at least – the equivocation may have to stop. Germany’s opposition has convened an emergency debate on the circumstances surrounding Mr Masri’s detention in Macedonia on December 31, 2003, the experiences he describes at the hands of US agents in a prison in Kabul and his return home five months later.

Gernot Erler, Germany’s deputy foreign minister, admits the US and Europe have “moved in separate directions” on tackling terror. “What’s needed is a more fundamental discussion [with the US] on how to pursue the fight against international terrorism,” he told the FT.

Across Europe a series of developments have highlighted the uneasy arrangement by which European governments have appeared to collude with the US in practices that they have rarely been willing to defend, criticise or even acknowledge. This week, after more than a month of denials, the Polish government launched an inquiry into claims that it hosted CIA secret prisons on its territory, while senior Romanian politicians – including Adrian Nastase, that country’s prime minister in 2001-04 – have argued that Romania should do the same.

Yesterday the Council of Europe, the 46-nation human rights organisation that is conducting a formal inquiry into the case, said the allegations of illegal CIA conduct were credible and criticised the US for its refusal to confirm or deny the account. But Dick Marty, the Swiss politician leading the investigation, cautioned that it was “still too early to assert that there had been any in­volvement or complicity of [European] member states in illegal actions”.

In Spain and Italy, as well as Germany, judicial investigations are focusing on alleged CIA abductions and the use of the countries’ airports and airspace, despite government ministers’ desire to play down the issue. In the UK, Jack Straw, foreign secretary, continued to insist last night in spite of growing pressure from opposition members of parliament that he can find no evidence the US transported suspects through British airports.

“We do not have a war against terror,” says one senior EU official, highlighting Europe’s less militaristic approach to the struggle to contain the terrorist threat. Yet the insider argues that neither the US nor Europe, as mutually interdependent partners, have any option but to co-operate with each other on the biggest issues.

Last week, European foreign ministers were comforted by an announcement from Condoleezza Rice, the US secretary of state, on a visit to the region that, as a matter of policy, US personnel would abide by the same laws abroad as they did at home. However, her emollience cannot disguise the difference in perspective. European governments do not share Washington’s more restrictive interpretation of torture, which permits practices such as “waterboarding” – giving detainees the impression of drowning by immersing them in water. Nor do they follow the US in classifying terrorist suspects as “enemy combatants” – a third class of detainee after criminal suspects and prisoners of war.

“There is satisfaction after the talks but I would like to stress that there are still things we look at differently,” said Per Stig Moller, Danish foreign minister. “The existing international laws exist until the law has been changed.” Christian Tomuschat, an international law professor and German government adviser, is blunter. “The notion of ‘enemy combatants’ is rubbish. It doesn’t exist in international law,” he says, adding that many aspects of US treatment of captured terror suspects “breach international covenants Washington has signed up to”.

Rendition as a practice was authorised by the Bill Clinton administration in the 1990s, in parallel with other states such as France, which abducted the terrorist Carlos the Jackal from Sudan in 1994. But the US stepped up rendition in the Bush administration’s war on terror.

“The European approach is relevant to the middle of the twentieth century, when the rule was state-to-state conflicts,” observes an Israeli diplomat. “But it simply is not up-to-date when you are dealing with an enemy who has no uniform.” Ms Rice says rendition is legally “permissible” and insists that the “US has not transported anyone and will not transport anyone to a country when we believe he will be tortured”.

But while Washington has refused to return a dozen ethnic Muslim Uighurs from its detention centre on Guantánamo Bay to China out of concern that they might be tortured, it has rendered prisoners to countries such as Egypt, Jordan and Syria, which have been singled out by the State Department for poor human rights records. Ms Rice last week said that “where appropriate” the US sought guarantees that prisoners would not be tortured – but critics say those are not worth the paper they are written on. “These assurances are meaningless,” says Amnesty International. “Countries known for systematic torture regularly deny the existence of such practices.”

In one case, Maher Arar, a Canadian citizen of Syrian descent, was detained as a terror suspect in New York in 2002 and flown to Jordan before being transferred to Syria. Mr Arar, who was released a year later without charge after the Canadian government interceded, claims he was tortured while in Syrian custody.

What appear to be surreptitious attempts to move European practice closer to that of the US have so far come to grief. Despite the willingness of governments to co-operate with the US, judges and the wider public in Europe have been less willing to share Washington’s perspective.

The Polish and Romanian governments would face outcry at home and recriminations abroad if their denials that they housed CIA prisons turned out false. ABC News of the US recently reported that Washington hastily transported 11 high-value al-Qaeda members from its European prisons to North Africa as soon as allegations emerged.

The importance of relations with Washington has meant European countries “have been ready to look away” when rendition and controversial detention practices at the Guantánamo and Abu Ghraib prisons were exposed, says Kai Hirschmann, an expert at the terrorism research institute in Essen, western Germany. The Masri case “breaks this perspective”, Mr Hirshmann says, because the German government evidently knew about his detention only days after he was released but chose to preserve diplomatic and intelligence ties with Washington rather than stand up against clear abuses of the rights of a citizen.

Wolfgang Gerhardt, the foreign policy expert of Germany’s opposition liberal Free Democrats, says the Masri case exposes the double standards of the recently ended government of Gerhard Schröder. “Despite the former government’s strong criticism of the invasion of Iraq there was obviously ‘back room’ co-operation beyond what was normally expected,” he says. “It is absolutely unacceptable that a [German] citizen is kidnapped and released and the [current] government acts as if it is perfectly acceptable for the US not to apologise in any way.”

With Angela Merkel due to visit Washington for the first time as Germany’s chancellor on January 13, how Berlin handles the issue in coming weeks will be the “crucial first test of our relationship” with the US, admits Mr Erler, the deputy foreign minister.

Meanwhile, the British government has been embarrassed by the ruling by the House of Lords, which rejected its plea to allow evidence from foreign intelligence services that may have been obtained by torture. “From its very earliest days, the common law of England set its face firmly against the use of torture,” wrote Lord Bingham, England and Wales’s former Lord Chief Justice, citing arguments that torture was not only cruel but also inherently unreliable and “degraded all those who lent themselves to the practice”.

Senior UK security officials have in the past admitted to a dissonance between counter-terrorism methods used by the US and London’s MI5, which prefers to lay the emphasis on building up informers and agents from within the Muslim community. But in the case before the House of Lords, Dame Eliza Manningham-Buller, MI5’s director general, argued that information from detainees in third countries could save lives.

Lawyers and academics argue that the US and some of its allies have failed to learn lessons from how Britain initially mishandled the same issues when it dealt with terrorist organisations in Northern Ireland – before getting its house in order. UK government lawyers accepted as far back as 1972 that there was no defence in law for interrogation methods such as hooding and food and sleep deprivation.

Yet, according to a report published in March by the British parliamentary intelligence and security committee, UK intelligence officials witnessed their US counterparts using, in third countries, interrogation methods banned under the Geneva Convention.

“There was a lot of sympathy for the US when it set up this whole war machine after September 11 – with renditions and all of that,” says one senior western diplomat. “But now, four years on, things have to change.”

The US approach has come under increasing criticism at home as well. John McCain, a senior Republican on the Senate armed services committee, has spent months pushing for legislation that would prohibit the use of “cruel, inhumane and degrading” treatment by US forces anywhere in the world. Vice-President Dick Cheney’s opposition to that proposed measure has helped turn it into a public relations disaster for the administration.

Many Europeans argue that the Bush team seems not to understand that maltreatment of prisoners can provide a rallying cry for terrorist movements. “If we want to win the war against al-Qaeda, we have to win the battle of ideas and show that we live by certain values which exclude torture,” says Prof Paul Wilkinson, an expert on counter-terrorism at St Andrews University in Scotland.

Nevertheless, some US officials are irritated by what they see as Europe’s attempt to evade its responsibility. Throughout her European travels last week, Ms Rice stressed: “The US has respected – and will continue to respect – the sovereignty of other countries.” A senior US official says Ms Rice intended to emphasise that the US acted with the knowledge of, and together with, its European allies. The implication “that the US was acting as a lone cowboy, a rogue state” drove the US to that public statement, the official says. “That was the rub.”

Before, while the US kept its European partners informed of its activities, neither side saw fit to advertise the relationship. Now, after weeks of revelations, the cover is blown. Rather than continue to avoid the issue, Europe will have to decide how far it is prepared to go in the battle against terror.

Additional reporting by Demetri Sevastopulo and Guy Dinmore

Held five months by agents who ‘kick and beat’

For a chilling moment it seemed as if history was repeating itself for Khaled el-Masri, writes Hugh Williamson. The well-built German of Lebanese origin, who claims he was illegally detained by the CIA for five months, arrived at Atlanta airport last week aiming to launch the first ever legal challenge to its so-called renditions policy.

But, in what felt to him like an echo of his previous experience at the hands of the US, he was not allowed beyond immigration control. Manfred Gnjidic, his lawyer, says: “Officials told him he could not enter and could not make contact with me or anyone else. He told me later he thought they would take him to Guantánamo” – the notorious US naval base in Cuba. He adds: “My client simply looked very, very scared.”

Mr Masri was eventually allowed to return to Germany, where Mr Gnjidic describes him as “still suffering from severe trauma”. The unemployed used-car salesman, who lives with his Lebanese wife and five children near Ulm, southern Germany, said in a statement: “I would like from this [US] lawsuit . . . an acknowledgement that the CIA is responsible for what happened to me, an explanation as to why this happened, and an apology.”

While many aspects of Mr Masri’s story cannot be independently corroborated, August Stern, a Munich-based prosecutor investigating the case, says those details that can be checked “stand up to scrutiny”. Germany also acknowledged last week that the US ambassador to Germany had told Berlin in secret about the abduction – though only on May 31 2004, three days after Mr Masri was released in Albania.

Mr Gnjidic says that, although US agents initially accused Mr Masri of travelling on a false passport and having ties to Islamic extremists, his client is not facing legal charges in Germany or the US.

Mr Masri says he travelled by bus to Macedonia, in former Yugoslavia, for a short break after an argument with his wife. He was detained at the border and held in a hotel in Skopje, the capital, for 23 days – before being transferred by air to the infamous “Salt Pit” CIA-run prison near Kabul, the Afghan capital. He says he was beaten and his life threatened. He mounted two protest hunger strikes and as a result was force-fed. His statement describes his arrival in Kabul: “I was dragged out of the car, pushed roughly into a building, thrown to the floor and kicked and beaten on the head, the soles of my feet and the small of my back.”

US officials have suggested the CIA believed they had captured a different man with a similar name – Khalid al-Masri – who is mentioned in the US report into the September 11 2001 terrorist attacks. Mr Gnjidic notes, however, that the interrogators had “very detailed knowledge” of his client’s activities and friends in Ulm.

Mr Masri has accepted having Muslim friends who in the past were under observation or investigation in Germany but he denies holding extremist views. “The CIA appears to have thought, mistakenly, that Mr el-Masri was a real Islamic extremist,” Mr Gnjidic says.

German officials say it would have been “normal practice” for German and US intelligence agencies to share information but Frank-Walter Steinmeier, German foreign minister, said it was “outrageous” to suggest that Germany had played an active role in Mr Masri’s abduction.

Despite this, Berlin has struggled to shrug off charges of complicity. Officials say the government has offered behind-the-scenes support to the Munich investigation and has complained to Washington in closed-door meetings. They point to comments by Angela Merkel, Germany’s new chancellor, last week after meeting Condeleezza Rice, US secretary of state, in which Ms Merkel said the US had “accepted [the Masri case] as a mistake”.

Yet the US later denied Ms Rice had made such an admission. German officials acknowledge that – even where an innocent German citizen is involved – Berlin will not take any public step that would endanger intelligence ties with Washington.