Committee on Legal Affairs and Human Rights
Draft report – Part II (Explanatory memorandum)
Rapporteur: Mr Dick Marty, Switzerland, ALDE
C. Explanatory memorandum
by Mr Dick Marty, Rapporteur
3. Specific examples of documented renditions
3.1. Khaled El-Masri
92. We have spoken for many hours with Khaled El-Masri, who also testified publicly before the Temporary Committee of the European Parliament, and we find credible his account of detention in Macedonia and Afghanistan for nearly five months.
3.1.1. The individual account of Mr. El-Masri
93. A summary of the unprecedented suffering endured by Mr El-Masri reads as follows:
94. [A]ccording to the statement of facts presented to the US District Court91, Khaled El-Masri, a German citizen of Lebanese descent, travelled by bus from his home near Neu Ulm, Germany, to Skopje, Macedonia, in the final days of 2003. After passing through several international border crossings without incident, Mr El-Masri was detained at the Serbian-Macedonian border because of alleged irregularities with his passport. He was interrogated by Macedonian border officials, then transported to a hotel in Skopje. Subsequent to his release in May, 2004, Mr El-Masri was able to identify the hotel from website photographs as the Skopski Merak, and to identify photos of the room where he was held and of a waiter who served him food. Over the course of three weeks, Mr El-Masri was repeatedly interrogated about alleged contacts with Islamic extremists, and was denied any contact with the German Embassy, an attorney, or his family. He was told that if he confessed to Al-Qaeda membership, he would be returned to Germany. On the thirteenth day of confinement, Mr El-Masri commenced a hunger strike, which continued until his departure from Macedonia. After 23 days of detention, Mr El-Masri was videotaped, blindfolded, and transported by vehicle to an airport.
95. There, he was beaten, stripped naked, and thrown to the ground. A hard object was forced into his anus. When his blindfold was removed, he saw seven or eight men, dressed in black and hooded. He was placed in a diaper and sweatsuit, blindfolded, shackled, and hurried to a plane, where he was chained spreadeagled to the floor. He was injected with drugs and flown to Baghdad, then on to Kabul, Afghanistan, an itinerary that is confirmed by public flight records. At some point prior to his departure, an exit stamp was placed in his passport, confirming that he left Macedonia on January 23, 2004.
96. Upon arrival in Kabul, Mr El-Masri was kicked and beaten and left in a filthy cell. There he would be detained for more than four months. He was interrogated several times in Arabic about his alleged ties to 9/11 conspirators Muhammed Atta and Ramzi Bin Al-Shibh and to other alleged extremists based in Germany. American officials participated in his interrogations. All of his requests to meet with a representative of the German government were refused.
97. In March, Mr El-Masri and several other inmates commenced a hunger strike. After nearly four weeks without food, Mr El-Masri was brought to meet with two American officials. One of the Americans confirmed Mr El-Masri’s innocence, but insisted that only officials in Washington, D.C. could authorize his release. Subsequent media reports confirm that senior officials in Washington, including the CIA Director Tenet, were informed long before Mr El-Masri’s release that the United States had detained an innocent man. Mr El-Masri continued his hunger strike. On the evening of April 10, Mr El-Masri was dragged from his room by hooded men and force-fed through a nasal tube.
98. At around this time, Mr El-Masri felt what he believed to be a minor earthquake. Geological records confirm that in February and April, there were two minor earthquakes in the vicinity of Kabul.
99. On May 16, Mr El-Masri was visited by a uniformed German speaker who identified himself as “Sam”. “Sam” refused to say whether he had been sent by the German government, or whether the government knew about Mr El-Masri’s whereabouts. Subsequent to his release, Mr El-Masri identified “Sam” in a photograph and a police lineup as Gerhard Lehmann, a German intelligence officer.
100. On May 28, 2004, Mr El-Masri, accompanied by “Sam,” was flown from Kabul to a country in Europe other than Germany. He was placed, blindfolded, into a truck and driven for several hours through mountainous terrain. He was given his belongings and told to walk down a path without turning back. Soon thereafter, he was confronted by armed men who told him he was in Albania and transported him to Mother Theresa Airport in Tirana. There, he was accompanied through customs and immigration controls and placed on a flight to Frankfurt.
101. Upon his return to Germany, Mr El-Masri contacted an attorney and related his story. The attorney promptly reported Mr El-Masri’s allegations to the German government, thereby initiating a formal investigation by public prosecutors. Pursuant to their investigation, German prosecutors obtained and tested a sample of Mr El-Masri’s hair, which proved consistent with his account of detention in a South-Asian country and deprivation of food for an extended period. That investigation, as well as a German parliamentary investigation of Mr El-Masri’s allegations, is ongoing.
3.1.2. Elements of corroboration for Mr. El-Masri’s account
102. Mr El-Masri’s account is borne out by numerous items of evidence, some of which cannot yet be made public because they have been declared secret92, or because they are covered by the confidentiality of the investigation underway in the office of the Munich prosecuting authorities following Mr El-Masri’s complaint of abduction.
103. The items already in the public domain are cited in the afore-mentioned memorandum93 submitted to the Virginia court in which Mr El-Masri lodged his complaint:
• Passport stamps confirming Mr El-Masri’s entry to and exit from Macedonia, as well as exit from Albania, on the dates in question;
• Scientific testing of Mr El-Masri’s hair follicles, conducted pursuant to a German criminal investigation, that is consistent with Mr El-Masri’s account that he spent time in a South-Asian country and was deprived of food for an extended period of time;
• Other physical evidence, including Mr El-Masri’s passport, the two t-shirts he was given by his American captors on departing from Afghanistan, his boarding pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed during his ordeal, all of which have been turned over to German prosecutors;
• Aviation logs confirming that a Boeing business jet owned and operated by defendants in this case, then registered by the FAA as N313P, took off from Palma, Majorca, Spain on January 23, 2004; landed at the Skopje airport at 8:51 p.m. that evening; and left Skopje more than three hours later, flying to Baghdad and then on to Kabul, the Afghan capital;
• Witness accounts from other passengers on the bus from Germany to Macedonia, which confirm Mr El-Masri’s account of his detention at the border;
• Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, from which Mr El-Masri has identified both his actual room and a staff member who served him food;
• Geological records that confirm Mr El-Masri’s recollection of minor earthquakes during his detention in Afghanistan;
• Evidence of the identity of “Sam,” whom Mr El-Masri has positively identified from photographs and a police line-up, and who media reports confirm is a German intelligence officer with links to foreign intelligence services;
• Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were immediately recognizable to another rendition victim who was detained by the U.S. in Afghanistan;
• Photographs taken immediately upon Mr El-Masri’s return to Germany that are consistent with his account of weight loss and unkempt grooming.
Numerous government inquiries, including the German prosecutors’ investigation, a German parliamentary investigation, and various intergovernmental human rights inquiries, are almost certain to produce additional corroborating evidence.
3.1.3. The role of "the former Yugoslav Republic of Macedonia"
104. The role of "the former Yugoslav Republic of Macedonia" in the rendition of Khaled El-Masri has yet to be fully understood. The information collected on site by a member of my team appears to show a certain ambiguity in the Macedonian position. In effect, the Government of Macedonia has adopted an ‘official line’ of complete negation, repeated in a rigid and stereotyped fashion.
105. I am indebted to the delegation from the European Parliament for arranging and administering an excellent programme of meetings with the highest-level representatives of the Macedonian Government and Parliament94. I share many of the reflections of my colleagues from the European Parliament in their review of these meetings, not least the sense of discomfort that in many areas the Macedonian authorities fell short of genuine transparency95.
3.1.3.1. The position of the authorities
106. The ‘official line’ of the Macedonian Government was first contained in a letter from the Minister of Interior, Ljubomir Mihajlovski, to the Ambassador of the European Commission, Erwan Fouere, dated 27 December 2005. In its simplest form, it essentially contains four items of information “according to police records”: first, Mr El-Masri arrived by bus at the Macedonian border crossing of Tabanovce at 4.00pm on 31 December 2003; second, he was interviewed by “authorised police officials” who suspected “possession of a falsified travel document”; third, approximately five hours later, Mr El-Masri “was allowed entrance” into Macedonia, apparently freely; and fourth, on 23 January 2004, he left Macedonia over the border crossing of Blace into Kosovo.
107. Mr Mihajlovski restated exactly the same Government position in response to a parliamentary question in the Sobranie on 26 January 200696. He cited “official evidence of the Ministry of Interior” and went on to describe the allegations as “speculative and unfounded”.
108. The President of the Republic, Branko Crvenkovski, set out a firm stance in the very first meeting with the European Parliament delegation, providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint: “Up to this moment, I would like to assure you that I have not come across any reason not to believe the official position of our Ministry of Interior. I have no additional comments or facts, from any side, to convince me that what has been established in the official report of our Ministry is not the truth.”
109. On Friday 28 April the official position was presented in far greater detail during a meeting with Siljan Avramovski, who was Head of the UBK97, Macedonia’s main intelligence service, at the time of the El-Masri case. Avramovski stated that the UBK’s ‘Department for Control and Professional Standards’ had undertaken an investigation into case and traced official records of all Mr El-Masri’s contact with the Macedonian authorities. The further details as presented by Mr Avramovski98 are summarized as follows:
Mr El-Masri arrived on the Macedonian border on 31 December 2003, New Year’s Eve. The Ministry of Interior had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity. In line with these more intense activities, bus passengers were being subjected to a thorough security check, including an examination of their identity documents.
Upon examining Mr El-Masri’s passport, the Macedonian border police developed certain suspicions and decided to “detain him”. In order not to make the other passengers wait at the border, the bus was at this point allowed to continue its journey.
The objective of holding Mr El-Masri was to conduct an interview with him, which (according to Avramovski) was carried out in accordance with all applicable European standards. Members of the UBK, the security and counter-intelligence service, are present at all border points in Macedonia as part of what is described as “Integrated Border Management and Security”. UBK officials participated in the interview of Mr El-Masri.
The officials enquired into Mr El-Masri’s reasons for traveling into the country, where he intended to stay and whether he was carrying sufficient amounts of money. Avramovski explained: “I think these were all standard questions that are asked in the context of such a routine procedure – I don’t think I need to go into further details”.
At the same time, Macedonian officials undertook a preliminary visual examination of Mr El-Masri’s travel documents. They suspected that the passport might be faked or forged – noting in particular that Mr El-Masri was born in Kuwait, yet claimed to possess German citizenship.
A further passport check was carried out against an Interpol database. The border point at Tabanovce is not linked to Interpol’s network, so the information had to be transmitted to Skopje, from where an electronic request was made to the central Interpol database in Lyon. A UBK official in the Analytical Department apparently made this request using an electronic code, so the Macedonian authorities can produce no record of it. Mr El-Masri was made to wait on the border point while the Interpol search was carried out.
When it was established that there existed no Interpol warrant against Mr El-Masri and no further grounds on which to hold him99, he was released. He then left the border point at Tabanovce, although Macedonian officials were not able to describe how. Asked directly about this point in a separate meeting, the Minister of Interior, Mr Mihajlovski said: “we’re not able to tell you exactly what happened to him after he was released because it is not in our interest; after the person leaves the border crossing, we’re not in a position to know how he traveled further”100.
The Ministry of Interior subsequently established, according to Avramovski, that Mr El-Masri had staid at a hotel in Skopje called the “Skopski Merak”. Mr El-Masri is said to have checked in on the evening of 31 December 2003 and registered in the Guest Book. He stayed for 23 nights, including daily breakfast, and checked out on 23 January 2004.
The Ministry then conducted a further check on all border crossings and discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left the territory of Macedonia over the border crossing at Blace, into the territory of Kosovo. When asked whether Mr El-Masri had received a stamp to indicate his departure by this means, Avramovski answered: “Normally there should be a stamp on the passport as you cross the border out of Macedonia, but I can’t be sure. UNMIK is also present on the Kosovo border and is in charge of the protocol on that side… My UBK colleague has just informed me that he has crossed the border at Blace twice in recent times and didn’t receive a stamp on either occasion.”
Avramovski concluded his summary with the words: “This is the truth of the case that has been exploited by the media – the so-called El-Masri case.”
110. In a separate meeting directly following Avramovski’s briefing, Minister Mihajlovski retained the position and added very few further details. Both officials were keen to talk about the case as if it were a routine matter, one which only came to their attention when it was reported in the local and international press. They referred repeatedly to the media “prejudice” and “pressure” against Macedonia. Mihajlovski even implied that there was a conspiracy theory at play, designed to discredit the country:“Who is really behind all of this? This case is making so much damage to the country. If you can get a reason why it is happening, please send us a message; tell us.”
111. It seems clear that the Macedonian public has reacted negatively to the El-Masri affair. Most Macedonians feel aggrieved that their country has been given such a bad press and is associated with what is often portrayed as a manipulative operation. Many regard the international media interest as a thinly veiled attempt to discredit Macedonia’s prospects for European integration. In reality, it seems that the Macedonian Government is itself responsible for this situation. More transparency, and a greater degree of preparedness genuinely to seek the truth, rather than locking themselves into a pre-established, dogmatic scheme, would have certainly avoided much criticism and suspicion.
3.1.3.2. Further elements
112. The Government’s official line is based on what Mr Avramovski called “a reconstruction after the fact, based on information we established through documents and discussions” with, inter alia, “employees of the hotel”. There is no doubt in my mind that the Ministry of Interior has put together a very thorough reconstruction of the case; just not an accurate one. Equally I accept that the Ministry has undertaken “discussions” with witnesses, including hotel employees; but I regard these as efforts to harmonise the official line, not to establish the truth.
113. One could, with sufficient application, begin to tease out discrepancies in the official line. For example, the Ministry of Interior stated that “the hotel owner should have the record of Mr El-Masri’s bill”, while the hotel owner responded to several inquiries, by telephone and in person, by saying that the record had been handed over to the Ministry of Interior.
114. Contacts we were able to make with sources close to the administration and to the intelligence services have enabled us to obtain much more credible information, in order to better understand what really happened. We can consequently present a more coherent analysis of this case. For obvious reasons, the sources contacted locally wish to stay anonymous, at least for the time being.
115. The Government’s public portrayal seems at first glance perfectly plausible. However, it ceases to be credible when it asserts that El-Masri was allowed to proceed freely from Tabanovce on the evening of 31 December 2003. In reality, that evening signaled the beginning of his five-month ordeal in secret detention ordered by the CIA.
116. What is not said in the official version is the fact that the Macedonian UBK routinely consults with the CIA on such matters (which, on a certain level, is quite comprehensible and logical). According to confidential information we received (of which we know the source), a full description of Mr El-Masri was transmitted to the CIA via its Bureau Chief in Skopje for an analysis similar to the one Avramovski says was undertaken by Interpol: whether the person checked out had contacts with terrorist movements, in particular Al Qaida. Based on the intelligence material about Khaled El-Masri in its possession – the content of which is not known to us – the CIA answered in the affirmative. The UBK, as the local partner organisation, was requested to assist in securing and detaining Mr El-Masri until he would be handed over to the CIA for transfer.
117. The UBK has an excellent reputation for its professionalism. It is well practiced in the conduct of clandestine surveillance and detention operations, having exploited its own network of ’secret apartments’ for decades101. Information obtained from our internal sources indicates that the UBK is equally skilled in working on behalf of the CIA. – we even learned of one previous collaborative operation between these services in the past, targeted at apprehending suspected Islamic terrorists. In the El-Masri case, according to our understanding, this co-operation was particularly efficient and the Macedonian services fulfilled the expectations of the CIA.
118. The choice of the Skopski Merak hotel as a detention site warrants comment. The Macedonian authorities have categorically denied that this hotel could have served as a place for detention, considering such a possibility as downright ridiculous. Avramovski said he could “absolutely” rule out the prospect of Mr El-Masri’s being held there:
“Look, I can state this very specifically and decisively. The 31 December is New Year’s Eve – that period is a holiday, there are always a lot of guests, many of them tourists, in the hotel to celebrate the New Year.
There is not even a theoretical possibility [laughing] that a person could be detained in an open hotel, where there’s a constant flow of people coming and going. There were many guests there at the time, including foreign nationals – it’s a well-known, open hotel with a fine reputation in this city!”
In fact, a busy place with this hotel’s features lends itself very well to a clandestine operation, given that a top-floor room facing away from the street was used.
119. Whilst the operation was driven and directed by CIA agents, the Americans kept a very low profile throughout the operation in Macedonia. The CIA transmitted to UBK the questions to ask the suspect, without ever taking part in any interrogation.
120. Several of our interviewees told us – with varying degrees of knowledge – that German intelligence was informed of the fact that Mr El-Masri was in Macedonian custody in the days immediately following the arrest, but not about the operational details. Intelligence material from Germany was added to the dossier from which questions were later asked, both in Macedonia and in Afghanistan, by interrogators of various nationalities.
121. According to our insider sources in the intelligence community, whom we consider serious and well-informed, approximately 20 officials were involved overall on the Macedonian side, including “four or five” politically responsible persons in Government. Three teams of three agents rotated in the task of guarding and surveillance. Technicians and analysts helped to compile the record of the operation, which was a running log rather than a cumulative written report. An operational commander and a deputy marshaled the Macedonian agents and took responsibility for reporting to their liaisons in the CIA.
122. The period for which the Macedonians held Mr El-Masri in advance of his rendition – 23 days – was abnormally long for any operation involving the CIA. Partner agencies and CIA officials alike prefer to keep the time between the initial arrest and the transfer to a CIA detention centre as short as possible102.
123. The delay in this case appears to have been caused by logistical reasons, in particular related to the availability of an aircraft. A flight on an unusual route, from Skopje into the Middle East, had to be incorporated into an existing schedule for that month, which, as established above in the description of the newly-discovered rendition circuit, included other detainee transfers.
124. According to further eye-witness accounts from persons in the civil aviation sector, who described the presence and movements of the suspect rendition plane at Skopje airport that evening, the aircraft thought to have taken Mr El-Masri on board did not follow regular procedures. The manner in which the plane registered with ground staff and paid its ‘route charge’ fees was highly unusual – as the Ministry of Interior himself confirmed, no passengers even left the plane to enter the terminal building and thus cross officially onto Macedonian territory. Instead the plane taxied into position at the far end of the runway, more than a kilometer from the terminal. A detail of armed Macedonian security police formed a lookout nearby, under strict instructions to face away from the plane itself. Asked whether such a measure was conventional for foreign aircraft, Minister of Interior Mihajlovski answered: “No, no. Not at all. The plane is not Macedonian territory; if Spain sends us a plane, it’s the territory of Spain. If there’s a bomb on board we must come inside; but otherwise it’s like a ship, a diplomatic territory”.
125. All these factual elements indicate that the CIA carried out a “rendition” of Khaled El-Masri. The plane in question had finished transferring another detainee just two days earlier and the plane was still on the same ‘rendition circuit’. The plane and its crew had spent the interim period at Palma de Mallorca, a popular CIA staging point. The physical and moral degradation to which Mr El-Masri was subjected before being forced aboard the plane in Macedonia corresponds with the CIA’s systematic ’rendition methodology’ described earlier in this report. The destination of the flight carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic representation of the “spider’s web”.
126. All the indications are that the Macedonian authorities have decided to deny their part in the abduction of El-Masri, admitting only what has already been clearly proven and trying to conceal the rest. It is regrettable that the will is lacking to perform a true inquiry and that Parliament has not shown the initiative to take up the issue (as the German Bundestag has done in the same case). To this must be added the further accusations of the Macedonian Helsinki Committee for Human Rights. According to reports produced by this NGO, suspects were and still are interrogated and sometimes imprisoned and ill-treated for several days, outside the normal arrest and custody system103, specifically in the ‘apartments’ that had been widely used by the previous regime.
127. It is worth repeating that the analysis of all facts concerning this case pleads in favour of the credibility of El-Masri. Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning given to it by the case-law of the United Nations Committee against Torture. In addition, numerous indications support the conclusion that German services participated in a manner that still remains to be established precisely (not excluding the fact that the same services were in the end instrumental in El-Masri’s release; the latter told me that he considered ‘Sam’ as his guardian angel, a kind of ‘life insurance’)104.
128. The detailed information with which El-Masri was confronted during his interrogations in Skopje and in Afghanistan included details of his private life in Neu-Ulm. It is hard to imagine that such information could have been obtained by foreign services without help from their German counterparts. For example, the interrogators in Afghanistan knew that El-Masri had met a certain Reda Seyam105 at the Multikulturhaus and had agreed to get a car which Seyam had just bought with his help registered in the name of El-Masri’s wife in order to save on the cost of insurance. El-Masri assured me that he had shared this information only with Seyam and his wife. In addition, the same interrogators confronted him with bank details of money transfers between his bank in Neu-Ulm and an account in Norway106. Such bank details are not normally accessible to foreign services.
129. In my opinion, this detailed knowledge of Mr El-Masri’s –real – life also rules out the theory that Mr El-Masri was the victim of mere mistaken identity107, being confused with a person of the same (or similar) name, whose name appeared in the American Congress report on the 9 September attacks108 as having travelled by train in Germany together with members of the “Hamburg cell” of the terrorists of 11 September, including one of the murderous pilots, Muhammad Atta109.
130. As regards the identity of “Sam”, who came and interrogated Mr El-Masri in Afghanistan and accompanied him back on the return flight to Europe, speaking German with a a Northern accent, Mr El-Masri remains convinced that this is Mr Lehmann, an agent of the German Bundeskriminalamt. He had identified him with ‘100%’ certainty on photographs and a videotape, and with ‘90%‘ certainty at a surprise police lineup on 22 February 2006110.
131. Mr El-Masri has also been the victim of a defamatory campaign. The press service of the Baden-Württemberg Ministry of the Interior had indicated that El-Masri was a member of “Al Tawid”, implying “Al Tawid al Jihad”, a group belonging to Al Quaida and headed by Abu Musab al-Zarkawi. According to Mr Gnjidic, the confusion was deliberate: El-Masri did belong to a militant anti-Syrian party (a nationalist party of the left also including Islamist elements) called “Al Tawid”, founded in 1982 and wound up in 1985 after the Syrian invasion. Whereas certain members were captured by the Syrians, El-Masri fled and sought political asylum in Germany, for precisely that reason. That group allegedly had absolutely nothing in common (except part of the name, which means “all-powerful god”) with the terrorist group headed by al-Zarkawi. Mr El-Masri was again faced with this confusion at his hearing by the Temporary Committee of the European Parliament, where at least one EP deputy asked him to what other terrorist groups he belonged. As Mr El-Masri was still in a fragile psychological state, I find it particularly odious that he was also the subject of an article, with a photograph, in the local press111 once again insinuating his links with terrorist circles without any evidence whatsoever. He told us that he now hardly dares to leave his home.
132. The case of Khaled El-Masri is exemplary. Some aspects still require further investigation and it is for that reason that inquiries are ongoing in the Bundestag’s Committee of Inquiry and by the Munich prosecutors. The story of El-Masri is the dramatic story of a person who is evidently innocent – or at least against whom not the slightest accusation could ever be made - who has been through a real nightmare in the CIA’s ’spider’s web’, merely because of a supposed friendship with a person suspected at some point in time to maintain contacts with terrorist groups. El-Masri is still waiting for the truth to be established, and for an excuse. His application to a court in the United States has been rejected, at least in the first instance: not because it seemed unfounded, but because the Government brought to bear so-called ‘national security’ and ‘state secrecy’ interests. This speaks for itself.
3.2. "The Algerian Six"
133. Six Bosnians of Algerian origin – four Bosnian citizens and two longstanding residents112 were arrested in October 2001 by order of the Supreme Court of the Federation of Bosnia and Herzegovina and detained on remand. They were suspected of having planned bomb attacks on the American and British embassies.
134. The investigation, between October 2001 and January 2002, did not reveal any evidence linking these men to a terrorist plot. On 17 January 2002, the office of the federal prosecutor informed the investigating magistrate at the supreme court that he had no reason to keep the men in custody any longer. On that same day at about 3pm the investigating magistrate ordered the immediate release of the six men.
135. Again on the same day, at about 5pm, the Human Rights Chamber of Bosnia and Herzegovina issued an interim order, following an application lodged by four of the men113. The order, which had statutory force in Bosnia according to the Dayton peace accords, required the Government of Bosnia and Herzegovina to take all necessary steps to prevent the applicants being forcibly deported from Bosnia and Herzegovina.
136. However, on the evening of 17 January 2002 the six men were arrested by Bosnian police officers, and handed over to members of the United States military forces stationed in Bosnia and Herzegovina on the morning of 18 January. This is recorded as an established fact in a judgment of the Human Rights Chamber for Bosnia and Herzegovina of 4 April 2003114. The Chamber refers to a document of the Council of Ministers dated 4 February 2002, according to which members of the police forces of the Federation under the authority of the Federal Minister of the Interior and of forces of the Minister of the Interior of the Canton of Sarajevo handed the applicant over to the American forces at the Butmir base on 18 January at 6am.
137. According to the victims’ evidence, transmitted by their lawyers115, the six victims were handcuffed in uncomfortable positions and hooded so that they could not see the aircraft which they were forced to board, at a given time on 18 or 19 January 2002. According to the lawyers, official documents obtained in the course of the judicial proceedings in progress show that two aircraft were assigned to this operation116, and that the aircraft which the six men were made to board was at the Tuzla military base. After a flight of several hours, the aircraft landed and the six men were made to disembark, at a place which they describe as very cold117. During the flights the men were beaten and tied up in uncomfortable positions. At the stopover – probably Incirlik – they were joined by other detainees, some of whom said they came from Afghanistan. The human cargo arrived at Guantanamo on 20 January 2002.
138. The six men have been prisoners at Guantanamo until the present time, that is to say for over five years.
139. The illegal nature of these detentions was recognised by the Human Rights Chamber for Bosnia118. In the three decisions, the Chamber invited the Government of Bosnia to assist the six men, inter alia by recourse to diplomatic and judicial means. In the decision of 4 April 2003 concerning Mr Ait Idir, the Chamber even ordered the Government of Bosnia to take all possible steps to secure the release of the applicant and his return home119.
140. The Bosnian government has recognised its legal obligations but not complied with them.
141. In the Council of Ministers document cited by the Human Rights Chamber120, the Government of Bosnia and Herzegovina admitted that the six men had been “handed over” to the American forces by the Bosnian authorities without extradition formalities being observed121.
142. On 21 April 2004, the human rights committee of the Parliament of Bosnia and Herzegovina exhorted the Bosnian executive to execute the decision of the Human Rights Chamber and start proceedings with the United States for the repatriation of the detainees. Its report was endorsed by the parliament chamber on 11 May 2004.
143. On 11 March 2005, the Minister of Justice confirmed that the Bosnian government had sent a letter to the American government requesting the return of the six men.
144. On 21 June 2005, the Bosnian prime minister Mr Adnan Terzic confirmed before the Parliamentary Assembly of the Council of Europe122 the importance of this case as an indicator of democratic progress in Bosnia, and declared his willingness to identify the best way of ensuring the release of the six Bosnian citizens and former residents from Guantanamo, in accordance with Parliamentary Assembly Resolution 1433 (2005).
145. Lastly, on 16 September 2005, the Bosnian parliament adopted a resolution inviting the Council of Ministers of Bosnia and Herzegovina to make contact with the American government in order to solve the problem of the six men as rapidly as possible.
146. It is all the more surprising that, in spite of all these promising declarations, including that of the prime minister to the Parliamentary Assembly of the Council of Europe, there has been no government initiative aimed at the release of the six men.
147. According to their lawyers123, the American government has declared on several occasions that it is willing to enter into bilateral discussions with the governments of countries whose citizens are detained at Guantanamo in order to arrange their repatriation, subject to adequate security conditions. In the case of the six men in question, such measures would be unnecessary anyway, since the charges against them have already been investigated by the competent authorities and those investigations have shown that they are innocent. Nonetheless, the Bosnian government has apparently made no credible move to initiate negotiations in that direction124.
148. The argument of the innocence of the men in question – although in any event it is presumed, and in no sense a condition of suspects’ being treated in accordance with legal rules – has just been strengthened by a report drawn up by the German military. This report, produced in decidedly unusual circumstances125, which also aroused the interest of the German media and parliamentarians126, concluded inter alia that the reasons for arresting the six men were “highly dubious”. The six men’s lawyers sent me a copy of that report, which would have been erased from the German military archives and would never have been received by the German embassy in Sarajevo to which the report would have been addressed127.
149. In my opinion, the case of the “Bosnian six” is another well documented example of European citizens and residents being abducted by the American authorities with the active collusion of the authorities of a Council of Europe member state. The government of Bosnia and Herzegovina has the merit of no longer denying the fact that it handed the six men over to the American forces. According to information I have received128, the Bosnian authorities acted under extraordinary pressure from the American embassy in Sarajevo, but the fact remains that they acted in violation of clear decisions by the Supreme Court and the Human Rights Chamber ordering the release of these men. If the damage to the good human rights reputation of Bosnia and Herzegovina is to be repaired, official recognition of the facts is an important step in the right direction, but it must be followed up as swiftly as possible by credible diplomatic intervention vis-à-vis the American government in order to secure the rapid repatriation of these six men, who have now been festering in Guantanamo Bay for over five years.
3.3. Ahmed Agiza and Mohammed Alzery (El Zari)
150. The case of the two Egyptian asylum-seekers “handed over” by the Swedish authorities to American agents who took them to Egypt, where they were tortured in spite of diplomatic assurances given to Sweden, is another very well documented case. It led to Sweden’s being condemned by the United Nations Committee against Torture (UN-CAT)129. The Swedish authorities were also criticised for having attempted to conceal the facts from UN-CAT130.
151. The affair was brought to public notice mainly by the “Kalla Fakta”131 television programme, and research by the Swedish investigative journalists blew open the secret system of CIA aircraft transporting clandestine prisoners in the “war against terrorism”. The aircraft used for this operation – a Gulfstream, number N379P – has become one of the most notorious “rendition” aircraft132.
152. The behaviour of the Swedish secret police (Säpo) gave rise to a detailed investigation by the Swedish parliamentary ombudsman, Mats Melin133. The judicial authorities also examined the case and concluded that there were no grounds for a criminal prosecution against either the Swedish agents involved, or the pilot of the aircraft, or other American agents who were part of the team responsible for transporting Mr Agiza and Mr Alzery to Egypt134.
153. In short, the facts occurred in the following manner: on 18 December 2001, Mr Agiza and Mr Alzery, Egyptian citizens seeking asylum in Sweden, were the subject of a decision dismissing the asylum application and ordering their deportation on grounds of security, taken in the framework of a special procedure at ministerial level. In order to ensure that this decision could be executed that same day, the Swedish authorities accepted an American offer to place at their disposal an aircraft which enjoyed special overflight authorisations135. Following their arrest by the Swedish police, the two men were taken to Bromma airport where they were subjected, with Swedish agreement, to a “security check” by hooded American agents.
154. The account of this “check” is especially interesting, as it corresponds in detail to the account given independently by other victims of “rendition”, including Mr El-Masri. The procedure adopted by the American team, described in this case by the Swedish police officers present at the scene136, was evidently well rehearsed: the agents communicated with each other by gestures, not words. Acting very quickly, the agents cut Agiza’s and Alzery’s clothes off them using scissors, dressed them in tracksuits, examined every bodily aperture and hair minutely, handcuffed them and shackled their feet, and walked them to the aircraft barefoot.
155. The ombudsman condemns as degrading the way in which the detainees were treated from the time when they were taken charge of by the American agents until the end of the operation when the two men were handed to the Egyptian authorities. He does not consider that it constitutes torture for the purposes of Article 3 of the European Convention on Human Rights, but asks the question –though he does not answer it – whether the execution of the deportation order nonetheless violates Article 3. In any event, he finds that the operation was carried out in an inhuman and therefore unacceptable manner137.
156. According to the ombudsman’s findings, the Swedish officers, who were poorly led, lost control of the operation from the start of the American team’s intervention. They ought to have intervened to put an end to the degrading treatment of the detainees, which was not justified on security grounds since the Swedish police had already carried out a body search on the detainees at the time of arrest.
157. Prior to deportation of the two men to Egypt, Sweden sought and obtained ‘diplomatic assurances’ that they would not be subjected to treatment contrary to the anti-torture convention and would have fair trials. The ’assurances’ were even backed up by a monitoring mechanism, in particular regular prison visits by the Swedish Ambassador and participation by Swedish observers at the trial.
158. Developments in the case show that these ’assurances’ were not honoured. Mr Alzery’s lawyer, Kjell Jonsson138, states that extremely grave acts of torture took place139. Although Mr Alzery was released from prison in October 2003, he is not allowed to leave his village without permission from the authorities. Mr Agiza was sentenced to 25 years imprisonment by a military court in a trial from which the Swedish observers were excluded for the first two days out of a total of four. Despite the fact that Mr Agiza complained of torture during his detention, which lasted over two years after his forced return to Egypt, and despite the fact that the prison doctor’s report did record physical injuries sustained in prison, the military court did not act on the defence request for an independent medical examination140.
159. The UN-CAT decision shows that the ’diplomatic assurances’, even with follow-up clauses attached, are not such as to prevent the risk of torture141. The deporting state therefore still bears responsibility.
160. All things considered, the Swedish case of Agiza and Alzery cannot be classed as “abduction” by the CIA. The two men were the subject of a Swedish deportation procedure following dismissal of the asylum application; that procedure was severely criticised by UN-CAT, and rightly so: the immediate execution of the decision deprived the two men of any possibility of appeal, including under the United Nations Convention against Torture – an appeal which moreover would have stood a good chance of success, in view of the risk of torture run by them in Egypt. Other criticisms directed at Sweden are the ’slack’ implementation of the follow-up clause relating to the assurances obtained prior to extradition142, and above all the fact that Sweden did not send UN-CAT all the relevant information143. On the other hand, with regard to the ill-treatment of the prisoners at Bromma airport and in the aircraft, the reproach is aimed primarily at the United States. I share Mats Melin’s view that such degrading and humiliating treatment is unacceptable.
161. Nonetheless, in my opinion it is for Sweden to clarify further the reasons and responsibilities: how was it that the Swedish officers present on the scene allowed their American counterparts to do as they wished, letting them take control of this operation while still on Swedish soil?
3.4. Abu Omar
162. At midday on 17 June 2003, Hassam Osama Mustafa Nasr, known as Abu Omar, an Egyptian citizen, was abducted in the middle of Milan. Thanks to an outstanding and tenacious investigation by the Milan judiciary and the DIGOS police services, Abu Omar’s is undoubtedly one of the best-known and best-documented cases of “extraordinary rendition”144. Via the military airbases at Aviano (Italy) and Ramstein (Germany), Abu Omar was flown to Egypt, where he was tortured before being released and re-arrested. To my knowledge, no proceedings were brought against Abu Omar in Egypt. The Italian judicial investigation established beyond all reasonable doubt that the operation was carried out by the CIA (which has not issued any denials). The Italian investigators likewise established that the presumed leader of the abduction operation – who had also worked as the American consul in Milan – was in Egypt for two weeks immediately after Abu Omar was handed over to the Egyptian authorities. It may safely be inferred that he contributed, in one way or another, to Abu Omar’s interrogation. The proceedings instituted in Milan concern 25 American agents, against 22 of whom the Italian judicial authorities have issued arrest warrants. Abu Omar was a political refugee. Suspected of Islamic militancy, he had been under surveillance by the Milan police and judicial authorities. As a result of the surveillance operation, the Italian police were probably on the verge of uncovering an activist network operating in northern Italy. Abu Omar’s abduction, as the Milan judicial authorities expressly point out, sabotaged the Italian surveillance operation and thereby dealt a blow to the fight against terrorism. Is it conceivable or possible that an operation of that kind, with deployment of resources on that scale in a friendly country that was an ally (being a member of the coalition in Iraq), was carried out without the national authorities – or at least Italian opposite numbers – being informed? The Italian Government has denied having been informed, and the head of the SISMI, General Pollari, expressly denied any knowledge of the CIA operation in his appearance before the TDIP. There has recently been a significant new development in the investigation by the Milan prosecuting authorities, however: an agent belonging to an elite Carabinieri unit has admitted taking part in Abu Omar’s abduction as part of an operation co-ordinated by the SISMI, the military intelligence services145. The head of SISMI had formally denied any participation of his service in the abduction; he even affirmed that he had only been informed of this episode after the abduction itself146.
3.5. Bisher Al-Rawi and Jamil El-Banna
163. This case, which concerns two British permanent residents arrested in Gambia in November 2002 and transferred first to Afghanistan and from there to Guantanamo (where they still are) is an example of (ill-conceived) cooperation between the services of a European country (the British MI5) and the CIA in abducting persons against whom there is no evidence enabling them to be kept in prison lawfully, and whose principal crime is to be on social terms with a leading Islamist against whom the authorities have no evidence either – namely Abu Qatada.
164. The information made public to date147 shows that the abduction of Messrs Al-Rawi and El-Banna was indeed motivated by information – partly erroneous – supplied by MI5.
165. Bisher Al-Rawi and Jamil El-Banna were arrested in Gambia on 8 November 2002. They intended to join Mr Al-Rawi’s brother Wahab, a British citizen, and help him set up a mobile peanut processing plant. The British authorities were well aware of this business trip148. On 1 November, Messrs Al-Rawi and El-Banna left on their trip, but did not get very far. At Gatwick airport they were arrested by reason of a suspect item in Mr Al-Rawi’s hand luggage.
166. On the same day, a first telegram from MI5 informed the CIA that the two men had been arrested under the 2000 anti-terrorist act. That telegram contained false information, including the statement that Mr Al-Rawi was an Islamist extremist, and that the search of his luggage had revealed that he was carrying a sort of improvised electronic device which could be used, according to preliminary investigations, as a component of a home-made bomb149.
167. The two men spent 48 hours in police custody, until the police decided that the “suspicious device” was nothing other than a battery charger on sale in several electronic goods shops (Dixons, Argos, Maplins). Mr Al-Rawi explained this when he was arrested, but it had to be checked. The conclusion to the charger episode – that it was indeed a ’harmless device’ – was communicated to the Ministry of Foreign Affairs by MI5 in a telegram of 11 November 2002. Unfortunately, there is no evidence that this information was ever conveyed to the CIA. The allegations concerning this ’device’ reappeared in their ’trial’ before the CSRT (Combatant Status Review Tribunal)150 as ’evidence’ that they were ’enemy combatants’.
168. Messrs Al-Rawi and El-Banna returned home on 4 November 2002 and reorganised their trip to Gambia for 8 November. Meanwhile, several telegrams were sent by MI5 to the Americans concerning the two men, informing them that they knew Abu Qatada and that Mr El-Banna was the latter’s ’financier’. It is true that the two men knew Abu Qatada151. On the other hand, according to the lawyers, Mr Al-Rawi had helped MI5 to prepare the non-violent arrest of Abu Qatada, and British agents had even thanked him for doing so152.
169. On 8 November 2002, the day when the two men flew to Gambia, MI5 sent another telegram giving the flight details, including the departure of the delayed flight and the estimated arrival time. The telegram states that “this message should be read in the light of earlier communications”. In addition, the telegram of 8 November does not mention, as the earlier telegrams do, that this information “must not be used as the basis of overt, covert or executive action”.
170. At Banjul airport, Al-Rawi and El-Banna, accompanied by a collaborator, Mr El Janoudi, met Bisher Al-Rawi’s brother Wahab, who had gone to Gambia one week before the others, and all four were arrested by Gambian agents. They were taken to a house outside Banjul. Mr Janoudi managed to telephone his wife in London, and another brother of Mr Al-Rawi, Numann, went to see his MP, Edward Davey, who informed the Foreign Ministry.
171. During the following days, according to Wahab’s account, American agents were very present, but the detainees never saw a British official despite the fact that they asked to see a consular representative. Wahab stated at the APPG hearing that the CIA and Gambian officials repeatedly alluded to the fact that “it is the British who have told us to arrest you”. Mr El-Banna says he has continually been told the same thing during his subsequent detention at Guantanamo Bay:
“My interrogator asked me ‘Why are you so angry at America? It is your Government, Britain, the MI5, who called the CIA and told them that you and Bisher were in The Gambia and to come and get you. Britain gave everything to us. Britain sold you out to the CIA”153.
172. On 5 December 2002, after 27 days, Wahab was released and returned to the United Kingdom. Some days afterwards, on a Sunday, Bisher Al-Rawi and Jamil El-Banna were flown to Afghanistan in a military jet with over 40 seats. There were at least 7 or 8 American agents on board, including a woman doctor. Through their lawyers, the two men gave a detailed account of their degrading and humiliating treatment many details of which echo the treatment suffered by other victims of ’renditions’154.
173. At Kabul, they were taken in less than 15 minutes to the prison identified as the ’Dark Prison’. The description of the inhuman detention conditions in this prison155, which is an important link in the CIA ’spider’s web’, corresponds in many details to that given by other victims of ’renditions’ who went there. After two weeks in this sinister prison, the two men were transferred to Bagram by helicopter. At Bagram they were imprisoned and ill-treated for a further two months. The American interrogators allegedly offered Mr El-Banna large sums of money in exchange for false witness against Abu Qatada. When these offers failed to produce the expected result, the interrogators allegedly threatened to send him back for a year to the ’Dark Prison’, followed by 5 or 10 years in Cuba, and made shameful threats against his family living in London156.
174. Finally, the two men were transported to Guantanamo, where they were again subject to inhuman treatment. Mr Al-Rawi says he received many visits from MI5 agents, the first of them in early autumn 2003, and that he was interrogated by ten or so different CIA agents. One of the MI5 agents, he says, even apologised to him. In January 2004, two British agents (“Martin” and “Mathew”) asked him whether he would be willing to work for MI5 again. Mr Al-Rawi replied that he would, provided that this would serve the cause of peace. Several months later, a certain “Alex” with whom Mr Al-Rawi had worked in London came to see him at Guantanamo, accompanied by an attractive female agent. However, at the time of his “trial” before the CSRT the British authorities refused to send to Guantanamo the witnesses he named or simply to confirm his links with MI5, thereby condemning him to continuous detention – detention which continues to this day, having lasted almost four years in all.
175. The families of Messrs Al-Rawi and El-Banna and their lawyers at the London firm Birnberg, Peirce & Partners brought an action to oblige the British government to make repre the United States through diplomatic channels in order to secure the release and repatriation of the two men as soon as possible. According to the latest information, the British government has acted along those lines with regard to Mr Al-Rawi, but not with regard to Mr El-Banna. The judgment at first instance, given in May 2006, dismissed the families’ complaints.
176. In view of these highly disturbing facts, I find that the British authorities must shed light on this case in full. I welcome the fact that our colleague Andrew Tyrie has devoted much energy to this matter in order for truth to be established in this disturbing case. Meanwhile, the United Kingdom, even if it has no recognised legal obligation, must make good the consequences of the apparently very imprecise communication between MI5 and the American services. There is indeed little doubt that the arrest of the two men was largely triggered or at least influenced by the messages of November 2002, only part of which (the afore-mentioned telegrams) is public knowledge.
3.6. Maher Arar
177. Maher Arar, a Canadian citizen of Syrian origin, came to testify in public before the temporary committee of the European Parliament157. During a stopover on return from holiday in Tunisia, in September 2002, he was arrested at JFK airport in New York by American agents. After being detained in a high-security prison and interrogated for two weeks by the New York police, the FBI and the American immigration service, he was allegedly transported from New Jersey airport via Washington, Rome and Amman to a prison belonging to Syrian military intelligence158. He spent more than ten months there, during which he says he was tortured, abused and forced to make false confessions. During his stay in Syria, he says, he also heard the voice of a German prisoner being tortured. After a tenacious campaign by his wife, Mr Arar was able to have irregular contacts with Canadian diplomats in post in Syria. He says he has never been the subject of criminal charges in any country. Mr Arar stills suffers from a post-traumatic stress syndrome following his terrible experience.
178. The American Government considers the ‘rendition’ of Arar as a legitimate procedure in conformity with its immigration rules159.
179. According to Mr Arar, the agents on board the aircraft never identified themselves, but he heard that they belonged to a “special removal unit”. In this specific case, the handing over of Mr Arar to Syria seems to be a well established example of ‘outsourcing of torture’, a practice mentioned publicly by certain American officials160.
180. The question which interests us more particularly, in view of our terms of reference, is to whether and if so, to what extent the European states concerned (in particular Italy and Greece) were aware of the illegal transport of Mr Arar and perhaps even gave logistic support161.
181. Another question is the role of the Canadian authorities in the matter. This question is the subject of a very thorough investigation by a special commission162.
182. The initial report of the investigator Stephen J. Toope was published on 14 October 2005163. Mr Toope, who has lengthy experience of working with torture victims, has convincingly established the truthfulness of Mr Arar’s depositions, which he has compared with those of other former Syrian prisoners held in the same prison run by Syrian military intelligence (Far Falestin). His report, which also mentions the findings of specialist doctors whom Mr Arar consulted on his return, describes in detail Mr Arar’s treatment in Syria, which he unhesitatingly regards as torture within the meaning of the United Nations Convention against Torture. However, that report does not cover the part played by the Canadian authorities in the matter. This point will be covered in the final report of the Commission, which is expected to be published by the end of the summer of 2006164. It is thus premature to draw any conclusions at this stage165.
183. The working methods of this commission, a genuine commission of inquiry with real powers of investigation, empowered to take cognisance of classified information, strike me as very interesting. However, Mr Paul Cavalluzo, Mr Arar’s principal lawyer on the Commission, deplores the tendency of the Canadian authorities to hide behind ’official secrets'.
3.7. Muhammad Bashmila and Salah Ali Qaru
184. The cases of Mr Bashmila and Mr Ali Qaru are described in an Amnesty International report166 based on inquiries made on the spot and intensive discussions with the victims. It is likely that they owe their recent release to Amnesty's commitment. The two men, who have never been accused of the slightest terrorist crimes, were arrested in Jordan and disappeared, as far as their families were concerned, into the American ‘spider's web’ in October 2003167. According to AI’s investigations, they were held in at least four secret American detention centres, probably in three different countries. The former detainees themselves say that they spent time in Djibouti, Afghanistan and - of particular interest to us - "somewhere in eastern Europe". The exact location of the place where they spent the final 13 months from the end of April 2004 onwards remains unknown. The men gave a precise description of their place of detention, which has not yet been published in full168, and of the route along which they were taken. Particularly intriguing is their return flight to Yemen on 5 May 2005, reportedly a non-stop flight lasting approximately seven hours. I wrote to the Yemeni authorities and asked where the plane had come from, and the arrival of the aircraft on that date with the two men on board was officially confirmed to me. Unfortunately, although I wrote again, I have not yet received the specific information requested. Since the aircraft concerned was probably a military one, the information obtained from Eurocontrol has not made it possible to clarify this matter either. As for the description of the premises, we have not yet managed to find a place corresponding to this.
3.8. Mohammed Zammar
185. Mr Zammar, a German of Syrian origin, was suspected of having been involved in the "Hamburg cell" of Al Qaeda and had been under police surveillance for several years in Germany. After 11 September 2001, he had been the subject of a criminal investigation for ’support for a terrorist organisation’, but there was insufficient evidence to keep him in prison.
186. On 27 October 2001, he is reported to have left Germany for Morocco, where he spent several weeks. When he attempted to return to Germany, he was allegedly arrested by Moroccan officials at Casablanca airport early in December, and to have been questioned by Moroccan and American officials for over two weeks. Towards the end of December 2001, he is said to have been flown to Damascus, in Syria, on a CIA-linked aircraft169.
187. The case has received extensive press coverage170, and there have been allegations that Mr Zammar’s arrest in Morocco was facilitated through the provision of information by German services, that he was tortured by Syrian services and that he was questioned in Syria by German officials.
188. A detailed German government report to the Bundestag, a copy of which I have obtained171, gives a balanced version of this affair.
189. Mr Zammar’s arrest in Morocco was objectively facilitated by exchanges of information between the German services and their Dutch, Moroccan and also American counterparts. These exchanges of information about the travel plans of a person suspected of terrorist activities (the German government's report contains detailed information which seem to justify such suspicion) are part of normal international co-operation in the fight against terrorism. It cannot be deduced from the fact that the German services informed their colleagues of the dates on which Mr Zammar had flight reservations that it was their intention - or even that they suspected - that he would be arrested and held in violation of normal procedures. The facts date back to December 2001, so well before the public revelations about the illegal practice of ’rendition flights’.
190. The German Ministry for Foreign Affairs and the Damascus and Rabat Embassies intervened several times, firstly to establish Mr Zammar’s whereabouts, then to give him consular assistance during his detention in Syria. Syria refused any kind of consular intervention, on the basis of its non-recognition of his renunciation of Syrian nationality when he underwent naturalisation in Germany, based on a policy applied generally by Syria.
191. German officials did indeed question Mr Zammar in Syria. While Mr Zammar is said to have told his German interrogators that he had been beaten both in Morocco and in the early stages of his detention in Syria, this ill-treatment seems to have had no temporal or other connection with his questioning by the German officials. They are reported to have found him in a good physical and psychological condition, although he had lost a considerable amount of weight. Relations between Mr Zammar and his Syrian guards did not seem tense, although the German visitors did note a somewhat authoritarian relationship. The German government states that, from the outset, the services concerned, aware of the risks, had laid down clear rules: the voluntary basis principle, avoidance of inappropriate treatment – including, and especially, by the Syrian side - and immediate stoppage of the interview if there was the slightest suspicion of ill-treatment.
192. As indicated above, a Bundestag committee of inquiry is looking into the matter, and it is appropriate to wait for its results.
3.9. Binyam Mohamed al Habashi
193. Binyam Mohamed al Habashi is an Ethiopian citizen who has held resident status in the United Kingdom since 1994. While many of his family members emigrated to the United States and became naturalised citizens there, Binyam moved to the UK as a teenager and claimed asylum. He spent seven years pursuing his education in London while his asylum application was considered in a protracted, ultimately unresolved process. He was trying to overcome a drug habit and converted to Islam at the age of twenty.
194. Binyam is now detained at Guantanamo Bay and has been selected as one of the first group of ten prisoners to appear before a special United States Military Commission, probably later in 2006. We were able to view Binyam’s diary, an account of the last five years of his life, and a series of letters he has written from Guantanamo. A member of my team was also able to hear first-hand testimony from members of his family and his legal representatives in the United Kingdom.
195. In treating Binyam’s case in my report I shall avoid any reference to the charges he is likely to face before the Military Commission. Suffice to say that I regard such commissions generally as a flawed basis on which to prosecute allegations of the most serious nature, since the defendant’s due process rights are severely impaired172. I do not consider these commissions to be fair hearings and I reiterate my position that the global effort to bring terrorist suspects to justice should depend primarily upon judicial remedies.
196. Of greatest concern in Binyam’s case are the accounts of torture and other serious human rights violations which he says he has suffered. He speaks of being wounded all over his body with a scalpel and a razor blade, beaten unconscious and hung from the walls in shackles. He suffered gross physical injuries, including broken bones. He was constantly threatened with death, rape and electrocution.
197. It is difficult to say whether this account actually reflects reality. Let us just recall that some of these acts are included in what has been called ’enhanced interrogation techniques’, which have been developed by the United States in the “war on terror”173. Furthermore many of the abuses described by Binyam bear striking similarities to the allegations of other detainees who have been held in the same detention facilities at various points over the last few years174.
198. Binyam‘s case is an example for the very numerous detainees – most of whose names and whereabouts we do not know – who have become trapped in the United States’ spider’s web during the course of the ’war on terror’. Binyam has been subjected to two CIA renditions, a US military transfer to Guantanamo Bay and several other clandestine transfers by plane and helicopter. He has been held in at least two secret detention facilities, in addition to military prisons. During his illegal interrogations, he has been confronted with allegations that could only have arisen from intelligence provided by the United Kingdom.
199. Binyam’s family told my representative that he disappeared in summer 2001. This very close family subsequently endured several years of desperate uncertainty about his whereabouts and wellbeing, only partially clarified by their first visit from FBI agents three years later, in 2004. Although they have received a handful of letters from him in Guantanamo, none of the family has been able to see or speak to Binyam for five years.
200. According to his testimony, Binyam has travelled voluntarily to Afghanistan in 2001175 and spent some time there, probably several months, before crossing into Pakistan and seeking to return to the UK. He was arrested by Pakistani officials at Karachi Airport on 10 April 2002 for attempting to travel on a false passport. Within ten days of his arrest, he was interrogated by American officials. Upon asserting his right to a lawyer, and later upon refusing to answer questions, American officers are alleged to have told him: “The law has been changed. There are no lawyers. You can co-operate with us the easy way, or the hard way. If you don’t talk to us, you’re going to Jordan. We can’t do what we want here, the Pakistanis can’t do exactly what we want them to do. The Arabs will deal with you."
201. The initial interrogations in Karachi involved Pakistani, American and British agents. Binyam was never accused of a particular crime and was told by MI6 agents that “they checked out my story and said they knew I was a nobody”. When he was discharged from Pakistani custody, however, he was not released. Instead, the Pakistani security services took him to a military airport in Islamabad and handed him over to the United States.
202. Binyam testifies that he underwent his first rendition on 21 July 2002. He was set upon by unidentified people “dressed in black, with masks, wearing what looked like Timberland boots”. He describes how they “stripped him naked, took photos, put fingers up his anus and dressed him in a tracksuit. He was shackled, with earphones, and blindfolded”, before being forced onto an aircraft and flown to Morocco. Official flight records obtained by this inquiry show that the known rendition plane, N379P, took off from Islamabad on 21 July 2002 and flew to Rabat, Morocco.
203. Binyam has described various secret detention facilities in which he was held in Morocco, including one prison that was submerged “almost underground” and one more sanitary place in which he was apparently placed to recover from injuries sustained from his torture. Between July 2002 and January 2004 Binyam was tortured on numerous occasions by a team of interrogators and other officials, most of whom were Moroccan. Some of the officials wore masks, while others did not; at least one interrogator, who identified herself as a Canadian, is thought to have been an American CIA agent.
204. It appears that the object of the torture was to break Binyam’s resistance, or to destroy him physically and psychologically, in order to extract confessions from him as to his involvement in terrorist activities. In addition to the sustained abuse and threats, the torturers used information, apparently obtained from intelligence sources, to indicate to Binyam that they knew a lot about him. Much of the personal information – including details of his education, his friendships in London and even his kickboxing trainer – could only have originated from collusion in this interrogation process by UK intelligence services. Since the purposes to which this information would be put were reasonably foreseeable, the provision of this information by the British Government amounts to complicity in Binyam’s detention and ill-treatment.
205. Binyam has described his ill-treatment in Morocco to his lawyer in several phases: an initial ’softening up’; a routine ’circle of torture’; and eventually a ’heavy’ abuse involving mental torment and the infliction of physical injury. In the first few weeks of his detention he was repeatedly suspended from the walls or ceilings, or otherwise shackled, and brutally beaten: “They came in and cuffed my hands behind my back. Then three men came in with black ski masks that only showed their eyes… One stood on each of my shoulders and the third punched me in the stomach. The first punch… turned everything inside me upside down. I felt I was going to vomit. I was meant to stand, but I was in so much pain I’d fall to my knees. They’d pull me back up and hit me again. They’d kick me in the thighs as I got up. They just beat me up that night… I collapsed and they left. I stayed on the ground for a long time before I lapsed into unconsciousness. My legs were dead. I could not move. I’d vomited and pissed on myself.”
206. At its worst, the torture involved stripping Binyam naked and using a doctor’s scalpel to make incisions all over his chest and other parts of his body: “One of them took my penis in his hand and began to make cuts. He did it once and they stood for a minute, watching my reaction. I was in agony, crying, trying desperately to suppress myself, but I was screaming. They must have done this 20 to 30 times, in maybe two hours. There was blood all over. They cut all over my private parts. One of them said it would be better just to cut it off, as I would only breed terrorists.”
207. Eventually Binyam began to co-operate in his interrogation sessions in an effort to prevent being tortured: “They said if you say this story as we read it, you will just go to court as a witness and all this torture will stop. I could not take any more… and I eventually repeated what they read out to me. They told me to say I was with bin Laden five or six times. Of course that was false. They continued with two or three interrogations a month. They weren’t really interrogations – more like trainings, training me what to say.”
208. Binyam says he was subjected to a second rendition on the night from 21 to 22 January 2004. After being cuffed, blindfolded and driven for about 30 minutes in a van, he was offloaded at what he believes was an airport. Again, Binyam’s description matches the ‘methodology’ of rendition described earlier in this report: “They did not talk to me. They cut off my clothes. There was a white female with glasses – she took the pictures. One of them held my penis and she took digital pictures. When she saw the injuries I had, she gasped. She said: ‘oh my God, look at that’.”
209. The second rendition of Binyam Mohamed took place within the ’rendition circuit’ that I have identified for this first time in this inquiry. The aircraft N313P, operated on behalf of the CIA, is shown in my official data to have flown from Rabat to Kabul in the early hours of 22 January 2004. I regard this flight as an unlawful detainee transfer, transporting Binyam Mohamed from one secret detention facility to another. Two days later, as part of the same circuit, the same plane had flown back to Europe and was used in the rendition of Khaled El-Masri176.
210. Binyam Mohamed’s ordeal continued in Kabul, Afghanistan, where he was held in the facility he refers to as “The Prison of Darkness”177 for four months. Detention conditions in this prison themselves amount to inhuman and degrading treatment. In addition, forced stress positions, sleep alteration, sensory deprivation and other recognised "enhanced interrogation techniques"178 are known to be deployed there routinely by the United States military and its partners. At various times, Binyam was chained to the floor with his arms suspended above his head, had his head knocked against the wall and describes “torture by music”, involving the sounds of loud rap and heavy metal, thunder, planes taking off, cackling laughter and horror sounds that amounted to a “perpetual nightmare”.
211. Up until his transfer by helicopter to Bagram at the end of May 2004, Binyam was not allowed to see daylight. He was persistently interrogated and told about terrorist plots and activities in which he was accused of involvement. He was subjected to irregular eating patterns and ”weird” sessions with psychiatrists.
212. In a detention facility at Bagram Air Base, Afghanistan, Binyam was forced to write out a lengthy statement prepared by the Americans. The content of the statement is unknown to us. Binyam has told his lawyers that he wrote and signed this document in a state of complete mental disarray: “I don’t really remember [what I wrote], because by then I just did what they told me. Of course, by the time I was in Bagram I was telling them whatever they wanted to hear.”
213. The case of Binyam Mohamed is sufficient grounds for an urgent and decisive change of course in the international effort to overcome terrorism. The Council of Europe is duty-bound to ensure that secret detentions, unlawful inter-state transfers and the use of torture are absolutely prohibited and never resorted to again.
214. It remains to be seen whether a Military Commission process will decide for or against Binyam Mohamed. The only certain legacy of this case is the deeply disturbing recognition that a human being has, in his own words, been completely dehumanised: ”I’m sorry I have no emotion when talking about the past, ‘cause I have closed. You have to figure out all the emotional part; I’m kind of dead in the head.”
91 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71.
92 The information in question appears in the report of the German Federal Government to the parliamentary committee monitoring the secret services (PKG) ; I was able to obtain from the chairman of that committee a “public” versionof the report, which contains no particulars of individual cases; while a version classified “confidential - for official use only” was handed to me by a journalist. This information enabled me to form a judgment as to the credibility of Mr El-Masri’s account, but I have chosen to preserve the confidentiality of that report although, to be frank, I believe that the public should have access to this kind of information. To my knowledge, there is an even fuller version classified “secret”, which I declined to obtain out of respect for German parliamentary procedure.
93 See El-Masri statement to US Court in Alexandria, 6 April 2006, supra note 71.
94 The programme of meetings took place between 27 and 29 April 2006.
95 President Branko Crvnekovski said in his opening remarks on 27 April: “Macedonia is completely determined and open for co-operation with you. What I want to repeat is that we’re completely prepared to establish the truth… Our joint task is to find out the truth and not to respond to the current public opinion or the positions of the media”; Siljan Avramovski, the former Head of the UBK, Macedonia’s counter-intelligence service stated on 28 April: “We will provide maximum transparency and openness in our discussions”. These were fairly typical of the sentiments expressed by all the officials who met with the delegation.
96 Mr Slobodan Casule, a prominent opposition politician who met with the European delegation on 27 April 2006, posed the question. He said he sought clarification about the El-Masri case because he believes that “such issues should be opened and closed within the Parliament”.
97 Uprava za Bezbednosti i Kontrarazuznavanje, or the Security and Counter-Intelligence Service.
98 Meeting with Siljan Avramovski, now Deputy Director of UBK in the Ministry of Interior, 28 April 2006, transcript on file with the Rapporteur.
99 Avramovski stated that Macedonian border police decided for themselves that Mr El-Masri’s passport was genuine, after an unspecified process or length of examination “At our border points, expert members of the border police are qualified to assess whether a passport is counterfeit or not. When they decided that it was genuine, they took no further action. They did not inform the German Embassy; they didn’t feel the need to request any documents against which to compare the passport.”
100 Meeting with Ljubomir Mihajlovski, Minister of Interior, 28 April 2006, transcript on file with the Rapporteur.
101 The Macedonian Helsinki Committee for Human Rights has researched questions of secret detention and produced a variety of credible reports (copies of which are on file with the Rapporteur). In many cases, people are held in secret apartments to get them “out of the system” for an indefinite period of time, for the UBK to interrogate them and elicit confessions. Further still, in the notorious “Rastanski Lozja” case of March 2002, Macedonian police were said to have shot dead “seven members of a terrorist group” in what seemed like an act of summary exection. The Helsinki Committee wrote in its Annual Report of 2002: “the largest number of human rights violations was perpetrated by officers of the special units at the Ministry of Interior”.
102 See, for example, Michael Scheuer, former Chief of the Bin Laden Unit in the CIA Counter-Terrorism Center, interview carried out by the Rapporteur’s representative, supra note 19.
103 My representative who travelled to Macedonia was able to see former “secret apartments”, which are now closely supervised by NGOs defending human rights.
104 In a recent development, the BND was forced to admit that one of its agents had indeed heard about El-Masri’s detention at the hands of the Macedonian services and his hand-over to the Americans as early as in January 2004 in a civil service canteen in Skopje (see Spiegel-Online of 31 May and 1 June 2006). The German Minister of the Interior tried to play down the importance of this revelation by calling it a mere breakdown of communications, as the higher echelons of the BND had not been informed. Nonetheless it is interesting to note that the truthfulness of the content of this conversation was never called into question.
105 According to a German source, Mr Seyam, a German national of Indonesian origin, had returned in an unbelievable manner from a stay in that country. He had allegedly been arrested by the Indonesian authorities who suspected him of involvement in the Bali bombing. He had been released for lack of evidence, and taken back to Germany by German agents, who had been sent in order to prevent Mr Seyam being “handed over” to the Americans, who were apparently already waiting. Mr Seyam then allegedly went to Neu-Ulm at the instigation of his German “rescuers”, who recommended that he go to the Multikulturhaus. The latter, according to the source, was under observation by both the Baden-Württemberg services (who had “planted” an informer there in the person of Dr Yousif, an Islamic preacher at the centre and an old acquaintance of Mr Seyam) and those of neighbouring Bavaria who – not knowing that Yousif was working for Baden-Württemberg – regarded him as a ’preacher of hate’. It was in this Islamic cultural centre frequented by Mr El-Masri that the latter came to know Mr Seyam (against whom a judicial investigation had also been opened in Germany, and closed shortly afterwards for lack of evidence). The two men, both looking for housing for their large families, became friends.
106 According to Mr El Hasri, these were money transfers relating to Norwegian customers in connection with his car sales activity.
107 This appears to be the argument of the German government, in the context of the talks between Federal Chancellor Angela Merkel and American Secretary of State Condoleezza Rice (cf. the link to the record of the joint press conference by Mrs Merkel and Mrs Rice on 6 December 2005 [http://www.state.gov/secretary/rm/2005/57672;htm]. Mrs Merkel confirmed that she had spoken to Mrs Rice about the El-Masri case and said that the American government, the American administration, had admitted that the man had been taken by mistake and that the American administration did not deny in principle that this had occurred).
108 Page 165.
109 Mr El Masri stated in our talks with him that he had not even been questioned about this train journey mentioned in the report on 11 September. In his written deposition to the Virginia court (Declaration of Khaled El-Masri in support of plaintiff’s opposition to the United States’ motion to dismiss […] dated 6 April 2006, p. 13), he said that he was interrogated in Afghanistan also about his alleged association with important terrorists such as Muhammad Atta, Ramzi Bin Al-Shibh and other presumed extremists based in Germany.
110 To the surprise of El-Masri and his lawyer, Mr Gnjidic, the prosecutor’s office immediately announced to the press that the identification of “Sam” had failed. Subsequently the magazine “Stern” unearthed a CIA agent of German origin, Thomas V., who spoke German with the “north German” accent detected in “Sam” by El-Masri, who had been posted in 2000 to the United States Consulate General in Hamburg and who might be “Sam”. The Munich prosecutor in charge of the case, Mr Hofmann, now rules out the possibility of “Sam” being the same person as the federal agent Lehmann, believing that it is now almost fully established that he was present at the Bundeskriminalamt office in Berlin throughout May 2004. But Mr El-Masri and his German lawyer Gnjidic remain convinced that “Sam” is indeed Lehmann, and that the Thomas V. trail was intended mainly to exonerate the German services.
111 See Neu Ulmer Zeitug, Islamisten zieht es nach Ulm; Multi-Kultur-Leute treffen sich jetzt im Donautal – Welche Rolle spielt Khaled El-Masri? 15 March 2006.
112 Mustafa Ait Idir, Hadz Boudella, Lakhdar Boumediene, Saber Lahmar and Mohammed Nechle and Belkacem Bensayah
113 cf. Boudella, Boumediene, Nechle and Lahmar v. Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, Human Rights Chamber for Bosnia and Herzegovina, cases nos. CH/02/8679, CH/02/8690, CH/O2/8691, Order for Provisional Measures and on the Organization of the Proceedings, 17 January 2001.
114 Case no. CH/O2/9499, Bekasem Bensayah against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina (cf. in particular paras. 50 et 164).
115 The international law firm Wilmer Hale, which supplied written documentation and oral testimony (Mrs Karin Matussek on 11 April 2006 to our committee, and Mr Steven Oleskey to the temporary committee of the European Parliament, on 25 April 2006. My representative also met with four Wilmer Hale attorneys working on this case at their offices in Boston, USA in May 2006. I am grateful to this firm for its outstanding efforts.
116 Two C-130 cargo planes bearing serial numbers UJM166301019 and UQU09Z10L019, one of which also used the American base at Ramstein in Germany for the purposes of this operation. The documents in question also show that the aircraft transporting the six men stopped over at the American base at Incirlik in Turkey.
117 The six men think it might have been in Turkey, on the basis of what little they were able to see and hear.
118 Afore-mentioned judgment of 4 April 2003 concerning Mr Bensayah and Mr Ait Idir; in a judgment of 11 October 2002, the Chamber had already decided the cases of the other four men (Boudellaa, Boumediene, Nechle and Lahmar against Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina, cases nos. CH/02/8679, CH/02/8689, CH/02/8690, CH02/8691, decision of 11 October 2002).
119 Idem, para. 168.
120 Note 115 above.
121 The Human Rights Chamber, in the above-mentioned Bensayah judgment (note 112), explains in a relevant manner that the “handing over” of the applicant can in no way be deemed to constitute extradition. In particular, the note dated 17 January 2002 from the US embassy cannot be regarded as a request for extradition by the United States. In that note, the US embassy in Sarajevo informs the Government of Bosnia and Herzegovina that it is willing to take charge of the six Algerian citizens in question and offers to arrange for the physical transfer of these persons at a time and place suitable to both parties.
122 In reply to a question from our former colleague Kevin McNamara, following Resolution 1433 (2005) adopted by the Parliamentary Assembly on 26 April 2005, calling on all Council of Europe member states, including Bosnia and Herzegovina, to protect the rights of their citizens or residents detained at Guantanamo and get them released and repatriated.
123 Memorandum of 12 April 2006, addressed to the Temporary Committee of the European Parliament.
124 See Matthew A. Reynolds, Acting Assistant Secretary, Legislative Affairs, US Department of State, sent a letter to Senator James M. Jeffords in his response to an information request (copy on file with the Rapporteur), 15 June 2005: "Although the Government of Bosnia and Herzegovina has made several inquiries regarding the condition of each detainee and has asked for their release, it has not indicated that it is prepared or willing to accept responsibility for them upon transfer."
125 German military personnel posed as journalists in order to conduct an interview with Mr Bensayah’s wife, Mrs Anela Kobilica, on 17 June 2003. The report subsequently drawn up by the German military concluded that the grounds on which the six men were arrested and deported were “highly dubious” and that documents and that documents examined gave rise to the suspicion that at least some of the six had been “subjected to an injustice”.
126 See, for example, http://www.tagesschau.de/aktuell/meldungen/0,1185,OID5072374,00.html. Journalists’ associations protested vehemently at methods of investigation that involved intelligence agents masquerading as journalists, as this exposed real journalists to suspicion and possible reprisals.
127 From a confidential source, I received a copy of this report, which, it was claimed, was deleted from the German military archives and never received by the German embassy in Sarajevo, to which it was said originally to have been addressed. See Supplementary Intelligence Report, 16 July 2003 (copy on file with the Rapporteur).
128 See for example the Wilmer Hale memorandum of 12 April 2006, at page 3, supported a weath of documents given to us by Wilmer Hale, copies of which are all on file with the Rapporteur.
129 United Nations Committee against Torture, decision of 20 May 2005, CAT/C/34/D/233/2003; see also United Nations Committee against Torture, Conclusions and recommendations of the Committee against Torture: Sweden. 06/06/2002, CAT/C/CR/28/6 (Concluding Observations/Comments), and the Swedish reply (Comments by the Government of Sweden on the Concluding Observations of the Human Rights Committee (CCPR/CO/74/SWE) of 14 May 2003. In that reply (para. 16), the Swedish government said that in its opinion, the “assurances” given by Egypt were being and would be fully respected, and that the government had received no information such as to cast doubt on that conclusion.
130 See “Kalla Fakta” (note*), page 10 : the Swedish reply to the final observations (note* above) seems to be contradicted by the first report of the Swedish Ambassador in Egypt, according to which Mr Agiza had spoken to him about the abuse and violence which he and Mr Alzery had suffered. According to “Kalla Fakta”, the Swedish government had filed this information and refused to hand it to the United Nations. In its decision of 20 May 2005 (note* above, para. 13.10), UN-CAT notes that Sweden has not fulfilled its obligation to co-operate fully with the Committee, and has not made all the relevant and necessary information for resolving the case available to the Committee.
131 Translation of the title of the programme: “Cold facts”; a transcript of the broadcast of 22 November 2004 was provided to me by TV4.
132 Kalla Fakta has given an account of its research into the owner of N379P, Premier Executive Transport Services. Posing as potential clients, journalists satisfied themselves as to the governmental, clandestine nature of this firm (cf. transcript, note* above, pages 4-5).
133 See Mats Melin, Parliamentary Ombudsman (Sweden), A review of the enforcement by the Security Police of a Government decision to expel two Egyptian citizens, Adjudication No. 2169-2004, dated 22 March 2005. (translated copy on file with Rapporters).
134 Ibid, at page 3.
135 An internal Säpo report seems to indicate that the American involvement was approved by the Ministry of Foreign Affairs; persons who attended the meeting with the minister and were questioned by the ombudsman have no recollection that this was mentioned.
136 Owing to lack of space in the room made available to the Americans, the Swedish police were not able to observe everything. In particular, they did not see that (tranquillising) suppositories were administered and that diapers were affixed, as the detainees maintain, and as was done in other “renditions”. See the earlier section of this report on the ‘Human Impact of Renditions and Secret Detentions’.
137 See the report by Mats Melin, supra note 134, page 23.
138 Mr Jonsson testified before the Temporary Committee of the European Parliament on 23 March 2005; he spoke at great length with a member of my team during his visit to Brussels.
139 This was electric shock torture, with electrodes fixed to the most sensitive parts of the body, in the presence of a doctor who assesses what electrical charge the prisoner can survive. In order to prevent marks, the places affected are treated specially at the end of each torture session.
140 A representative of Human Rights Watch observed the entire trial ; the observed violations of the rights of the defence are listed in a HRW communiqué of 5 May 2005 (Sweden Implicated in Egypt’s abuse of Suspected Militant – Egypt violated diplomatic promises of fair trial and no torture for terrorism suspect (http://hrw.org/english/docs/2004/05/05/egypt8530_txt.htm).
141 Diplomatic assurances are not the focus of my mandate; here, nevertheless, are two very pertinent reports on the subject: Amnesty International, ‘Diplomatic Assurances’ – no protection against torture or ill-treatment, report No. ACT 40/021/2005, 1 December 2005; and Human Rights Watch, Still at Risk: ‘Diplomatic Assurances No Safeguard against Torture, Report No. 17, Vol. 3D, 17 April 2005.
142 See the afore-mentioned HRW communiqué of 5 May 2005: the first visit Mr Agiza received from a Swedish diplomat was only five weeks after his arrival in Egypt, despite the fact that experience shows that torture and ill-treatment take place during the first days of detention. Furthermore, the Swedish diplomats, who were not trained to recognise signs of torture, apparently gave several days’ notice of their visits, and all conversations were apparently monitored by the Egyptian warders.
143 Sweden justifies the fact that it did not send its ambassador’s first visit report, in which Mr Alzery’s complaints of ill-treatment are recorded, by fears of reprisals against the detainees, given doubts about respect for confidentiality within UN-CAT. But in any case those complaints were known to the Egyptian authorities, who were represented during the ambassador’s visit.
144 I met the prosecutor heading the investigation, Armando Spataro, and was able to obtain as full information as confidentiality and procedural requirements permitted. The Abu Omar case is likewise described in the aforementioned book by Guido Olimpio, Operazione Hotel California, Feltrinelli, October 2005. The main documents in the judicial investigation have been collected and reproduced in a book by Guido Ruotolo and Vincenza Vasile: Milano-Cairo. Viaggio senza ritorno. L’iman rapito in Italia dalla CIA, Tullio Pironti Editore, 2005.
145 See Corriere della Sera and La Repubblica of 11 May 2006.
146 Statement of General Pollari at the meeting of the TDIP on 6 March 2006
147 I wish to thank in particular my British colleague Andrew Tyrie, chairman of the House of Commons All-Party Parliamentary Group (APPG) on renditions, who helped to arrange for two members of our committee secretariat to attend an APPG hearing of the brother, wife and lawyers of Mr Al-Rawi and Mr El-Banna; I also thank the two men’s American and British lawyers, Mr Brent Mickum and Ms Gareth Peirce, along with Clive Stafford-Smith, the legal director of REPRIEVE, for the detailed information they provided for my inquiries.
148 Mr El-Banna informed his lawyer that two MI5 agents had come to his home and told him that they knew all about his planned trip. In reply to his question as to whether everything was in order, they said yes and wished him good luck. Mr El-Banna’s wife confirmed this visit at the APPG hearing on 28 March 2006.
149 Telegram of 1 November 2002, made public on 27 March 2006, with other telegrams dated 4, 8 and 11 November and 6 December 2002 ; these documents are normally classified secret, but came into the public domain after being cited on 22 and 23 March 2006 at a public hearing in the Queens Bench Division of the High Court in London, before Lord Justice Latham and Mr Justice Tugendhat. The telegrams were also the subject of the APPG hearing on 27 March 2006. It is clear to the lawyers that not everything is said in the telegrams, which moreover refer to other communications, including telephone calls.
150 See US Department of Defense, unclassified Combatant Status Review Tribunal (CSRT) transcripts disclosed in the matter of El-Banna et al v. Bush, in the US District Court of Columbia (copies of all transcripts on file with the Rapporteur), October 2004.
151 At the APPG hearing on 27 March 2006, Mr El-Banna’s wife explained that their “social” relations derived from the fact that the three men had family ties with Jordan.
152 Al-Rawi’s cooperation with MI5 is said also to be the reason for several visits by MI5 agents to Guantanamo. The lawyers presented details of these conversations in public as recounted by their clients (copy in file). MI5 has not officially recognised this cooperation, which Al-Rawi also claimed in his depositions to the CSRT.
153 See El-Banna’s statement to lawyer, supra note 68.
154 They were dressed in diapers, wore hoods without eye-holes, had their ears blocked up, their legs shackled and their hands painfully handcuffed behind their backs, and were denied access to toilets.
155 « Diabolical » loud music round the clock, total absence of light, rotten food, no possibility to wash or use a toilet, uncomfortable handcuffing and leg shackling, cold cell, inadequate clothing, prisoners frequently beaten and trampled on.
156 I prefer not to quote this extremely upsetting testimony.
157 Accompanied by his lawyer, he also had exhaustive talks with a member of the committee secretariat;
158 This journey was retraced by a British investigative journalist, whose research is corroborated by data obtained from our Eurocontrol and national air traffic control authorities investigation. See Flight logs related to the rendition of Maher Arar, at Appendix 6 of this report.
159 See Bellinger, Briefing to European Delegation, supra note XX: "With respect to Maher Arar, I can’t comment on his case either. But I do know his case has gotten added to the list of so-called renditions, when in fact his removal was dealt with as an immigration matter, which is what all countries do when they find someone in their country and they don't want to prosecute them inside their countries. So he was expelled from the United States by order of an Immigration Court. I think that's a different situation. So this is not the same situation as these other cases."
160 See the quotations reproduced in my information report of 22 January 2006
161 See Flight logs related to the rendition of Maher Arar, at Appendix 6 of this report.
162 Commission of inquiry into the action of Canadian officials in relation to Maher Arar, set up on 5 February 2004 « to throw light on the actions of the Canadian authorities concerning the deportation and detention of Maher Arar ». The commissioner heading the inquiry is the Honourable Dennis R. O’Connor, deputy chief judge of Ontario.
163 Available on the commission’s website : www.commissionarar.ca; the reports of experts/witnesses, the rules of procedure and – albeit greatly truncated – summaries of the hearings in camera are among other items also published on this website.
164 See the communiqué of 11 April 2006, indicating that the delay (five months after the date originally planned) is “largely attributable to the process that was adopted to analyse reports having regard to the government’s requests designed to protect certain information on grounds of confidentiality in connection with national security (CLSN)”. The communiqué describes in detail the procedures followed where the government invokes CLSN, disputes on the matter being settled in the last resort by the federal court.
165 See the ‘summaries of hearings in camera’ (note* above), in particular para. 12 pp and 33. Given the provisional and incomplete nature of these summaries, I prefer not to comment in greater detail.
166 Below the radar: secret flights to torture and "disappearance", 5 April 2006, AI Index: AMR 51/051/2006. My particular thanks go to Mrs Anne Fitzgerald for her co-operation with our committee's secretariat on this subject.
167 AI’s report (pp 9-16) gives a precise description of the sufferings of the victims and their families.
168 Cf AI report (pp 13 and 14). One particularly interesting piece of information is a geographical deduction based on the prayer times provided, which were taken from an Internet site (islamicfinder.org). The time of the sunset prayer ranged from 4.30 to 8.45 pm (allowing for the change to summer time, which the whole of Europe uses, but not Afghanistan, Jordan or Pakistan). This corresponds to a location north of the 41st parallel, so well to the north of the Middle East, and very probably within a Council of Europe member state.
169 The Eurocontrol data available to us does not enable us to confirm this flight, which took place between two non-European airports.
170 Examples are the items published in the Washington Post on 12 and 19 June 2002 and 31 January 2003, in Der Spiegel in July 2002 and November 2005, and in Focus of 20 September 2002, and shown on Kalla Fakta (on the fourth Swedish TV channel) on 22 November 2004.
171 Following my request to the Chair of the Bundestag committee responsible for monitoring the special services, I received a copy of the public version of this report. I also received from an anonymous source a version classified "confidential/for official use only", of which I made responsible use, in the spirit of the decision taken by the Legal Affairs Committee at its meeting of 13 March 2006 on the receipt of confidential information. [I was also offered a copy of an even more detailed version classified ’secret’, which I opted not to accept for ethical reasons. I place my trust in the members of the Bundestag to whom this document was addressed to take the necessary action on the basis thereof, including appropriate action to alert me to any fact reported in this version directly related to my terms of reference as rapporteur.
172 Reference to the Executive Order that established Military Commissions for Guantanamo detainees, signed by President Bush in Oct / Nov 2001.
173 Reference to some of the many documents on interrogation techniques obtained by the ACLU in its series of applications under the Freedom of Information Act.
174 In this regard, reference Human Rights Watch reports on Temara in Morocco, plus a range of NGO and detainee accounts from the Dark Prison in Kabul.
175 Binyam has told his lawyer that wanted to travel to Afghanistan to see the Taliban with his own eyes and decide “whether it was a good Islamic country or not”. He also wanted to get away from a social life in London that revolved around drug use.
176 References to the sections on rendition circuits and the individual case of El-Masri.
177 Many other accounts in the file of the Rapporteur refer to this facility as the “Dark Prison” or the “Disco Prison”.
178 These so-called ‘enhanced interrogation techniques’, which are considered acceptable in the context of some interrogations by the Americans, were exposed by the ACLU in its application under the Freedom of Information Act. In particular, these techniques are enumerated in a document from the FBI, available at www.aclu.org.
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