U.S. Treatment of Terror Suspects and U.S.-EU Relations

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Introduction

In response to media reports that the United States is detaining top al-Qaeda suspects in secret prisons in eight countries, including Romania and Poland, European officials have launched a series of investigations. These moves follow a spate of stories in Europe alleging that the Central Intelligence Agency (CIA) is ferrying terrorist suspects by air between the so-called black sites and countries in the Middle East that regularly torture detainees. The allegations have deepened dismay among European Union (EU) members over Washington’s conduct leading up to the Iraq war, which was widely unpopular in Europe, as well as over revelations of torture in U.S.-run facilities inside Iraq and Afghanistan.

What, exactly, is being alleged?

Media reports suggest aircraft operated by the CIA have been spotted at airports in Finland, Germany, Hungary, Iceland, Italy, Poland, Portugal, and Spain, and that these planes were used to carry terrorist suspects and other detainees. There is little doubt planes operated by the CIA flew through and stopped over in Europe, since airport records that note flight plans and identification numbers are publicly available. At issue for the Europeans is whether these flights are a breach of international law, and whether local intelligence agencies were aware of—or even complicit in—the operations that many allege involved human rights violations.

The allegations are part of a continuing debate between the United States and European governments on the practice of "extraordinary renditions," or the overseas arrests or abductions of suspected terrorists by U.S. officials. British Foreign Minister Jack Straw, who supported the U.S. war in Iraq, wrote to Washington on behalf of the European Union (EU) asking for formal clarification of the policy—specifically raising the issue of covert prisons in Eastern Europe and CIA airplanes stopping in European bases, which may be in violation of international law.

What is rendition? Is it legal?

Once a low-profile counterterrorism tool, the practice of rendition has become integral to U.S. intelligence-gathering efforts since the September 11, 2001, attacks. Although little is publicly known about the nature and frequency of U.S. renditions, press reports indicate the United States has captured more than 100 terrorism suspects since 9/11 and rendered them to Egypt, Jordan, Morocco, Pakistan, Uzbekistan, and other nations. Some of the suspects arrested abroad are held by the United States for interrogation, while others are sent to countries cited by the U.S. State Department for human-rights violations, including torture. Human rights activists and the governments of some prominent U.S. allies decry the extrajudicial nature of rendition. Citing former detainees’ reports of abuse, they criticize the government for failing to ensure U.S. terror suspects are not rendered into the hands of torturers.

The extent of U.S. agencies’ legal authority to carry out renditions remains unclear. The United States is a signatory to the UN’s Geneva Convention Against Torture that prohibits the cruel, inhuman, and degrading treatment of prisoners. But although President Bush issued a February 2002 directive stating all detainees should be treated "humanely," Washington has determined the Geneva Conventions do not apply to the war on terrorism. A still-classified March 19, 2004, draft memo by the Justice Department authorized the Central Intelligence Agency (CIA) to render terrorism suspects out of Iraq to foreign countries for interrogation. The CIA was also granted broader authority to act independently by a still-classified presidential directive signed just after 9/11. And in 2002, another Justice Department memo (PDF) for President Bush’s then-legal counsel Alberto Gonzalez—now the U.S. attorney general—advised the White House that torturing al-Qaeda terrorists in captivity abroad "may be justified."

What has been the U.S. response?

In her December 5 briefing to journalists before leaving on a four-nation tour of Europe, Rice was careful to note interrogations of terror suspects have produced intelligence that helped "save European lives." Rice also defended the legality of U.S. tactics against stateless "enemy combatants" and reminded Europe that terrorism is a global threat. "We share intelligence that has helped protect European countries from attack," she said. She said the United States does not permit, tolerate, or condone torture under any circumstances, but defended rendition as a "lawful weapon" for taking "terrorists out of action" and saving lives. She made no reference to secret prisons. In Kiev December 7, Rice said the United States had barred all personnel from engaging in "cruel, inhumane, and degrading treatment," which some experts point to as a marked shift in U.S. policy. Nonetheless, according to Charles Kupchan, the Council on Foreign Relations’ director for Europe studies, Rice’s statements in Europe have taken a "relatively tough line" with the Europeans. "She seems to be saying, ’You need to choose whether you’re with us or against us on this question,’" he says.

The administration’s critics in Europe, however, say Rice’s reassurances are undermined by the prisoner-abuse scandals at Abu Ghraib, Guantanamo Bay, and Baghram, a U.S. facility in Afghanistan. The White House’s opposition to congressional anti-torture legislation proposed by Senator John McCain (R-AZ) has further undermined Rice’s defense of U.S. policies, experts say.

What are Europe’s objections to the U.S. treatment of terror suspects?

The controversy touches on a broader European discomfort with the Bush administration’s approach to countering terrorism. Experts say the outrage over the clandestine prisons and secret flights stems from two broader issues plaguing transatlantic relations: Europe’s discontent with Washington’s unwillingness to grant due process to terror suspects and making assurances that these suspects’ human rights were not violated during allegedly abusive interrogations. Experts say both issues—due process and the alleged use of torture—are in contradiction with European norms on human rights.

What actions have European governments and courts taken?

Currently, there are at least six investigations into alleged CIA flights through various countries. The UK Parliament has formed a nonpartisan committee, chaired by Conservative Andrew Tyrie, to investigate whether the British government tacitly condoned torture when it allowed CIA flights through British airspace to transport terror suspects to countries where they were reportedly tortured. Britain’s highest court also ruled December 8 that evidence obtained abroad through torture cannot be used in British courts. The Council of Europe is also conducting an inquiry into allegations of secret prisons in Eastern Europe. Lead investigator for the Council of Europe probe, Swiss Senator Dick Marty, has asked for data from the European air traffic control agency and requested images from the EU’s satellite center for images that might indicate the construction of detention facilities at Polish and Romanian military bases. Poland, already an EU member, and Romania, currently petitioning for EU membership, deny their involvement in the alleged U.S. clandestine prison network.

Meanwhile, in Germany, Lebanese national Khalid el-Masri—a German citizen who says he was abducted from Macedonia in 2003, beaten, and taken to Afghanistan by U.S. agents in an apparent case of mistaken identity—has filed a lawsuit in federal court against former CIA Director George J. Tenet and three companies suspected of being involved in secret CIA flights. And in Italy, prosecutors are charging twenty-two Americans with the kidnapping of Islamic militant Hassan Mustafa Osama Nasr in February 2003 and "rendering" him to Egypt, where he says he was tortured. Some skeptics claim Prime Minister Silvio Berlusconi may have been complicit as well. "Someone knew," said Daria Pesce, lawyer for one of the CIA station chiefs in Milan, in a November interview with the New York Times. "I don’t think that it is possible that an American comes into Italy and kidnaps someone. It seems really unlikely."

How has the rendition controversy affected domestic European politics?

The investigations into the rendition allegations are putting pressure on governments across Europe. EU Justice and Home Affairs Commissioner Franco Frattini warned November 28 that any EU member found guilty of participating in the CIA’s alleged conduct would lose its voting rights. While this threat has been dismissed as hyperbole by some, Frattini notes the use of secret prisons would violate the European Convention on Human Rights.

European human rights groups and opposition parties are also demanding assurances from their governments that their officials were not involved in secret U.S. rendition plots. Opposition parties and the media in many European countries are seizing this opportunity to criticize their governments. The prison reports are "ammunition for the opposition, a gift to the anti-Americans," says Guillaume Parmentier, director of the Paris-based French Center on the United States. In Germany, where newly elected Chancellor Angela Merkel campaigned on the promise to improve transatlantic ties, the opposition has demanded an explanation for a list of at least 437 U.S. flights and landings in German territory.

What does this mean for EU-U.S. relations?

The news about U.S. rendition operations in Europe "plays into the Europeans’ worst fears about the Bush administration," says John Glenn, director of foreign policy at the German Marshall Fund of the United States. On the one hand, the renditions allegations against the United States—which remain speculative and without hard evidence—have reinvigorated already-strong anti-war, anti-American sentiment, experts say. "Even in places [in Europe] where governments have been supportive, the populations have been opposed to American actions," says James Goldgeier, adjunct senior fellow for Europe studies at the Council on Foreign Relations.

On the other hand, "neither side is looking for another bloody nose," Kupchan says. "If the European [governments] had their way, this issue would quietly disappear, but there is a lot of public outrage about it." The accusations of rendition come at a time when the United States and the European Union have made a concerted effort to improve transatlantic ties. Experts say that in his second term President Bush has been much more concerned with European partners, and there has been concrete cooperation on a host of important issues, including the administration’s Middle East policy. Additionally, many European governments are reluctant to push Washington on the rendition charges for fear their own intelligence agencies’ cooperation with CIA operations will be revealed.

Will this controversy hurt EU-U.S. intelligence-sharing operations?

The intelligence-sharing relationship has remained quite strong since the 9/11 attacks, despite political discord over the unpopular war in Iraq, experts say. But renditions could pose a real political obstacle to future collaborative intelligence operations. Little is publicly known about the nature and frequency of U.S. renditions. Some of the more politicized cases include Lebanese national Khaled el-Masri, a German citizen, who claims he was picked up by Macedonian authorities in Skopje and turned over to U.S. officials in Afghanistan, where Rice has admitted he was wrongfully detained for five months. German prosecutors are currently investigating the possibility that former German Interior Minister Otto Schily knew of Masri’s abduction. In December 2001, Swedish police handed two Egyptian nationals over to U.S. agents, who rendered the men to their home country. Sweden’s security police, in response to public outrage over the renditions, have since promised never to allow foreign agents control over an intelligence operation on Swedish soil.

The political fallout from questionable renditions in Italy, Sweden, and Germany has made it more difficult for these countries to cooperate in future counterterrorism exercises with U.S. intelligence. "It’s at least conceivable," Kupchan says, "that this row could, to some extent, be a setback on the intelligence and law-enforcement front and make the parties more reluctant to share information."