The outrage evident in the Council of Europe report on the secret CIA rendition programme emerges from a clash between the methods used by the United States to break up al-Qaeda networks and the sensitivities of human rights mechanisms introduced into post-war Europe and designed not to permit the unhindered use of government power.
The report’s author, Swiss Senator Dick Marty, following up his earlier draft findings, identified what he felt was the difference between the responses to terrorism by Europe and the US:
“While the states of the Old World have dealt with these threats primarily by means of existing institutions and legal systems, the United States appears to have made a fundamentally different choice: considering that neither conventional judicial instruments nor those established under the framework of the laws of war could effectively counter the new forms of international terrorism, it decided to develop new legal concepts.
“This legal approach is utterly alien to the European tradition and sensibility, and is clearly contrary to the European Convention on Human Rights and the Universal Declaration of Human Rights.”
It is important to stress here that the argument is not about the origins of the human rights mechanisms, the inspiration for which came as much from the US as from Europe. It is about their application today.
Human Rights Watch
The American decision to engage in counterterrorism beyond the reach of national or international law arose from a desire – a need as Washington saw the matter – to avoid the restrictions of the US law and constitution, which protect individual rights.
It therefore built not only Guantanamo Bay, but a series of “black sites”, or secret prisons around the world. In these black sites, senior al-Qaeda suspects were held and interrogated, sometimes by so-called “enhanced” methods.
For the Bush administration, authority for this came from a congressional resolution passed on 14 September 2001.
Under this resolution “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001… in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Specific authority for the CIA to act as it saw best against al-Qaeda was then given by President Bush in a “presidential finding” on 17 September 2001.
It was therefore perhaps inevitable that one day, there would be a clash between the operational requirements of the CIA and the legal concerns of European human rights organisations, led by the Council of Europe, which administers the European Convention on Human Rights.
This clash is but one element of the wider legal struggle that has seen efforts to get rights for the Guantanamo Bay prisoners and pressure on the US to abide by a strict interpretation of the international convention against torture.
The US Secretary of State Condoleezza Rice has stated that her country does not engage in torture or hand over prisoners to those who do.
Poland and Romania
The most serious charge Mr Marty makes in his report is against Poland and Romania, both of which he all but accuses of having allowed the CIA to run black sites.
These suspected secret prisons were in fact exposed by the Washington Post in an article in November 2005.
Poland and Romania were not named in that article – the reference was to “several democracies in Eastern Europe” – at the request of the White House, but they were soon revealed.
It is believed that the sites were rapidly closed and the prisoners transferred, perhaps to somewhere in North Africa.
Mr Marty has now collated flight data from rendition flights and has pointed a finger of suspicion at both countries, which continue to deny they did anything wrong. In this, he goes beyond his earlier, preliminary report.
Other intriguing circumstantial information has come from Muhammad Bashmila, a former secret prisoner now free in Yemen.
In a rare interview with the BBC Newsnight programme, he spoke of being transferred from Afghanistan to a secret prison where it was cold, where the food appeared European and where evening prayers were held at the late hour of 2045. Somewhere in Eastern Europe is suspected.
Balance of liberties
It is argued, by the British government among others, that the phenomenon of Islamic terrorism is so grave that there has to be a reconsideration of the balance of liberties.
Previously, according to this view, the individual had to be protected against governments. But now the individual ability to wage war on societies is so great that individuals have to be restricted.
Mr Marty does not accept this.
In his report, he states: “The compilation of so-called “black lists” of individuals and companies suspected of maintaining connections with organisations considered terrorist and the application of the associated sanctions clearly breach every principle of the fundamental right to a fair trial: no specific charges, no right to be heard, no right of appeal, no established procedure for removing one’s name from the list.”
But he also quotes within his report a defence from Dan Fried, the US Assistant Secretary of State for European Affairs:
“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.”