In a landmark decision, Europe’s highest court has concluded that techniques used routinely by the Bush-era CIA in connection with its extraordinary-renditions program constitute torture. The Grand Chamber of the European Court of Human Rights, sitting in Strasbourg, awarded damages to a German greengrocer of Lebanese extraction, Khalid El-Masri. The Court also chided the governments involved for failing to pursue criminal accountability for those responsible for El-Masri’s abduction and torture. El-Masri had been mistaken for a similarly named terrorist operative while he was on a trip in December 2003 to Macedonia. He was seized by Macedonian authorities, acting in close coordination with the United States, and was turned over to the CIA. After being flown in a chartered “torture taxi” to Afghanistan, he was held in the CIA’s notorious “Salt Pit” prison north of Kabul. Even after the mistaken identification was confirmed, the CIA continued to hold El-Masri for six weeks, ignoring instructions from the White House to release him. After a further intervention from Condoleezza Rice, El-Masri was granted his release and abandoned on a hilltop in Albania, five months after he was detained.
The Court focused its attention on El-Masri’s treatment in the hands of a CIA extraction team:
[T]wo people violently pulled his arms back . . . he was beaten severely from all sides. His clothes were sliced from his body with scissors or a knife. His underwear was forcibly removed. He was thrown to the floor, his hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus . . . a suppository was forcibly administered. He was then pulled from the floor and dragged to a corner of the room, where his feet were tied together. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a nappy. He was then dressed in a dark blue short-sleeved tracksuit. A bag was placed over his head and a belt was put on him with chains attached to his wrists and ankles. The men put earmuffs and eye pads on him and blindfolded and hooded him. They bent him over, forcing his head down, and quickly marched him to a waiting aircraft, with the shackles cutting into his ankles. . . . He had difficulty breathing because of the bag that covered his head. Once inside the aircraft, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft.
As the court noted, these procedures were part of a standard protocol used by the CIA at the time, described in numerous reports relating to the extraordinary-renditions process and covered by a secret CIA memorandum (PDF) dated December 30, 2004. The court found that El-Masri had been tortured and sodomized as a result of these procedures. Although the Obama Administration banned torture and ended the extraordinary-renditions program under an Executive Order issued the second day of Obama’s presidency, it remains unclear whether the extraction protocol is still in effect. In one rendition carried out by the Holder Justice Department in April 2009, similar procedures were used on a defendant in a petty corruption case, though no suppository was applied. The Justice Department vigorously defended the extraction protocol in that case and insisted that the procedures it authorized did not constitute torture.
The El-Masri ruling is a watershed event principally because it reflects the first high-profile, binding judicial determination that the CIA used torture practices in connection with its renditions program. Thus far, litigation of the issue in the United States has failed as federal courts — deferring to the executive’s attempts to avoid scrutiny of well-documented and severe human rights abuses by invoking secrecy — have generally refused to allow cases to proceed to trial. In the El-Masri case, the government mounted similar defenses based on national-security concerns and secrecy, but the Court refused to prioritize these over well-documented claims of torture. El-Masri’s evidence had been corroborated by a German criminal investigation, and the Court also found that internal U.S. probes, as well as investigations conducted by human rights organizations, the European Parliament, and the Council of Europe provided him substantial support. The Court’s decision required careful cognizance of leaked classified U.S.-government documents, and of U.S. diplomatic cables that affirmed American conniving aimed at blocking criminal probes into the El-Masri case.
Jim Goldston, a former U.S. federal prosecutor who represented El-Masri before the Court, told me that the decision should come as a “wake-up call to the Obama Administration and to the American courts, showing that it is possible to investigate torture and similar abuses connected with the war on terror even while it is underway.”
The ruling establishes that governments who collaborated with the CIA, even while they weren’t themselves directly participating in the rendition, are nevertheless liable for torture and attendant crimes. In this regard, it is likely to be studied closely in Poland, where a prosecution has been opened targeting Polish intelligence officials who supported the CIA’s black site there.
During a call from Condoleezza Rice to German chancellor Angela Merkel, the United States acknowledged its mistake in seizing El-Masri. However, it has never offered him an apology, insisting in response to his complaints that the torture inflicted on him was a state secret. Nor has the United States offered El-Masri compensation or access to rehabilitation, even though it is obligated to do so under the Convention Against Torture.
The decision also focuses attention on the fact that the perpetrators of El-Masri’s torture have not been held to account under criminal law. According to an investigation run by the Associated Press, CIA officer Alfreda Frances Bikowsky played a key role in El-Masri’s abusive treatment, ignoring his protests because her “gut told her” he was a terrorist. Bikowsky was quickly promoted following the El-Masri incident, and she now occupies a senior counterterrorism post, from which she exercises great influence on sensitive operations.
In view of Attorney General Eric Holder’s announcement of official impunity for torture-related crimes involving CIA agents during the war on terror, the Court’s judgment boils down to this question: What nation will step up to the plate, conduct a proper investigation, and bring charges? It points a finger toward two loyal U.S. allies: Germany and Macedonia. Macedonia was complicit with the CIA, while Germany buckled to U.S. diplomatic pressure and stopped its criminal probe. The Court makes clear that criminal investigation and prosecution must now follow.