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AS/Jur (2006) 16 Part II
7 June 2006
Committee on Legal Affairs and Human Rights
Alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states
Draft report – Part II (Explanatory memorandum)
Rapporteur:
Mr Dick Marty, Switzerland, ALDE
C. Explanatory memorandum
by Mr Dick Marty, Rapporteur
Table of Contents:
1. Are human rights little more than a fairweather option?
1.1. 11 September 2001
1.2. Guantanamo Bay
1.3. Secret CIA prisons in Europe?
1.4. The Council of Europe’s response
1.5. European Parliament
1.6. Rapporteur or investigator?
1.7. Is this an Anti-American exercise?
1.8 Is there any evidence?
2. The global “spider’s web”
2.1. The evolution of the rendition programme
2.2. Components of the spider’s web
2.3. Compiling a database of aircraft movements
2.4. Operations of the spider’s web
2.5. Successive rendition operations and secret detentions
2.6. Detention facilities in Romania and Poland
2.6.1 The case of Romania
2.6.2. The case of Poland
2.7. The human impact of rendition and secret detention
3. Individual case studies
3.1. Khaled
El-Masri
3.1.1. The individual
account of Khaled El-Masri
3.1.2. Elements of
corroboration for Mr. El-Masri’s
account
3.1.3. The role of "the
former Yugoslav Republic of Macedonia"
3.1.3.1. The ‘official line’ of
the authorities
3.1.3.2. Further
elements
3.2. "The Algerian Six"
3.3. Ahmed Agiza and Mohammed Alzery (El Zari)
3.4. Abu Omar
3.5. Bisher Al-Rawi and Jamil El-Banna
3.6. Maher Arar
3.7. Messrs Bashmila and Ali Qaru
3.8. Mohammed Zammar
3.9. Binyam Mohamed al Habashi
4. Secret places of detention
4.1. Satellite photographs
4.2. Documented aircraft
movements
4.3. Witness accounts
4.4. Evaluation
5. Secret detentions in the Chechen Republic
5.1. The work of the European Committee for the Prevention of Torture (CPT)
5.2. Damning recent accounts by witnesses
6. The attitude of governments
7. Individual cases: judicial proceedings in progress
7.1. A positive example: the Milan public prosecutor's office (Abu Omar case)
7.2. A matter requiring
further attention: the Munich (El-Masri case) and Zweibrücken
(Abu Omar case) public prosecutors' offices
7.3. Another matter requiring further attention: the Al Rawi and El Banna case
7.4. Sweden: what next in the Agiza and Alzery case?
7.5. Spain
7.6. Mr El-Masri’s complaint in the United States
8. Parliamentary investigations
8.1. Germany
8.2 The United Kingdom
8.3. Poland: a parliamentary inquiry, carried out in secret
8.4. Romania and "the
former Yugoslav Republic of Macedonia": no parliamentary inquiries
9. Commitment to combating terrorism
9.1. Fight against terrorism: an absolute necessity
9.2. The strength of unity and of the law
10. Legal perspectives
10.1. The United States’ legal position
10.2. The point of view of the Council of Europe
10.2.1. The European
Commission for Democracy through Law (Venice Commission)
10.2.2 The Secretary
General of the Council of Europe (Article 52 ECHR)
11. Conclusion
1. Are human rights little more than a fairweather option?
1.1. 11 September 2001
1. The tragedies that took place on 11 September undoubtedly marked the beginning of an important new chapter in the terrible, never-ending history of terrorism. It is a history of indiscriminate violence, instigated in order to create a climate of insecurity and fear with the intention of attacking the existing political and social system. For the first time, spectacular and extremely lethal acts struck highly symbolic targets at the very heart of the United States of America, the most powerful state in the world. Europe, for its part, already has a long and painful experience of terrorism, involving numerous victims and large-scale attacks, particularly in Italy1, Germany, Spain, the United Kingdom, France and, more recently, Russia.
2. While the states of the Old World have dealt with these threats primarily by means of existing institutions and legal systems2, the United States appears to have made a fundamentally different choice: considering that neither conventional judicial instruments nor those established under the framework of the laws of war could effectively counter the new forms of international terrorism, it decided to develop new legal concepts. The latter are based primarily on the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism signed by President Bush on 13 November 20013. It is significant that, to date, only one person has been summoned before the courts to answer for the 11 September attacks: a person, moreover, who was already in prison on that day, and had been in the hands of the justice system for several months4. By contrast, hundreds of other people are still deprived of their liberty, under American authority but outside the national territory, within an unclear normative framework. Their detention is, in any event, altogether contrary to the principles enshrined in all the international legal instruments dealing with respect for fundamental rights, including the domestic law of the United States (which explains the existence of such detention centres outside the country). The following headline appears to be an accurate summary of the current administration’s approach: No Trials for Key Players: Government prefers to interrogate bigger fish in terrorism cases rather than charge them5.
3. This legal approach is utterly alien to the European tradition and sensibility, and is clearly contrary to the European Convention on Human Rights and the Universal Declaration of Human Rights. Cicero’s old adage, inter arma silent leges, appears to have left its mark even on international bodies supposed to ensure the rule of law and the fair administration of justice. It is frankly alarming to see the UN Security Council sacrificing essential principles pertaining to fundamental rights in the name of the fight against terrorism. The compilation of so-called “black lists” of individuals and companies suspected of maintaining connections with organisations considered terrorist and the application of the associated sanctions clearly breach every principle of the fundamental right to a fair trial: no specific charges, no right to be heard, no right of appeal, no established procedure for removing one’s name from the list6.
1.2. Guantanamo Bay
4. At Guantanamo Bay, on the island of Cuba, several hundred people are being detained without enjoying any of the guarantees provided for in the criminal procedure of a state governed by the rule of law or in the Geneva Conventions on the law of war. These people have been arrested in unknown circumstances, handed over by foreign authorities without any extradition procedure being followed, or illegally abducted in various countries by United States special services. They are considered enemy combatants, according to a new definition introduced by the American administration7.
5. The Parliamentary Assembly of the Council of Europe (PACE) has strongly criticised this state of affairs: on 26 April 2005, with no votes against and just five abstentions, it adopted a resolution (1433/2005) and recommendation (1699/2005) in which it urges the United States Government to put a stop to this situation and to ensure respect for the principles of the rule of law and human rights. It also concludes that the United States has engaged in the unlawful practice of secret detention. In its reply of 17 June 2005 (doc. 10585), the Committee of Ministers expresses its full support to all such efforts and to all efforts to obtain a prompt release or fair trial of persons detained at Guantánamo Bay by an independent and impartial court. It urges the United States Government to ensure that the rights of all detainees are ensured and that the principle of the rule of law is fully respected. For its own part, it expresses the determination of the member states to ensure that the rights of persons released and returned to their jurisdiction are fully respected. The Committee of Ministers has conveyed a message in these terms to the Government of the United States of America8. To our knowledge, no reply has been received to date.
6. The UN Committee against Torture has also called for the closure of the Guantanamo Bay detention facility in recent times, criticising its secret character and the denial of access to the ICRC9.
1.3. Secret CIA prisons in Europe?
7. This was the news item circulated in early November 2005 by the American NGO Human Rights Watch (HRW), the Washington Post and the ABC television channel. Whereas the Washington Post did not name specific countries hosting, or having allegedly hosted, such detention centres, simply referring generically to ‘eastern European democracies’, HRW reported that the countries in question are Poland and Romania. On 5 December 2005, ABC News in turn reported the existence of secret detention centres in Poland and Romania, which had apparently been closed following the Washington Post’s revelations. According to ABC, 11 suspects detained in these centres had been subjected to the harshest interrogation techniques (so-called ‘enhanced interrogation techniques’) before being transferred to CIA facilities in North Africa.
8. It is interesting to recall that this ABC report, confirming the use of secret detention camps in Poland and Romania by the CIA, was available on the Internet for only a very short time before being withdrawn following the intervention of lawyers on behalf of the network’s owners. The Washington Post subsequently admitted that it had been in possession of the names of the countries, but had refrained from naming them further to an agreement entered into with the authorities. It is thus established that considerable pressure was brought to bear to ensure that these countries were not named. It is unclear what arguments prevailed on the media outlets in question to convince them to comply. What is certain is that these are troubling developments that throw into question the principles of freedom and independence of the press. In this light, it is worth noting that just before the publication of the original revelations by the reporter Dana Priest in early November 2005, the Executive Editor of the Washington Post was invited for an audience at the White House with President Bush10.
1.4. The Council of Europe’s response
9. The Council of Europe responded straight away. The President of the PACE immediately took a very firm position, and asked the Committee on Legal Affairs and Human Rights to look into the matter without delay. The latter did so at its meeting of 7 November 2005. The Secretary General of the Council, for his part, set in motion the procedure established by Article 52 of the ECHR. The Committee on Legal Affairs and Human Rights also requested the Venice Commission to prepare an opinion on the international legal obligations and duties of Council of Europe member states in respect of secret detention facilities and inter-state transport of prisoners. Cooperation was likewise established with the Council of Europe's Human Rights Commissioner.
10. The European Union Commission, via its Vice-President Franco Frattini, expressed its full support for the Council of Europe. The EU Commission’s support proved invaluable in obtaining the necessary information from Eurocontrol and the European Union Satellite Centre. The reference to named European countries suddenly aroused huge media interest. Yet these incidents – secret detentions and renditions – had already been attracting condemnation for some time, both from the PACE itself, inter alia through the aforementioned resolution and recommendation concerning Guantanamo Bay, the re-reading of which I cannot recommend highly enough, and in extremely detailed reports by NGOs, university professors and journalists known for their very painstaking work11. These revelations had met with curious indifference from both the media and governments and political circles in general.
1.5. European Parliament
11. Members of the European Parliament also became alarmed at the mounting evidence that European countries, or at least facilities located on European territory, had been the scene of systematic human rights violations. In early 2006, a 46-member Temporary Committee was set up and instructed to investigate the alleged existence of CIA prisons in Europe in which terrorist suspects had allegedly been detained and tortured12.
12. I welcomed this initiative in my previous memorandum, considering it wholly consistent with the Council of Europe’s desire to ascertain the truth. Co-operation with the Temporary Committee has been extremely satisfactory, both at the level of our respective secretariats and with its Chairman, Carlos Miguel Coelho, and rapporteur, Claudio Fava. I had the opportunity to address members of the European Parliament’s committee during one of its first public hearings.
13. On 24 April 2006 the Temporary Committee presented its draft interim report, which confirmed strong indications of illegal actions carried out by the CIA in Europe. Its in initial analysis, the report largely supported the observations we made in our own Information Memorandum II on 24 January 2006. The TDIP rapporteur Claudio Fava, in presenting his interim report, spoke of “more than a thousand flights chartered by the CIA [that] have transited through Europe, often in order to carry out extraordinary renditions”13. In a press conference, Mr Fava clarified that, according to information given to him in confidence by an intelligence source, “30 to 50 people have been rendered by the CIA in Europe” and that “the CIA could not have carried out such renditions without the agreement of European states”14. The Temporary Committee proposes to continue its work15.
1.6. Rapporteur or investigator?
14. I have often been described as an investigator, or even a special investigator. It might be helpful to point out, therefore, that I do not enjoy any specific investigatory powers and, in particular, am not entitled to use coercive methods or to require the release of specific documents. My work has consequently consisted primarily of interviews and analysis. I submitted a set of questions to governments via their national parliamentary delegations, and asked the latter to take the debate to the national level. Parliamentary questions were thereby tabled in many states with a view to obtaining information from the various governments. Special parliamentary commissions of inquiry were set up in some countries. The work undertaken by a number of NGOs has proved invaluable and even, in many cases, more detailed and reliable than the information supplied by governments. A significant contribution was also made by many journalists investigating on the ground, often for months on end. I also received information entrusted to me only on the assurance that I would keep it confidential and protect my sources. The information thus received clearly cannot be presented as evidence; it did, however, point my research in certain more specific directions, and enables me to state with certainty that the search for the truth about what really happened to terrorist suspects in Europe will not end with the present report.
15. I received considerable assistance in this task from the head of the secretariat of the Committee on Legal Affairs and Human Rights and one of his colleagues – both of whom were already very busy with other tasks connected with the committee’s operation and work with other rapporteurs – as well as from another young colleague who, in the end, was temporarily assigned specifically to this investigation (and whose help proved invaluable). I am extremely grateful to them for their outstanding competence and exceptional readiness to assist.
16. I was formally designated as Rapporteur on 13 December 2005. Within the Council of Europe it was considered that the report should be presented as quickly as possible. Taking into account the breadth and complexity of the subject, as well as the extremely modest means put at my disposal, I have certainly not been able to present a complete overview of the different aspects of what has really occurred. Moreover, we are still far from knowing all the details of “extraordinary renditions” and the conditions in which abducted persons have been detained and interrogated in Europe. It is thus highly likely that the Council of Europe should remain seized with this subject matter. Elements presently in the public domain - which are supplemented with new information as every week goes by - not only justify, but require that member States finally decide to open serious inquiries on the extent to which they were directly or indirectly implicated in such activities.
17. As I stated in my previous memorandum, serious consideration must be given to whether the Assembly should equip itself with other resources for dealing with such complex matters. Where investigations relate to possible human rights violations that are not confined to individual cases (for which the European Court of Human Rights has jurisdiction) and transcend borders, thereby sidestepping national procedures, one is justified in questioning the effectiveness of existing instruments. Instead of appointing a single member as rapporteur with the support of the normal resources of the Committee’s secretariat, which is already overwhelmed by other reports in preparation, we might seriously consider whether setting up a proper commission of inquiry, assisted by experts and enjoying genuine investigatory powers, might not be a better solution for dealing with these new and important challenges.
18. We have tackled this problem with determination and a constant concern for objectivity, mindful of both the enormity of the task entrusted to me and the frankly derisory resources available and the risk of being manipulated. My aim was by no means to amass evidence for the purpose of condemning or stigmatising. On the contrary, I was guided by a desire to ascertain the truth in order to reaffirm the values the Council of Europe has always striven to uphold, and to guard against the repetition of such incidents.
1.7. Is this an Anti-American exercise?
19. I consider this reproach, made fairly frequently when criticisms are voiced about violations of fundamental rights committed in the context of the fight against terrorism, downright ridiculous and wholly inaccurate. It overlooks the fact that the initial criticisms, relating to the establishment of the detention centre at Guantanamo Bay as well as the use of extraordinary renditions and torture, were first forcefully expressed by American journalists, NGOs and politicians, often thanks to detailed information released by sources within the administration, and indeed the intelligence services themselves. The debate has been, and in my view still is, considerably more heated in the United States than in Europe, at least in certain circles and media.
20. Moreover, the United States Supreme Court itself pointed out, in an extraordinary June 2004 judgment, that at stake in this case is nothing less than the essence of a free society. (…) For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny16. This is a sharp reminder of the great democratic tradition of the United States and its exemplary commitment to human rights. The United States is, and remains, a deeply democratic country. Indeed, criticisms of some of the current administration’s decisions also reflect a concern that a country which unquestionably serves as an example to the rest of the world is committing what we consider to be mistakes that not only violate fundamental principles, but also constitute a counterproductive anti-terrorism strategy.
1.8. Is there any evidence?
21. It is paradoxical to expect bodies without any real investigatory powers – the Council of Europe and the European Parliament – to adduce evidence in the legal sense. Indeed, these European bodies have been prompted to undertake such investigations owing to a lack of willingness and commitment on the part of national institutions that could, and should, have completely clarified these allegations which from the outset did not appear to be totally unfounded.
22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states.
23. In the light of the silence and obvious reluctance on the part of the bodies that could have provided the necessary information, it is legitimate to assume that there are more such cases than can be proven at present. In effect, the facts as would appear to be established today – and as will be illustrated throughout the report – as well as the total absence of serious inquiries by the national authorities concerned, implies, in my view, the reversal of the burden of proof: in such a situation it is incumbent on the Polish and Romanian authorities to conduct an independent and in-depth inquiry and to make public not only its results but also the method and the different stages of the enquiry17. Even 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. Such an affirmation does not pretend to be a judgment of a criminal court, necessitating “proof beyond reasonable doubt” in the Anglo-Saxon meaning of the term; it rather reflects a conviction based on a careful balance of probabilities, as well as logical deductions from clearly established facts. The intention is not to determine that the authorities of these countries are “guilty” for having tolerated secret detention sites, but rather to hold them "responsible" for failing to comply with the positive obligation to investigate serious allegations.
2. The global “spider’s web”18
24. The system of targeting, apprehending and detaining terrorist suspects, which forms the focus of this report, is not an overnight creation. Nor has it been built up from scratch in the wake of the terrorist attacks of 11 September 2001.
25. I have chosen to adopt the metaphor of a global “spider’s web” as the leitmotif for my report. It is a web that has been spun out incrementally over several years, using tactics and techniques that have had to be developed in response to new theatres of war, new terms of engagement and an unpredictable threat.
26. The chief architect of the web, the United States of America, has long possessed the capacity to capture individual targets abroad and carry them to different parts of the world. Through its Central Intelligence Agency (CIA), the United States designed a programme known as “rendition” for this purpose in the mid-1990s. The CIA aimed to take terrorist suspects in foreign countries “off the streets” by transporting them back to other countries, usually their home countries, where they were wanted for trial, or for detention without any form of due process.
2.1. The evolution of the rendition programme
27. During a recent mission to the United States, a member of my team came into contact with several “insider sources” in the US intelligence community. The most prominent such witness was Mr Michael Scheuer, who designed the original rendition programme in the 1990s under the Clinton Administration and remained employed by the CIA until November 200419. Excerpts of Mr Scheuer’s testimony are reflected verbatim in this report and, to the extent possible, have been substantiated or corroborated by a range of other source material in the account below20.
28. The strategic target of the CIA rendition programme has always been, and remains, the global terrorist network known as Al-Qaeda. In the conception of the United States, Al-Qaeda exists as a nebulous collection of ‘cells’ in countries around the world, comprising ‘operatives’ who perform various roles in the preparation of terrorist attacks. When the US National Security Council became alarmed, in 1995, at what appeared to be a serious prospect of Osama bin Laden acquiring weapons of mass destruction, it developed rendition, according to Scheuer and others, as a way of “breaking down Al-Qaeda”, “taking down cells” and “incarcerating senior Al-Qaeda people”.
29. Rendition was designed, at the outset of the programme at least, to fit within the United States’ interpretation of its legal obligations21. The prerequisites for launching a rendition operation in the pre-9/11 period included:
• an “outstanding legal process” against the suspect, usually connected to terrorist offences in his country of origin;
• a CIA “dossier”, or profile of the suspect, based on prior intelligence and in principle reviewed by lawyers;
• a “country willing to help” in the apprehension of the suspect on its territory; and
• “somewhere to take him after he was arrested”.
30. The receiving countries were, as a matter of policy, only asked to provide diplomatic assurances to the United States that they would “treat the suspects according to their own national laws”. After the transfer, the United States made no effort to assess the manner in which the detainees were subsequently treated22.
31. Intelligence gathering, according to Scheuer, was not considered to be a priority in the pre-9/11 programme:
“It was never intended to talk to any of these people. Success, at least as the Agency defined it, was to get someone, who was a danger to us or our allies, ‘off the street’ and, when we got him, to grab whatever documents he had with him. We knew that once he was captured he had been trained to either fabricate or to give us a great deal of information that we would chase for months and it would lead nowhere. So interrogations were always a very minor concern before 9/11.”23
32. Several current Council of Europe member States are known to have co-operated closely with the United States in the operation of its rendition programme under the Clinton Administration24. Indeed, the United Kingdom Government has indicated to the Council of Europe25 that a system of prior notification existed in the 1990s, whereby even intended stopovers or overflights were reported by the United States in advance of each rendition operation26.
33. The act of “rendition” may not per se constitute a breach of international human rights law. It is worth noting that other States have also asserted their right to apprehend a terrorist suspect on foreign territory in order to bring him to justice if the tool of international judicial assistance or cooperation did not attain the desired result27.
34. The most prominent legal authorities in the United States, including its Supreme Court, have interpreted the object of the pre-9/11 rendition programme to be within the law28. Indeed, several human rights NGOs have assessed the original practice under the rubric of “rendition to justice”, conceding that an inter-state transfer could be lawful if its object is to bring a suspect within a recognised judicial process respectful of human rights29. This indicator might in fact provide a legal benchmark against which unlawful inter-state transfers can be measured30.
35. However, there has clearly been a critical deviation away from notions of justice in the rendition programme. In the wake of the 9/11 attacks, the United States has transformed rendition into one of a range of instruments with which to pursue its so-called “war on terror”. The attacks of 9/11 genuinely signalled something of a watershed in the United States approach to overcoming the terrorist threat31. This new "war on terrorism" was launched by the military intervention in Afghanistan in October 2001. At the same time new importance was attached to the collection of intelligence on persons suspected of terrorism. The CIA was put under pressure to play a more proactive role in the detention and interrogation of suspects rather than just putting them "behind bars". Without appropriate preparation, a global policy of arresting and detaining "the enemies" of the United States was – still according to Scheuer – improvised hastily. It was up to the lawyers to "legitimise" these operations, whilst the CIA and the American military became the principal supervisors and operators of the system32.
36. Rendition operations have escalated in scale and changed in focus. The central effect of the post-9/11 rendition programme has been to place captured terrorist suspects outside the reach of any justice system and keep them there. The absence of human rights guarantees and the introduction of “enhanced interrogation techniques” have led, in several cases examined, as we shall see, to detainees being subjected to torture.
37. The reasons behind the transformation in the character of rendition are both political and operational. First, it is clear that the United States Government has set out to combat terrorism in an aggressive and urgent fashion. The executive has applied massive political pressure on all its agencies, particularly the CIA, to step up the intensity of their counter-terrorist activities. According to Scheuer, “after 9/11, we had nothing ready to go – the military had no plans, they had no response; so the Agency felt the brunt of the executive branch’s desire to show the American people victories”33.
38. Second, and more importantly, the key operational change has been the mandate given to the CIA to administer its own detention facilities. When it takes terrorist suspects into its custody, the CIA no longer uses rendition to transport them into the custody of countries where they are wanted. Instead, for the high-level suspects at least, rendition now leads to secret detention at the CIA’s so-called “black sites”34 in unspecified locations around the world. Rather than face any form of justice, suspects become entrapped in the spider’s web.
2.2. Components of the spider’s web
39. In addition to CIA “black sites”, the spider’s web also encompasses a wider network of detention facilities run by other branches of the United States Government. Examples reported in the public domain have included the US Naval Base at Guantanamo Bay and military prisons such as Bagram in Afghanistan and Abu Ghraib in Iraq. Although the existence of such facilities is known, there are many aspects of their operation too that remain shrouded in secrecy.
40. It should also be noted that “rendition” flights by the CIA are not the only means of transporting detainees between different points on the web. Particularly in the context of transfers to Guantanamo Bay, detainees have been moved extensively on military aircraft35, including large cargo planes. Accordingly military flights have also fallen within the ambit of my inquiry.
41. The graphic included as an annex to this report depicts only a small portion of the global spider’s web. It consists of two main components, described overleaf.
42. First it illustrates the flights of both civilian and military aircraft, operated by the United States, which appear to be connected to secret detentions and unlawful inter-state transfers also involving Council of Europe member states. This inquiry is based on seven separate sets of data from Eurocontrol36, combined with specific information from about twenty national aviation authorities in response to my requests. In this way, we have obtained a hitherto unique database37.
43. Second, it distinguishes four categories of aircraft landing points, which indicate the different degrees of collusion on the part of the countries concerned. These landing points have been placed into their respective categories as follows on the basis of the preponderance of evidence gathered38:
Category A: "Stopover points"
(points at which aircraft land to refuel, mostly on the way home)
Prestwick
Shannon
Roma Ciampino
Athens
Santa Maria (Azores)
Bangor
Prague
Category B: "Staging points"
(points from which operations are often launched - planes and crews prepare there, or meet in clusters)
Washington
Frankfurt
Adana-Incirlik (Turkey)
Ramstein
Larnaca
Palma de Mallorca
Baku (Azerbaijan)
Category C: "One-off pick-up points"
(points from which, according to our research, one detainee or one group of detainees was picked up for rendition or unlawful transfer, but not as part of a systematic occurrence)
Stockholm-Bromma
Banjul
Skopje
Aviano
Tuzla
Category D: "Detainee transfer / Drop-off points"
(places visited often, where flights tend to stop for just short periods, mostly far off the obvious route – either their location is close to a site of a known detention facility or a prima facie case can be made to indicate a detention facility in their vicinity)
2.3. Compiling a database of aircraft movements
44. As we began our work in November 2005, various organisations and individuals in the non-governmental sector, especially investigative journalists and NGOs, sent us lists of aircraft suspected either of belonging to the CIA or of being operated on the CIA’s behalf by bogus “front companies”. The lists contained details such as the type of aircraft, the registered owner and operator, and the “N-number“ by which an aircraft is identified. These lists are the result of painstaking efforts to piece together information that is publicly available on certain Internet sites, observations by “planespotters” and testimony from former detainees. We subsequently received from Eurocontrol "flight plans" regarding these planes, at least in so far as the European air space is concerned, for the period between the end of 2001 and early 2005. The Eurocontrol data received in January and February 2006 include, on the one hand, the plans of flights foreseen (which can be changed even during a flight for different reasons) and, on the other hand, information that has been verified following a request for collection of route charges, and flight data obtained from aviation authorities in the United States and elsewhere.
45. The lists requested from Eurocontrol in our original correspondence were somewhat speculative, but knowingly so. It was important for the inquiry team, in conjunction with external experts and investigators familiar with the topic, to gain a sense of how CIA-related aircraft operate in relation to the thousands of other, non-CIA aircraft that use European airspace. In other words we sought to build a profile of the characteristics of CIA flights. Additionally we hoped that by casting our net widely, we may be able to identify planes never before connected to the CIA.
46. We subsequently reverted to Eurocontrol on several occasions to obtain additional flight records39. As our work has progressed, we have been able to narrow down the number of aircraft movements that are of interest to our work and develop our analysis into a more sophisticated, realistic measure of the extent of illegality in the CIA’s clandestine flight operations.
47. Based on our initial analysis, we sent a series of one-off additional requests to certain national air traffic control bodies in order to obtain records of the flights actually made in their countries; we also asked for data on the movements of military aircraft, which are not covered by Eurocontrol.
48. I am happy to report that through this channel I received useful information from various state institutions in different Council of Europe member States, including from transport ministries, aeronautic authorities, airport operators and state airlines. In addition, I obtained official records from national parliaments directly, including papers lodged by ministries of defence in response to parliamentary questions40. All of these diverse sources have contributed to the database of aircraft movements relied upon in this report.
2.4. Operations of the spider’s web
49. We believe that we have made a significant step towards a better comprehension of the system of "renditions" and secret detention centres. One observation must be made. We should not lose our sense of proportion. It would be exaggerated to talk of thousands of flights, let alone hundreds of renditions concerning Europe. On this point I share the views expressed by members of the US Department of State, who recently delivered a first-hand briefing in Washington, DC at which a member of my team was present41. We undermine our credibility and limit the possibility for serious discussion if we make allegations that are ambiguous, exaggerated or unsubstantiated42. Indeed, it is evident that not all flights of CIA aircraft participate in "renditions". As Mr John Bellinger pointed out:
Mr Scheuer gave another explanation as to the purposes of such flights:
“There are lots of reasons other than moving prisoners to have aircrafts. It all depends on what you are doing. If you are in Afghanistan and you’re supplying weapons to a commander that is working with Karzai’s Government, then it could be a plane load of weapons. It could be food – the CIA is co-located with the US Military in bases around the country, so it could be rations.
Also, we try to take care of our people as well as we can, so it’s toiletries, it’s magazines, it’s video recorders, it’s coffee makers. We even take up collections at Christmas, to make sure we can send out hundreds and hundreds of pounds of Starbucks Coffee. So out of a thousand flights, I would bet that 98% of those flights are about logistics!”44
In fact it is precisely the remaining 2% that interests us.
50. In order to understand the notion of a "spider's web", it is not about the overall numbers of flights45; it is rather about the nature and context of individual flights. Our research has covered ten case studies of alleged unlawful inter-state transfers, involving a total of seventeen individual detainees. In most of these cases it was possible to generate flight logs from the amalgamated official flight database referred to earlier. I have then matched those logs with the times, dates and places of the alleged transfer operations – according to victims themselves, lawyer’s notes or other sources. Finally, where possible, I have corroborated this information with factual elements acquired from legal proceedings in Council of Europe member states or in the United States.
51. In translating these case studies into graphic representations, I resolved to trace each flight route not individually, but as part of a circuit. Each circuit begins and ends, where possible, at the aircraft’s “home base” (very often Dulles Airport in Washington, DC) in the United States. Following these flight circuits helps to better understand the different categories of aircraft landings – simple stopovers for refuelling, staging points that host clusters of CIA aircraft or serve to launch operations, and detainee drop-off points. Despite being a fairly simple analytical technique, it has also helped discover some significant new information, which we present in the following sections.
2.5. Successive rendition operations and secret detentions
52. We believe we are in a position to state that successive CIA rendition operations have taken place in the course of the same, single flight circuit. Two of the rendition case studies examined in this report, both involving Council of Europe member States to differing degrees, belonged to the same clandestine circuit of abductions and renditions at different points of the spider’s web. The information at our disposal indicates that the renditions of Binyam Mohamed and Khaled El-Masri were carried out by the same CIA-operated aircraft, within 48 hours of one another, in the course of the same 12-day tour in January 2004. This finding appears significant for a number of reasons. First, since neither man even knows of the other – Mr Mohamed is still detained at Guantanamo Bay and Mr El-Masri has returned to his home community near Ulm in the South of Germany – their respective stories can be used to lend credence to one another. My team has received direct or indirect testimony from each of them independently.
53. As they both allege having been subjected to CIA rendition, the fact that the same aircraft - operated by a CIA-linked company – carried out two transfers in such quick succession allows us to speak of the existence of a “rendition circuit” within the "spider's web".
54. It is also possible to develop a hypothesis as to the nature of some other aircraft landings belonging to the same renditions circuit. Thus, for example, the landings which occurred directly before and directly after the El-Masri rendition bear the typical characteristics of rendition operations46.
55. Our analysis of the rendition programme in the post-9/11 era allows us to infer that the transfer of other detainees on this rendition circuit must have entailed detainees being transferred out of Kabul to alternative detention facilities in different countries. Thus, drawing upon official flight data, the probable existence of secret detention facilities can be inferred in Algeria and, as we will see, in Romania.
2.6. Detention facilities in Romania and Poland
2.6.1 The case of Romania
56. Romania is thus far the only Council of Europe member State to be located on one of the rendition circuits we believe we have identified and which bears all the characteristics of a detainee transfer or drop-off point. The N313P rendition plane landed in Timisoara at 11.51 pm on 25 January 2004 and departed just 72 minutes later, at 1.03 am on 26 January 2004. I am grateful to the Romanian Civil Aeronautic Authority for confirming these flight movements47.
57. It is known that detainee transport flights are customarily night flights, as is the case of the other rendition flights already documented. The only other points on this rendition circuit from which the plane took off at a similar hour of the morning were Rabat, Morocco (departure at 2.05 am) and Skopje, Macedonia (departure at 1.30 am). In both of these cases, we possess sufficient indications to claim that when the plane left its destination, it was carrying a prisoner to a secret detention centre situated in Kabul.
58. We can likewise affirm that the plane was not carrying prisoners to further detention when it left Timisoara. Its next destination, after all, was Palma de Mallorca, a well-established “staging point”, also used for recuperation purposes in the midst of rendition circuits.
59. There is documentation in this instance that the passengers of the N313P plane, using US Government passports48 and apparently false identities49, stayed in a hotel in Palma de Mallorca for two nights before returning to the United States. One can deduce that these passengers, in addition to the crew of the plane, comprised a CIA rendition team, the same team performing all renditions on this circuit.
60. The N313P plane stayed on the runway at Timisoara on the night of 25 January 2004 for barely one hour. Based on analysis of the flight capacity of N313P, a Boeing 737 jet, in line with typical flight behaviours of CIA planes, it is highly unlikely that the purpose of heading to Romania was to refuel. The plane had the capacity to reach Palma de Mallorca, just over 7 hours away, directly from Kabul that night – twice previously on the same circuit, it had already flown longer distances of 7 hours 53 minutes (Rabat to Kabul) and 7 hours 45 minutes (Kabul to Algiers).
61. It should be recalled that the rendition team stayed about 30 hours in Kabul after having "rendered" Khaled El-Masri. Then, it flew to Romania on the same plane. Having eliminated other explanations – including that of a simple logistics flight, as the trip is a part of a well-established renditions circuit – the most likely hypothesis is that the purpose of this flight was to transport one or several detainees from Kabul to Romania.
62. We consider that while all these factual elements do not provide definitive evidence of secret detention centres, they do justify on their own a positive obligation to carry out a serious investigation, which the Romanian authorities do not seem to have done to date.
2.6.2. The case of Poland
63. Poland was likewise singled out as a country which had harboured secret detention centres.
64. On the basis of information obtained from different sources we were able to determine that persons suspected of being high level terrorists were transferred out of a secret CIA detention facility in Kabul, Afghanistan in late September and October 200350. During this period, my official database shows that the only arrival of CIA-linked aircraft from Kabul in Europe was at the Polish airport of Szymany. The flights in question, carried out by the well-known ‘rendition plane’ N313P, bear all the hallmarks of a rendition circuit.
65. The plane had arrived in Kabul, on 21 September 2003, from Tashkent, Uzbekistan. The axis between Tashkent and Kabul was well known for detainee transfers51. Still, according to information received, the most significant detainee movements at this time probably involved transfers out of Kabul. The explanation attributed by NGO sources and journalists who have investigated this period52 is that the CIA required a more isolated, secure, controlled environment in which to hold its high-level detainees, due to the proliferation of both prison facilities and prisoners in Afghanistan arising from the escalating “war on terrorism”.
66. Thus, the circuit in question continued on 22 September 2003, when the plane flew from Kabul to Szymany airport in Poland. On the same grounds given above for the case of Romania, one may deduce that this flight was a CIA rendition, culminating in a “detainee drop-off” in Poland.
67. Szymany is described by the Chairman of the Polish delegation to PACE as a “former Defence Ministry airfield”, located near the rural town of Szczytno in the North of the country. It is close to a large facility used by the Polish intelligence services, known as the Stare Kiejkuty base. Both the airport and the nearby base were depicted on satellite images I obtained in January 200653.
68. It is noteworthy that the Polish authorities have been unable, despite repeated requests, to provide me with information from their own national aviation records to confirm any CIA-connected flights into Poland. In his letter of 9 May 2006, my colleague Karol Karski, the Chairman of the Polish delegation to PACE, explained:
"I addressed the Polish authorities competent in gathering the air traffic data, related to these aircraft numbers… I was informed that several numbers from your list were still not found in our flight logs’ records. Being not aware about the source of your information connecting these flight numbers with Polish airspace, I am not able, [nor are] the Polish air traffic control authorities, to comment on the fact of missing them in our records."54
69. Mr. Karski also made the following statement, which reflects the position of the Polish Government on the question of CIA renditions:
70. The absence of flight records from a country such as Poland is unusual. A host of neighbouring countries, including Romania, Bulgaria and the Czech Republic have had no such similar problems in retrieving official data for the period since 2001. Indeed, the submissions of these countries, along with my data from Eurocontrol, confirm numerous flights into and out of Polish airports by the CIA-linked planes that are the subject of this report.
71. In this light, Poland cannot be considered to be outside the rendition circuits simply because it has failed to furnish information corroborating our data from other sources. I have thus presented in my graphic the suspected rendition circuit involving Szymany airport, in which the landing at Szymany is placed in the category of “detainee drop-off” points.
72. According to records in our possesion, the N313P plane remained at Szymany airport on 22 September 2003 for just 64 minutes. I can also confirm that the plane then flew from Szymany to Romania, where it landed, after a change of course, in Bucharest Baneasa airport. Here, as in the case of Timisoara above, the aircraft landing in Romania fits the profile of a “detainee drop-off”.
73. It is possible that several detainees may have been transported together on the flight out of Kabul, with some being left in Poland and some being left in Romania. This pattern would conform with information from other sources, which indicated the simultaneous existence of secret prisons in these two Council of Europe member States55.
74. This suspected rendition circuit continued after Romania by landing in Rabat, Morocco, which several elements point to as a location that harbours a detention facility56. It is conceivable that this landing may even have constituted a third “detainee drop-off” in succession before the plane returned to the United States, via Guantanamo Bay.
75. As for Romania, I find that there is now a preponderance of indications, not to prove the existence of detention centres, but in any case to open a real in-depth and transparent inquiry. One can add that the sources at the origin of the publications by Human Rights Watch, The Washington Post and ABC News, referring to the existence of such centres in Romania and Poland, are mutliple, concordant and particularly well informed, as they belong to the very services that have directed these operations.
2.7. The human impact of rendition and secret detention
76. Rendition is a degrading and dehumanising practice; certainly for its victims, but also for those who perform the operations. This simple realisation has become clear to me and my team as we have met with various people whose lives have been indelibly changed by rendition.
77. Therefore, while it is necessary to analyse the global system that rendition has become, we should never lose sight of the human dimension, as this is at the core of the abuses.
78. I have considered the human impact of rendition in two ways: first, the systematic CIA practice of preparing a detainee to be transported on a rendition aircraft; and second, the grave and long-lasting psychological damage that extraordinary rendition inflicts upon its victims.
2.7.1. CIA methodology – how a detainee is treated during a rendition
79. The descriptions of rendition operations in this report reflect many different individual cases. These cases entail a diverse range of victims, being captured in and transferred to numerous different countries, spanning a time period of several years. The stories are recounted by both first- and second-hand witnesses, speaking various languages in various public and private forums. Some of the people subjected to rendition have since been released, while others are still detained in the custody of the United States or another country. In short, the cases appear to have little or no connection to one another.
80. Yet on the contrary there are striking parallels between several of these renditions, particularly as they relate to the CIA’s methodology. It seems that in each separate case, rendition was carried out in an almost identical manner. Collectively the cases in the report testify as to the existence of an established modus operandi of rendition, put into practice by an elite, highly-trained and highly-disciplined group of CIA agents who travel around the world mistreating victim after victim in exactly the same fashion.
81. It falls to analyse this methodology through the lens of human rights, as they are enshrined in the European Convention on Human Rights (ECHR) and applied in the vast majority of the countries that share these values. Every individual, even those accused, or found guilty, of involvement in terrorism and other categories of serious crime, has the unqualified right not to be tortured or subjected to inhuman and degrading treatment or punishment. While state agents have the right to use force in carrying out their work, there are obviously strict limits on the extent to which restraining or coercive measures may be applied during the course of an arrest or transfer operation.
82. According to Michael Scheuer, the CIA intentionally puts security concerns ahead of the rights of the detainee during a rendition operation:
“Clearly your first priorities in those situations are to protect your officers. So the person would generally be shackled and restrained. And probably at least getting on to the plane and while it was on the ground, he was blindfolded.
I would think that the locals who arrested him would probably be the ones who would handcuff and blindfold him. Then he would be put on the plane, prepared and tied into his seat, or however it happened, and be watched over by guards from the receiving country he was going back to.”57
83. I consider that no security measure justifies a massive and systematic violation of human rights and dignity. In the cases examined – whilst being conscious of dealing with possibly dangerous persons – the principle of proportionality was simply ignored and with it the dignity of the person. In several instances, the actions undertaken in the course of a ‘security check’ were excessive in relation to security requirements58 and may therefore constitute a violation of Article 3 ECHR59. While it does not appear to reach the threshold for torture60, it may well be considered as inhuman or degrading, particularly in the extent to which it humiliates the person being rendered61.
84. The “security check” used by the CIA to prepare a detainee for transport on a rendition plane was described to us by one source in the American intelligence community as a “twenty-minute takeout”62. His explanation was that within a very short space of time, a detainee is transformed into a state of almost total immobility and sensory deprivation. “The CIA can do three of these guys in an hour. In twenty minutes they’re good to go.”63 An investigating officer for the Swedish Ombudsman was struck by the “fast and efficient procedure” used by the American agents64, while the Swedish interpreter who witnessed the CIA operation at Bromma Airport said simply: “it surprised me how the heck they could have dressed him so fast”65.
85. The general characteristics of this “security check” can be established from a host of testimonies as follows66:
i. it generally takes place in a small room (a locker room, a police reception area) at the airport, or at a transit facility nearby.
ii. the man is sometimes already blindfolded when the operation begins, or will be blindfolded quickly and remain so throughout most of the operation.
iii. four to six CIA agents perform the operation in a highly-disciplined, consistent fashion – they are dressed in black (either civilian clothes or special 'uniforms'), wearing black gloves, with their full faces covered. Testimonies speak, variously, of “big people in black balaclavas”67, people “dressed in black like ninjas”68, or people wearing “ordinary clothes, but hooded”69.
iv. the CIA agents “don’t utter a word when they communicate with one another”70, using only hand signals or simply knowing their roles implicitly.
v. some men speak of being punched or shoved by the agents at the beginning of the operation in a rough or brutal fashion71; others talked about being gripped firmly from several sides
vi. the man’s hands and feet are shackled.
vii. the man has all his clothes (including his underwear) cut from his body using knives or scissors in a careful, methodical fashion; an eye-witness described how “someone was taking these clothes and feeling every part, you know, as if there was something inside the clothes, and then putting them in a bag”72.
viii. the man is subjected to a full-body cavity search, which also entails a close examination of his hair, ears, mouth and lips.
ix. the man is photographed with a flash camera, including when he is nearly73 or totally naked74; in some instances, the man's blindfold may be removed for the purpose of a photograph in which his face is also identifiable75.
x. some accounts speak of a foreign object being forcibly inserted into the man's anus; some accounts speak more specifically of a tranquiliser or suppository being administered per rectum76 - in each description this practice has been perceived as a grossly violating act that affronts the man’s dignity.
xi. the man is then dressed in a nappy or incontinence pad and a loose-fitting "jump-suit" or set of overalls; “they put diapers on him and then there is some handling with these handcuffs and foot chains, because first they put them on and then they are supposed to put him in overalls, so then they have to alternately unlock and relock them”77.
xii. the man has his ears muffled, sometimes being made to wear a pair of "headphones"78
xiii. finally a cloth bag is placed over the man's head, with no holes through which to breathe or detect light; they “put a blindfold on him and after that a hood that apparently reaches far down on his body” 79.
xiv. the man is typically forced aboard a waiting aeroplane, where he may be “placed on a stretcher, shackled”80, or strapped to a mattress or seat, or “laid down on the floor of the plane and they bind him up in a very uncomfortable position that makes him hurt from moving”81.
xv. in some cases the man is drugged and experiences little or nothing of the actual rendition flight82; in other cases, factors such as the pain of the shackles or the refusal to drink water or use the toilet make the flight unbearable: “this was the hardest moment in my life”83.
xvi. in most cases, the man has no notion of where he is going, nor the fate that awaits him upon arrival.
86. This manner of treating detainees has been heavily criticised by the lawyers of many of the persons subjected to rendition. In his testimony to the Swedish Ombudsman, Kjell Jönsson, the Swedish lawyer for Mohamed Alzery84, stated his concern that the measures taken before the rendition were disproportionate to the security needs: “from Alzery’s point of view it would have been perfectly enough to ask him to co-operate and he would have done that just like he always has done before”85.
87. Perhaps the most troubling aspect of this systematic practice, however, is that it appears to be intended to humiliate. Many accounts speak of these measures being taken despite ‘strong resistance’, both physical and verbal, on the part of the detainee. The nudity, forced shackling ‘like an animal’86 and being forced to wear nappies appear offensive to the notions of dignity held by the detainees. In my view it is simply not acceptable in Council of Europe member States for security services, whether European or foreign, to treat people in a manner that amounts to such “extreme humiliation”87.
2.7.2. The effects of rendition and secret detention on individuals and families
88. In compiling this report, members of my team and I have met directly with several victims of renditions and secret detentions, or with their families. In addition, we have obtained access to further first-hand accounts from victims who remain detained, in the form of their letters or diaries, unclassified notes from their discussions with lawyers, and official accounts of visits from Embassy officials.
89. Personal accounts of this type of human rights abuse speak of utter demoralisation. Of course, the despair is greatest in cases where the abuse persists – where a person remains in secret detention, without knowing the basis on which he is being held, and where nobody apart from his captors knows about his exact whereabouts or wellbeing. The uncertainty that defines rendition and secret detention is torturous, both for those detained and those for whom they are “disappeared”88.
90. Yet the ordeal continues long after a detainee is located, or even released and able to return home. Victims have described to us how they suffer from flashbacks and panic attacks, an inability to lead normal relationships and a permanent fear of death. Families have been torn apart. On a personal level, deep psychological scars persist; and on a daily basis, stigma and suspicion seem to haunt anybody branded as “suspect” in the “war on terror”. In short, links with normal society appear practically impossible to restore.
91. I salute the remarkable courage and resilience of those who have been held in secret detention and subsequently released, like Khaled El-Masri and Maher Arar. Both these men have spoken eloquently to us about what moves them to recount their experiences despite the obvious pain and trauma of doing so. From these words we must draw our own resolve to uncover the secret abuses of the spider’s web and ensure that they never again be allowed to occur. From Mr. El-Masri, “all I want is to know the truth about what happened to me and to have the American Government apologise for what it did”89; from Mr. Arar, “the main purpose of talking about my torture is to prevent the same treatment from ever happening to another human being”90.
3. Specific examples of documented renditions
3.1. Khaled El-Masri
92. We have spoken for many hours with Khaled El-Masri, who also testified publicly before the Temporary Committee of the European Parliament, and we find credible his account of detention in Macedonia and Afghanistan for nearly five months.
3.1.1. The individual account of Mr. El-Masri
93. A summary of the unprecedented suffering endured by Mr El-Masri reads as follows:
94. [A]ccording to the statement of facts presented to the US District Court91, Khaled El-Masri, a German citizen of Lebanese descent, travelled by bus from his home near Neu Ulm, Germany, to Skopje, Macedonia, in the final days of 2003. After passing through several international border crossings without incident, Mr El-Masri was detained at the Serbian-Macedonian border because of alleged irregularities with his passport. He was interrogated by Macedonian border officials, then transported to a hotel in Skopje. Subsequent to his release in May, 2004, Mr El-Masri was able to identify the hotel from website photographs as the Skopski Merak, and to identify photos of the room where he was held and of a waiter who served him food. Over the course of three weeks, Mr El-Masri was repeatedly interrogated about alleged contacts with Islamic extremists, and was denied any contact with the German Embassy, an attorney, or his family. He was told that if he confessed to Al-Qaeda membership, he would be returned to Germany. On the thirteenth day of confinement, Mr El-Masri commenced a hunger strike, which continued until his departure from Macedonia. After 23 days of detention, Mr El-Masri was videotaped, blindfolded, and transported by vehicle to an airport.
95. There, he was beaten, stripped naked, and thrown to the ground. A hard object was forced into his anus. When his blindfold was removed, he saw seven or eight men, dressed in black and hooded. He was placed in a diaper and sweatsuit, blindfolded, shackled, and hurried to a plane, where he was chained spreadeagled to the floor. He was injected with drugs and flown to Baghdad, then on to Kabul, Afghanistan, an itinerary that is confirmed by public flight records. At some point prior to his departure, an exit stamp was placed in his passport, confirming that he left Macedonia on January 23, 2004.
96. Upon arrival in Kabul, Mr El-Masri was kicked and beaten and left in a filthy cell. There he would be detained for more than four months. He was interrogated several times in Arabic about his alleged ties to 9/11 conspirators Muhammed Atta and Ramzi Bin Al-Shibh and to other alleged extremists based in Germany. American officials participated in his interrogations. All of his requests to meet with a representative of the German government were refused.
97. In March, Mr El-Masri and several other inmates commenced a hunger strike. After nearly four weeks without food, Mr El-Masri was brought to meet with two American officials. One of the Americans confirmed Mr El-Masri’s innocence, but insisted that only officials in Washington, D.C. could authorize his release. Subsequent media reports confirm that senior officials in Washington, including the CIA Director Tenet, were informed long before Mr El-Masri’s release that the United States had detained an innocent man. Mr El-Masri continued his hunger strike. On the evening of April 10, Mr El-Masri was dragged from his room by hooded men and force-fed through a nasal tube.
98. At around this time, Mr El-Masri felt what he believed to be a minor earthquake. Geological records confirm that in February and April, there were two minor earthquakes in the vicinity of Kabul.
99. On May 16, Mr El-Masri was visited by a uniformed German speaker who identified himself as “Sam”. “Sam” refused to say whether he had been sent by the German government, or whether the government knew about Mr El-Masri’s whereabouts. Subsequent to his release, Mr El-Masri identified “Sam” in a photograph and a police lineup as Gerhard Lehmann, a German intelligence officer.
100. On May 28, 2004, Mr El-Masri, accompanied by “Sam,” was flown from Kabul to a country in Europe other than Germany. He was placed, blindfolded, into a truck and driven for several hours through mountainous terrain. He was given his belongings and told to walk down a path without turning back. Soon thereafter, he was confronted by armed men who told him he was in Albania and transported him to Mother Theresa Airport in Tirana. There, he was accompanied through customs and immigration controls and placed on a flight to Frankfurt.
101. Upon his return to Germany, Mr El-Masri contacted an attorney and related his story. The attorney promptly reported Mr El-Masri’s allegations to the German government, thereby initiating a formal investigation by public prosecutors. Pursuant to their investigation, German prosecutors obtained and tested a sample of Mr El-Masri’s hair, which proved consistent with his account of detention in a South-Asian country and deprivation of food for an extended period. That investigation, as well as a German parliamentary investigation of Mr El-Masri’s allegations, is ongoing.
3.1.2. Elements of corroboration for Mr. El-Masri’s account
102. Mr El-Masri’s account is borne out by numerous items of evidence, some of which cannot yet be made public because they have been declared secret92, or because they are covered by the confidentiality of the investigation underway in the office of the Munich prosecuting authorities following Mr El-Masri’s complaint of abduction.
103. The items already in the public domain are cited in the afore-mentioned memorandum93 submitted to the Virginia court in which Mr El-Masri lodged his complaint:
• Passport stamps confirming Mr El-Masri’s entry to and exit from Macedonia, as well as exit from Albania, on the dates in question;
• Scientific testing of Mr El-Masri’s hair follicles, conducted pursuant to a German criminal investigation, that is consistent with Mr El-Masri’s account that he spent time in a South-Asian country and was deprived of food for an extended period of time;
• Other physical evidence, including Mr El-Masri’s passport, the two t-shirts he was given by his American captors on departing from Afghanistan, his boarding pass from Tirana to Frankfurt, and a number of keys that Mr El-Masri possessed during his ordeal, all of which have been turned over to German prosecutors;
• Aviation logs confirming that a Boeing business jet owned and operated by defendants in this case, then registered by the FAA as N313P, took off from Palma, Majorca, Spain on January 23, 2004; landed at the Skopje airport at 8:51 p.m. that evening; and left Skopje more than three hours later, flying to Baghdad and then on to Kabul, the Afghan capital;
• Witness accounts from other passengers on the bus from Germany to Macedonia, which confirm Mr El-Masri’s account of his detention at the border;
• Photographs of the hotel in Skopje where Mr El-Masri was detained for 23 days, from which Mr El-Masri has identified both his actual room and a staff member who served him food;
• Geological records that confirm Mr El-Masri’s recollection of minor earthquakes during his detention in Afghanistan;
• Evidence of the identity of “Sam,” whom Mr El-Masri has positively identified from photographs and a police line-up, and who media reports confirm is a German intelligence officer with links to foreign intelligence services;
• Sketches that Mr El-Masri drew of the layout of the Afghan prison, which were immediately recognizable to another rendition victim who was detained by the U.S. in Afghanistan;
• Photographs taken immediately upon Mr El-Masri’s return to Germany that are consistent with his account of weight loss and unkempt grooming.
Numerous government inquiries, including the German prosecutors’ investigation, a German parliamentary investigation, and various intergovernmental human rights inquiries, are almost certain to produce additional corroborating evidence.
3.1.3. The role of "the former Yugoslav Republic of Macedonia"
104. The role of "the former Yugoslav Republic of Macedonia" in the rendition of Khaled El-Masri has yet to be fully understood. The information collected on site by a member of my team appears to show a certain ambiguity in the Macedonian position. In effect, the Government of Macedonia has adopted an ‘official line’ of complete negation, repeated in a rigid and stereotyped fashion.
105. I am indebted to the delegation from the European Parliament for arranging and administering an excellent programme of meetings with the highest-level representatives of the Macedonian Government and Parliament94. I share many of the reflections of my colleagues from the European Parliament in their review of these meetings, not least the sense of discomfort that in many areas the Macedonian authorities fell short of genuine transparency95.
3.1.3.1. The position of the authorities
106. The ‘official line’ of the Macedonian Government was first contained in a letter from the Minister of Interior, Ljubomir Mihajlovski, to the Ambassador of the European Commission, Erwan Fouere, dated 27 December 2005. In its simplest form, it essentially contains four items of information “according to police records”: first, Mr El-Masri arrived by bus at the Macedonian border crossing of Tabanovce at 4.00pm on 31 December 2003; second, he was interviewed by “authorised police officials” who suspected “possession of a falsified travel document”; third, approximately five hours later, Mr El-Masri “was allowed entrance” into Macedonia, apparently freely; and fourth, on 23 January 2004, he left Macedonia over the border crossing of Blace into Kosovo.
107. Mr Mihajlovski restated exactly the same Government position in response to a parliamentary question in the Sobranie on 26 January 200696. He cited “official evidence of the Ministry of Interior” and went on to describe the allegations as “speculative and unfounded”.
108. The President of the Republic, Branko Crvenkovski, set out a firm stance in the very first meeting with the European Parliament delegation, providing a strong disincentive to any official who may have wished to break ranks by expressing an independent viewpoint: “Up to this moment, I would like to assure you that I have not come across any reason not to believe the official position of our Ministry of Interior. I have no additional comments or facts, from any side, to convince me that what has been established in the official report of our Ministry is not the truth.”
109. On Friday 28 April the official position was presented in far greater detail during a meeting with Siljan Avramovski, who was Head of the UBK97, Macedonia’s main intelligence service, at the time of the El-Masri case. Avramovski stated that the UBK’s ‘Department for Control and Professional Standards’ had undertaken an investigation into case and traced official records of all Mr El-Masri’s contact with the Macedonian authorities. The further details as presented by Mr Avramovski98 are summarized as follows:
Mr El-Masri arrived on the Macedonian border on 31 December 2003, New Year’s Eve. The Ministry of Interior had intensified security for the festive period and was operating a higher state of alert around the possible criminal activity. In line with these more intense activities, bus passengers were being subjected to a thorough security check, including an examination of their identity documents.
Upon examining Mr El-Masri’s passport, the Macedonian border police developed certain suspicions and decided to “detain him”. In order not to make the other passengers wait at the border, the bus was at this point allowed to continue its journey.
The objective of holding Mr El-Masri was to conduct an interview with him, which (according to Avramovski) was carried out in accordance with all applicable European standards. Members of the UBK, the security and counter-intelligence service, are present at all border points in Macedonia as part of what is described as “Integrated Border Management and Security”. UBK officials participated in the interview of Mr El-Masri.
The officials enquired into Mr El-Masri’s reasons for traveling into the country, where he intended to stay and whether he was carrying sufficient amounts of money. Avramovski explained: “I think these were all standard questions that are asked in the context of such a routine procedure – I don’t think I need to go into further details”.
At the same time, Macedonian officials undertook a preliminary visual examination of Mr El-Masri’s travel documents. They suspected that the passport might be faked or forged – noting in particular that Mr El-Masri was born in Kuwait, yet claimed to possess German citizenship.
A further passport check was carried out against an Interpol database. The border point at Tabanovce is not linked to Interpol’s network, so the information had to be transmitted to Skopje, from where an electronic request was made to the central Interpol database in Lyon. A UBK official in the Analytical Department apparently made this request using an electronic code, so the Macedonian authorities can produce no record of it. Mr El-Masri was made to wait on the border point while the Interpol search was carried out.
When it was established that there existed no Interpol warrant against Mr El-Masri and no further grounds on which to hold him99, he was released. He then left the border point at Tabanovce, although Macedonian officials were not able to describe how. Asked directly about this point in a separate meeting, the Minister of Interior, Mr Mihajlovski said: “we’re not able to tell you exactly what happened to him after he was released because it is not in our interest; after the person leaves the border crossing, we’re not in a position to know how he traveled further”100.
The Ministry of Interior subsequently established, according to Avramovski, that Mr El-Masri had staid at a hotel in Skopje called the “Skopski Merak”. Mr El-Masri is said to have checked in on the evening of 31 December 2003 and registered in the Guest Book. He stayed for 23 nights, including daily breakfast, and checked out on 23 January 2004.
The Ministry then conducted a further check on all border crossings and discovered that on the same day, 23 January 2004, in the evening, Mr El-Masri left the territory of Macedonia over the border crossing at Blace, into the territory of Kosovo. When asked whether Mr El-Masri had received a stamp to indicate his departure by this means, Avramovski answered: “Normally there should be a stamp on the passport as you cross the border out of Macedonia, but I can’t be sure. UNMIK is also present on the Kosovo border and is in charge of the protocol on that side… My UBK colleague has just informed me that he has crossed the border at Blace twice in recent times and didn’t receive a stamp on either occasion.”
Avramovski concluded his summary with the words: “This is the truth of the case that has been exploited by the media – the so-called El-Masri case.”
110. In a separate meeting directly following Avramovski’s briefing, Minister Mihajlovski retained the position and added very few further details. Both officials were keen to talk about the case as if it were a routine matter, one which only came to their attention when it was reported in the local and international press. They referred repeatedly to the media “prejudice” and “pressure” against Macedonia. Mihajlovski even implied that there was a conspiracy theory at play, designed to discredit the country:“Who is really behind all of this? This case is making so much damage to the country. If you can get a reason why it is happening, please send us a message; tell us.”
111. It seems clear that the Macedonian public has reacted negatively to the El-Masri affair. Most Macedonians feel aggrieved that their country has been given such a bad press and is associated with what is often portrayed as a manipulative operation. Many regard the international media interest as a thinly veiled attempt to discredit Macedonia’s prospects for European integration. In reality, it seems that the Macedonian Government is itself responsible for this situation. More transparency, and a greater degree of preparedness genuinely to seek the truth, rather than locking themselves into a pre-established, dogmatic scheme, would have certainly avoided much criticism and suspicion.
3.1.3.2. Further elements
112. The Government’s official line is based on what Mr Avramovski called “a reconstruction after the fact, based on information we established through documents and discussions” with, inter alia, “employees of the hotel”. There is no doubt in my mind that the Ministry of Interior has put together a very thorough reconstruction of the case; just not an accurate one. Equally I accept that the Ministry has undertaken “discussions” with witnesses, including hotel employees; but I regard these as efforts to harmonise the official line, not to establish the truth.
113. One could, with sufficient application, begin to tease out discrepancies in the official line. For example, the Ministry of Interior stated that “the hotel owner should have the record of Mr El-Masri’s bill”, while the hotel owner responded to several inquiries, by telephone and in person, by saying that the record had been handed over to the Ministry of Interior.
114. Contacts we were able to make with sources close to the administration and to the intelligence services have enabled us to obtain much more credible information, in order to better understand what really happened. We can consequently present a more coherent analysis of this case. For obvious reasons, the sources contacted locally wish to stay anonymous, at least for the time being.
115. The Government’s public portrayal seems at first glance perfectly plausible. However, it ceases to be credible when it asserts that El-Masri was allowed to proceed freely from Tabanovce on the evening of 31 December 2003. In reality, that evening signaled the beginning of his five-month ordeal in secret detention ordered by the CIA.
116. What is not said in the official version is the fact that the Macedonian UBK routinely consults with the CIA on such matters (which, on a certain level, is quite comprehensible and logical). According to confidential information we received (of which we know the source), a full description of Mr El-Masri was transmitted to the CIA via its Bureau Chief in Skopje for an analysis similar to the one Avramovski says was undertaken by Interpol: whether the person checked out had contacts with terrorist movements, in particular Al Qaida. Based on the intelligence material about Khaled El-Masri in its possession – the content of which is not known to us – the CIA answered in the affirmative. The UBK, as the local partner organisation, was requested to assist in securing and detaining Mr El-Masri until he would be handed over to the CIA for transfer.
117. The UBK has an excellent reputation for its professionalism. It is well practiced in the conduct of clandestine surveillance and detention operations, having exploited its own network of ’secret apartments’ for decades101. Information obtained from our internal sources indicates that the UBK is equally skilled in working on behalf of the CIA. – we even learned of one previous collaborative operation between these services in the past, targeted at apprehending suspected Islamic terrorists. In the El-Masri case, according to our understanding, this co-operation was particularly efficient and the Macedonian services fulfilled the expectations of the CIA.
118. The choice of the Skopski Merak hotel as a detention site warrants comment. The Macedonian authorities have categorically denied that this hotel could have served as a place for detention, considering such a possibility as downright ridiculous. Avramovski said he could “absolutely” rule out the prospect of Mr El-Masri’s being held there:
“Look, I can state this very specifically and decisively. The 31 December is New Year’s Eve – that period is a holiday, there are always a lot of guests, many of them tourists, in the hotel to celebrate the New Year.
There is not even a theoretical possibility [laughing] that a person could be detained in an open hotel, where there’s a constant flow of people coming and going. There were many guests there at the time, including foreign nationals – it’s a well-known, open hotel with a fine reputation in this city!”
In fact, a busy place with this hotel’s features lends itself very well to a clandestine operation, given that a top-floor room facing away from the street was used.
119. Whilst the operation was driven and directed by CIA agents, the Americans kept a very low profile throughout the operation in Macedonia. The CIA transmitted to UBK the questions to ask the suspect, without ever taking part in any interrogation.
120. Several of our interviewees told us – with varying degrees of knowledge – that German intelligence was informed of the fact that Mr El-Masri was in Macedonian custody in the days immediately following the arrest, but not about the operational details. Intelligence material from Germany was added to the dossier from which questions were later asked, both in Macedonia and in Afghanistan, by interrogators of various nationalities.
121. According to our insider sources in the intelligence community, whom we consider serious and well-informed, approximately 20 officials were involved overall on the Macedonian side, including “four or five” politically responsible persons in Government. Three teams of three agents rotated in the task of guarding and surveillance. Technicians and analysts helped to compile the record of the operation, which was a running log rather than a cumulative written report. An operational commander and a deputy marshaled the Macedonian agents and took responsibility for reporting to their liaisons in the CIA.
122. The period for which the Macedonians held Mr El-Masri in advance of his rendition – 23 days – was abnormally long for any operation involving the CIA. Partner agencies and CIA officials alike prefer to keep the time between the initial arrest and the transfer to a CIA detention centre as short as possible102.
123. The delay in this case appears to have been caused by logistical reasons, in particular related to the availability of an aircraft. A flight on an unusual route, from Skopje into the Middle East, had to be incorporated into an existing schedule for that month, which, as established above in the description of the newly-discovered rendition circuit, included other detainee transfers.
124. According to further eye-witness accounts from persons in the civil aviation sector, who described the presence and movements of the suspect rendition plane at Skopje airport that evening, the aircraft thought to have taken Mr El-Masri on board did not follow regular procedures. The manner in which the plane registered with ground staff and paid its ‘route charge’ fees was highly unusual – as the Ministry of Interior himself confirmed, no passengers even left the plane to enter the terminal building and thus cross officially onto Macedonian territory. Instead the plane taxied into position at the far end of the runway, more than a kilometer from the terminal. A detail of armed Macedonian security police formed a lookout nearby, under strict instructions to face away from the plane itself. Asked whether such a measure was conventional for foreign aircraft, Minister of Interior Mihajlovski answered: “No, no. Not at all. The plane is not Macedonian territory; if Spain sends us a plane, it’s the territory of Spain. If there’s a bomb on board we must come inside; but otherwise it’s like a ship, a diplomatic territory”.
125. All these factual elements indicate that the CIA carried out a “rendition” of Khaled El-Masri. The plane in question had finished transferring another detainee just two days earlier and the plane was still on the same ‘rendition circuit’. The plane and its crew had spent the interim period at Palma de Mallorca, a popular CIA staging point. The physical and moral degradation to which Mr El-Masri was subjected before being forced aboard the plane in Macedonia corresponds with the CIA’s systematic ’rendition methodology’ described earlier in this report. The destination of the flight carrying Mr El-Masri, Kabul, forms a hub of CIA secret detentions in our graphic representation of the “spider’s web”.
126. All the indications are that the Macedonian authorities have decided to deny their part in the abduction of El-Masri, admitting only what has already been clearly proven and trying to conceal the rest. It is regrettable that the will is lacking to perform a true inquiry and that Parliament has not shown the initiative to take up the issue (as the German Bundestag has done in the same case). To this must be added the further accusations of the Macedonian Helsinki Committee for Human Rights. According to reports produced by this NGO, suspects were and still are interrogated and sometimes imprisoned and ill-treated for several days, outside the normal arrest and custody system103, specifically in the ‘apartments’ that had been widely used by the previous regime.
127. It is worth repeating that the analysis of all facts concerning this case pleads in favour of the credibility of El-Masri. Everything points in the direction that he was the victim of abduction and ill-treatment amounting to torture within the meaning given to it by the case-law of the United Nations Committee against Torture. In addition, numerous indications support the conclusion that German services participated in a manner that still remains to be established precisely (not excluding the fact that the same services were in the end instrumental in El-Masri’s release; the latter told me that he considered ‘Sam’ as his guardian angel, a kind of ‘life insurance’)104.
128. The detailed information with which El-Masri was confronted during his interrogations in Skopje and in Afghanistan included details of his private life in Neu-Ulm. It is hard to imagine that such information could have been obtained by foreign services without help from their German counterparts. For example, the interrogators in Afghanistan knew that El-Masri had met a certain Reda Seyam105 at the Multikulturhaus and had agreed to get a car which Seyam had just bought with his help registered in the name of El-Masri’s wife in order to save on the cost of insurance. El-Masri assured me that he had shared this information only with Seyam and his wife. In addition, the same interrogators confronted him with bank details of money transfers between his bank in Neu-Ulm and an account in Norway106. Such bank details are not normally accessible to foreign services.
129. In my opinion, this detailed knowledge of Mr El-Masri’s –real – life also rules out the theory that Mr El-Masri was the victim of mere mistaken identity107, being confused with a person of the same (or similar) name, whose name appeared in the American Congress report on the 9 September attacks108 as having travelled by train in Germany together with members of the “Hamburg cell” of the terrorists of 11 September, including one of the murderous pilots, Muhammad Atta109.
130. As regards the identity of “Sam”, who came and interrogated Mr El-Masri in Afghanistan and accompanied him back on the return flight to Europe, speaking German with a a Northern accent, Mr El-Masri remains convinced that this is Mr Lehmann, an agent of the German Bundeskriminalamt. He had identified him with ‘100%’ certainty on photographs and a videotape, and with ‘90%‘ certainty at a surprise police lineup on 22 February 2006110.
131. Mr El-Masri has also been the victim of a defamatory campaign. The press service of the Baden-Württemberg Ministry of the Interior had indicated that El-Masri was a member of “Al Tawid”, implying “Al Tawid al Jihad”, a group belonging to Al Quaida and headed by Abu Musab al-Zarkawi. According to Mr Gnjidic, the confusion was deliberate: El-Masri did belong to a militant anti-Syrian party (a nationalist party of the left also including Islamist elements) called “Al Tawid”, founded in 1982 and wound up in 1985 after the Syrian invasion. Whereas certain members were captured by the Syrians, El-Masri fled and sought political asylum in Germany, for precisely that reason. That group allegedly had absolutely nothing in common (except part of the name, which means “all-powerful god”) with the terrorist group headed by al-Zarkawi. Mr El-Masri was again faced with this confusion at his hearing by the Temporary Committee of the European Parliament, where at least one EP deputy asked him to what other terrorist groups he belonged. As Mr El-Masri was still in a fragile psychological state, I find it particularly odious that he was also the subject of an article, with a photograph, in the local press111 once again insinuating his links with terrorist circles without any evidence whatsoever. He told us that he now hardly dares to leave his home.
132. The case of Khaled El-Masri is exemplary. Some aspects still require further investigation and it is for that reason that inquiries are ongoing in the Bundestag’s Committee of Inquiry and by the Munich prosecutors. The story of El-Masri is the dramatic story of a person who is evidently innocent – or at least against whom not the slightest accusation could ever be made - who has been through a real nightmare in the CIA’s ’spider’s web’, merely because of a supposed friendship with a person suspected at some point in time to maintain contacts with terrorist groups. El-Masri is still waiting for the truth to be established, and for an excuse. His application to a court in the United States has been rejected, at least in the first instance: not because it seemed unfounded, but because the Government brought to bear so-called ‘national security’ and ‘state secrecy’ interests. This speaks for itself.
3.2. "The Algerian Six"
133. Six Bosnians of Algerian origin – four Bosnian citizens and two longstanding residents112 were arrested in October 2001 by order of the Supreme Court of the Federation of Bosnia and Herzegovina and detained on remand. They were suspected of having planned bomb attacks on the American and British embassies.
134. The investigation, between October 2001 and January 2002, did not reveal any evidence linking these men to a terrorist plot. On 17 January 2002, the office of the federal prosecutor informed the investigating magistrate at the supreme court t | 
