Monday, July 28, 2008
Wednesday, July 23, 2008
A recap of the latest unmitigated legal disgrace
By Robert Parry
A conservative-dominated U.S. Appeals Court has opened the door for President George W. Bush or a successor to throw American citizens – as well as non-citizens – into a legal black hole by designating them “enemy combatants,” even if they have engaged in no violent act and are living on U.S. soil.
The federal Appeals Court in Richmond, Virginia, ruled 5-4 on July 15 that Bush had the right, while prosecuting the “war on terror,” to hold Qatari citizen (and Peoria, Illinois, resident) Ali al-Marri indefinitely as an “enemy combatant.”
But some of the court’s more liberal judges expressed alarm, saying the legal reasoning that denied al-Marri meaningful due process not only trampled on American legal traditions but could be used to lock up U.S. citizens as well.
“For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law,” wrote Judge Diana Motz, a Bill Clinton appointee, who dissented against the court’s approval of sweeping presidential powers.
Motz noted that al-Marri has been imprisoned for more than five years, “without acknowledgement of the protection afforded by the Constitution, solely because the Executive believes that his indefinite military detention – or even the indefinite military detention of a similarly situated American citizen – is proper.”
Al-Marri’s lawyers plan to appeal to the U.S. Supreme Court, and the case underscores one of the biggest issues at stake in the November elections: whether Republican John McCain will get to fulfill his promise to appoint more Supreme Court judges like Samuel Alito and John Roberts, who have embraced Bush’s vision of an all-powerful President.
Currently, the U.S. Supreme Court has a slim 5-4 majority in favor of limiting Bush’s authority to deny basic constitutional rights to people designated “enemy combatants,” but the replacement of one member of the majority with another Alito or Roberts would tip the balance and effectively permit the rewriting of the U.S. Constitution.
Though the July 15 ruling was convoluted and did call for a federal District Court to afford al-Marri some more rights, the Appeals Court decision effectively upheld Bush’s assertion of nearly unlimited power to have people detained as “enemy combatants.”
The ruling suggested that even American citizens – if they are deemed “enemy combatants” – could be subjected to Bush’s military commissions, where truncated legal rights make proving a person’s guilt much easier than in civilian courts.
Stunned Realization
Previously, the New York Times editorial page and some liberal legal experts had criticized Bush’s high-handed approach toward non-citizens, but had assured Americans that the military commissions would not apply to them.
But at Consortiumnews.com, we noted that language buried in the Military Commissions Act of 2006 seemed to cover – indeed even target – U.S. citizens. [See “Who Is ‘Any Person’ in Tribunal Law? or our book, Neck Deep.]
For instance, one section dealing with penalties stated that “any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law.
Another clause stated that “any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.” [Emphasis added]
Presumably, Osama bin Laden has no “allegiance or duty to the United States.” Such a phrase seems aimed at American citizens.
But it took the Appeals Court ruling – and the blunt language from Judge Motz about denying constitutional rights to U.S. citizens – to catch the New York Times’ attention.
In a July 20 editorial, the Times wrote that the Appeals Court's “decision gives the President sweeping power to deprive anyone – citizens as well as non-citizens – of their freedom. …
“The implications are breathtaking. The designation ‘enemy combatant,’ which should apply only to people captured on a battlefield, can now be applied to people detained inside the United States. Even though Mr. Marri is not an American citizen, the court’s reasoning appears to apply equally to citizens.”
Bush’s victory in the Marri case reflects his continued insistence that for the duration of the “war on terror,” Bush or any successor can exercise “plenary” – or unlimited – powers as the Commander in Chief.
And, since the “war on terror” will go on indefinitely and since the “battlefield” is everywhere, Bush is asserting the President’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.
In effect, Bush’s interpretation of his own powers – allowing him to imprison, torture and kill at his discretion – trumps the Founders’ vision that everyone possesses certain “unalienable rights” that a government can’t take away.
Despite some reversals in the U.S. Supreme Court – and the loss of Republican control of Congress in 2006 – Bush still sees himself as a kind of a global monarch who gets to decide which rights and freedoms his subjects anywhere in the world can enjoy and which ones will be denied them.
Al-Marri’s Arrest
Al-Marri entered the United States on a legal student visa, along with his wife and children, only a day before the 9/11 attacks. He was arrested amid the panic and fear that followed the attacks, and was charged criminally in a credit-card scheme.
But the Bush administration then asserted that al-Marri was an al-Qaeda “sleeper cell” agent planning follow-up attacks, declared him an “enemy combatant,” and locked him up at a Navy brig in South Carolina, where he was held incommunicado.
Eventually, al-Marri challenged his indefinite detention through a federal court suit. Bush’s lawyers countered by citing the Military Commissions Act in seeking to deny him access to civilian courts.
In an affidavit submitted to a District Court, a U.S. counter-terrorism official alleged that al-Marri had received al-Qaeda training, was prepared to engage in a suicide attack, and had met personally with Osama bin Laden and other senior terrorist leaders.
However, the original source of that evidence was kept secret, since it presumably was derived from interrogation of al-Qaeda captives, many of whom have been subjected to brutal interrogation methods.
In siding with Bush, conservative Appeals Court judges noted al-Marri had offered only a general denial of the accusations against him and failed to rebut the specific charges. Al-Marri’s lawyers argued that their client should have a right to confront his accusers and not be put in a position of having to prove his innocence.
However, the Appeals Court’s majority accepted the validity of the “sleeper cell” allegations – since al-Marri had not disproved them – and ruled that Bush did have the authority to lock al-Marri up indefinitely as an “enemy combatant.”
“While I would be the first to agree that the criminal justice system retains an important place in our constitutional system when handling the terrorist threat, the notion that it is the only manner of dealing with such threats, or is constitutionally compelled in all cases involving apprehensions on American soil, is simply wrong,” wrote Judge Harvie Wilkinson, a Ronald Reagan appointee who is often cited as a possible Republican Supreme Court nominee.
Wilkinson said the government had many good reasons not to grant an accused terrorist a public trial.
“While a showcase of American values, an open and public criminal trial may also serve as a platform for suspected terrorists,” Wilkinson wrote. “Terror suspects may use the bully pulpit of a criminal trial in an attempt to recruit others to their cause. Likewise, terror suspects may take advantage of the opportunity to interact with others during trial to pass critical intelligence to their allies.”
However, Motz and other more liberal judges dissented on the grounds that the Constitution spells out basic due-process rights for defendants and that denying those rights to non-citizens like al-Marri means that they would be lost to U.S. citizens as well.
“It is likely that the constitutional rights our court determines exist, or do not exist, for al-Marri will apply equally to our own citizens under like circumstances,” Motz wrote. “This means simply that protections we declare to be unavailable under the Constitution to al-Marri might likewise be unavailable to American citizens, and those rights which protect him will protect us as well.”
Motz’s conclusion also wasn’t simply based on her opinion. It was a little-notice argument that Bush’s lawyers made earlier in the case.
“A citizen, no less than an alien, can be an enemy combatant,” administration lawyer David B. Salmons told the Appeals Court in oral arguments on Feb. 1, 2007, adding that the courts cannot interfere with the President’s wartime judgments on such matters.
Salmons insisted that Bush is not interested in using this power too broadly, but argued that the judgment on whom is deemed an “enemy combatant” must solely be at the discretion of President Bush. [NYT, Feb. 2, 2007]
What may be decided in Election 2008 is whether the U.S. Supreme Court will be stocked with like-minded legal theorists.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.
Original article posted here.
Monday, December 03, 2007
The reason why the Rule of Law matters: they start with the "terrorists", expand it to citizens, then the world
AMERICA has told Britain that it can “kidnap” British citizens if they are wanted for crimes in the United States.
A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.
The admission will alarm the British business community after the case of the so-called NatWest Three, bankers who were extradited to America on fraud charges. More than a dozen other British executives, including senior managers at British Airways and BAE Systems, are under investigation by the US authorities and could face criminal charges in America.
Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects.
The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.
Legal experts confirmed this weekend that America viewed extradition as just one way of getting foreign suspects back to face trial. Rendition, or kidnapping, dates back to 19th-century bounty hunting and Washington believes it is still legitimate.
The US government’s view emerged during a hearing involving Stanley Tollman, a former director of Chelsea football club and a friend of Baroness Thatcher, and his wife Beatrice.
The Tollmans, who control the Red Carnation hotel group and are resident in London, are wanted in America for bank fraud and tax evasion. They have been fighting extradition through the British courts.
During a hearing last month Lord Justice Moses, one of the Court of Appeal judges, asked Alun Jones QC, representing the US government, about its treatment of Gavin, Tollman’s nephew. Gavin Tollman was the subject of an attempted abduction during a visit to Canada in 2005.
Jones replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.
He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s.”
Mr Justice Ouseley, a second judge, challenged Jones to be “honest about [his] position”.
Jones replied: “That is United States law.”
He cited the case of Humberto Alvarez Machain, a suspect who was abducted by the US government at his medical office in Guadalajara, Mexico, in 1990. He was flown by Drug Enforcement Administration agents to Texas for criminal prosecution.
Although there was an extradition treaty in place between America and Mexico at the time — as there currently is between the United States and Britain — the Supreme Court ruled in 1992 that the Mexican had no legal remedy because of his abduction.
In 2005, Gavin Tollman, the head of Trafalgar Tours, a holiday company, had arrived in Toronto by plane when he was arrested by Canadian immigration authorities.
An American prosecutor, who had tried and failed to extradite him from Britain, persuaded Canadian officials to detain him. He wanted the Canadians to drive Tollman to the border to be handed over. Tollman was escorted in handcuffs from the aircraft in Toronto, taken to prison and held for 10 days.
A Canadian judge ordered his release, ruling that the US Justice Department had set a “sinister trap” and wrongly bypassed extradition rules. Tollman returned to Britain.
Legal sources said that under traditional American justice, rendition meant capturing wanted people abroad and bringing them to the United States. The term “extraordinary rendition” was coined in the 1990s for the kidnapping of terror suspects from one foreign country to another for interrogation.
There was concern this weekend from Patrick Mercer, the Tory MP, who said: “The very idea of kidnapping is repugnant to us and we must handle these cases with extreme caution and a thorough understanding of the implications in American law.”
Shami Chakrabarti, director of the human rights group Liberty, said: “This law may date back to bounty hunting days, but they should sort it out if they claim to be a civilised nation.”
The US Justice Department declined to comment.
Sunday, July 08, 2007
Pesky German Lawmakers annoy Angela Merkel by actually wanting to follow the law.
Berlin - A German prosecutor's request for the arrest of 10 US men suspected of forming a CIA rendition team has split the German government, the news magazine Der Spiegel reported Saturday.
A parliamentary inquiry in Berlin has heard Lebanese-born German national, Khaled el-Masri, testify that he was detained in Macedonia and held in a jail in Afghanistan for several months in 2004 on suspicion of terrorism.
The Munich prosecutor has asked Berlin to formally request US police to arrest and extradite 10 alleged agents.
Der Spiegel said senior ministers debated the issue in Chancellor Angela Merkel's office on Wednesday, with Interior Minister Wolfgang Schaeuble opposed and arguing that the request would ruin German-US intelligence cooperation.
Justice Minister Brigitte Zypries had argued that the request should be passed on to Washington to formally complete the inquiry.
An official of her ministry, which has the final say, confirmed Saturday that the issue was still the subject of 'intense discussion.'
Der Spiegel said US diplomats have objected vocally to the whole German inquiry into el-Masri's ordeal.
The practice of extraordinary rendition - arresting people outside the United States and holding them abroad beyond the reach of US courts - has caused fierce controversy in Europe.
German law allows prosecution of crimes against German nationals anywhere in the world, though no German officials really expect the US to actually extradite its own agents for trial.
Original article posted here.
Friday, May 25, 2007
CIA: Violating laws both home and abroad, of friends and foes
By Leo Sisti
International Consortium of Investigative Journalists
Omar handed over his passport, and suddenly someone inside a parked white van flung open the side door. According to the account of a witness later interviewed by the police, two men grabbed the cleric and shoved him inside. The van roared away, and thus began a tangled spy story that has resulted in a major political and diplomatic embarrassment for the United States and its close ally in the war on terror, Italy.
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Four years later, on February 16, 2007, Italy indicted 25 Americans it said were CIA agents, a U.S. Air Force lieutenant colonel, and five high-ranking members of Sismi, the Italian military secret service, on charges of kidnapping Omar, then 40 years old, and performing an "extraordinary rendition" — seizing a terrorist suspect without a warrant and transferring the person to another country, often one known to employ torture.
The CIA will neither confirm nor deny allegations about this or any other rendition. But investigative records filed with the Italian court that issued the indictments present a vivid picture of Omar being kidnapped and taken to his native Egypt, where he claims he underwent lengthy detention, questioning and torture. These records say the rendition was engineered by U.S. diplomats suspected of being CIA agents. By the time the indictments were issued, all of the officials in question had been transferred to other countries. The State Department also declined to comment, and the Egyptian Embassy in Washington did not return calls seeking comment.
Just who is Abu Omar? A veteran of military training camps in Bosnia and Afghanistan, Omar allegedly was a member of the Egyptian radical movement Gama'a al-Islamiyya, which has been designated by the U.S. as a terrorist organization supported by Osama bin Laden.
In the 1990s he left Egypt for Albania, residing in the capital city of Tirana and quickly attracting suspicion as a terrorist. According to Italian intelligence sources, Albania expelled him for helping to plot an attack on a visiting Egyptian minister. In 1997 Omar moved first to Germany and then to Italy, where in 2001 he was granted political asylum. He first served as an imam at a mosque in Latina, close to Rome. He went to Milan, where he was an imam in a radical mosque, and then worked in an Islamic cultural center attended by Islamic fundamentalists who were later arrested and convicted of recruiting jihadists for Iraq.
The Italian court documents include evidence that by 2002 Abu Omar was under investigation by Digos, the Italian special police branch that investigates terrorism. But in February 2003 he disappeared. The documents also allege that on March 3, two weeks after the abduction, a first secretary at the U.S. Embassy in Rome sent Italian authorities the following message: "Abu Omar disappeared in the Balkans, where he could have been relocated." That diplomat is among the Americans who have been identified as CIA agents by the Italian authorities and who have been indicted in Milan for Abu Omar's kidnapping.
Detention in Egypt
In April 2004, Armando Spataro, the deputy chief prosecutor in Milan for investigations of the Mafia and terrorism, began probing Abu Omar's disappearance. Spataro's task was tough. He knew that Digos had tailed Abu Omar as a terrorist suspect and for good reason. How could he have disappeared without a trace?
The same month, court records show, Abu Omar was released from detention in Egypt and Digos, which was still investigating Omar's disappearance from Italy, intercepted phone conversations between him, another imam, Elbadry Mohammed Reda, and his wife, Nabila Ghali.
"He told me that he had been kidnapped in Milan," she said in excerpts from an interview with the Milan prosecutor made public in the court documents, "and that some people had captured him violently and taken him away in a white van. … My husband … told me he hadn't been kidnapped by Egyptians. … He had always been kept blindfolded during the kidnapping. … He was certainly flown to Egypt with a military aircraft, surely not a civilian plane. … He told me that he had always been detained and subject to awful torture … all kinds of torture … because the Egyptians wanted information from him that he was unable to give. … He added that he was made to sign a statement after the torture where he declared that he had turned himself in to Egyptian authorities on his own free will."
More details came from Reda, the other imam, who in an interview with the Milan prosecutor said Omar told him this story: "Speaking perfect Italian, the two men told Abu Omar to be quiet and remain still, otherwise he would be dead. … Thanks to his watch, he was able to ascertain that he had traveled by car with the two men for about five hours. … The two abductors handed Abu Omar to other people inside a military base that he believed to be an American base … with the U.S. flag. … He didn't say whether the captors were Italians … just that they spoke Italian. The two men departed and left him with a group of English- and Italian-speaking people … who availed themselves of an Arab interpreter. [They] asked him questions repeatedly, accompanied by outbursts of violence, about three specific issues: … on his dealings with al Qaeda … on his activities related to the war in Iraq, asking him if he was sending volunteers to fight the U.S. in those areas … and on his relationship with Albanian Islamic groups."
Reda's transcript continued: "He told me that he had been beaten … tortured … questioned. At dawn he was loaded onto a U.S. military aircraft and traveled for just under one hour … he thought he had been taken to a Rome airport. The aircraft was stationed in a restricted area inside a huge airport, probably military. … Abu Omar was taken off the plane … got on another U.S. military plane … and took off again immediately. … The second plane landed at a U.S. base in the Red Sea in Egypt. … From this base he was flown to a Cairo airport, this time [aboard] Egyptian and military [aircraft] … he was blindfolded and taken by car, with Egyptians on board, to a Secret Service building in Cairo. … He had to meet an important personality … the Egyptian Home Secretary, Habib Al Adly. … [Al Adly] told him that if he agreed to work as an infiltrator for the Egyptian secret service he would be home in 48 hours, otherwise he would have to bear full responsibility for his refusal. … Abu Omar refused.
"He was subject to serious torture. … The first measure was to leave him in a room where incredibly loud and unbearable noise was made. ... He has experienced damage to his hearing. … The second kind of torture was to place him in a sauna at tremendous temperature and straight after to put him in a cold storeroom … causing terrible pains to his bones … as if they were cracking. The third was to hang him upside down … and apply live wires to the sensitive parts of the body including his genitals … and producing electrical shocks. … He has suffered damage to his motor and urinary systems … he became incontinent. … They tortured him and accused him of being an al Qaeda terrorist and a militant against the Egyptian regime."
There was seemingly no legal basis for Abu Omar's arrest and transfer to Egypt — he had long been under investigation, but no arrest warrant had ever been issued. Omar was initially released by Egyptian authorities on April 20, 2004. But on May 12, 2004 — 22 days after he was freed — press reports indicated that the Egyptian police arrested him again. Almost three years later, in February 2007, he was finally released to his family in Alexandria, Egypt — and promptly announced through his attorney that he planned to sue the U.S. and Italian governments for damages. In late March 2007, Montasser Al Zayat, Abu Omar's attorney, stated that his client was seeking "a compromise solution with the Italian government, asking for compensation of 20 million euro (approximately $26 million)."
The kidnapping investigation
In the first months of 2005, Milan prosecutor Spataro began to make some progress on recreating what had happened that February day in 2003. One helpful bit of evidence was provided by Bruno Megale, the Milan anti-terrorism chief at Digos, who gave Spataro an analysis of local mobile phone records on the day of the abduction. According to court records, the analysis found that 17 cellular phones had been used during the kidnapping. Some were registered to people unconnected to the abduction; others were registered under fake names, and investigators were able to eventually link those phones to credit card, hotel and car rental records. They began to compile a list of people they believed were present when Abu Omar was abducted.
At different points in 2005 and 2006 before two different judges, Spataro requested arrest warrants charging 26 Americans and two Sismi agents with Abu Omar's kidnapping. They included Jeff Castelli, officially a diplomatic counselor at the U.S. Embassy in Rome but identified in the most recent arrest warrant as the Rome CIA station chief and the top CIA official in Italy. Others named included Robert Seldon Lady, identified in the warrant as the Milan CIA station chief; a first secretary at the U.S. Embassy in Rome; and a second secretary at the embassy who was assigned to the American consulate in Milan, both of whom were identified in the warrant as CIA agents. Also indicted was a U.S. military officer: Lt. Col. Joseph Romano III, in charge of security at the Aviano airport, an air base in northern Italy used by the U.S. Air Force. It is where Abu Omar was transferred after being abducted off the street in Milan.
The judges granted Spataro's requests. He was unable to take the Americans into custody, because they were outside of Italy by then. But on July 5, 2006, two high-ranking Sismi officials were arrested: Marco Mancini, head of military counterespionage, and Gen. Gustavo Pignero (who died of cancer in September 2006 while under house arrest), director of Sismi's Operational Division. Both were charged with supporting the CIA's kidnapping.
Spataro investigated Sismi's chief, Gen. Nicolò Pollari, on the same charges, but he was not arrested. His predecessor as Sismi chief, Adm. Gianfranco Battelli, was also questioned, and a transcript filed in court records shows that Castelli had broached with Batelli the notion of kidnapping terrorism suspects in Italy.
In the transcript of Spataro's questioning, Battelli said that Jeff Castelli of the U.S. Embassy had contacted him, requesting a conversation. "During the meeting he wanted to know my opinion about the possibility of performing the strategy of the so-called 'renditions' in Italy. He referred to the possibility of carrying out an abduction of a suspect terrorist in Italy, bringing him to an airport and sending him to a foreign country. … He didn't mention Abu Omar or any other names of people to kidnap. … I told Castelli that if he requested formal assistance, I would be forced to inform the prime minister or the political authorities. I thought that due to the delicacy of the request, before informing the political authorities, I would have directly made inquiries to the CIA chief, at that time George Tenet, to check if Castelli's request was really coming from CIA bosses [at the Langley headquarters] or if it was an autonomous initiative by Castelli. … I referred my conversation with Castelli to my successor, General Pollari."
Identifying CIA agents
A few months after Abu Omar was abducted, Spataro's investigators were digging to find out if the names of the people they had gleaned from the phone, hotel, car rental and credit card records were real. The investigative report says that Castelli, Lady, two other American diplomats, and Lt. Col. Romano were all positively identified due to their official jobs; what of the other names?
Dozens of reporters who have covered the Abu Omar rendition have tried to find out whether any of the remaining names of those indicted were real; almost all have come up empty-handed, believing most of the names to be fakes or aliases. Two notable exceptions are the Chicago Tribune's John Crewdson, who reported that he confirmed two agents through the use of frequent flier records, and an Italian reporter who spoke with an American agent on background, publishing the conversation without identifying the agent by name in December 2006 but writing that the agent confirmed that the CIA was involved in the operation.
The International Consortium of Investigative Journalists (ICIJ) was also able to confirm a name as real. A public records search carried out in the United States showed that the mortgage on the individual's home is held by a small federal credit union that caters exclusively to CIA agents, their families and CIA contractors. An ICIJ reporter visited the home. There is no publicly listed phone number, and none of the neighbors have a phone number for their neighbor, about whom they know little. In a brief interview, all the person would say was, "I don't know what you're talking about."
Based on a bilateral treaty between Italy and the United States, an Italian prosecutor such as Spataro is entitled to seek the arrest and extradition to Italy of U.S. citizens provided that the request is approved by the Italian minister of justice. In April 2006 Roberto Castelli, who was then the justice minister and who represented the Northern Alliance Party, a nationalistic center-right coalition led by Silvio Berlusconi, the prime minister at the time, refused to sign the extradition request. "It is known that Mr. Spataro is an activist magistrate," Castelli said. "I think that towards America he is not so unbiased."
Key Italian players
That same month Spataro summoned Luciano Pironi, the officer who asked to see Abu Omar's passport as he was being abducted, to testify in the Milan court about his role in the cleric's disappearance. Pironi, a lower-level warrant officer in the Italian Carabinieri, the country's constabulary, decided to cooperate with prosecutors from the outset and thus was spared arrest.
According to a deposition transcript on file with the court, Pironi began by telling Spataro that he "met with Robert Lady, the Milan CIA station chief, at the end of 2000 or at the beginning of 2001. He came frequently to our offices to exchange information. … Lady and I became friends, and I called him Bob. Once I told him that I'd like to join the Sismi. He promised to talk to the man who ran the Sismi office in Milan, a lieutenant colonel of the Carabinieri, Stefano D'Ambrosio. … In August 2002 during a dinner at the Tosca restaurant, in Piazza Risorgimento, Bob Lady mentioned the name of Abu Omar for the first time. Bob said that Abu Omar is important and dangerous, a leader of an Islamic terrorist organization in Europe. … Bob told me that he got news that the Egyptian was planning to seize a bus of an American school in the Milan suburbs. … In September Bob Lady said to me that, together with Sismi, they were planning a great operation where I could play a useful role. But he didn't elaborate any further."
D'Ambrosio, who ran Sismi's Milan office from December 2001 until being dismissed in November 2002, was questioned by Spataro in April and May of 2006. According to a transcript, he told prosecutors: "At the end of October 2002, Bob Lady informed me confidentially of a plan worked out jointly by the CIA and Sismi on a 'rendition' of Abu Omar, where he would be transferred to a place unknown to me. [Lady] wanted to see if I was aware of the plan. He went on to say that the plan had been worked out by Jeff Castelli, in charge of the CIA office in Rome as well as the rest of Italy, under precise orders coming from the United States, from Langley.
"According to Lady, a unit of the CIA which was part of a structure called the Special Operation Groups (SOG) had already been in Italy, and specifically in Milan, where they had made a pre-action inspection. SOG staff is made up of CIA agents with a military background. Lady said they were tough, not assigned to gathering intelligence or conducting investigations but to special intelligence operations. As a member of Sismi, the existence of SOG was known to me. Under the plan, Abu Omar was to have been taken in Milan and brought to Ghedi, in the province of Brescia, where the Americans use part of an air base there. On this point Bob specified that Sismi personnel were busy in that area looking for the right place where Abu Omar could be held in custody while waiting for a CIA plane from Ramstein, Germany, to transfer him abroad to a place unknown to me and never mentioned.
"Lady was critical of the plan," the transcript continued. "He said that it was foolish to take a person being investigated by Digos agents who were doing a very good job. They [Digos] could keep on investigating and monitoring the situation in order to identify other associates of Omar's. He couldn't understand why that investigation had to be broken off, spoiling a profitable collaboration with Digos. Bob felt sorry for having to betray Digos' trust since they were not aware of the plan. He was also worried because Abu Omar was being tailed and was nervous that some sort of incident could occur, even a gunfight.
"Bob asked me if I was aware of the planned operation. I was astounded. I didn't know anything. I, too, was critical of the plan. … [W]e were both convinced that Abu Omar, once captured, would be immediately replaced by another man more difficult to spot and keep under control. Lady added that Jeff Castelli and [another agent] were very keen on the plan."
D'Ambrosio was officially dismissed from Sismi for "poor performance." In his interview with prosecutors, he implied that the real reason was for being critical of the rendition plan.
The abduction
In his testimony to prosecutors, Pironi, the Carabinieri officer, who is known as "Ludwig," told this story of what led up to the kidnapping in February 2003:
"Between December 2002 and January 2003 Bob Lady explained to me what my role would be in a joint intelligence operation with Sismi. A group of people would take Abu Omar to an unknown place in order to get information from him on his illegal activity and to convince him to cooperate. …
"My role was to stop him on the street very close to his home pretending to ask about police identification so as to allow other people to approach him and take him away. … I pointed out that as far as I knew Digos agents were working on Abu Omar, but Bob Lady answered that the Interior Ministry assured CIA that in that period [of the planned kidnapping] Abu Omar would not be tailed. …
"On Monday, February 17, 2003, I left my office at 11:30. I reached Piazza Maciachini on board my scooter, which I parked there. In that precise moment a Volkswagen, dark blue or black, approached me, and the driver, short, black haired, in his forties, who I'd never seen before, lowered the window of his car and called to me, 'Ludwig, sono l'amico di Bob, sali!' [Ludwig, I'm Bob's friend, get in!]. … He explained to me that I should go to a white van parked on via Guerzoni where I could identify Abu Omar. … When we got there, the Volkswagen driver stopped his car in the middle of the roadway on via Guerzoni; Abu Omar was walking fast and moving towards me on the left side of the sidewalk, on the opposite side from where the van was parked. I called to him [Omar] and showed him my Carabinieri card" — then came the passport request, and the door of the white van flew open.
Once Abu Omar was inside the van, according to court documents, cell phone records gave Italian investigators what they needed to trace what happened next. Two sets of telephone subscribers were active that day, as described in detail in the arrest warrants. According to court documents, one set of subscribers was present where Omar was taken, then headed to Cormano, a few kilometers from Milan. There, the documents say, the first set of subscribers met up with the second group. Nine people in the second group drove toward the air base at Aviano, some placing calls to mobile phones used by officers, including Lt. Col. Romano, who were stationed there. After about five hours, the court documents continue, all of the subscribers were at or near the air base.
When the CIA team arrived in Aviano, plans were ready for the second leg of Abu Omar's journey, according to the same court documents. A Learjet LJ35 flew Abu Omar to the American base in Ramstein, Germany, where a Gulfstream executive jet (tail number N85VM), leased by the CIA from a private American company, brought him to the headquarters building of an Egyptian state intelligence agency; he was later transferred to the Tora Prison in Cairo, Egypt, according to the Italian court's arrest warrant.
Italian court records indicate that Bob Lady, the U.S. Embassy employee identified as the Milan CIA station chief, traveled to Egypt shortly after the kidnapping took place. These records show that "from February 19, 2003, to February 22, 2003, [Lady's] number…maintained its location in the city of Milan. But on February 23, 2003, the user of this device moves to the province of Gorizia [near Aviano] and from that day no calls are made or received by that number until March 3, 2003, when it received two calls from an unidentified number while using a mobile phone 'cell' in Egypt. Days later, on March 15, 2003, the number picks up Italian cells again, confirming it has [re-]entered Italian territory. … One can comfortably assume that the user of the said Vodafone card stayed in Egypt from February 22 to March 15,. 2003, during the first days of Abu Omar's unlawful detention in Egypt, and when he was most likely being subject to the first spate of 'treatment.'"
Mystery within a mystery
No one has been able to explain how, if CIA agents were on such a secret mission, they could have been so careless as to leave such an obvious paper trail. Records show that those linked to the abduction stayed in luxury hotel rooms that cost up to $500 per night, always paid with credit cards and sometimes made telephone calls from their hotel phones (ICIJ, for instance, was able to match certain calls made from those hotels to the home of the person listed in the Italian arrest warrants that we attempted to interview for this story).
Further, the evidence gathered from public records matches the identity of the person ICIJ identified with the paper trail left in Milan. Court records describe how Italian investigators reported finding compromising material on Lady's home personal computer, including surveillance photos of Abu Omar and files describing the best way to reach the Aviano air base by highway.
Crewdson reported in his July 2006 Tribune story that the CIA director at the time, Porter Goss, was reported to be so disgusted with the sloppiness of the Milan rendition that he ordered a full review of the agency's field operations.
According to Italian court records, CIA agents spent tens of thousands of U.S. taxpayer dollars during their stay in Italy. In addition, Luciano Pironi, the Italian officer who asked to see Abu Omar's passport, received a gift from U.S. taxpayers — reimbursement for a week of vacation in the U.S. In September 2003, seven months after Abu Omar was abducted, Pironi traveled to CIA headquarters and met with two high-ranking CIA officers who had jurisdiction over Europe. They toasted their success over a bottle of Bordeaux, according to Pironi's transcript. "For me to get to Langley," he said, "was like for a little priest to get to the Vatican."
Prosecutor Spataro, beneficiary of a paper trail spies aren't supposed to leave behind, continues his battle today. In July 2006, with a new minister of justice in office, he lodged a new request for permission to seek extradition of the Americans he has charged. But the newly appointed minister, Clemente Mastella, a member of the new left-leaning government of Romano Prodi, has not answered Spataro's request.
On December 5, 2006, Spataro officially wrapped up the investigation by asking a court to put all 26 Americans plus Pollari, Mancini, Pironi and other Sismi officials on trial, charging them with complicity in a kidnapping. He also asked that three people charged with lesser crimes, including aiding and abetting a kidnapping, be tried.
The first hearing was January 9, 2007. Pollari's attorney, Titta Madia, announced his intention to ask the judge to summon former Prime Minister Berlusconi and current Prime Minister Prodi as witnesses as well as to stop the proceedings on the grounds that issues pertaining to the case are restricted by state secrecy. On February 6, Judge Caterina Interlandi denied Pollari's request to compel testimony from Berlusconi and Prodi. Eight days later, Deputy Prime Minister Francesco Rutelli said that the Milan prosecutors had breached state secrecy by ordering wiretaps of Sismi agents' telephones. Now, the Italian Constitutional Court must rule on the state secrecy issue.
Despite the constitutional tussle, on February 16, Judge Interlandi indicted all 26 Americans as well as five Sismi agents, including former chief spy Pollari and his right-hand man Mancini. She also set June 8, 2007, for the trial to begin, presuming that the Constitutional Court allows the case to move forward against the Americans, who would be tried in absentia.
In late February 2007, the State Department's legal adviser, John Bellinger, told a news briefing in Brussels, Belgium, that the indicted Americans deserve special treatment despite the bilateral extradition treaty that exists between Italy and the U.S. "We've not got an extradition request from Italy. ... If we got an extradition request, we would not extradite U.S. officials to Italy," Bellinger said.
At the same time the indictments against the American agents were coming down in Milan, the U.S. and Italian governments declined to join 57 other governments in signing a new United Nations treaty prohibiting governments from holding terrorism suspects in secret detention and from kidnapping terrorism suspects outside of the rule of law. The American Civil Liberties Union characterized the kidnappings outlawed by the treaty as "forced disappearances [that are] used by dictatorships to secretly detain, arrest or kidnap individuals and then deny it occurred." A State Department spokesman declined to comment on the treaty, which the U.S. had originally helped to draft beginning in 2001, saying only that it "did not meet [U.S.] expectations."
Thursday, February 08, 2007
Rule of Law? Hell, naw!
Nearly 60 countries signed a treaty on Tuesday that bans governments from holding people in secret detention, but the United States and some of its key European allies were not among them.
The signing capped a quarter-century of efforts by families of people who have vanished at the hands of governments.
"Our American friends were naturally invited to this ceremony; unfortunately, they weren't able to join us," French Foreign Minister Philippe Douste-Blazy told reporters after 57 nations signed the treaty at his ministry in Paris.
"That won't prevent them from one day signing on in New York at U.N. headquarters _ and I hope they will."
The U.S. Embassy in Paris declined immediate comment. President Bush acknowledged in September that terrorism suspects have been held in CIA-run prisons overseas, but did not specify where.
Many other Western nations, including Germany, Spain, Britain and Italy, also did not sign the treaty. France introduced the convention at the U.N. General Assembly in November and it was adopted in December.
Many delegates expressed hope that other nations will sign by year-end. Some European nations have expressed support for the treaty, but face constitutional hurdles or require a full Cabinet debate before signing, French and U.N. officials said.
U.N. High Commissioner for Human Rights Louise Arbour called the treaty an important step both in preventing injustices common years ago and barring newer abuses that often fall through regulatory loopholes.
Arbour said the United States had expressed "reservations" about parts of the text, but declined to elaborate, and she urged U.S. officials to sign and ratify it. She noted that America often backs activities of the UNHCR without formally signing on to them.
She called the treaty "a message to all modern-day authorities committed to the fight against terrorism" that some past tactics are now "not acceptable, in a very explicit way."
The convention defines forced disappearances as the arrest, detention, kidnapping or "any other form of deprivation of freedom" by state agents or affiliates, followed by denials or cover-ups about the detention and location of the person gone missing.
Nations that eventually ratify the text would enshrine victims' rights, and would require states to penalize any forced disappearances in their countries and enact preventative and monitoring measures.
French officials, who led the effort, counted more than 51,000 people who were disappeared by their governments in over 90 countries since 1980, Douste-Blazy said. Some 41,000 of those cases remain unsolved.
"Men and women disappear every day on every continent, for defending human rights, for just opposing their governments' policies or simply because they want justice," Douste-Blazy said. "The situation could not continue to go unpunished. It required a strong response from the international community."
Latin American states like Argentina, once plagued by disappearances, are now owning up to much of the violence that left hundreds of thousands dead or disappeared in the 1970s and 1980s. Disappearances were also a common Nazi tactic in World War II.
Argentina's first lady, lawmaker Cristina Kirchner, took part in the signing. She was in Paris in an effort to raise her profile before a potential presidential bid.
Original article posted here.
Wednesday, February 07, 2007
Strong language from our ally and defending the rule of law (but more symbolic than substantive)
In a historic first, German prosecutors have issued arrest warrants for 13 suspected CIA agents thought to have illegally kidnapped a German citizen as part of the war on terror. The decision has been universally welcomed by German commentators.
The decision by the public prosecutor's office in Munich to issue arrest warrants against 13 suspected CIA agents in connection with the illegal kidnapping of Lebanese-born German citizen Khaled el-Masri is unlikely to have won Germany many friends in the United States. But the move has been universally welcomed in Germany, where observers are keen to see justice done.
The decision to issue arrest warrants for 13 CIA agents in the el-Masri rendition case has been welcomed in Germany.
Munich prosecutor August Stern told the German news agency DPA Thursday that no extradition requests had yet been issued in connection with the arrest warrants because they do not know in which country the suspects are currently residing. When German judicial authorities find out where the suspects are, they will petition the country in question to arrest the suspects and extradite them, he said.
Lebanese-born German citizen Khaled el-Masri is said to have been abducted in a case of the controversial CIA practice known as "extraordinary renditions," which involves kidnapping terrorist suspects and flying them to third countries to be interrogated.
CIA agents abducted el-Masri in Macedonia at the end of 2003. After being handed over to the CIA and flown to Afghanistan, he claims he was tortured and accused of collusion with the Sept. 11 hijackers. He says he was held for four months before being released without any charges on a roadside in Albania. Italy has also issued arrest warrants for suspected CIA agents in a separate renditions case.
German Foreign Minister Frank-Walter Steinmeier tried to play down the significance of the warrants Thursday, as he left to travel to the US for talks on the Middle East. Asked if he thought US-German cooperation on anti-terrorist activities would be hampered by the warrants, he replied, "No, I don't believe so," according to the Associated Press. He added, "The fact of the arrest warrants itself is a matter for the justice system that we can't comment further on politically at the moment."
Steinmeier himself is under pressure over another similar case involving Murat Kurnaz, a German-born Turkish citizen who was held for over four years in Guantanamo Bay. Steinmeier is accused of not doing enough to ensure the release of Kurnaz, who is considered to be innocent. The case is currently being investigated by a parliamentary committee.
Germany's newspapers Thursday universally welcomed the arrest warrants, proclaiming them as a triumph of the rule of law -- while admitting that the suspects are unlikely to ever stand trial.
The business daily Handelsblatt writes:
"The new beginning for trans-Atlantic relations has often been declared: People believe Chancellor Angela Merkel ... can act very differently towards Washington than her predecessor Gerhard Schröder. The arrest warrants for 13 CIA agents in the el-Masri case show that this is not the whole truth. It doesn't matter how much Merkel likes George W. Bush's government -- that is just one facet of the complex relations between the two countries. Another facet is the imperative of the law."
"For the first time in Germany's history, arrest warrants for CIA agents have been issued ... The government in Washington will not be bothered about the material consequences. But it will be annoyed about the damage to its image. ..."
"It's not about robust action in the war on terror, as is sometimes euphemistically said, but about criminal offenses. And so long as action is not taken against cases of this kind, or if they are even repeated, they will be a millstone around the neck of German-American relations."
The Financial Times Deutschland writes:
"Seldom has an arrest warrant had less of a chance of succeeding than in the case of the el-Masri abduction. Nobody can expect that el-Masri's kidnappers from the ranks of the CIA will ever go on trial in Germany. The US will never extradite its agents. ..."
"Nevertheless, the arrest warrants ... against 13 US citizens are worth more than the paper they are written on. They are a clear sign that a state based on the rule of law will not tolerate lawless spaces, even in the war on terror. And they are a signal -- if a somewhat late one -- that Germany will not allow its most important ally in the war on terror to do just anything, even if it causes diplomatic tension ..."
"Because the hands of the prosecutors are tied, politicians are now responsible for everything else. ... It's time to take a clear stand. Even if the Americans don't want to hear it, the German government has to say clearly that it supports the arrest warrants and sharply condemns the behavior of the US."
The conservative Frankfurter Allgemeine Zeitung writes:
"There's no doubt that the Americans in the war on terror gave far too free a reign to not only their imaginations but also to their agents who were trained to hunt Islamists. In the first two years after the Sept. 11, 2001 attacks, in which then-chancellor (Gerhard Schröder) pledged his "unconditional solidarity" with the US, security authorities in Germany and other European countries gave this fight their all-too-credulous support. ... German authorities did not, to say the least, check very hard if this fight was being pursued with means which could be justified legally.
"The current parliamentary investigation (into renditions) will make all German authorities aware that even in situations of acute threat ... the rights of sovereign states and most of all the personal rights of citizens can not be neglected. To take this lesson to heart is all the more important because the criminal investigation into the el-Masri case by the Munich public prosecutor's office has little chance of succeeding, despite the arrest warrants which have now been issued."
The left-wing Die Tageszeitung writes:
"The arrest warrants allow the hope that at least the judiciary still has an idea of what is legal or not. After more than five years of the war on terror and its collateral damage, that is a piece of good news."
"Just how seriously the German government, on the other hand, takes the rule of law will be seen by whether they really send an extradition request to the US or not. True, it wouldn't have any chance of succeeding, but it would at least lend weight to the conviction that the fight against terror has to follow the principles of the rule of law."
The left-of-center Süddeutsche Zeitung writes:
"The arrest warrants ... deal the CIA an unexpected and heavy blow. ... It's true that the American suspects will never stand before a court, but what's more important is the message that the arrest warrants from Munich and Milan send: Even in times of danger from terrorism, the great ally is not allowed to simply send its thugs out into Europe's streets. The general public won't put up with it, and neither will the judiciary. The kidnappings have seriously damaged the reputation of both the CIA and the US. ..."
"It is too early to celebrate the victory of the rule of law over the criminal intelligence officers. The judiciary has stuck up for the law. Whether the state and therefore the German government will also do so is another question entirely. Berlin must insist that the kidnappers are extradited or put on trial in the US. But that much courage is not very likely."
Original article posted here.