The European Investigations of the Claimed U.S. Secret Prison Network and Other Alleged Abuses:
Why Congress Must Investigate, Too, and Why the U.S. Must Accurately Report to the U.N.

By NOAH S. LEAVITT

Monday, Nov. 28, 2005

Last Tuesday, U.S. Ambassador to the United Nations John Bolton sternly warned the U.N. that unless it implements U.S.-proposed reforms, the U.S. may bypass the organization entirely:

"Americans are a very practical people," Bolton said. "They look at [the U.N.] as a competitor in the marketplace for global problem-solving, and if it's successful at solving problems, they'll be inclined to use it. If it's not successful, they'll say, 'Are there other institutions?'"

Bolton also suggested that unless the U.S.-sponsored reforms are adopted, the passage of the U.N.'s $3.6 billion 2006-07 budget --which must gain consensus to pass - ought to be delayed.

But the twenty-five-member European Union - including U.S. ally Britain - strongly disagreed. It made clear that it did not believe in holding the U.N. budget hostage while reform was debated. (The U.S. contributes approximately 22% of the budget; E.U. members collectively pay about 35%.)

E.U. member countries do seem to agree with Bolton on one point, though: They agree that the U.N. is, indeed, not the only institution that can be tasked with issues relating to international human rights.

Unfortunately for Bolton, though, is the way they are applying this principle. Across Europe, regional organizations and individual nations are beginning to prosecute alleged U.S.-sponsored human rights abuses, rather than waiting for the U.N. to act.

How Regional Institutions Have Taken Action

Europeans have been shocked by reportage in the Washington Post's November 2 issue of a secret overseas network of CIA-run prisons. Washington will neither confirm nor deny. But according to Newsweek, President Bush himself authorized the CIA to set up these covert interrogation sites.

Reportedly, some of the sites are in Soviet-era prisons in Eastern Europe, and several European air bases may have been used for transporting prisoners to these centers. As the LA Times noted Saturday, this possible collusion with CIA torturers has led to massive debate and "soul searching" across Europe.

The Council of Europe - the continent's human rights watchdog organization (formally separate from the E.U.) - has taken the lead in investigating these claims. The Council oversees implementation and compliance with the European Convention on Human Rights, a treaty binding on all Council members, which clearly forbids the conduct of torture in secret prisons.

Invoking rarely used legal procedures, the Council recently wrote to its members and demanded that by February 21, 2006, each of the 46 participating national governments provide any information they have regarding illegal jailing of suspected terrorists, or flights that may have been used to transport these suspects.

In addition, Swiss senator Dick Marty, who is leading the Council's investigation, has asked the European air traffic control agency to turn over unpublished flight logs of military and civilian flights. Marty recently said, "We do not want to weaken the fight against terrorism, but this fight has to be fought by legal means. Wrongdoing only gives ammunition to both the terrorists and their sympathizers."

If European countries indeed participated in CIA-sponsored secret torture, by housing secret detention centers or allowing flights, the penalties would be severe. Violators could be suspended or expelled from the prestigious Council, and could face formal and informal sanctions ranging from fines, to political embarrassment, to loss of trade privileges.

Separately, the European Union is also concerned about allegations of secret interrogation bases within its jurisdiction. On Tuesday, several E.U. member states agreed to write to the U.S. on behalf of the entire Union for pertinent information. And the E.U.'s Satellite Tracking Center has also been asked to turn over imagery of the alleged interrogation sites in Romania and Poland.

Moreover, this week, the European Commission - the executive body of the E.U.--directed its head of the Department of Justice, Freedom and Security, who is currently meeting in Washington, to seek answers on the veracity of the existence of the secret prisons.

How Individual European Nations Are Also Investigating

Meanwhile, individual European nations are also investigating.

In Germany, a public prosecutor has opened an investigation into a case in which CIA agents allegedly seized an Egyptian suspect off a street in Milan, Italy, and transported him through the U.S. military base in Ramstein, Germany, en route to an Egyptian torture center. This investigation has led some German politicians to clamor for a much broader federal investigation of other possible CIA collaboration.

In Italy, a court has indicted - and prosecutors have issued arrest warrants for -- more than 20 CIA agents for kidnapping in service of "extraordinary rendition": the practice of transporting suspected terrorists from one nation to another nation which has fewer constraints on torturing suspects. A few weeks ago, prosecutors asked the Italian Justice Ministry to demand the agents' extradition from the U.S.

In Spain, a judge is investigating allegations that CIA agents used an airbase at Mallorca to transport suspects.

Finally, the Swedish and Norwegian governments are investigating reported landings of CIA planes at their airfields, and Portuguese left-wing opposition party leaders are pressing for a similar investigation in their country.

An Embarrassment to U.S. Courts, and an Illustration of the U.S.'s Need to Work with the U.N.

Where are U.S. courts on these issues? In contrast to their European counterparts, they look positively lethargic.

Consider the case of Jose Padilla: Held for three years, the American citizen the government claimed was a "dirty bomb" conspirator still has not been charged with that conspiracy - and, it seems, may never be. (He has been indicted on separate charges.) The Supreme Court avoided hearing his case based on a procedural technicality, and the other courts involved have dragged their feet, so that an unconscionable amount of time has passed since Padilla's detention. And the government may only have indicted Padilla due to fear that the courts would belatedly awaken from their slumber, and finally address the legality of his detention.

Meanwhile, we have a Special Prosecutor for a leak of a single CIA agent's identity - a serious matter, but a limited one - but where is our Special Prosecutor to investigate credible allegations by respected news sources that numerous prisoners have suffered torture in secret CIA prisons abroad?

Indeed, as Jennifer Van Bergen detailed in an earlier column for this site, these prisons, if they exist as described, violate domestic and international law in a number of ways.

Where, too, is the Congressional investigation the Post story ought to have triggered? Earlier this month, the Senate voted to require the U.S. National Intelligence Director John Negroponte to disclose any details of any such secret bases. Congress should go much further, however, and, using the 9-11 Commission as a model, establish a bi-partisan body whose sole purpose would be to investigate these allegations.

It is no wonder that foreign nations and regional bodies are moving forward with their own investigations, when the U.S. shows virtually no interest or inclination in disciplining its own citizens for violating clear law.

The U.S. Must Stop Bypassing the U.N.

Finally, the U.S.'s attitude toward the U.N. - as expressed by Bolton - is beginning to look not just arrogant and foolhardy, but positively dangerous. It is quite possible that - in results reminiscent of those in the Abu Ghraib scandal -- low-level individual CIA agents may, someday soon, be locked up in foreign prisons as their superiors duck responsibility.

Next May, the U.S. is scheduled to report to the U.N.'s Committee Against Torture about these and other abuses. If it does not take its responsibility seriously, it can expect other countries to continue to look outside the U.N. for still more regional and national ways to make sure allegations of U.S. abuses are addressed. Why should other nations defer to the U.N., when the U.S. will not?

More than a year and a half ago, I argued in this space that the U.S. was dangerously narrowing its definition of torture, and that Congress should step in and issue clear directives defining it, and prohibiting it when done by any U.S. agent, anywhere. Of course, it did not do so, and still has not - though Senator McCain is now pushing strongly for movement on this issue. Now we are starting to see the international ramifications of this cowardly failure to act.

Once, the U.S.'s legal and governmental system was the envy of the world. Now, it is fast becoming a target of international mockery. It is the responsibility, then, of the U.S. to investigate the secret prisons, if they exist, and hold those involved responsible. Otherwise, the U.S. may soon find itself at the defense - not the prosecution - side of the table in notorious international human rights trials.


Noah Leavitt, an attorney and author, teaches at Whitman College. He can be contacted at nsleavitt@hotmail.com. An archive of his previous columns can be found at https://writ.news.findlaw.com/leavitt/.

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