Europe's Investigations of the CIA's Crimes

By JOANNE MARINER
Tuesday, Feb. 20, 2007

A year ago, I testified before lawmakers about CIA involvement in kidnappings, enforced disappearances, and secret detentions. But rather than traveling to Washington to brief members of Congress about these practices, I headed to Brussels to participate in hearings before the European Parliament.

The topic was important, but the venue was odd. Although I appreciated European concern over CIA abuses--and understood that the complicity of European intelligence services was an important contributing factor--it seemed incongruous that Europeans, rather than Americans, were investigating these questions.

Over the past year, the contrast between European and U.S. responses has grown more stark. While the U.S. Congress has yet to hold hearings on the CIA's program of holding terrorism suspects in secret prisons, and sending others to foreign countries to be tortured, the European Parliament has just finished a thorough investigation of these activities.

Moreover, although the Department of Justice cannot seem to build a prosecution against even a single CIA operative implicated in the abuse of detainees, Italian and German prosecutors have now indicted 38 of them. In Italy, a judge is poised to go ahead with the trial of 26 Americans implicated in the 2003 kidnapping of an Egyptian imam from Milan. The man was delivered to Egypt, where he claims, very credibly, to have been badly tortured.

So if the Europeans can manage to undertake serious investigations of CIA counterterrorism abuses, why can't we?

Canada, Too

The contrast is striking. Even the U.S. courts, normally more solicitous of rights than other branches of government, have been reluctant to act. The Bush Administration has succeeded in getting suits knocked out of court on the mere possibility that they might lead to the disclosure of "state secrets" about CIA activities. In contrast, a Spanish court has just ordered Spain's intelligence service to declassify any documents it possesses pertaining to CIA flights in Spain.

It is not only the Europeans who have seriously examined these issues. In Canada, the government carried out a full-scale official inquiry into the case of Maher Arar, a dual Canadian-Syrian national who was badly tortured in Syria after the U.S. deported him there. In January, the Canadian Prime Minister offered Arar a public apology, as well as $12.5 million in compensation.

The United States, however, stubbornly refuses to take Arar off its terrorist watch list. And rather than hearing Arar's claim for compensation, a U.S. federal court dismissed his complaint last year, giving priority to what it deemed to be national security and foreign policy considerations.

Embarrassment on Both Sides of the Atlantic

The reason that these investigations have gone forward in Europe and Canada is not simply that it's easier, politically, for them to reveal U.S. misdeeds. Indeed, these cases have also been extremely embarrassing for European and Canadian officials.

For example, in the case of Khaled el-Masri -- a German citizen who was abducted in Macedonia in 2004 and held for four months in a secret CIA prison in Afghanistan -- the German Foreign Minister has been dogged by charges that Berlin may have connived in the illegal detention. Italian officials, likewise, appear to have been implicated in the CIA's 2003 kidnapping of the Egyptian imam from Milan. Yet in these cases and others, European prosecutors, judges and legislators have pressed their governments to acknowledge responsibility for abuses.

Similarly, the official commission of inquiry that the Canadian government established to examine the case of Maher Arar concluded that Canada shared responsibility for Arar's torture in Syria. It found, specifically, that the Royal Canadian Mounted Police passed false information about Arar to the U.S. authorities without placing any conditions upon how that information might be used.

But while officials on both sides of the Atlantic are implicated in serious abuses, it is only the Europeans and the Canadians who have shown any willingness to acknowledge their responsibility. Here, even in areas where the U.S. government appears to have moderated the CIA's practices, it has never acknowledged that the abuses that were committed were morally wrong and/or illegal.

In not a single case--even those involving abduction and torture--has this administration apologized for the CIA's behavior or repudiated its tactics. In fact, the Bush Administration has consistently and vehemently defended CIA abuses. Top officials may have employed a few euphemisms to disguise the practices--speaking of "alternative procedures," not torture--and "sensitive questioning," not coercive interrogation--but their public stance has left little doubt that the CIA's treatment of terrorism suspects was approved from on high.

Oversight by the New Congress

Congress, for its part, has done almost nothing to investigate these abuses. Not only has it failed to hold hearings or otherwise exercise effective oversight over the intelligence services, it passed legislation last September that reduces the likelihood of holding CIA operatives accountable.

The question now is whether the new Congress--facing a weakened executive--will act any differently. Sen. Patrick Leahy, chair of the Senate Judiciary Committee, has already written Attorney General Alberto Gonzales to request a presidential directive that may have authorized CIA practices such as torture and secret detention. It's a good first step, but the real test lies in how Leahy will respond now that Gonzales has refused to supply the document.

Not only have the CIA's abusive practices done serious harm to this country's moral standing abroad, they have been counterproductive in the fight against terrorism. As a study published by the National Defense Intelligence College recently concluded, there is no scientific evidence to show that these practices produce accurate or useful information.

It is in America's interest to investigate and prosecute these crimes, as much or more than it is in the interest of other countries. These are our crimes; the responsibility of dealing with them lies with us, too.


Joanne Mariner is a human rights attorney. Her previous columns on CIA detainees, Guantanamo, and other related topics are available in FindLaw's archive.

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