Cable describes US view on Council of Europe

The March 2009 cable 09STRASBOURG6 summarizes the Council of Europe as follows:

The Council of Europe (COE) likes to portray itself as a bastion of democracy, a promoter of human rights, and the last best hope for defending the rule of law in Europe – and beyond. It is an organization with an inferiority complex and, simultaneously, an overambitious agenda. In effect, it is at its best in providing technical assistance to member-states and at its worst in tackling geo-political crises.

Finally, we turn to one issue where the COE has been both an irritant and, more recently, somewhat of a champion – Guantanamo. Dick Marty, a member of the Swiss delegation to the PACE, conducted an investigation into renditions and “secret prisons” in Europe connected to the U.S. war on terrorism. His work created a great deal of controversy and anti-U.S. sentiment in the COE. More recently, however, SecGen Davis and COE Human Rights Commissioner Hammarberg have called on COE member-states to work with the U.S. and consider accepting detainees from Guantanamo to help the U.S. shut down the detention facility there.

2009 cable 09STRASBOURG21 from 24 September 2009 describes how Council of Europe Commissioner Thomas Hammarberg was criticized by a few ambassadors for having written in June to all COE member states calling on them to consider accepting detainees from Guantanamo.

The Maltese Ambassador (one of those criticizing Hammarberg) told us privately that Hammarberg thinks he is “God’s gift to the world.” The ambassador added that, if Washington wanted assistance with the detainees, it had plenty of direct channels to European countries and did not need Hammarberg to carry its messages. Comment: A few ambassadors, including the Maltese, have a history of bad relations with Hammarberg. Most member states respect and even relish Hammarberg’s independence. We do not expect this recent criticism to stifle Hammarberg from raising the detainee issue with European officials.

Obama May Bypass Guantánamo Rules

The NYTimes reports that President Obama’s legal advisers, confronting the prospect of new restrictions on the transfer of Guantánamo detainees, are debating whether to recommend that he issue a signing statement asserting that his executive powers would allow him to bypass the restrictions, according to several officials. One option on the table, according to officials familiar with the deliberations, is for Mr. Obama to sign the bill into law but declare his opposition to the detainee transfer restrictions — which expire Sept. 30, at the end of the current fiscal year — by simply arguing that they are bad policy.

But the administration is also considering whether he should go further by issuing a signing statement — a formal document recording a president’s interpretation of a new law for the rest of the executive branch to follow — asserting that he has the constitutional power to disregard the restrictions. Under the latter approach, the president would assert that as the head of the executive branch and commander in chief, his prosecutorial discretion and wartime powers would allow him to lawfully bring detainees into the United States for trial or to transfer them to other countries as he sees fit.

In 2002, under President George W. Bush, the Justice Department’s Office of Legal Counsel wrote
that Congress has no power to limit the transfer of detainees because
“the president has plenary constitutional authority, as the commander in
chief, to transfer such individuals who are captured and held outside
the United States to the control of another country.” The Bush
administration rescinded that memorandum five days before leaving
office.

In 2006, the American Bar Association declared
that presidents should veto legislation they view as flawed rather than
issue signing statements, which the group portrayed as “contrary to the
rule of law and our constitutional separation of powers.” One member of
the Obama legal team, Harold Koh, the State Department legal adviser,
was a member of a task force that developed that declaration.

Congress Bars Gitmo Transfers

The WSJ reports that Congress on Wednesday passed the 2011 Defense Authorization Bill that would effectively bar the transfer of Guantanamo detainees to the U.S. for trial, rejecting pleas from Obama administration officials who called the move unwise. The measure for fiscal year 2011 blocks the Department of Defense from using any money to move Guantanamo prisoners to the U.S. for any reason. It also says the Pentagon can’t spend money on any U.S. facility aimed at housing detainees moved from Guantanamo, in a slap at the administration’s study of building such a facility in Illinois.

Cable shows that US doesn’t believe diplomatic assurances worked with Tunisia

In cable 08TUNIS1137 of November 2008 the US embassy indicated that it did not believe anymore that assurances from the Tunisian government, and even from the President, that it would not mistreat detainees upon return would offer real protection to the detainees. The cable explains how the assurances were given:

From late 2006 to mid-2007, the US Government received a variety of assurances from the GOT regarding the transfer of Tunisian detainees at Guantanamo. In November 2006, the Ministers of Justice and Interior offered oral assurances about Tunisia’s obligations under the Convention Against Torture and noted to an interagency delegation led by S/WCI Ambassador Williamson that many of the detainees faced in absentia charges. The Minister of Justice also provided oral assurances about third party access (i.e., the ICRC) to detainees in the Tunisian prison system. In 2007, Minister of State and Presidential Advisor Ben Dhia confirmed these assurances to the Ambassador and subsequently reiterated them in a letter to Deputy Secretary of State Negroponte. The exchanges paved the way for the June 2007 transfer of the first two detainees to GOT custody.

Following the transfer, NGOs alleged that the two detainees, Abdallah Ben Omar (al-Hajji) and Lotfi Ben Swei Lagha, had been tortured and mistreated by GOT security forces. As a result of the allegations, the Ambassador demarched Foreign Minister Abdallah, Minister of Interior Belhaj Kacem and Presidential Advisor Ben Dhia regarding GOT assurances. (Note: The GOT declined to facilitate a meeting for the Ambassador with Minister of Justice Tekkari. End note.) All reiterated that Tunisia is a signatory of the Convention Against Torture (CAT) and would respect it. Abdallah and Kacem dismissed the allegations of torture. To our knowledge, there was no GOT investigation into reports of the detainees’ mistreatment. Further, the ministers did not indicate that any future transfers will be handled differently to avoid such accusations. 4. (S/NF) Ben Omar’s lawyer (the source of these NGO reports) later clarified that, while Ben Omar was mistreated (slapped) and threatened (that he and his family members would be raped), he was not “tortured.” Post received reports that Ben Omar has been subject to psychological mistreatment, including most recently on September 8 when Emboffs met with his family. Our assessment remains that these claims of mistreatment are credible. According to the same lawyer, who represents both detainees, and his own brother, Ben Swei Lagha has not been subject to any mistreatment although he was reportedly held in solitary confinement for weeks after his transfer.

The embassy gives the following comment:

Despite the early GOT commitments, it is likely that Ben Omar was mistreated. While GOT officials deny the reports, this is clear: in no case has a GOT official acknowledged that if Ben Omar had been threatened or slapped it would have been wrong. Indeed, the most frequent response has been to emphasize that the detainees deserve to be in prison. Given this, and despite Ben Ali’s statements, we believe future transferees are likely to face treatment similar to the first two. — Finally, we have obtained all we can from the GOT by way of assurances on the treatment of transferees. In recent exchanges, GOT officials are increasingly testy and difficult. The risk of a counterproductive response is growing. We are at the end of the road on Tunisian assurances. Now we must decide whether to transfer more detainees or seek another course.

Diplomatic cable on US-COJUR meeting in 2006 sheds some light on EU reason not to support anti-Guantanamo Resolution at the UN Human Rights Commission

Wikileaks published a cable yesterday (06BRUSSELS524) on a meeting which has interested many legal scholars which work on the fight against terrorism. On February 7-8 2006 US Legal Adviser John Bellinger met  with a comprehensive array of EU interlocutors in Brussels  to discuss U.S. views on the legal framework for the war on terrorism. Unfortunately the cable isn’t a transcript, so we don’t find out more about the legal discussions that took place. But there are two interesting quotes in the cable: one on renditions, and one on EU support for anti-Gitmo resolution in the (then) UN Human Rights Commission in 2006.

According to the cable, Bellinger started giving his well known views on the nature of the GWOT, detention issues, treatment of prisoners, review of detainees, renditions etc. On renditions the cable says the following:

Bellinger sought to dispel allegations that  hundreds of people had been kidnapped from European streets.  He pointed out that there is no evidence for such  allegations, and that the United States respects the  sovereignty of European governments. On renditions, CIA flights, and other intelligence operations, the U.S. will not confirm or deny specific allegations, in order not to compromise the confidentiality of intelligence operations as  such. Bellinger noted that denying five out of six such  allegations would in effect confirm the sixth. The U.S.  trusts that European governments will continue to follow the  same policy.

It is now well-known of course that the US kidnapped Abu Omar in 2004 in Milan, two years before this meeting took place.

Interestingly, some EU interlocutors “expressed concern” at the meeting that some EU member states would support a Cuban resolution against U.S. actions in Guantanamo at the upcoming UN Human Rights Commission.

Bellinger warned that European support for a Guanatanamo resolution would be a serious setback to U.S.-EU cooperation against terrorism, and give the unacceptable impression that the EU was aligned with Cuba against the U.S. EU Council Director-General for Common Foreign and Security Policy, Robert Cooper, said some EU member states might feel obliged to support the resolution because they had agreed last year not to in return for U.S. commitment to allow the UN Special Rapporteur on Torture, Manfred Novak, to visit Guantanamo; now, the U.S. had gone  back on that agreement.

Bellinger explained that the U.S. had invited Novak to visit, but that Novak had chosen  publicly to reject the U.S. offer (to visit under normal conditions, but not to able to interview individual detainees, as only the ICRC may do that). Cooper said the EU, having cooperated with the U.S. in resisting Chinese attempts to impose conditions on visits of Special Rapporteurs, was having difficulty justifying the U.S. attempts to impose conditions on Novak’s Guantanamo visit. Both sides agreed that the U.S. and EU needed to consult further in order to avoid a train wreck at the Human Rights Commission on this.)

The cable concludes with the US assessment of the meeting:

It is clear  that many Europeans continue to believe that Article 3 of the  Geneva Conventions can be applied to enemy combatants, and  still afford the United States the flexibility it seeks. It  is also apparent that lingering concerns (fed by negative  public perceptions) remain about the treatment of detainees,  and protection against wrongful detentions. Some governments  remain focused on renditions, and the possibility that there  will be negative revelations that impact on them directly.

That said, the visit was very helpful in beginning to  dispel European misunderstandings and misgivings about our  pursuit of the war on terror. Continued engagement on these  issues is critical in the coming months to persuade EU  governments to stand more firmly and publicly in the face of  their public’s concerns and suspicion regarding Guantanamo,  renditions, and the legality of U.S. actions against Al  Qaeda. The Austrian Chair of the COJUR meeting, Ferdinand  Trauttmansdorf, concluded the meeting with the following  message: “We leave this discussion with the notion that  America is carefully considering these difficult questions in  good faith.” He said also that the fight against terror was  a burden shared by the EU, and that the U.S. has as much of a  right to ask questions of the EU, as the EU does of the U.S.  On the upcoming Human Rights Commission, urgent consultations  with the EU will be necessary to avert the possibility of EU  support for a Cuban Guantanamo resolution.

Diplomatic cables give details on how US tried to influence Guantanamo Bay accountability cases in Spain

The US embassy in Madrid briefed Washington on the request of the ‘Association for the Dignity of Prisoners’ to the Audienca Nacional in March 2009 to indict six Bush Administration officials for creating a legal framework that allegedly permitted torture. The association tried to steer this case directly to National Court Investigating Judge Baltasar Garzon, but he passed the NGO’s complaint to the prosecutor’s office of Javier Zaragoza for him to determine if there is a legitimate case. The cables portray Spain’s Chief Prosecutor Javier Zaragoza as the de facto key Spanish legal advisor of the US, who is actively trying to torpedo the lawsuit.

Visibly displeased with this having been dropped in his lap, Zaragoza said he was in no rush to proceed with the case and in any event will argue that the case should not be assigned to Garzon. Zaragoza acknowledged that Garzon has the “right of first refusal,” but said he will recommend that Garzon’s colleague, Investigating Judge Ismael Moreno, should be assigned the case. Zaragoza said the case ties in with Moreno’s ongoing investigations into alleged illegal “CIA flights” that have transited Spain carrying detainees to Guantanamo. Zaragoza said that if Garzon disregards his recommendation and takes the case, he will appeal. Zaragoza added that Garzon’s impartiality was very suspect, given his public criticism of Guantanamo and the U.S. war on terror (we note that, among other things, Garzon narrated a documentary in 2008 that was extremely critical of the U.S. involvement in Iraq and Afghanistan and its approach to fighting terrorism) and his August 2008 public statements that former President Bush should be tried for war crimes.

Zaragoza als actively gave the U.S advice on how to prevent trouble:

Zaragoza noted that Spain would not be able to claim jurisdiction in the case if the USG opened its own investigation, which he much preferred as the best way forward and described as “the only way out” for the USG. He cited the complaint against Israeli officials mentioned above and said he would request the investigating judge close that case once he had formal notice that the Israelis had opened their own investigation.

The Embassy then commented:

Based on what Zaragoza told us, we suspect the case will eventually be referred to the National Court for investigation, although that step may not come for some time.  Once it reaches the National Court, these cases seem to move slowly, periodically generating publicity as new evidence is taken (as with Moreno’s investigation into so-called Guantanamo flights). Whether this case will end up with Garzon, Moreno, or some other judge, we cannot say. Garzon, despite his penchant for publicity and criticism of certain aspects of U.S. policy, has worked well with the U.S. on more routine criminal matters (although we think a direct approach to him on this case could well be counter-productive). Moreno, while his reputation as a judge stands higher among legal insiders, has been cooler in his dealings us.

And then there’s the last sentence of the cable:

That said, we do not know if the government would be willing to take the risky step of trying behind the scenes to influence the prosecutor’s recommendation on this case or what their reaction to such a request would be.

Two weeks later there was a follow-up cable of the embassy (09MADRID392). By that time Spain’s Attorney General (AG) had publicly stated that prosecutors will “undoubtedly” not support the criminal complaint. The cable gives more details on how the AG’s public announcement followed “outreach” by US officials who raised “deep concerns” on the implications of the case.

The cable then includes two paragraphs which puts Prosecutor Zaragoza on the spot:

Zaragoza on April 14 called Embassy Madrid’s FSN Legal Adviser and informed her that a more thorough study had revealed that the complaint was targeted against legal advisors with no executive authority and that it was legally difficult to establish what type of offense the six had committed and the degree to which they participated in the alleged offenses. Zaragoza said the complaint lacked details and was directed against USG policy rather than a specific perpetrator. He said he would ask Conde Pumpido to review whether Spain has jurisdiction in this case and indicated that he hoped the Spanish AG would draft a clear set of rules on how and when Spain should prosecute universal jurisdiction complaints.
(…)
Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action

At the urging of Spanish prosecutors, the earlier case was reassigned to another National Court judge “who now appears to be trying shelve the case”, according to a cable one month later (09MADRID440). The same prosecutor also disclosed to the US his strategy on how he would discredit another investigation by Judge Garzon into alleged U.S. torture of terrorism detainees.

Zaragoza said he had challenged Garzon directly and personally on this latest case, asking if he was trying to drum up more speaking fees. Garzon replied he was doing it for the record only and would let it die. Zaragoza opined that Garzon, having gotten his headline, would soon drop the matter. In case he does not, Zaragoza has a strategy to force his hand. Zaragoza’s strategy hinges on the older case in which Garzon investigated terrorism complaints against some Guantanamo detainees. In connection with those earlier investigations, Garzon ordered the Spanish police to visit Guantanamo and collect evidence against the suspected terrorists. Zaragoza reasons that he can use this fact to embarrass Garzon into dropping this latest case by suggesting Garzon in some sense condoned the U.S. approach to detainee issues circa 2004. Garzon took no action in 2004 when the suspects returned to Spain and reported to him their alleged mistreatment. Zaragoza said that if Garzon could not be shamed into dropping the case, then he would formally recommend Garzon do so and appeal if Garzon ignored him.

The US embassy comments upon Zaragoza’s role:

We believe Zaragoza is acting in good faith and playing a constructive role. Certainly he knows Garzon better than we do, having sparred with him before. Nevertheless, we do not share his optimism that this problem will go away anytime soon. Having started, it is hard for us to see why the publicity-loving Garzon would shut off his headline-generating machine unless forced to do so. And forcing him to do so could take months. We also fear Garzon — far from being deterred by threats of disciplinary action — may welcome the chance for martyrdom, knowing the case will attract worldwide attention. In any event, we will probably be dealing with this issue for some time to come. Zaragoza will be in Washington in early June for LEGATT-organized consultations on CT cooperation. L and DOJ may wish take that opportunity to discuss these cases with him directly at that time.

Diplomatic cables on the Spanish Audienca Nacional Terrorist Judgments in the Abderrahaman and Madrid bombings cases

Good summary of the case in cable 06MADRID1914 from July 2006. The Spanish Supreme Court announced July 24  that it had annulled the six-year prison sentence handed down  in September by Spain’s National Court against accused  terrorist Hamed Abderrahaman Ahmed, known in the media as the  “Spanish Taliban.” Abderrahaman, a Spanish national captured in Afghanistan by U.S. forces and held at Guantanamo until  being turned over to Spanish authorities in February 2004, was immediately released from prison.

Comment from the US embassy:

Clearly, in  the Abderrahaman case the Supreme Court was also eager to use  this case as a platform to criticize U.S. detainee policies  in Guantanamo. While this sentiment has not influenced  Spanish police to reduce their close collaboration with the  U.S. in fighting terrorism, we must take it into account as  we pursue increased judicial cooperation with Spain in  terrorism cases. The Spanish judiciary carefully guards its independence (a major achievement of the post-Franco era) and  has not shied from taking decisions that cut across the  objectives of the Spanish Government.

Earlier that year a cable (06MADRID293)was sent about the stepping down of Spain’s Chief Prosecutor Eduardo  Fungairino, to step down for alleged mismanagement of  terrorism cases under his supervision. The Embassy states that it has “enjoyed a close, collaborative  relationship with Fungairino for many years” and comments:

Regardless of the political  motives surrounding Fungairino’s removal, his departure will hurt U.S.-Spain judicial cooperation, at least in the short term. Fungairino was a devoted anti-terrorism activist who  pursued close cooperation with the USG and with EU allies in  terrorism cases. One piece of good news is that Fungairino will reportedly remain a member of the U.S.-Spain Bilateral Counterterrorism Experts Working Group, where he has played a positive role in smoothing over conflicts generated by differences in the U.S. and Spanish judicial systems. Also, Jesus Santos, Fungairino’s temporary replacement, is well and  favorably known to the Embassy. However, this does not  outweigh the loss of so valuable an interlocutor in the  National Prosecutor’s office.

In a more general cable of June 2009 (09MADRID614) the Embassy says that one of the “irritants” in the US-Spanish relationship are the efforts by some  investigating judges – invoking “universal jurisdiction” – to  indict former USG officials for their allegedly involvement in torture at GTMO.