Torture Complicity Under the Spotlight in Europe (Part Two): Germany and France

Last week, in the first of two articles examining how “War on Terror”-related complicity in torture is under intense scrutiny in Europe, I ran through the history of Britain’s post-9/11 involvement in US torture, and its extensive forays into holding people without charge or trial in the UK, attempting to send foreign nationals back to countries where they face the risk of torture, using information derived from torture in other countries (sometimes with direct British involvement) and subsequently using this information operationally and even in judicial hearings.

The trigger for this article was an announcement by the British government that the terms of a judge-led inquiry into British complicity in torture — first announced by foreign secretary William Hague on May 20 — have been agreed. This is welcome news, as it indicates that the UK may be the first Western country prepared to conduct an official inquiry into the whole of its post-9/11 policies, as they relate to torture — although it was worrying to hear that Prime Minister David Cameron had “suggest[ed] that the inquiry would examine only one case — that of Binyam Mohamed — and, in addition, that he “had already concluded that the country’s intelligence agencies were guilty only of errors of omission, not commission.” The official announcement of the inquiry this week has done little to alleviate these fears, with David Cameron explaining that most of the inquiry will be held in secret, and adding, “Let’s be frank, it is not possible to have a full public inquiry into something that is meant to be secret.” As Reprieve stated in response to the announcement:

The scourge of the last government was the fact that they tried to cover up all the facts relating to torture complicity cases. In particular, the Binyam Mohamed litigation revolved around the government claiming public interest immunity in materials which were simply embarrassing. Now, the Prime Minister is saying that much of this inquiry will be held in secret. The only way in which public confidence is going to be restored in the intelligence services is if the public is able to see this inquiry functioning properly.

A second trigger for the article last week was the publication of a report by Human Rights Watch, “‘No Questions Asked’: Intelligence Cooperation with Countries that Torture,” which not only covered the UK, but also Germany and France, and in this second article, I examine Human Rights Watch’s timely reminder that, although the UK may well have been the Bush administration’s closest Western ally in the “War on Terror,” the involvement of other countries also deserves detailed analysis, and calls for accountability and the reform of currently flawed systems that fail to conform to those countries’ obligations under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment.

German complicity in torture

German complicity in the dubious practices of the “War on Terror” has long been apparent, primarily through the involvement of the intelligence services, the security services and/or law enforcement personnel in the detention in Afghanistan and Guantánamo of the Bremen-born German resident Murat Kurnaz, the kidnap in Macedonia and imprisonment in CIA “black sites” in Afghanistan of German citizen Khaled El-Masri, and the detention and torture of German citizen Muhammad Haydar Zammar, seized in Morocco in October 2001 and then transferred to Syria, where he was reportedly “interrogated by a group of German intelligence and law enforcement personnel while he was detained in the notorious Palestine Branch (Far’Falestin prison) in Damascus.”

These cases have received widespread coverage over the last few years, and one notable organization that has maintained a focus on the Germen government’s activities is the United Nations, which, in a major report on secret detention, published in February this year, included Germany as one of at least 40 countries who were “complicit in the secret detention” of prisoners seized in the “War on Terror.”

Among the damning allegations against the government, as described in the Human Rights Watch report, are Kurnaz’s claim that “he was mistreated by members of the German Special Forces Commando (Kommando Spezialkräfte, part of the German Army) while in US custody in Afghanistan prior to his transfer to Guantánamo Bay” and that two soldiers “forced him to lie on the ground with his hands tied behind his back, while one pulled him up by the hair and then hit his head on the ground,” El-Masri’s claim (denied by the government) that “he was visited during his detention in Afghanistan by an official with the Federal Criminal Police Office (Bundeskriminalamt, BKA),” and the conclusion of the UN, in its report on secret detention, that “the German government was complicit in Zammar’s secret detention in Syria because it knowingly took advantage of the situation to obtain information.” This follows up on a claim, in the European Parliament’s 2006-07 inquiry into European complicity in the US extraordinary rendition program, that the BKA provided information to the FBI that facilitated Zammar’s capture in Morocco.

Moving beyond these high-profile cases, Human Rights Watch is to be commended for conducting a far more sweeping investigation, demonstrating how, as in the UK, the government both actively seeks and passively receives intelligence information from regimes that systematically use torture, and then justifies using this information for operational purposes, and also in judicial hearings, despite being a signatory to the UN Convention Against Torture, and, since December 2008, a signatory to the Optional Protocol to the Convention against Torture, which “creates an international system to monitor places of detention worldwide, and a parallel domestic monitoring system in each country that ratifies it.” In Germany, this led to the creation of a Federal Office for the Prevention of Torture in November 2008.

The most disturbing revelation of the Human Rights Watch report on Germany is the extent to which the government works closely with Uzbekistan, where, as the UN has repeatedly explained, the use of torture is “systematic” and “routine.” Nevertheless, apparently concerned by the possible activities in Germany of the Uzbek Islamic Jihad Union (IJU), the German government has maintained close ties with the Uzbek government, having “worked actively to ease EU sanctions imposed in the wake of the May 2005 massacre in Andijan, in eastern Uzbekistan,” and allowing generally despised figures in the Uzbek government to visit Germany.

Most importantly, German law enforcement officials directly interrogated at least one detainee in Uzbek custody — Sherali A., who was questioned about the IJU in a prison in Tashkent by BKA officers In September 2008 — and also questioned another Uzbek suspect, in a prison in Astana, Kazakhstan, in July 2008.

Moreover, these interrogations were not only used for operational purposes, which is itself dubious, as it “bring[s] into question Germany’s commitment to the prevention and eradication of torture worldwide” and “can create demand” for information obtained through torture. The information was also used in preliminary hearings against four men — the so-called “Sauerland cell” — whose trial took place in 2009, as was information extracted from Aleem Nasir, a German citizen of Pakistani origin.

Nasir, who received an eight-year sentence in July 2009 for providing support to a terrorist organization, had originally been seized in Lahore, Pakistan in June 2007, and was then held for two months in the custody of Pakistan’s notoriously brutal Inter-Services Intelligence Directorate (ISI), where, he claims, he made a false confession after being repeatedly beaten. Nevertheless, in this two-month period, he was “visited and questioned by a German consular official” (and has also claimed that he was interrogated by British and American intelligence officials), and he later told journalists that his Pakistani interrogators had been “fully briefed” by the German authorities, and that he was “repeatedly shown” photos of one of the men accused of being part of the “Sauerland cell.”

Although Nasir’s release was ordered by the Pakistani Supreme Court, he was arrested on arrival in Germany in August 2007, and subsequently put on trial. It then transpired that the ISI had sent the German authorities three reports of Nasir’s interrogations — headed, “From: Friends, To: Friends,” and tagged, ‘We assure you our fullest support, with best regards” — but although these were excluded in court, on the basis that they contravened Article 15 of the UN Convention Against Torture, which obliges signatories to “ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made,” the trial did include evidence from the consular official who visited Nasir in ISI custody, and also from a house search, undertaken while Nasir was held in Pakistan, which “appears to have been based on information from the ISI and the report of the consular official.”

In Human Rights Watch’s analysis, the most blatant example of manipulating Article 15 of the Convention Against Torture took place in the trial, in 2005, of Mounir El-Motassadeq for complicity in the 9/11 attacks, when the court’s interpretation “place[d] an undue burden on the individual against whom the evidence is invoked to demonstrate that the statements were in fact obtained through torture.” Disturbingly, the Higher Regional Court in Hamburg allowed as evidence summaries of the interrogations of three men — Khalid Sheikh Mohammed, Ramzi bin al-Shibh and Mohamedou Ould Slahi — who were held in US custody, even though the US “refused to disclose the whereabouts of the detainees or anything about the circumstances under which the interrogations were conducted.”

This is, of course, deeply alarming, given that the court acknowledged that KSM and bin al-Shibh were “held in secret, incommunicado detention” (both men were among the 14 “high-value detainees” transferred to Guantánamo in September 2006 — bin al-Shibh had been held in secret detention since September 2002, KSM since March 2003). Slahi, who was seized in Mauritania in November 2001, was held in Jordan for eight months, where he has claimed he was tortured on behalf of the CIA, before his transfer to Guantánamo, where, as has also been established, he was one of a handful of prisoners subjected to a torture program devised specifically for him.

Nevertheless, the Hamburg court twisted the meaning of Article 15, accepting the men’s statements on the basis that it was “UN impossible to establish that torture had been used,” which provoked the following criticism from Manfred Nowak, the UN Special Rapporteur on Torture:

[T]he Hamburg Court failed to shift the burden of proof to those Government authorities who actually invoked the contested evidence. In light of well-founded allegations of the torture and enforced disappearances of the witnesses in United States custody, it was the responsibility of the Prosecutor (or the Court) to prove beyond reasonable doubt that the testimonies were not extracted by torture, rather than to prove that they were actually obtained by torture (emphasis added).

French complicity in torture

If the situation in Germany resembles that in the UK, where information obtained through torture is actively sought or passively received, and then makes its way into operational practices and judicial proceedings, the situation in France — although involving fewer allegations of complicity with the US — is even more worrying on a domestic level because of the relationship between judges and the security services, and because of what Human Rights Watch describes as the “aggressive prosecution of alleged terrorist networks before specific acts are committed or even attempted.”

As the report explains, despite signing up to the Optional Protocol to the Convention Against Torture in November 2008 (and establishing a national mechanism for its enforcement, as in Germany), the French government’s “preemptive approach to countering terrorism rests on continuous intelligence gathering” with countries “with poor records on torture,” including former colonies Algeria, Tunisia and Morocco. Following recent concerns about “returnees from combat or training in countries such as Iraq, Chechnya, Afghanistan and Pakistan,” Human Rights Watch also notes that France has engaged in “close intelligence and judicial cooperation with countries in the Middle East, and Central and South Asia.” Bernard Squarcini, the head of the Central Agency for Domestic Intelligence (Direction central du renseignement intérieur, DCRI), has “characterized intelligence services in Yemen, Turkey and Syria as ‘friends’ from whom the DCRI receives valuable information.”

Disturbingly, despite requests for an interview, Squarcini never responded to Human Rights Watch, whose researchers were therefore “unable to ascertain whether French intelligence services have written or oral guidelines regarding information-sharing arrangements with services with records for torture, appropriate evaluation of information where there are reasonable grounds for believing it may have been obtained under torture, or participation in interrogations abroad.”

A counter-terrorism official explained that information obtained through torture was “unacceptable because [it] is not reliable and will ultimately be ruled inadmissible in court,” but in fact the particular set-up in France — whereby investigating judges initiate cases, using DCRI agents as a “judicial police force,” in addition to their role as an intelligence-gathering agency — leads to “a continuous exchange of information and joint strategizing between the investigative judges and security service agents,” in which, as Human Rights Watch explained:

The specialized investigating judge may authorize any number of investigative steps, including arrests, on the basis of intelligence information alone. In doing so, the judge will normally not know — or take any particular interest in — the sources or methods used to acquire the information. The goal is to acquire corroborating evidence through judicially-authorized acts. French counterterrorism prosecutor Philippe Maitre has said, “There is no judicial control over the intelligence services.  It’s the judicial procedure that verifies the information that begins as intelligence … The origin of the intelligence is not important.”

Human Rights Watch also noted, “This approach, in which intelligence material is uncritically used for operational purposes in order to collect other kinds of evidence, embraces the possibility and legitimacy of using the fruits of the poisoned tree: information collected as a result of investigations prompted by statements obtained under torture.”

Understandably, Human Rights Watch was alarmed both by the ease with which material obtained through torture enters the judicial system, and also by the conflicting rules of the DCRI — “the fact that agents can perform both intelligence-gathering for operational purposes as well as judicially-authorized investigations with a view to producing evidence.”

In an illustration of the first problem, the report looks at the case of two men arrested in October 2005, on the basis of information extracted in Algeria from M’hamed Benyamina, an Algerian living in France, whose arrest in Algeria in September 2005 may have involved the cooperation of the French security services. Given the notoriously poor record of the Algerian secret service when it comes to torture, it is disturbing that information extracted from Benyamina would have been credited as trustworthy at all.

On the conflicting roles of the DCRI, the report noted that questions regarding these conflicts of interest arose in the trials of five men held in Guantánamo and released in 2004 and 2005. The case of these men, which has already led to a conviction overturned on appeal (with another trial ordered by a higher court in February this year), has focused on whether “the interrogations conducted at Guantánamo Bay were illegal because the agents had acted in their capacity as judicial police, collecting information later used to justify and substantiate the judicial investigation against the men” — and, along the way, has also revealed that the DCSI agents failed to “disclos[e] the material [from the interrogations] to the defense as required.”

In further analysis of how information obtained through torture has been incorporated into trials, the report cites the case of Djamel Beghal, an Algerian, who “was convicted in March 2004 of membership in a terrorist organization, based in part on statements he made under torture and ill-treatment in the United Arab Emirates, where he was arrested in September 2001.” Despite recanting his tortured confessions on arrival in France, the French court allowed these confessions to be used as evidence, apparently on the basis that “statements made under coercion have value insofar as corroborated by other elements, including statements made to the French investigating judge” (an Appeals Court later excluded the UAE confessions, but upheld Beghal’s conviction anyway).

In a final example, Human Rights Watch focused more sharply on the problems — as also seen in the UK and Germany — of rebutting information derived from torture in other countries, which, again, reveals how the French courts have “allowed as evidence in some cases statements allegedly made under torture by third persons, without taking steps to evaluate the circumstances in which they were obtained.” This final example involved the 2006 trial of the so-called “Chechen Network,” 27 people accused of undergoing training in Georgia for attacks in Europe, and key evidence came from statements made by a Jordanian, Abu Attiya, while detained in Amman. Despite the fact that torture in Jordan is well-known, a statement made by Abu Attiya — which, he said, he was not even allowed to read before signing — was used in the trial.

Even more alarmingly, the investigating judge actually traveled to Amman and submitted questions for Abu Attiya to the Jordanian authorities.  When confronted by Human Rights Watch, who informed the judge that Abu Attiya had alleged ill-treatment in Jordanian custody, he simply replied, “I don’t know anything about that.” As Human Rights also noted, “The same French judge also traveled to Syria with a list of questions for a man named Said Arif, who would become one of the main figures in the Chechen Network trial. These questions were presented at the trial accompanied by ‘answers’ in parenthesis. All of the evidence emanating from Arif’s detention in Syria was eventually excluded from trial because the court accepted Arif’s claims that he was tortured throughout the year he spent in the custody of the Syrian secret service.”

Given Syria’s truly abysmal human rights record, this should also have come as no surprise, but in common with the other dealings with untrustworthy regimes exposed in the Human Rights Watch report, and described in these two articles, it is a sign of what happens when, in the rush to safeguard national security at all costs, pillars of the European establishment, like the UK, Germany and France, forget their obligations to resist any involvement with torture whatsoever, arguing that information derived from torture cannot be ruled out, allowing it into operations and trials, and, as a result, finding ways to avoid asking difficult questions about whether it is reliable, and whether its use is creating a market for more information derived from torture.

It remains to be seen how Germany and France will respond to the Human Rights Watch report, and whether, in the UK, the promised inquiry into complicity in torture will lead to an honest evaluation of how flirting with torture is incompatible with morality, justice, and — perhaps most practically — the need for accurate information. Those of us who abhor the use of torture, its corrosive effect on notions of civilization, and its global web of victims, inspired by America’s post-9/11 flight from the law, need to hold firm to our demands that our governments change their ways of operating, and no longer seek to justify the use of torture under any circumstances.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review, The Public Record, Uruknet and United Progressives.