Parliamentary oversight of security and intelligence agencies in the EU

One of the reasons for the lack of posts on this blog the past months is that I co-authored this large study (446 pages), together with Aidan Wills, for the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE). The study came out today, and also includes a number of attachments written by national intelligence oversight bodies.

Abstract: This study evaluates the oversight of national security and intelligence agencies by parliaments and specialised non-parliamentary oversight bodies, with a view to identifying good practices that can inform the European Parliament’s approach to strengthening the oversight of Europol, Eurojust, Frontex and, to a lesser extent, Sitcen. The study puts forward a series of detailed recommendations (including in the field of access to classified information) that are formulated on the basis of indepth assessments of: (1) the current functions and powers of these four bodies; (2) existing arrangements for the oversight of these bodies by the European Parliament, the Joint Supervisory Bodies and national parliaments; and (3) the legal and institutional frameworks for parliamentary and specialised oversight of security and intelligence agencies in EU Member States and other major democracies.

We will present the study at the LIBE Committee at 15h on Monday the 3d of October. An Interparliamentary Committee Meeting on  “Democratic Accountability of the Internal Security Strategy and the Role of Europol, Eurojust and Frontex” will be held on Wednesday 5 October from 15.00 to 18.30 and on Thursday 6 October from 9.00 to 12.30 in the Hemicycle of the Paul-Henri Spaak building of the European Parliament as well, which is open to the public. You can register for this meeting until the 29th of September.

New details emerge about CIA agents involved in rendition and secret detention operations

Adam Goldman and Matt Apuzzo have new insights about the role of CIA officials who were involved in extraordinary renditions and secret detentions.

1. El Masri

The article describes how Frances, a “counterterrorism analyst with no field experience pushed ahead” with El Masri’s rendition, despite the doubts some at the CIA’s Counterterrorism center had whether Masri was a terrorist. The AP agreed to the CIA’s request to refer to Frances by her middle name because her first is unusual.

Senior managers were briefed, and a lawyer in the Counterterrorism Center signed off, former officials said.

Once el-Masri arrived in Afghanistan, however, questions persisted. A second detainee in U.S. custody looked at a picture of el-Masri and told CIA officers that they’d grabbed the wrong man. Perhaps most glaring,  el-Masri had a German passport. The man the CIA was looking for was not a German citizen.

Even after the CIA confirmed that the German passport was authentic, Frances was not convinced, former officials said. She argued against  freeing el-Masri, saying his phone had been linked to terrorists. For  weeks, the U.S. knowingly held the wrong man, as top CIA officers tried  to figure out what to do.

Five months after the abduction, the U.S. privately acknowledged to the  Germans what had happened. El-Masri was quietly released.

The CIA’s inspector general determined that there had been no legal justification for Masri’s rendition. Although the inspector general does not make legal conclusions, the CIA’s watchdog had essentially said the agency acted illegally.

The document has never been released but its findings were summarized by people who have seen it. The report came down hard on Frances. She had been warned about the uncertainties surrounding el-Masri’s identity. There hadn’t been enough evidence for a rendition, the report said, but Frances pushed ahead.

“You can’t render people because they have called a bad guy or know a bad guy,” a former U.S. intelligence official said, describing the investigation’s findings on condition of anonymity because the report still has not been released. “She was convinced he was a bad guy.”

Nobody in management was singled out for discipline.

The inspector general’s report posed a dilemma for senior managers. Even before the el-Masri case, station chiefs had complained to top CIA officials raising concerns about Frances’ operational judgment. But she was one of the few analysts who had a deep knowledge of al-Qaida before 9/11, working in a former unit known as Alec Station created to track down Osama bin Laden.

In the nascent war on terrorism, Frances and her team were essential and had racked up successes. She was a tireless worker who made the wrong call under intense pressure. Would disciplining her send a message that the best way to handle a tough decision was not to make one?

The report also faulted Elizabeth, the lawyer. The inspector general said her legal analysis was flawed. Elizabeth has a reputation in the agency as a diligent and cautious lawyer. Before she agreed to conduct any legal analysis on interrogation tactics, for instance, she insisted on being waterboarded, current and former officials said.

Hayden reviewed the report and decided Elizabeth should be reprimanded. Frances, however, would be spared, current and former officials said.

Hayden didn’t believe that two people who made similar mistakes had to be treated the same way. Job titles and morale mattered. He told colleagues that he gave Frances a pass because he didn’t want to deter initiative within the counterterrorism ranks, a former senior intelligence official recalled.

The disciplinary action made Elizabeth ineligible for bonuses and pay increases worth thousands of dollars. But it didn’t stall her career. She was promoted to the senior ranks in 2005 and is now legal adviser to the CIA’s Near East division.

While the inspector general was investigating the mishandled el-Masri case, congressional investigators discovered several other CIA renditions that seemed to rest on bad legal footing, a U.S. intelligence official said. The CIA looked into them and conceded that, yes, the renditions had been based on faulty analysis.

But the agency said the renditions would have been approved even if the correct analysis had been used, so nobody was disciplined.

Frances now runs the CIA’s Global Jihad unit, the counterterrorism squad dedicated to hunting down al-Qaida worldwide. She regularly briefs Panetta, making her an influential voice in Obama’s intelligence circle.

2. Gul Rahman death in the Salt Pit

In a makeshift prison fashioned out of an abandoned Afghan brick factory, CIA officers left terrorism suspect Gul Rahman overnight in an unheated cell as the early morning temperature hovered around freezing. Known as Salt Pit, the jail was the precursor to the CIA’s secret network of overseas prisons. Guards wore masks. There, stripped half naked, Rahman froze to death in November 2002.

The CIA’s inspector general launched an inquiry. The results have never been made public but were summarized for AP by former officials who, like most of the dozens of people who discussed the CIA’s disciplinary system, insisted on anonymity because they were not authorized to discuss it.

The investigation determined that the CIA’s top officer at the prison, Matt, displayed poor judgment by leaving Rahman in the cold. The report also expressed concerns about the role of Paul, the CIA station chief in Afghanistan, and later placed some blame on agency management at headquarters.

The AP is identifying Matt, Paul and other current and former undercover CIA officers – though only by partial names – because they are central to the question of who is being held accountable and because it enhances the credibility of AP’s reporting in this case. AP’s policy is to use names whenever possible. The AP determined that even the most sophisticated commercial information services could not be used to derive the officers’ full names or, for example, find their home addresses knowing only their first names and the fact of their CIA employment. The AP has withheld further details that could help identify them.

The CIA asked that the officers not be identified at all, saying doing so would benefit terrorists and hostile nations. Spokesman George Little called the AP’s decision “nothing short of reckless” but did not provide any specific information about threats. The CIA has previously provided detailed arguments in efforts to persuade senior executives at the AP and other U.S. news organizations to withhold or delay publishing information it said would endanger lives or national security, but that did not happen in this case.

The CIA regularly reviews books by retired officers and allows them to identify their undercover colleagues by first name and last initial, even when they’re still on the job. The CIA said only the agency is equipped to make those decisions through a formal review process.

After the inspector general reviewed the Rahman case, he referred the matter to the Department of Justice for the first of several legal reviews. Though current and former officials say it was a close call, prosecutors decided not to bring charges.

Next, a review board comprised of senior officers examined the case and found a number of troubling problems. The board was conflicted.

Matt was a young spy operating a prison in a war zone with little guidance about what was and wasn’t allowed. The CIA had never been in the interrogation and detention business, so agency lawyers, President George W. Bush’s White House and the Justice Department were writing the rules as they went.

A former Naval intelligence officer, Matt had repeatedly asked the CIA for heaters and additional help, but his requests were ignored by headquarters and by Paul, who was in charge of all CIA operations in Afghanistan but who had no experience in a war zone.

“How far do you go to sanction a person who made a mistake with one hand tied behind his back?” one former intelligence officer asked, recalling the board’s discussions only on condition of anonymity because they are private.

Finally, more than three years after the inquiry began, the board recommended Matt be disciplined. Though the board believed he had not intended to kill Rahman, it determined that as the head of the prison, he was responsible. The board did not recommend punishing Paul. And nobody at headquarters was to be disciplined.

The recommendations were viewed as unfair by some in the CIA. A young officer was about to be disciplined while his supervisors all got a pass.

In the end, it turned out, everyone was treated the same. The CIA’s No. 3 employee, Kyle “Dusty” Foggo, reviewed the recommendations and decided nobody would be punished. Foggo was later imprisoned in an unrelated corruption case.

Since Rahman’s death, Paul’s career has advanced quickly. He is chief ofthe Near East Division, the  section that overseas spy operations in  Iraq, Iran and other Middle East countries. It’s one of the most  important jobs in the agency. Matt has completed assignments in Bahrain, Afghanistan and Pakistan, where he was deputy chief of tribal  operations.

3. Al Nashiri

In another case involving detainee mistreatment, a CIA interrogator named Albert put an unloaded gun and a bitless drill to the head of an al-Qaida operative at a secret prison in Poland. The inspector general labeled this a “mock execution” – something the U.S. is forbidden to do. Albert was reprimanded. His boss, Mike, who ran the secret prison, retired while the case was under investigation.

Albert returned to the agency as a CIA contractor and helped train future officers. Ron, the Poland station chief who witnessed the mock execution but did not stop it, now runs the Central European Division and oversees all operations in Russia.

4. Death of Al-Jamadi in Abu Ghraib

In 2003 an Iraqi “ghost” prisoner named Manadel al-Jamadi died in a shower room under CIA interrogation at Abu Ghraib.

His head was covered by a hood. His arms were shackled behind his back, then were bound to a barred window. That way, he could stand without pain but if he tried to lower himself, his arms would be painfully stretched above and behind him.

About a half hour later, a CIA interrogator called for military guards to reposition al-Jamadi. He was slouching over, his arms stretched behind him. The CIA believed al-Jamadi was playing possum, investigative documents show.

He was dead.

An Army autopsy report labeled al-Jamadi’s death a homicide. He had been badly injured during a struggle with the Navy SEALs who captured him, doctors said. But those injuries alone wouldn’t have killed him, the medical examiner said. The strained position and the bag over his head contributed to his death, the doctor said.

The scandal at Abu Ghraib became a rallying point for anti-U.S. sentiment abroad. Eleven soldiers were convicted of wrongdoing at the prison. All were publicly tried and were kicked out of the Army.

The CIA would face no such public scrutiny. Like its ghost prisoners, the CIA might as well have never been at Abu Ghraib.

Steve, a CIA officer who ran the detainee unit there, received a letter of reprimand, former officials said. Steve processed al-Jamadi into prison after the Navy SEALs captured him. Investigators found that Steve violated procedure by not having a doctor examine al-Jamadi. That decision delayed important medical care for a man who would be dead within an hour.

Some on the Abu Ghraib review board believed Steve should have gotten a harsher punishment, according to former senior intelligence officers privy to the board’s decisions. Steve retired and is now back at CIA as a contractor.

A CIA review board also faulted Baghdad’s station chief, Gerry Meyer, and his deputy, Gordon. But they were not blamed just for the problems at Abu Ghraib. The review panel said they were too inexperienced to run the busy Baghdad station. As the situation in Iraq worsened, the station ballooned from dozens of officers into a staff of hundreds. Senior CIA managers left Meyer and Gordon in place until they were over their heads, the review panel said.

Meyer resigned rather than take a demotion. His name and job title have been identified in many books and articles since his resignation.

Gordon was temporarily barred from going overseas and sent to a training facility. But he salvaged his career at the agency, rising within the Counterterrorism Center to run the Pakistan-Afghanistan Department. In that role, Gordon, whom former colleagues describe as a very capable officer, has briefed Obama.

South Carolina judge rules that Padilla has no right to pursue torture charges in Padilla v. Rumsfeld

[ASIL] The U.S. District Court for the District of South Carolina has dismissed all claims of torture and abuse by Jose Padilla against several current and former government officials stemming from his capture, interrogation, and subsequent classification as enemy combatant. The judge also ruled that, even if Padilla were allowed to sue, the current and former Pentagon officials he sued would be legally immune to all such charges, since the law governing detention was so uncertain at the time he was held.

Padilla, a U.S. citizen currently serving a prison sentence on various federal charges in connection with his support of Al Qaeda, sued numerous government officials, including former Secretary of Defense Donald Rumsfeld, alleging that his detention as an enemy combatant and the treatment experienced during his detention violated his federal statutory and constitutional rights. The government defendants claimed, inter alia, that there exists no private right of action against them and that they are entitled to qualified immunity. 

Padilla was arrested in 2002 at O’Hare International Airport and held thereafter for several years without access to counsel. His case then traveled through the various federal courts, including the U.S. Supreme Court. He was eventually sentenced to seventeen years and four months imprisonment, a sentence he is currently appealing. Padilla is claiming that his detention and designation as an enemy combatant violated his rights to counsel, access to the courts, freedom of religion, freedom of association, due process, and his right against cruel and unusual punishment. 

The district court first recognized that Congress “never created a private right of action against federal officials based upon a deprivation of constitutional rights;” however, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the U.S. Supreme Court ruled that a private civil cause of action for money damages was implied in the U.S. Constitution. This ruling was later broadened to include civil claims against other federal agencies. Padilla claimed that Bivens and its progeny encompass his claims against the government officials for the alleged treatment he suffered at their hands.  The district court disagreed, ruling that subsequent jurisprudence by numerous federal circuits and the U.S. Supreme Court clearly demonstrated that Bivens is to be construed narrowly, thus excluding Padilla’s claims. 

The district court then went on to discuss the qualified immunity defense espoused by the government officials, concluding that all defendants were protected by the immunity because at the time the challenged governmental actions occurred, there were no “clearly established statutory or constitutional rights which a reasonable person would have known.”

As Lyle Deniston notes:

The decision by U.S. District Judge Richard Mark Gergel of Charleston conflicts directly with a ruling nearly two years ago by U.S. District Judge Jeffrey S. White of San Francisco, in a nearly identical case also brought by Padilla. White allowed a lawsuit against former Justice Department official John Yoo to go forward, on the theory that Yoo wrote official memoes justifying “coercive interrogation” of detainees. including Padilla.  The White decision is now under review in the Ninth Circuit Court; Judge Gergel’s ruling is expected to be appealed to the Fourth Circuit Court.

Lawfare blog provides the transcript of the hearing here.

ACLU page on the case: here.

George Bush calls off trip to Switzerland amid fear of violence at demonstration… or an arrest warrant

The Guardian reports that George W Bush has had to call off a trip to Switzerland next weekend amid planned protests by human rights groups over the treatment of detainees at Guantánamo Bay and the threat of a warrant for his arrest. The visit would have been Bush’s first to Europe since he admitted in his autobiography, Decision Points, in November that he had authorised the use of waterboarding on detainees at Guantánamo accused of links with al-Qaida.

The Guardian:

“Whether out of concern over the protests or the arrest warrant, it is an extraordinary development for a former US president to have his travel plans curtailed in this way, and amounts to a victory for human rights campaigners.”

Amnesty International has published its memorandum to the Swiss authorities here.

1. Acts of torture (and, it may be noted, other cruel, inhuman or degrading treatment and enforced disappearance) were committed against detainees held in a secret detention and interrogation program operated by the USA’s Central Intelligence Agency (CIA) between 2002 and 2009.

2. The CIA established this secret program under the authorization of then-President George W. Bush.

3. Since leaving office, former President George W. Bush has said that he authorized the use of a number of “enhanced interrogation techniques” against detainees held in the secret CIA program. The former President specifically admitted to authorizing the “water-boarding” of identified individuals, whose subjection to this torture technique has been confirmed.

4. Additionally, torture and other ill-treatment, and secret detention, by US forces occurred outside the confines of the CIA-run secret detention program, including against detainees held in military custody at the US Naval Base at Guantánamo Bay in Cuba, and in the context of armed conflicts in Iraq and Afghanistan.

5. George W. Bush was Commander in Chief of all US armed forces at the relevant times.

6. The Administration of George W. Bush acted on the basis that he was essentially unrestrained by international or US law in determining the USA’s response to the attacks in the USA on 11 September 2001. Among other things, President Bush decided that the protections of the Geneva Conventions of 1949, including their common article 3, would not be applied to Taleban or al-Qa’ida detainees.

7. George W. Bush, as Commander in Chief at the relevant times, if he did not directly order or authorize such crimes, at least knew, or had reason to know, that US forces were about to commit or were committing such crimes and did not take all necessary and reasonable measures in his power as Commander in Chief and President to prevent their commission or, if the crimes had already been committed, ensure that all those who were alleged to be responsible for these crimes were brought to justice.

8. The USA has failed to conduct investigations capable of reaching former President George W. Bush, and all indications are that it will not do so, at least in the near future.

9. The facts summarized above, matters of public record, are sufficient to give rise to mandatory obligations on Switzerland under international law (including but not limited to the UN Convention against Torture), should former US President George W. Bush enter Swiss territory to:
· launch a criminal investigation;
· arrest former President Bush or otherwise secure his presence during that investigation; and
· submit the case to competent authorities in Switzerland for the purposes of prosecution if it does not extradite him to another state able and willing to do so.

EJIL Talk analyzes whether Bush is entitled to the immunity which, under international law, attaches to official acts of those who act on behalf of a State and prevents foreign prosecutions for those acts.

El Masri sues Macedonia over alleged CIA kidnapping

Khaled el-Masri is seeking 50,000 euro in compensation — and an apology — from the government in Macedonia, where he says he was abducted while on a trip in 2003. His action follows failed attempts to have his case heard in court in the United States and Germany.

El-Masri, who is of Lebanese descent, says he was brutally interrogated at a secret CIA-run prison in Afghanistan for more than four months. He said he went on hunger strike for 27 days and was eventually flown back to Europe and abandoned in a mountainous area in Albania.

His lawyers in Macedonia, Darian Pavli and Filip Medarski, said they are seeking compensation on the grounds that Macedonia sanctioned his alleged abduction and subsequently blocked any investigation into the incident.

Authorities in Macedonia deny any involvement in his alleged kidnapping.

“To start with, it would be good if Macedonia at least apologizes to el-Masri,” Pavli said Thursday, adding that his client would not be present for the start of the trial at a court in Macedonia’s capital Skopje.

Clara Gutteridge, of the London-based rights group Reprieve, will present the findings of the group’s investigation into the el-Masri case, the organization said in a statement Thursday.

U.S. officials have refused to comment publicly on the case, but diplomatic cables released by WikiLeaks website show that diplomats in Germany and Macedonia were at pains to keep the case out of the news and the court.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

Interview with ex CIA head Michael Hayden

Hayden acknowledges some inefficiencies in the rapid post-9/11 scaling up of the intelligence community, but says the effectiveness of its efforts are reflected in the absence of an attack against the homeland. “How can you say we’ve not been successful?” he asks. This is the edited transcript of an interview conducted by PBS on Aug. 19, 2010.

His view on the balancing debate:

I ended the talk to the folks at NSA by saying that all free peoples have to balance their security and their liberty. … I said: “Here’s our task. We will keep America free by making Americans feel safe again.” And we turned every possible ounce of energy toward the war on terror.

On their priorities:

I used to have a little saying I used when people said, “What are your priorities?” I’d give them a bit of government alphabet soup. I’d say “CTCPROW: Counterterrorism, counterproliferation, rest of the world.”

But the most interesting quote is easily this one:

There’s a lot talked about how [former Vice President Dick] Cheney said the famous words, “We’re going to go to the dark side,” and how that has been defined by different people in different ways. What does it mean to you in terms of what was allowed and what changed?

… At NSA, about a couple weeks into the war, we were asked, “Is there anything more we can do to defend the homeland?” [Former Director of Central Intelligence George] Tenet had asked me. I said, “George, not inside the current set of guidance.” So he said, “Well, what could you do more if the guidance were different?” And I laid out a certain series of things, and somewhat to my surprise, a year or two later, he says, “Come on down to the White House.” And so we began a conversation with the vice president and then with the president saying that, “Here are some additional things we could do, but we cannot do them because we do not currently have authority to do them.”

That was the basis of the evolution of what became the Terrorist Surveillance Program and the program that NSA used then to attempt to intercept Al Qaeda-related communications into and out of the United States. Frankly, I find it to be a very successful program. There were five IGs [inspector generals] that completed a report [PDF] just this past summer on it; there was no abuse. It was focused on what it was designed to do. But it clearly was atypical when it came to where the traditional boundaries of the National Security Agency had been when it came to communications, one end of which was in the United States. That was a change. I’m quite comfortable with the change. The Constitution defends all of us against unreasonable search and seizure. What constitutes reasonableness depends upon threat. …