The Approach of the eu and the us to Combating Terrorism in Relation to Human Rights Master Thesis

The US may be the crook but Europe is no saint

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5.3 The US may be the crook but Europe is no saint

In July 2002, the Council of Europe published Guidelines on Human Rights and the Fight against Terrorism^⁴⁰¹, in which it delineated the approaches that should be taken in responding to terrorism so as to ensure the protection of human rights. In its preface, it summarised its position in the following way:

‘The temptation for governments and parliaments in countries suffering from terrorist action is to fight fire with fire, setting aside the legal safeguards that exist in a democratic state. But let us be clear about this: while the State has the right to employ to the full its arsenal of legal weapons to repress and prevent terrorist activities, it may not use indiscriminate measures which would only undermine the fundamental values they seek to protect. For a State to react in such a way would be to fall into the trap set by terrorism for democracy and the rule of law’.^⁴⁰²

The positive aspect is that the Council of Europe clearly had a different view compared to that of the Bush administration; the question was however to what extent European governments actually followed these principles.

Chapter III gave a detailed account of the measures that were taken by the EU in response to the 9/11 attacks and how these developed over time and what impact the 3/11 and 7/7 attacks had on the EU policy making and enforced legislation. Note must also be taken of the policies that were enacted or strengthened in individual member states, some of which can be identified as playing a dangerous game with the protection of civil liberties. My aim here is not to describe the non-exhaustive list of measures that were taken or current proposals for such measures but rather I plan to depict the trend that slowly crept up national policies, some of which did not necessarily address terrorism exclusively but rather enforced some measures opportunistically.^⁴⁰³

5.3.1 United Kingdom

One of the most cited examples is the UK. As is well-known and as has been mentioned before, the UK has lost its sleep for many long years as a result of terrorism which was ubiquitous in some parts of its territory. The attacks perpetrated by the IRA however were not limited to this area and rather the UK as a whole was considered to be under threat from within, specifically at the end of the 20^th century. An important legislative action was taken even prior to the 9/11, when the Terrorism Act, codifying a multitude of laws and statutes while meeting human rights standards^⁴⁰⁴ was signed into law in 2000^⁴⁰⁵. Just months after the Act came into force, 9/11 reinforced the need for preventative measures to be put into place. This resulted in the extension of the Act and a general strengthening by the Anti-Terrorism, Crime and Security Act which was in force by 14 December 2001.^⁴⁰⁶ This new Act addresses a myriad of issues ranging from freezing of financial sources of or for terrorists, national immigration and asylum procedures to the extent of police powers in obtaining information and investigation terrorist plots.^⁴⁰⁷ It also provides a definition of terrorism which however has been identified as worrying particularly with regards to its ‘vague contours’,^⁴⁰⁸ which provide too great of a scale for (mis)interpretation and (mis)application.^⁴⁰⁹ Part four of the Act, relating to immigration and asylum procedures has been particularly successful in arousing controversy. Being very similar to the contents of Bush Executive Order of November 2001, the UK Home Secretary reserves the right to order on the grounds of national security, the detention without trial of individuals who are suspected of planning to perpetrate terrorist attacks. Detention on such grounds, which may or may not be communicated to the detained individual, is not appealable in ordinary courts but rather in a specially appointed commission.^⁴¹⁰ Both the fact that the measure delegates the possibility of detainment without trial as well as the fact that these arrests have been made solely on grounds of nationality, of which the UK government was soon accused, are in fact serious violations of obligations enshrined in the European Convention on Human Rights (ECHR)^⁴¹¹which it incorporated into its law by the Human Rights Act of 1998. Aware of this, the UK opted out of Article 5 of the ECHR, which prescribe the prohibition of arbitrary detention. Some of the measures which were in fact praised for being nullified in the enactment of the 2000 Act, such as indefinite detention without trial and the criminalization of withholding information related to terrorism, now re-emerged in the 2001 Act.^⁴¹² Amnesty International dismissed the indefinite detention of foreign nationals provision as ‘a perversion of justice’.^⁴¹³

Another source of controversy was the February 2004 Blair-Blunkett proposal of ‘pre-emptive’ trials of individuals suspected of terrorism which would in turn lower the burden of proof needed for a criminal conviction.^⁴¹⁴ In 2006, legislation was passed which criminalizes glorification of terrorism and indirect incitement.^⁴¹⁵ This Chaskalson argues can be detrimental to the possibility of people to express their opinions on the roots of terrorism and criticisms in particular towards anti-terrorism measures.^⁴¹⁶

Some hopeful signs of the opposition to derogate from human rights obligations can be seen in the final version of the Civil Contingencies Bill, proposed in January 2007 containing measures which would allow for far-reaching powers under a declared state of emergency.^⁴¹⁷ These powers were curbed to an extent by the attached amendment that powers such as the prohibition of travel and ‘other specific activities’ were to be valid for a maximum period of 30 days and their instigation would in any case need to be approved by both Houses and the Parliament within a 7 day period.^⁴¹⁸ In one way or another, this showed that the UK also had some reservations about the staunch alliance with the US.

In the wake of the 7/7 bombings, “Let no one be in doubt, the rules of the game are changing” and “Civil-liberty arguments are no so much wrong as just made for another age” were uttered by Blair and his home secretary John Reid respectively.^⁴¹⁹ One of the legal consequences was the criminalization of the ‘glorification’ or ‘indirect incitement’ of terrorism and terrorism suspects can be held up to twenty eight days without charge, which the UK government wanted to double.^⁴²⁰ In this it was successful as at the time of writing, this pre-charge detention period was increased to forty two days.^⁴²¹ Furthermore, the Home Secretary has reserved yet another right of discretion for those who cannot be tried for lack of evidence and who are thus subject to ‘control orders’,^⁴²² including limited use of mobile and internet usage, curfew and house arrest.^⁴²³ Not only does the Secretary have discretion in the imposition of these orders but he also has the power to renew these indefinitely, each time for 12 months.^⁴²⁴ Britain was well on its way to becoming a police state. Quite worryingly, the UK counterterrorism strategy relies uncomfortably heavily on ‘deportation with assurances’^⁴²⁵ (see further).

5.3.2 Germany

Likewise, Germans were also victims to domestic terrorism perpetrated for the most part by the Rote Armee Fraktion (RAF). A body of national legal provisions and a loyal trend of ratification of UN conventions on terrorism did thus exist before 9/11. In the wake of 9/11 these national measures were rigorously extended and particularly after it was found that four of the hijackers spent a considerable amount of time in Germany, a fact that the German government and its agencies had no idea about until after the terrorist attacks were perpetrated.^⁴²⁶ The reaction of the German government was swift and was embodied into the so called “Otto Catalogues”.^⁴²⁷ These were ‘security packages’ introduced by Interior Minister Otto Schilly, of which the first part was completed and accepted by the parliament in November 2001, amended the criminal code to inter alia criminalize the creation of terrorist organizations, including of foreign origin.^⁴²⁸ The second package was completed a year later in December and it was this package that sparked most controversy, even after it was substantially curbed before being accepted by the parliament.^⁴²⁹ Along with amending a little short of ‘one hundred regulations in seventeen different statutes and five statutory orders’^⁴³⁰ it amended existing legislation to allow judicial authorities to prosecute foreign^⁴³¹ organisations and sympathisers of such terror organisations in Germany.^⁴³² Generally, it gave increased powers to the security agencies, including prevaricating bank secrecy and other otherwise confidential information such as that retrieved from postal services, air traffic organisations and telecommunications^⁴³³, upon providing proof of terrorist activity suspicions.^⁴³⁴ Needless to say that reasonable suspicion was no longer significant or indeed necessary. Furthermore, powers were extended with the aim of setting up a central database to store collected personal information such as fingerprints and religious identity. All the data may be stored for extended periods of time, without the concerned individual being notified.

The lack of necessity to present proof of reasonable suspicion has sparked controversy particularly because Germany has a long-standing tradition of ‘high and individuated standards of proof before surveillance or investigations can be undertaken’.^⁴³⁵ The biggest controversy however, which may not be straightforwardly obvious to outsiders, surrounded the near fusion of the security and police agencies, which signalled a clear shift in the strict demarcation of these two bodies, so ‘characteristic of post-war German public law’.^⁴³⁶
In the aftermath of the Madrid attacks, the German Immigration Act and its anti-terror measures in particular were expanded as of January 2005 to include provisions which substantially facilitate deportation.^⁴³⁷ A deportation order can now be issued and authorized on the ground of an “evidence-based threat prognosis”, i.e. even in absence of an actual crime or evidence thereof.^⁴³⁸ In addition, under the amended Act the German authorities reserve the right to expel what it calls “intellectual incendiaries”, meaning those individuals who ‘publicly incite hate, violence and terrorist acts’.^⁴³⁹

Nevertheless, in comparison to the UK and the US in particular, the German government did retain some checks and balances. For instance, at the beginning of 2004, ordinary courts which tried the two accused men of planning 9/11 were eventually forced to stop the proceedings as a result of US refusal to provide the German courts with decisive evidence, including the testimony of Ramzi bin al Shibh who admitted to planning the attacks and even took personal credit for it.^⁴⁴⁰ Due to the fact that the courts were not granted access to this ‘potentially exculpatory evidence’ as requested by the judge, the courts refused to convict. This was clearly a huge amount of oil to the fire of transatlantic relations,^⁴⁴¹ of which the German-US relations were already in a catastrophic state mainly due to the Iraq war.

Another example is the 2004 ruling of the Federal Constitutional Court, which challenged and refuted the constitutionality of an amended 1998 law allowing electronic surveillance,^⁴⁴² on the basis that this measure was a far-reaching violation of the ‘inviolability of the home’ and that the law did not provide for the need of sufficient evidence to conduct such surveillance.^⁴⁴³ In this sense, personal privacy was thus given precedence over security interests.^⁴⁴⁴

5.3.3 Spain

Another domestic terrorism-stricken nation which did not experience the international terrorist threat until the morning of March 11^th 2004 is Spain. In the aftermath of 9/11, Spain had outright refused to reorganize its security structure unlike the US and to some extent Germany and the UK.^⁴⁴⁵ Due to past experiences with the ETA movement, Spain like Germany and the UK already had a comprehensive body of rigid legislation related to terrorism. Its reaction to 9/11 can rather be seen as the strengthening of measures to improve internal security.^⁴⁴⁶ After 3/11, resources rather than legislation were multiplied not only because legal provisions already existed but also because of the Spain’s past experiences with authoritative rule, which have resulted in abhorrence of excessive security measures.^⁴⁴⁷ Despite the absence of a bulk of new legislation, Amnesty International has voiced some concerns about Spain’s Code of Criminal Procedure, particularly with regards to the lack of access to a judge or lawyer as well as incommunicado detention of individuals suspected of terrorist activities.^⁴⁴⁸ In Spain, this type of detention can be as long as five days and can thereafter be extended by a judge for up to thirteen days.^⁴⁴⁹ The judges also have the power to impose ‘secreto de sumario’, which entails partial or entire secrecy of investigation and criminal proceedings meaning denied access of information to the suspects and their legal counsel.^⁴⁵⁰ Human Rights Watch has also expressed strong criticisms of the pre-trial detention which can last up to four years.^⁴⁵¹

5.3.4 France

France also belongs to one of the six countries which have specific anti-terrorist legislation and had legal safeguards also prior to 9/11 thus like the Spaniards, the French activated already prepared plans to ensure and increase internal security and where appropriate provide security agencies with more role with an extended mandate.^⁴⁵²

However there are a few examples of amended or added legislation which should me mentioned here. The then Minister of Interior Nicolas Sarkozy proposed strengthened immigration policies including controversial measures such as the preference for the entry of more well-educated immigrants^⁴⁵³. In March 2004, a special 96 hour custody regime was broadened to include additional offences.^⁴⁵⁴ Furthermore, the law allows for a 48 hour time span in which a terrorist suspect can be detained without access to legal counsel.^⁴⁵⁵ This provision was enacted despite the fact that already in 2003, the Council of Europe’s Committee for the Prevention of Torture and Inhuman and Degrading Treatment criticized the French government for allowing incommunicado detention, which was 36 hours at the time.^⁴⁵⁶ The banning of the headscarves in education and employment has hit French Muslims hard and a public outcry has been heard on several occasions as to the danger of targeting a population on the basis of its religion which in the end will only contribute to radicalisation. Another contributing factor is the fact that detention measures have narrowly targeted Muslim and North African minorities.^⁴⁵⁷
As to the issue of Guantánamo, it should be noted that in general, the EU had adverse views on the dubious distant army base and the policy which encircled it. Despite the fact that Bush did allow the International Committee of the Red Cross (ICRC) to inspect Guantánamo and treatment of the prisoners there for the first time in January 2002 and thereafter pledged that it would take the Committee’s recommendations into account, the Europeans remained sceptical. Among other factors, this cynicism rooted out of the US reluctance to grant POW status to the detainees and instead using the term ‘unlawful combatants’, which the Europeans and many international jurists maintained was a nonexistent category in international law and urged that the detainees be given either a POW or a criminal status,^⁴⁵⁸ nothing more and certainly nothing less. Furthermore, after Bush announced the use of military commissions to try the detainees held at Guantánamo, the UK government for instance expressed its delusions about the fairness and legitimacy of these tribunals and as a consequence requested that the British nationals involuntarily residing in Guantánamo be returned to the UK to be tried there.^⁴⁵⁹ Significantly also, the House of Lords have made it clear that evidence obtained by torture would not be considered admissible in court.^⁴⁶⁰

5.4 “Black sites”

As could be expected from the information gathered in the pages of this paper, the European reaction to the US treatment of ‘enemy combatants’ coupled with the fact that these individuals were denied any and all legal protection and that the US took a ‘no crime without law’^⁴⁶¹ approach, was not a positive one. When the Washington Post article^⁴⁶² revealing that “black sites”^⁴⁶³ existed on European soil somewhere in Eastern Europe, appeared in November 2005 the European public was outraged.^⁴⁶⁴ Legislative investigations were launched on the initiatives of the Council of Europe, the watchdog of human rights in the EU. Through investigations led by Human Rights Watch, it was soon suggested that these locations did indeed exist in Romania and Poland^⁴⁶⁵ and they had been set up four years ago as part of the prison network set out by the CIA, alongside sites in Thailand, Uzbekistan and the most often mentioned Cuba, Afghanistan and Iraq.^⁴⁶⁶ On the other hand, it is hardly imaginable that nobody knew about the transfer of detainees from and to the alleged European secret facilities, considering that European airports and/or US military bases in Europe were used in the process.^⁴⁶⁷ The denials of Spanish, British and other European governments of any knowledge of such transfers and even of the existence of such sites were strong.^⁴⁶⁸ In addition, Forsythe asserts that certain European countries, also being EU member states, including Britain and Sweden engaged in extraordinary renditions and that it is most probable that some European governments also provided information and even contributed to the ill treatment of prisoners during interrogations.^⁴⁶⁹

The investigations in Europe were conducted under the auspices of the Parliament as well as the Council of Europe. The latter acted immediately in initiating its own investigation with regards to this matter and indeed it was the work of the appointed Swiss lawyer Dick Marty as special investigator, which provided some insight into the CIA operations in Europe. In his first landmark report of June 2006^⁴⁷⁰, Marty provided evidence which showed that certain European countries were in fact complicit in the illegal renditions of detainees. He categorized countries according to their ‘roles’ in the CIA flights.^⁴⁷¹ For instance, ‘stop over’ points included Greece, Czech Republic and Italy, ‘staging’ points included Germany, Turkey, Cyprus and Spain, ‘one-off pick up points’ were found to be in Sweden and Macedonia and examples of ‘detainee transfer/ drop-off points’ included Egypt, Guantánamo, Iraq and indeed Romania and Poland. With regard to the latter two in particular, Marty concluded that there was insufficient evidence to establish that ‘black sites’ existed there and thus to indeed confirm the allegations of their existence. Nevertheless, some evidence was there as Marty thoroughly describes the flights that landed and took off from these two locations.^⁴⁷² He summarized his position by stating that ‘(e)ven if proof, in the classical meaning of the term, is not as yet available, a number of coherent and converging elements indicate that such secret detention centres did indeed exist in Europe’^⁴⁷³. In his conclusions, Marty lists fourteen countries as part of the ‘global spider web’ which have been found to be actively or passively complicit in the CIA-organized renditions, including the names of the suspects.^⁴⁷⁴ From these fourteen, Marty identifies a number of countries who did more than allowing or as some say not obstructing to CIA flights for the reasons of rendition, for instance Sweden ‘handed over’ two suspects to the CIA directly, both of whom were transferred and tortured in Egypt.^⁴⁷⁵ Another well cited case is that of Khaled el-Masri, a German citizen of Lebanese decent, who was kidnapped in Skopje and was later transferred to Afghanistan, where he was subject to torture in incommunicado detention.^⁴⁷⁶After months of interrogations, he was released and dropped off in a remote area in Albania.

The reactions^⁴⁷⁷ to Marty’s report were various but they all had one thing in common: denial. Ranging from “(t)hese accusations are slanderous... (t)hey are not based on any facts”, authored by Polish Prime Minister Kazimierz Marcinkiewicz and “(i)f someone uses words like 'I believe that', that person has the obligation to prove is statements. We cannot play like that with rumours that can undermine a country's credibility”, said by Romania’s deputy chief of the senate’s defence commission Norica Nicolai, to British former Europe minister and MP Denis MacShane’s characterisation of Marty’s report as having “more holes than Swiss cheese”.^⁴⁷⁸
Meanwhile in the Parliament, discussions as to how these investigations should be conducted arose with reference to whether to set up a committee of inquiry or a temporary committee. The latter has no investigative powers and cannot oblige member states to come to hearings that may be conducted in the process of the enquiry, whereas the former has authority to investigate alleged breaches of Community law.^⁴⁷⁹ On January 18^th 2006, the Temporary Committee on the Alleged use of European countries by the CIA for the transportation and illegal detention of prisoners^⁴⁸⁰ was formally established with the aim of investigating whether CIA actions in Europe involved the use of torture or other degrading treatment, whether the methods employed constituted a violation of European fundamental rights, whether European citizens were among the victims and whether or not member states were actually involved in these practices.^⁴⁸¹ In the process of probing into this extensive issue, the committee was to engage in narrow cooperation with the Council of Europe. The interim draft report which was released in April 2006 and thereafter finalized in 2006 and finally adopted in 2007 suggests that “at least 1245 flights operated by the CIA flew into European airspace or stopped over at European airports between the end of 2001 and the end of 2005”.^⁴⁸² In addition, it is also stated that European countries^⁴⁸³ turned a ‘blind eye’ to these circumstances and thus indirectly allowed CIA operations which resulted in the rendition of terrorist suspects to abusive regimes.^⁴⁸⁴ The report also asserts that in most of the rendition cases the committee investigated, ‘incommunicado detention and torture’ were standard.^⁴⁸⁵ Nevertheless and similarly to Marty’s report, the investigations did not provide sufficient evidence which would prove that there is or was a ‘black site’ on Polish territory. What the committee did conclude however was an alarming lack of cooperation provided by the member states when these investigations were being conducted, particularly with regards to Austria, Italy, Poland, the UK and Portugal.^⁴⁸⁶
Marty’s near-certainty, albeit not supported with sufficient evidence, changed into absolute certainty when he proceeded with his investigation and released his second report^⁴⁸⁷ for the Council of Europe in June 2007. Here, Marty stated that he had enough evidence to state that secret CIA prisons did indeed exist on Polish and Romanian territory^⁴⁸⁸ and that the extraordinary renditions which involved abductions on European territory amounted to ‘massive and systematic violations of human rights’.^⁴⁸⁹ Further yet, the Polish facility or ‘setup’ as Marty calls it, was used for detainees of the highest level and thus of the highest importance or value, whereas Romania was destined for the low level detainees.^⁴⁹⁰ In one way or another thus, the presence of high value detainees in Europe meant that the old continent had a Guantánamo of its own, even if it was only temporary.

Marty singles out countries which had intentionally obstructed in the investigation and the ‘search for truth’ whereby they steadily refused to release information, saying that the documents had the ‘state secret’ stamp on it.^⁴⁹¹ The countries which are criticized the most are Germany and Italy, and the former Yugoslav Republic of Macedonia to an extent. In the line of collusion, it is also stated that the Romanian and Polish presidents and the tight circle of high officials around them were in fact aware of the presence of black sites on their territory and in fact they were directly involved in the negotiations and subsequent agreements of CIA operations. In this sense, Marty is not hesitant about listing the names of Polish and Romanian high-officials who should be held accountable.^⁴⁹² Marty is also not soft on criticizing the fact that non-US citizens were actively discriminated against particularly with regards to the renditions and in his opinion, such covert discrimination is nothing less than ‘”legal apartheid”, where human rights and legal protections are applied to detainees in lesser or greater measure on an entirely discriminatory basis.’^⁴⁹³ Conveniently or inconveniently, depending on who you ask, the report was released on the around the same time that the first ever trial on the CIA methods had commenced in Milan.^⁴⁹⁴ The case at hand was the abduction of Abu Omar, a perfect and most typical example of extraordinary rendition, in Milan in 2003.Upon abduction Omar was flown from Italy through Germany to Egypt his country of origin, where he was interrogated by torturous techniques and was detained under inhumane conditions.^⁴⁹⁵ The involvement of a Carabinieri agent in the abduction is confirmed by Marty in his first report.^⁴⁹⁶ In 2008, Human Rights Watch re-requested that the alleged kidnappers be extradited from the US to be charged in Italy, including twenty six CIA agents.^⁴⁹⁷

In January 2005, Amnesty International had informed and had formally requested the Dutch authorities to halt the transfer of a Syrian national who was being deported from the US to Syria through the Netherlands. The Dutch authorities kept their hands behind their backs and it was later reported that this individual was arrested upon arrival in Syria and held incommunicado for weeks.^⁴⁹⁸ Although it could be said that the Netherlands was not actually arranging the transfer, it nevertheless looked the other way despite strong proof that this individual could face torture.

The information provided by Marty has, among other things, undermined the US in its allegations that it did not endorse the use of torture. This position has been articulated by Condoleezza Rice December 2005 at least partly as a reaction to the allegations made by Washington Post and Human Rights Watch, where she stated that the US does not ‘permit, tolerate, or condone torture under any circumstances’ and that used the opportunity to accentuate that the US ‘respected -- and will continue to respect – the sovereignty of other countries’ and ‘does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.’^⁴⁹⁹ In addition this was reflected in Bush’s speech of September 6^th 2006, where he stated that interrogations were essential for the safety of the American people but at the same time he guaranteed that the stepped up interrogation methods used on Abu Zubaydah a senior terrorist leader, “were designed to be safe, to comply with our laws, our Constitution and our treaty obligations. The Department of Justice reviewed the authorized methods extensively, and determined them to be lawful”^⁵⁰⁰. Similarly to Rice’s statement, he added “I want to be absolutely clear with our people and the world. The United States does not torture. It's against our laws, and it's against our values. I have not authorized it, and I will not authorize it.”^⁵⁰¹ It was significantly also in this speech that Bush ultimately admitted the existence of the much talked about secret prisons although he never disclosed the exact locations, apparently because this would play into the hands of the terrorists. Bush also announced the transfer of fourteen high-value detainees from unspecified CIA locations to Guantánamo.^⁵⁰² This thus meant that the CIA program would be suspended but could be re-started if more high-value terrorists were captured. Overall, Bush determined the secret detention policy legal when he said that “this program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws”^⁵⁰³. This was in stark contrast to the Committee Against Torture and the Human Rights Committee which identified, not only the treatment inside the secret detentions as illegal but they stipulated that the policy as a whole was a breach of the US’ obligations under international law.^⁵⁰⁴

It is worth mentioning here that Amnesty International published a report even before Marty, which gave a detailed account of the rendition procedures that the US was conducting,^⁵⁰⁵which thus further undermined the abovementioned claims made by the then President and State of Secretary.

All in all, these reports represent an important contribution to the terrorism versus liberty debate and they add to the inescapability of governments to be held accountable for failing to protect fundamental human rights. Furthermore it showed that despite the fact that the US was the protagonist and the real “outsourcer”^⁵⁰⁶ of torture, more than a couple of European states were involved at different levels and thus were equally in violation of their obligations.

Guantánamo is one issue but another is the policy of extraordinary renditions and expulsions to countries with almost famous torture records. This is a good time to bring up the notion of ‘diplomatic assurances’, which in this regard are guarantees, provided by governments that torture and other violations of human rights will not take place. The UK seems to be a prominent advocate of the acceptance of this policy in national security deportations and renditions, a policy which essentially consists of empty and more importantly unenforceable promises and is being followed by other EU members including Denmark and Italy and the non-EU Switzerland.^⁵⁰⁷ The UK lead has been so strong in fact that the Human Rights Watch had compiled a report^⁵⁰⁸ documenting the UK efforts, while urging other EU member states not to follow suit. November 2007 is one of the examples when the UK desperately tried to put this issue on the agenda of the JHA Council meeting, hopeful in making it part of an EU-wide policy.^⁵⁰⁹ The JHA refused to even table the proposal, signalling the widespread opposition to such an unreliable policy. In February 2008, a statement made by the Directorate General for External Affairs, which warned that diplomatic assurances ‘undermine the global ban on torture and efforts to eradicate such abuse’^⁵¹⁰, may have seriously downplayed the realisation of UK efforts; at least one may hope so.
In this regard, it would be appropriate to take note of an article published by The Economist on February 5^th 2009^⁵¹¹, where it discusses the freshly handed down ruling (February 4^th) with regards to the fate of evidence showing treatment identified as torture, as alleged by Byniam Mohamed. A UK citizen with Ethiopian origin, Mohamed saw the walls of detention facilities in Pakistan, Morocco, and Afghanistan before being released from Guantánamo in 2008 and returned to the UK, where he claimed that MI5, the British secret service, was involved in his interrogations. The Court ruled that this evidence was not subject to publication, on the grounds that this would impede UK relations with the US particularly with regards to sharing of vital intelligence.^⁵¹² This threat of action was apparently already made in 2008 according to UK foreign secretary David Miliband although after the Court made its decision, he denied that the US made this threat directly. Whatever the facts of this situation may be, it is clear that even in the last days of the Bush administration, the US was still the giant who even had power to influence court decisions thousands of miles away, at least as claimed in the article.

Nevertheless, an evolving shift is due to be mentioned in the context of judicial authorities and their approaches to violation of rights in relation to post9/11 measures. For instance, when Sir Ken Macdonald, former Director of Public Prosecutions was leaving office, he deeply criticized the ‘Big Brother state’ that the UK was becoming. In the past, in a highly critical speech^⁵¹³ in January 2007, he warned that ‘an abandonment of fair trial prosecutions in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.’^⁵¹⁴ He further argued that ‘a response to terrorism which is based only on fear and suspicion…has no room for the rule of law. Indeed it encourages the opposite’.^⁵¹⁵ One very good and recent example that there action is being taken against unconstitutional measures is the European Court of Human Rights judgment in the case of A. and Others v. the United Kingdom^⁵¹⁶, where it was ruled that their detention as a result of them being suspected of involvement terrorist activities under a statutory scheme of high security which provided for an indefinite detention non-nationals, was indeed a violation of their right to liberty and security, right to have lawfulness of detention decided by a court and the right to be compensated as a result of unlawful imprisonment.^⁵¹⁷ Despite the fact that their allegations of being tortured while detained in the high security prison were dismissed, this ruling symbolizes a promising path, in accountability of far-reaching measures used inappropriately, even if it is just the tip of the iceberg.

5.5 The new administration and CIA disclosures
The wounds caused by the transatlantic rift that was further deepened by the revelation of CIA secret prisons in Europe may have started to heal with the incoming administration. As was already mentioned, one of the very first moves that the new president made was to take steps to close down Guantánamo. Another tool of the war on terror that was dismantled in this wave of change was the prohibition of secret detainment centres operated by the CIA as well as the nullification of any and every legal order relating to interrogations as well as the justifications that were given in this regard by lawyers in the Bush administration.^⁵¹⁸ Further yet, at the time of writing, the newspapers are filled with debates about the four secret Justice of Department authored and CIA addressed memos which reveal ‘excruciatingly detailed’^⁵¹⁹ interrogation procedures^⁵²⁰, declassified in mid-April. The memos, of which the release was requested by the outspoken civil rights group American Civil Liberties Union (ACLU), include descriptions, inter alia, of water-boarding tactics which were used as many as 266 times on two top Al Qaeda members^⁵²¹, one of which is a self-confessed mastermind planner of 9/11.

Obama’s decisions to dismantle Bush’s tools of the war on terror had been welcomed for the most part but significant hiccups should not be ignored. Specifically the ‘taking over’ of former Guantánamo detainees has not impressed many European countries, to which Obama made a formal request at the beginning of April. It is true that many European as well as other governments had taken back their nationals but approximately 240 detainees still remained held at the military base when Bush was leaving the Oval office. In the immediate reaction to the intended closure of Guantánamo and Obama’s call on EU states to prosecute the sixty detainees to prevent torturous treatment or even the death penalty^⁵²², which they were likely to face upon their return to their home countries, the Netherlands for instance has refused to assist the US in this issue even before Obama’s inauguration. Though it should be noted that some dissenting opinions were heard or rather read in the NRC Handelsblad which reminded the Netherlands that since it had supported the Bush administration in its dirty war, it should now also help the new administration with the cleaning up of the ‘very dirty legacy’ left behind by its predecessor.^⁵²³ The Dutch refusal was also critisized by numerous human rights advocates who had argued that The Netherlands has shown a disappoint attitude and response to Obama’s attempts at retying transnational threads.^⁵²⁴ Certainly, other member states who had consistently criticized the whole idea of Guantánamo should make a contribution to the termination of a policy they so much despised, at least according to Human Rights Watch.^⁵²⁵ Czech Republic does not necessarily share this view. One insider view, although not necessarily reflecting the Czech policy is expressed by journalist Tomáš Němeček in his “Guantánamo: No thanks” article.^⁵²⁶ Basing his main argument on the fact that an increased number of the detainees that have been released in the past have once again resorted to the holy war against the US and its allies, he reminds the reader that these are not just ordinary prisoners. He also criticized the UK, who as the loudest voices among the opponents of the existence of Guantánamo has agreed to take less than a dozen of its nationals back, deeming it a necessary enough contribution to this end.

At the same time, quite some controversy has arisen due the long standing reluctance of the US to accept any of these detainees and prosecute them in US courts, particularly with regards to Chinese Uighurs who had been cleared for release^⁵²⁷ but nevertheless kept in Guantánamo because no European or any other country offered to take them in.^⁵²⁸ I must come back to Němeček’s article here and quote an interesting statement which he uses to support his argument, but which can also be used to support the argument that the US should clean up the mess it created in the first place. ‘Perhaps like the signs in American porcelain shops: you break it, you buy it’, says Němeček.^⁵²⁹

Upon releasing the memos which caused more than enough havoc, and perhaps rightly so because they added to the ultimate proof that the Bush administration had lied about prisoner treatment all along and that indeed the warnings given by Amnesty International, Human Rights Watch and other groups and individuals were all spot on. Obama has been firm in pointing out that the US “must reject the false choice between [our] security and [our] ideals”.^⁵³⁰

Perhaps quite unexpectedly, despite the fact that Obama denounced the interrogation methods as “unworthy of the United States”^⁵³¹, he also stated that the CIA officials who were directly involved in the interrogations, including where torture was used, would not be subject to prosecution, provided that they followed legal orders given by the Department of Justice.^⁵³² This provoked criticism from human rights groups many of the world’s governments as well as Obama’s supporters within the United States. The former had claimed that this decision is a clear violation of the international obligations the US has signed onto, specifically the bringing to justice of any and all individuals responsible for the failure to comply with the protection of fundamental rights.^⁵³³ In its criticism, Amnesty International reminded that ‘there is no such thing as torture perpetrated in “good faith” or “reasonable” circumstances’. The latter, being people in the government normally supportive of Obama, have argued that the president ‘can not simply wipe the slate clean; that his call for "reflection, not retribution", amounts to a whitewash’.^⁵³⁴ Human rights groups and the UN have praised the release of the memos but they highly criticized Obama’s decision on the grounds that real change would only come about if politicians, CIA officials and other involved personnel were held accountable for their actions. Amnesty International had characterized Obama’s decision as a “get-out-of-jail free card” for

those who were involved in torture.^⁵³⁵

Furthermore, the new administration is confronted with yet another dilemma as there are discrepancies in the memos and the testimonies given ex-CIA officials. This is thus a strong clue that not all information was disclosed in the testimonies and this in turn ‘raises legitimate questions about whether interrogators may have overstepped legal guidelines’.^⁵³⁶ However how this is going to be dealt with is yet troublingly hazy. Officials from the preceding administration had criticized Obama for threatening national security as these memos gave insight into information which has until recently been classified for a reason. Furthermore, the ex-CIA chief maintained that the memos would incite more hatred from Al Qaeda and would strengthen it.^⁵³⁷ The release of the memos themselves were characterized as one sided from advocates of coercive interrogation methods from the time of the Bush administration such as Dick Cheney, who argued that memos and other documents which show that methods such as water boarding were successful in obtaining crucial information. This was also backed by Michal Hayden and Michael Mukasey, head of the CIA and the Attorney General respectively, during Bush’s reign.

Obama’s decisions are clearly steps in the right direction but the closure of Guantánamo and even the de-classification of the interrogation memos are not a panacea for this extensive problem, particularly with regards to the impunity of CIA officials. The Guantánamo shut down is not a matter of a clear-cut policy and many complex deeply-thought through decisions, which need to have lasting results, await the three months old administration in its future. The release of the memos may have satisfied many but the issue is clearly far from over and more questions are likely to arise regarding the use of torture in other cases, the persons who should be held accountable and the assurance that there is zero possibility that this will happen in the future.

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