Cheating Justice (27 page)

The final way a case comes before the court is when the ICC prosecutor initiates a matter based on events that occurred on the territory of a country that has signed the Rome Treaty. To commence an investigation, the prosecutor needs the approval of a panel of ICC judges, which determines that there is a reasonable basis to proceed with an investigation and that the case falls within the jurisdiction of the court. Before any such prosecution is brought it must be clear that the countries whose nationals are responsible for the crimes are unwilling or unable to investigate or prosecute. According to a report by the Congressional Research Service in July 2010, the court had indicted sixteen people.
36

Torture is a topic that could potentially be addressed by the ICC—if it has jurisdiction. And jurisdiction might be possible because of the wide-ranging geography of U.S. torture activities. One basis of jurisdiction, as noted above, is when acts occur in countries that are signatories of the Rome Treaty.

CIA agents transported one hundred or more detainees to black sites in other countries, where the prisoners were tortured. Some of those countries—Lithuania, Poland, Romania—are also signatories of the Rome Treaty. Afghanistan, where torture of U.S. detainees is documented, is a signatory of the Rome Treaty, and the CIA air carriers used bases or stopovers in several signatory nations for rendition flights. As a result, the International Criminal Court could take prosecutorial action against those responsible, including U.S. personnel.

A U.S. law professor submitted a complaint to the ICC prosecutor in January 2010, asking for an investigation and arrest warrants for six top U.S. officials—President Bush, Vice President Cheney, Secretary of Defense
Rumsfeld, CIA director George Tenet, Condoleezza Rice, and Alberto Gonzales—for the “widespread” and “systemic” policy of rendering individuals to black sites.
37
Even though the United States is not a signatory to the Rome Treaty, the legal complaint asserts that the ICC should open an investigation on its own. Of course, using the ICC poses its own set of difficulties, not the least of which is securing the presence of the U.S. persons before the court.

As in other areas, however, President Bush and his team were taking no chances in protecting themselves. Not only did the president “unsign” the Rome Treaty and withdraw all support for the ICC, the United States began a heavy-handed campaign in August 2002—only a month after the court first opened—to force other countries to sign immunity agreements. These “Bilateral Immunity Agreements,” as they are called, prevent other nations from sending claims against U.S. nationals to the ICC for prosecution.
38
The United States threatened to withdraw military aid, and later economic support as well, if immunity agreements were not signed (and virtually all nations, excepting Cuba, Iran, and one or two others, get U.S. aid). Romania—home to a U.S. black site for prisoners—was among the countries that quickly signed the immunity agreement. The Bilateral Immunity Agreements signed by the Bush administration—more than one hundred of them—are still in force, according to the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC).
39

In a 2005 column titled “Schoolyard Bully Diplomacy,”
New York Times
writer Nicholas Kristof commented that “the Bush administration is delusional in its terror of the [international criminal] court.”
40
But perhaps Kristof was wrong, and the Bush administration had everything to fear.

It's a given that every nation has its own justice system, and that each can prosecute crimes that occur on its lands or have another strong connection to the nation. Some countries drawn into the swirl of U.S. torture have started to respond.

Torture at the hands of U.S. personnel or their proxies occurred in many nations—from prisons in Afghanistan to the globally dispersed black
sites operated by the CIA. The United States also sent detainees to other nations, knowing that they would be tortured.

In addition, U.S. personnel took part in actions related to torture in other nations, such as Italy and Macedonia, where individuals were kidnapped and forcibly removed to torture sites. Other nations, including Spain and the United Kingdom (for the use of Diego Garcia), were potentially implicated in torture because their airstrips were used for CIA rendition flights. The Legal Affairs Committee of the Council of Europe found that fourteen European countries collaborated with the CIA in a “global spiders' web” of sites.
41

Any one of these countries could pursue investigations and prosecutions against U.S. persons for violations of criminal laws on the books in their nations—whether murder, assault, kidnapping, or torture. Prosecutions may also be brought for war crimes and other violations of international human rights standards and treaties that have been incorporated into the nation's laws.

If the countries are signatories to the Convention Against Torture or the Geneva Conventions, they are actually obligated to investigate and hold accountable anyone who has violated those treaties.
42
Not only are those who committed the crimes subject to prosecution, but those who planned and ordered heinous crimes such as torture can be charged, as well.
43

A few countries have prosecuted individuals or taken action because of crimes committed by U.S. nationals on their territory.

One of the most dramatic actions emerged in Italy, where twenty-six Americans were put on trial in absentia, along with four Italian officers. They were accused of seizing Abu Omar, a Muslim cleric, from the streets of Milan in February 2003 and transporting him to Egypt, where he was tortured. Abu Omar was released four years later; no charges were filed against him. In 2009 he told the
Guardian
that his treatment in a Cairo jail had reduced him to a “human wreck.”
44

Following the trial—with the CIA personnel absent—the Italian court released its decision on November 4, 2009, convicting twenty-two CIA operatives and a U.S. Air Force officer, along with two Italian intelligence officials. The judge, in announcing the decision, called it “a significant event,” said the
Guardian
, and the case stands as the first—and only—prosecution for the snatching of suspects by the United States and their rendition to torture sites. The verdict was secured even though much of the
prosecution's case was hobbled by Italian state secrecy laws, which caused the exclusion of a great deal of evidence. Each American was sentenced to five years in jail and will be regarded as a fugitive under Italian law. While it is unlikely that the United States will turn over the air force or CIA officers to the Italian government, these individuals might want to curb their travel outside the United States for worry of facing arrest by Interpol.

Other cases of torture by U.S. personnel have emerged in Spain as well, based on concepts of “national” jurisdiction, in which the claimants have a connection to the country or where Spanish facilities were used in their transfer.

In February 2011, one case in Spain was allowed to proceed to a further investigation, a step described as “monumental” and “the first real investigation of the U.S. torture program,” by the Center for Constitutional Rights.
45
The Spanish National Court allowed Lahcen Ikassrien to continue pursuing his claim of torture by the United States in the face of an attempt by the Spanish prosecutor to exclude him and reject the claim. Ikassrien, a Moroccan native who had lived in Spain for thirteen years, said that he suffered physical and mental abuse from torture as a detainee in Guantánamo. The issuance of a subpoena for testimony from Major General Geoffrey Miller, the former commanding officer at Guantánamo, was under consideration, an especially important action because “the case will surely move up the chain of command,” the Center for Constitutional Rights said to
Jurist.
46

Two other cases were pending in Spain. One involved a criminal case against three U.S. soldiers who were accused of killing a Spanish television cameraman during the shelling of a hotel in Baghdad on April 8, 2003. The case went through a lot of hoops, seeming to open and close regularly. According to an article in
El País
in December 2010, U.S. embassy cables released by WikiLeaks bragged of meddling and said that the Spanish government “has been helpful” in getting the case dropped. But the case was revived in court on July 6, 2010, according to
El País
, which said, “After numerous legal maneuvers and pressure, the US Embassy was unable to sweep the prosecution under the rug.”
47

The final Spanish proceeding involved an investigation into the case of Khaled El-Masri of Germany because the U.S. aircraft that transported him to a torture site made a stop in Spanish territory. A Spanish prosecutor sought to issue arrest warrants for the thirteen CIA agents who kidnapped
El-Masri in early 2010, according an article by Scott Horton in
Harper's.
48
WikiLeaks cables showed that the U.S. government again pressured Spain to make the case go away, and little was made public about the forward progress of the case.
49

Germany also reviewed prosecution of CIA officers for the forced removal of El- Masri.
50
The case went nowhere. Even after a German court issued an arrest warrant for the thirteen CIA agents who had strong-armed and taken El-Masri to a torture site, the German government refused to seek extradition. The leak of U.S. State Department cables by WikiLeaks on November 28, 2010, revealed a familiar backstory: The Bush administration issued not-very-subtle threats to German officials. “American officials exerted sustained pressure on Germany not to enforce arrest warrants against Central Intelligence Agency officers involved in the 2003 kidnapping of a German citizen,” wrote Michael Slackman in the
New York Times
.
51
A cable dated February 7, 2007, revealed that the U.S. deputy ambassador, John Koenig, issued “a pointed warning,” about a “negative impact” and told Germany to “weigh carefully at every step of the way the implications for relations with the US,” according to the
Times.
The warnings worked. “It would be easy to write off the details from the cables as mere trifles if they hadn't been confirmed by reality. In 2007, then–Justice Minister Brigitte Zypries decided not to further pursue the 13 CIA agents,” said
Der Spiegel
in December 2010.
52

Another striking case emerged in Poland, where the CIA ran a secret black-site prison in Stare Kiejkuty. Several U.S. detainees were tortured there and Warsaw prosecutors began investigating possible crimes arising out of detainee abuse at the CIA's site in 2008. Polish government officials could be held accountable in the proceedings, and a great deal of information about the black site could come to light. In October 2009 the U.S. Department of Justice turned down a request from Poland for cooperation in completing a probe, saying that it considered the matter closed, according the article “US Rejects Polish Call for Help in Alleged CIA Prison Probe” by Agence France Presse. In October 2010, a major development occurred in the case when lawyers for detainee Abd Al-Rahim Al-Nashiri announced that the prosecutor had granted him “victim status” in the proceedings. Under the legal system in Poland, this official status gives al-Nashiri's lawyers the right to review evidence and call witnesses. The lawyers said they wanted top CIA officials to testify.
53

The “victim status” designation also strongly suggests that the prosecutors accord substantial validity to al-Nashiri's claims. The proceedings open the possibility for a fuller disclosure of what happened. In December 2010, Abu Zubaydah, a tortured detainee held in Guantánamo, asked for his case to be folded into the probe as well, reported Agence France Presse. If the Polish prosecutors decide to proceed against U.S. officials, extradition proceedings or arrest warrants would create an international stir. Polish prosecutions might encourage other nations where torture occurred at CIA black sites to take action too, including Lithuania, which has been sluggish, and Romania, which has done nothing.

The Bush administration set a pattern of using threats and whispered recriminations to shut down prosecutions in other nations that are seeking to pursue justice for torture victims or for war crimes. If and when those nations do act, they will add to the global call for the United States to take accountability steps at home.

People detained by the United States without just cause, particularly when tortured, have brought actions in a variety of forums, as described above. Using claims of collaboration with the U.S. torture scheme, some have also sued their own governments for damages. Legitimate civil lawsuits for damages can be powerful tools for digging out the facts and uncovering the source of wrongdoing.

Two major legal settlements have been reached. In November 2010, the British government announced that it would pay a confidential sum, believed to be tens of millions of dollars, to settle lawsuits with sixteen British citizens or legal residents who had been detained and subjected to torture by the United States.
54
Most had been held in Guantánamo prison, but others were held in Afghanistan, Morocco, and Egypt.

The men had alleged that British intelligence agencies colluded in their detention and mistreatment by the United States. They said that they had been subjected to sleep deprivation, extremes of noise, heat and cold, beatings and death threats; one man said that he lost sight in one eye after it was rubbed with a saturated cloth.

The announcement of the settlement in one case came not long after a court ordered the British government to turn over as many as half a million confidential documents. Previously the British had tangled with
unrelenting U.S. objections to the release of a seven-paragraph summary of the experiences of detainee Binyam Mohamed, warning that the United States would consider ending security cooperation with Britain, reported the
Jurist
in 2009.
55
One British newspaper, the
Daily Mail
, referred to the settlement with two words: “Hush Money.”
56