Europe Leads on Rights, Part IV.

Part III addressed how and why US and European political culture and philosophy diverge; federalism and other constitutional challenges they each confront; how words and deeds on liberty and justice often vary; the controversy regarding ‘American exceptionalism’ and the perspective that this ideology impedes global progress; and, why Europe is suited to lead on human rights and global progress in the 21st century.

Now that the ECHR has spoken, those implicated in the judgment must act. The Court has challenged Europe to lead the world in protecting individual rights, and European lawmakers and the people they serve must act accordingly. Specifically, Macedonia must identify and punish those who participated in the abuse of Khaled el-Masri, and the German ministry of justice should serve the US authorities with arrest warrants for the 13 CIA operatives accused of abuse in this case. Following an official German investigation into the Masri case, these warrants were drawn up in 2006 but never sent due to political pressure. Finally, the US must be pressed to acknowledge the wrongdoing, issue an apology, offer compensation and punish those involved.

People who support human rights should demand that all states implicated in abuse establish independent commissions to investigate and establish a full public record of the human rights abuses which occurred in the GWOT (Global War on Terror), and bring criminal prosecutions where warranted. For instance, CIA officer Alfreda Frances Bikowsky reportedly played a key role in the extended torture of Mr. Masri, yet she has been promoted rather than punished. This cannot stand. If a criminal case cannot be brought, those implicated in abuse should at the very least be fired, demoted, or reprimanded. It is insane to maintain or promote those who have failed to carry out their duties competently and professionally, whether in finance or national security. Get rid of the rot or abuse will recur.

A report released on February 5 by the Open Society Foundations reveals the breadth of complicity in post-9/11 abuse. See Globalizing Torture: CIA Secret Detention and Extraordinary Rendition. The US-led counterterrorism practice known as extraordinary rendition involved 54 countries in kidnapping, secretly imprisoning and torturing terror suspects. The OSF report is the most comprehensive detailing yet of those abused and their abusers. Among those implicated in abuse is the Czech Republic for allowing use of its airports for refueling of rendition flights. The UN called for an investigation, but the Czech government has denied any knowledge of such incidents and no investigations are pending.

As discussed in Part III, punishing wrongdoers is essential for justice. Immunity for state actors cannot cover complicity in well-established crimes against humanity. The worst abuses following 9/11 were enabled by a global network. Justice requires investigations and prosecutions by all the sates involved. The abuses were directed and led by the US, but no American torturers have been punished. Meanwhile, the CIA agent who blew the whistle on waterboarding was sentenced on January 25th to serve 30 months in prison, marking the first time in 27 years that someone was successfully prosecuted under the statute invoked, and making John Kiriakou the first CIA officer to face prison for disclosing classified information. Selective prosecution of this sort must stop, for it sends the wrong message and violates the rule of law.

On February 1, 2013, an appeals court in Italy sentenced a CIA officer to seven years in prison for his role in kidnapping and abuse, marking the 1st prison sentence against the CIA for its post-9/11 abuses. The Milan court also sentenced two other US officials to six year prison terms. Thus, unlike the US, Europe is taking steps to hold accountable those state actors who engaged in lawless conduct in the name of fighting terror. The sentences were issued in absentia, as the US refused to extradite the officials to Italy. Italy’s highest court previously upheld guilty verdicts against 23 US officials for kidnapping. “Ex-CIA Rome Chief gets Jail term in ‘Rendition’ Trial,” The New York Times, Feb. 1, 2013.

Sunlight being the best disinfectant, we should critically evaluate the system which rationalizes so much secrecy in government. See “Top Secret America,” Lawmakers must amend the procedures for classifying documents and information as confidential and secret, so as to provide greater safeguards and accountability, and to prevent self-serving abuse of classification by public officials and institutions – which frequently use national security as a pretext to hide embarrassing facts, the disclosure of which would actually enhance our security. A Harvard Center for Ethics scholar recently called for such reforms. Further, we must take steps to ensure that judges properly review state secrets claims by the executive branch, rather than obediently accepting such claims – as they did with Mr. Masri’s lawsuit in the US courts.

We have now seen the boomerang effect of going to the dark side, as Mr. Cheney infamously put it. It is time for the US government to formally repudiate the CIA practice of transferring detainees without any judicial involvement. Perhaps President Obama can offer a plausible defense of drone strikes, but not of extrajudicial abductions. As we search for perceived enemies we must not become our own worst enemy. Law and policy should promote demilitarization, effective multilateralism, transparency, and accountability. Though we might wish to look forward, rather than look back at shameful history, impunity is antithetical to the rule of law and must end.

As James Goldston, Masri’s attorney, noted (see Part I): “For so long as Washington refuses to examine its own conduct, it will fall to courts in other countries to uphold the rule of law.” There are various judicial forums being used, and more to be tried going forward. The ACLU is representing Mr. Masri in a case filed against the US before the Inter-American Commission on Human Rights in 2008. Five years later, the US has yet to respond to the lawsuit. International tribunals are sadly limited in their authority to compel timely compliance with their rules of court, especially against powerful states. Justice delayed is justice denied.

It may prove far more effective to bring claims in the national courts of countries complicit in abuse, such as Germany, Macedonia, Poland, and Romania, and to then turn to the ECHR when the national courts fail to uphold their obligations. Such cases against Romania, Poland, Italy, and Lithuania are now before the ECHR. Similar cases are also pending in Africa and the Middle East, showing the global commitment to justice in response to the web of complicity in post-9/11 human rights abuses.

Others have begun acting to end impunity even as America fails to. Italy has convicted its own officials and a CIA officer of crimes for kidnapping an Egyptian cleric. Canada has apologized and paid money to the Canadian national Maher Arar for its complicity in his rendition and torture in Syria. Australia, Britain and Sweden have all acknowledged and paid money to compensate victims of extraordinary rendition. America must join them.

Saying sorry starts healing; denying reality begets ridicule and further foolish policy. History and politics, warts and all, are inseparable from law. Yet the guiding constitutional principles that bind chart a path toward progress. Europe, the origin of enlightenment ideals, must lead the way. As attorney Amrit Singh recently told The Guardian, “The time has come for European governments to stand up to the United States and break the conspiracy of silence [around rendition], regardless of the diplomatic consequences.”

We all have a stake in Mr. Masri’s fight for justice. Individual rights are the essence of the rule of law. These rights are protected by institutions and an actively engaged civil society. People must organize through groups like the Center for Constitutional Rights, The Open Society Justice Initiative, and Human Rights Watch. As Frederick Douglass famously said, “Power concedes nothing with a demand. It never did and it never will.” People who are offended by lawless misconduct must demand an end to abuse committed in their name, and greater transparency and accountability to prevent its recurrence. Then, we can have peace of mind that Khaled el-Masri’s nightmare will not happen to us.

About the author:

The author, an attorney and constitutional law scholar, has written for TNP since 2006. He currently lectures at University of New York in Prague on law, ethics and critical thinking. His “Degradation of the rule of law in response to terrorism: a failed approach,” was published by Palgrave Macmillan in 2011.

published: 7. 2. 2013