U.S. concerns, communicated to German authorities through diplomatic channels, are the latest evidence that the administration intends to play hardball with foreign governments that take legal action against CIA officers for counterterror operations conducted on their soil.
A European diplomat confirmed to NEWSWEEK that American officials have strongly warned the German government against pursuing CIA officers charged in the abduction of Khalid al-Masri, a Lebanese-born German Muslim who was nabbed while he was vacationing in Macedonia in December 2003. He was flown to Afghanistan for questioning. Al-Masri was suspected of involvement in the September 11 terror attacks. But he was released in May 2004. Secretary of State Condoleezza Rice reportedly later acknowledged in private to German Chancellor Angela Merkel that his abduction was a case of mistaken identity.
“The U.S. has on multiple occasions made clear that it will consider a request for extradition as an unfriendly act that would burden bilateral relations,” said a European official who requested anonymity owing to the sensitivity of the subject—a view confirmed by a senior American official.
U.S. officials have not publicly explained what the consequences of the German government committing an “unfriendly act” would be. But they say an attempt to extradite the CIA officers could result in the breakdown of longstanding intelligence and law-enforcement cooperation—a serious threat given the close postwar relationship between Germany and the United States. A committee of Germany’s Parliament is conducting an in-depth investigation into the Masri case, demanding documents and detailed explanations from German intelligence and law-enforcement agencies regarding contacts that their personnel had with U.S. officials. Such investigations, said European and U.S. officials, are likely to deter future cooperation between the two countries’ intelligence and law-enforcement officials.
The administration appears to have communicated a similar hard-line message to authorities in Italy, where prosecutors are pursuing a separate case of alleged “extraordinary rendition” against CIA officers. Prosecutors there are seeking to put on trial CIA officers and associates charged with abducting an Islamic activist named Abu Omar off the streets of Milan and flying him to Egypt for aggressive interrogations by that country’s intelligence service.
U.S. officials have repeatedly made clear they have no intention of honoring any extradition request that Italy might file in connection with the case. In a little-noticed statement at his daily public briefing last month, the State Department’s chief spokesman, Sean McCormack, flatly stated that if the Italians sought to have the CIA officers put on trial, “we would not extradite them back.” John Bellinger, the State Department’s chief legal adviser, said the same thing at a recent news conference in Brussels.
The apparent standoff over the cases illustrates the legal complications that have arisen as a result of the aggressive counterterror measures pursued by the Bush administration in the wake of 9/11. Over the past few years, as European attitudes toward the United States have soured, European governments have come under increasing domestic pressure to pursue U.S. officials and intelligence agents for counterterror operations—operations which once had tacit support from the same regimes. Other countries are believed to be exploring possible legal action against the CIA personnel for violations of international and domestic law—a move that, at a minimum, could hamper the ability of agency officers and possibly even more senior administration officials to travel abroad for years to come.
Still, current and former U.S. officials said the Bush administration is absolutely within its legal rights to refuse to cooperate with demands by the European governments—or any other government, for that matter—for extradition of CIA officers. U.S. extradition agreements with foreign countries are negotiated on a country-by-country basis and then approved by Congress, giving the agreements the legal force of a treaty obligation. However, all extradition or legal assistance agreements between the U.S. and foreign countries contain “escape clauses” empowering the president or other senior officials, such as the attorney general or secretary of State, to block requests from foreign governments for extraditions or help in criminal investigations if the U.S. government believes such requests could be detrimental to American national interests, such as national security or the protection of U.S. intelligence operations.
“Neither Congress nor any president would ever enter into an international agreement that would require them to turn over intelligence agents to another country for violating laws of that country,” said Jonathan Winer, a Washington lawyer who negotiated legal assistance agreements with foreign governments as an official in the Clinton State Department. “That’s true for every administration, not just the current one,” he added.
John Sifton, an investigator for Human Rights Watch, a nongovernmental group that has criticized the Bush administration and CIA for alleged rendition activities, said his group “wouldn’t expect” Bush to comply with rendition-related extradition requests “given their record.” Nonetheless, Sifton said that the Italian and German criminal investigations of alleged CIA rendition cases are “symbolic.” One reason for this, he said, was that foreign investigations are examining in detail U.S. government activities that Congress, at least up until now, has been unwilling to probe in depth.
The Italian investigation of the alleged abduction of Abu Omar has so far resulted in criminal charges against 26 alleged CIA operatives or collaborators. Six Italians have also become targets of the investigation, including Gen. Nicolo Pollari, former head of SISMI, the Italian counterpart to the CIA. According to an Italian government official, who asked not to be identified when discussing sensitive material, Milan magistrates asked the justice minister in the government of Italy’s recently ousted, pro-U.S. Prime Minister Silvio Berlusconi to issue what amounted to an international subpoena. It asked the U.S. government for assistance in producing for questioning alleged CIA operatives accused of participating in Abu Omar’s abduction. Berlusconi’s government refused the magistrates’ request, the official said. The Italian official said that the Milan magistrates have now lodged a similar request with the justice minister of the current Italian government, led by Romano Prodi; the justice minister is now said to be consulting the Italian courts about what to do next.
If the current Italian government, which is also reportedly leery of offending Washington, also declines to press the Bush administration regarding the CIA investigation, then the Milan magistrates have the power to try the alleged CIA personnel in absentia. This could be difficult, not least because defendants may be impossible to identify. Most of the purported CIA operatives identified as suspects in the case are believed to have used phony cover names.
In Germany, judicial authorities in the state of Bavaria are seeking the arrests of 13 Americans in connection with the alleged abduction of Masri, who was believed to have been an associate of the 9/11 hijackers. U.S. and German officials have since said that it was later established that the Masri detained in Macedonia had nothing to do with 9/11, though he may have had some contacts with Islamic extremists back in Germany.
Bavarian state prosecutors based in Munich proceeded with an investigation into the circumstances of Masri’s disappearance. Arrest warrants were issued by Bavarian judicial authorities against 13 U.S. citizens, a European official said, and requests for their apprehension were disseminated worldwide through Interpol. In one case, said the official, judicial authorities in Bavaria announced that they will seek extradition from the United States, although the request has yet to be forwarded to the U.S. government.
Under its new Democratic chairman, Sen. Jay Rockefeller, the Senate Intelligence Committee has begun what officials describe as a detailed review not only of CIA rendition activities but also of the CIA’s role in detaining and interrogating suspected high-level terrorists in the wake of 9/11. However, it is unclear how much of Rockefeller’s investigation will become public, since the Intelligence Committee usually conducts most of its business under a strict blanket of secrecy.
While declining to comment on either the Italian or German investigations into alleged CIA actions, the agency continues to defend the use of rendition as an effective antiterror tactic. “While the CIA does not as a rule comment publicly on specific cases or allegations, renditions are a key, lawful tool in the fight against terror, and they have helped the United States and other nations disrupt terrorist plots and networks,” said Paul Gimigliano, an agency spokesman. “Renditions have occurred far less frequently than some press reports suggest, and they are subject to careful review. The United States does not conduct or condone torture, nor does it transport anyone to other countries for the purpose of torture. The goal of renditions is to get terrorists off the streets in a way that complies with our laws and treaty obligations.”
