By William Fisher
At his first primetime press conference, in February 2009, President Barack Obama was asked for his view on a proposal by Senator Patrick Leahy for a "truth and reconciliation" commission to investigate whether the predecessor Bush Administration had committed crimes in its handling of suspected terrorist detainees.
Obama ducked the heart of the question by saying he didn't know enough about the proposal to answer. But he then repeated a meme that he would subsequently deliver repeatedly in a variety of forms to a variety of audiences. It was to become almost as much a political cliché as “yes, we can” or “change we can believe in.”
He said: While “nobody is above the law," the President was more interested in looking ahead, not backward.
Nowhere was the seriousness of Obama’s intent more obvious than in his ongoing efforts to shield the Central Intelligence Agency, its operatives, and its activities, from public scrutiny or accountability.
This was, however, 180 degrees from the approach he took while on the campaign trail. As a candidate, Obama promised to end the use of torture, close Guantanamo Bay, and discontinue "extreme rendition.”
"From both a moral standpoint and a practical standpoint, torture is wrong,” he wrote in Foreign Affairs. He made the same point in numerous speeches on the Senate floor.
And indeed, on Jan. 22, 2009, the President created a task force to study and evaluate the transfer of prisoners to other nations for detention and/or interrogation.
Its eventual conclusion created considerable disappointment among Obama’s human rights constituency: The government would continue its policy of rendition – kidnapping people from one location and taking them to another where they would be imprisoned. But before anyone was “rendered,” the Task Force said, the US government would receive “diplomatic assurances” that prisoners would not be tortured or otherwise abused.
And on Jan. 22, 2009, President Obama signed a detailed executive order “operationalizing” the Task Force recommendations.
The order said that prisoners "shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment)." It also specifically nullified interpretations of federal law on interrogations "issued by the Department of Justice between September 11, 2001, and January 20, 2009."
These Bush-era DOJ documents were the so-called “torture memos" prepared by John Yoo and Jay Bybee, some of which Obama ultimately released to the public.
But legal experts and human rights advocates were quick to point out that “diplomatic assurances” was precisely the same mechanism used by the Bush Administration. The record shows that such assurances were usually less than worthless; countries with records of prison torture could not be trusted to change their ways.
And we will probably never know whether that outcome may actually have pleased any of the senior officials in the Bush Administration.
Rendition – which began during the administration of Bill Clinton -- was of particular concern to two of America’s allies, Germany and Spain. Public disclosure of their concerns threatened to expose both the incompetence and the immorality of some CIA operatives.
While rendition and torture were not the focal points of Obama’s presidential campaign, the subjects were prominent enough for the corporate media to have addressed the story with some frequency. And most observers believe that the public understood that rendition and torture were inseparable. And that their new president was opposed to both!
Given this background, it is perhaps understandable that the Obama Administration’s reaction to the anti-Bush actions of some of America’s allies took the US public by surprise. Defending the Bush Administration was nowhere to be found in the Obama campaign rhetoric.
Moreover, actions such as were and are being taken to protect Bush-era policies and personalities were sometimes rumored in the American press and in the blogosphere, but only widely confirmed by the diplomatic cables recently released by Wikileaks. So it is reasonable to assert that most of the US public simply did not know.
Germany and Spain turned out to be particularly complicated diplomatic problems for the Obama Administration. It sought to pressure the German government to “lose” the arrest warrants they had previously issued against 13 CIA officers who were allegedly involved in the abduction and subsequent torture of Lebanese-born German citizen Khaled El-Masri.
Earlier, the Bush Administration had faced – unsuccessfully – a similar situation in Italy. There, 23 CIA agents were convicted in absentia of abducting an Egyptian imam. Washington refused to extradite the agents, who are all free but would probably be arrested if they travel to Europe.
Later, as Scott Horton disclosed in Harper’s Magazine, the US attempted to obstruct investigations by the Spanish government into the murder of a Spanish journalist in Iraq by US forces, the use of Spanish airfields for the CIA's rendition program, and the torture of Spanish detainees at Guantánamo.
A major worry was a torture case brought by a Spanish non-governmental organization against six senior Bush administration officials, including the former attorney general, Alberto Gonzales.
The German situation has been impeccably reported by Matthias Gebauer and John Goetz of Der Spiegel Online.
They write that the American diplomatic cables released by Wikileaks “provide new details about the case of Khaled el-Masri, a German citizen abducted by the CIA in 2003. The reports confirm just how much pressure the US put on Germany to not pursue the agents believed to have been involved. But they also reveal how cooperative and responsive German officials were in light of American worries.”
The external details of the el-Masri case are well known by now.
Over the Christmas-New Year’s holiday in 2003, Khaled el-Masri, a greengrocer from a small town in South Germany, traveled by bus to Skopje, Macedonia. There he was detained by officials because his name was similar to that of Khalid al-Masri, a known Al Qaeda agent.
According to The Guardian newspaper in Britain, despite el-Masri’s protests that he was not al-Masri, he was beaten, stripped naked, shot full of drugs, given an enema and a diaper, and flown first to Baghdad and then to the notorious “salt pit,” the CIA’s secret interrogation facility in Afghanistan.
“At the salt pit, he was repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him.
“Throughout this time, El-Masri insisted that he had been falsely imprisoned, and the CIA slowly established that he was who he claimed to be. Over many further weeks of bickering over what to do, a number of CIA figures apparently argued that, though innocent, the best course was to continue to hold him incommunicado because he ‘knew too much’.”
Then Secretary of State Condoleeza Rice sharply disagreed and ordered el-Masri’s immediate release – which did take place, albeit not until Secretary Rice learned of a delay and issued her order again.
Harper’s Scott Horton opined that Dana Priest of the Washington Post furnished the core of this account in an excellent 2005 story. Other aspects have been slowly confirmed by German criminal investigators. By studying el-Masri’s hair and skin samples, for instance, they were able to confirm allegations that he was drugged and subjected to a bizarre starvation regimen, he writes.
Throughout this process, el-Masri’s account of what transpired, part of which he wrote as an op-ed in the Los Angeles Times, has consistently been vindicated. However, his efforts to find a court that will let him sue the CIA have uniformly failed – stymied by the use of the “state secrets” privilege by both the Bush and Obama Administrations.
Little used under previous presidents, the “state secrets privilege” rose to prominence during the George W. Bush Administration, which used it many times. Originally intended as an evidentiary tool – to claim that public introduction of a particular piece of evidence could jeopardize national security. But the Bush administration invoked it to have entire lawsuits thrown out of court. El-Masri’s was one. And there have been many others.
When barrack Obama came to office, it was expected he would take steps to reform this much-abused statute. And indeed he said he would do so on a number of occasions. But that never happened. Instead, Obama has closely channeled the Bush Administration’s use of the privilege.
That caused Steven Watt, senior staff attorney with the ACLU Human Rights Program, to tell this reporter at the time, “Our government kidnapped an innocent man; tortured him and then, adding insult to injury, denied him his day in court through bogus claims of harm to national security.”
He added, “To date, the United States hasn't so much as acknowledged its involvement in el-Masri's extraordinary rendition."
And Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists, reminded me that "There are innocent individuals who have been swept up in US government counterterrorism operations, wrongly detained, 'rendered' surreptitiously to foreign countries, subjected to extreme physical and mental stress, or otherwise wronged."
"In some cases, like those of persons such as Maher Arar and Khaled el-Masri, efforts to seek legal remedies have been blocked by the government's invocation of the state secrets privilege," he
"As a result, the alleged abuses committed in such cases remain unresolved, and there is no way for the affected individuals to be made whole," he said.
But the Wikileaks documents reveal that in 2007 American officials, including the US ambassador, warned Germany in the strongest terms not to enforce arrest warrants for the CIA officers involved in the el-Masri case.
In one of the cables, the ambassador, William R. Timken Jr., reports on a meeting to caution German officials against trying to enforce the arrest warrants. In another, a senior American diplomat tells a German official “that our intention was not to threaten Germany, but rather to urge that the German government weigh carefully at every step of the way the implications for relations with the US” Observers characterize that as the thinnest of veiled threats.
German officials, according to the Wikileaks document, conceded that they understood the possible diplomatic consequences but also warned that, given the outcry from the German media, their options were limited.
Despite the warnings, the German government did issue Interpol arrest warrants for CIA officials involved in the kidnapping. However, they dropped the charges a few months later.
The Wiki cable shows a discussion between the US Deputy Chief of Mission – one step below the Ambassador -- with German Deputy National Security Adviser Rolf Nikel. The cable says: “The DCM reiterated our strong concerns about the possible issuance of international arrest warrants in the al-Masri case.”
The DCM noted that the reports in the German media of the discussion of the issue between the Secretary and [Foreign Minister] Steinmeier in Washington were inaccurate: the media reports suggest the [US Government] “was not troubled by developments in the al-Masri case.”
The cable went on to say: “The DCM emphasized that this was not the case and that issuance of international arrest warrants would have a negative impact on our bilateral relationship.
Politically speaking, Nikel reportedly said, “Germany would have to examine the implications for relations with the US At the same time, he noted our political differences about how the global war on terrorism should be waged, for example on the appropriateness of the Guantanamo facility and the alleged use of renditions.”
Nikel also cited intense pressure from the Bundestag and the German media. The German federal Government must consider the "entire political context," he said. He assured the DCM that the [Chancellor’s office] is well aware of the bilateral political implications of the case, but added that this case "will not be easy."
In the end, most press accounts note that the indictments of the CIA officers appear to be dormant. And they depict German Prime Minister Angela Merkel as having "caved" to the US
The US dilemma with Spain appeared almost as complicated as the El-Masri affair. The issue with Spain, though far less widely reported in the US press, was front and center for a considerable time among Spanish readers. It spotlighted leaked cables revealing pressure from the US for Spain to drop the case of a Spanish cameraman killed in a 2003 attack on journalists in Baghdad.
The case was brought by the family of José Couso, a young cameraman with the Spanish TV network Telecinco. He was filming from the balcony of the Palestine Hotel in Baghdad, April 8th, 2003, when a US Army tank fired on the hotel, packed with journalists, killing Couso and a Reuters cameraman.
Following Couso’s death, there were protests at American diplomatic posts in Spain and several civil and judicial actions in order to determine the liability of the people involved. As of today, people still gather on the 8th of each month in front of the U.S. Embassy in Madrid demanding justice.
In 2005, Spanish authorities opened a preliminary investigation with an international arrest warrant against three of the involved US military personnel. The investigation was closed in March 2006, with a finding that the event was an act of war. That decision was appealed by the Couso’s family to the Spanish equivalent of the Supreme Court, which unanimously granted the appeal by Couso's family.
The international arrest warrant against the three military personnel was reactivated, accusing the soldiers of murder and of a crime against the international community. They were subsequently indicted, and in July 2010, Judge Santiago Pedraz launched a search and arrest warrant against the three U.S. soldiers. However, senior ministers in Spain's socialist government intervened to stop the investigation
"I am outraged," said Javier Couso, the brother of José Couso. "I can’t believe my government conspired with a foreign government… It seems we are citizens, or at least a small province, of the empire of the United States."
The leaked US Embassy cables from Madrid received - and continue to receive - huge media attention in Spain and across much of Europe.
A cable dated May 14, 2007, from the US Ambassador to Spain, Eduardo Aguirre, says, "For our side, it will be important to continue to raise the Couso case, in which three US servicemen face charges related to the 2003 death of Spanish cameraman José Couso during the battle for Baghdad."
But there were also other, equally serious, issues with Spain: The proposed indictment of former president George W. Bush’s legal braintrust for applying interrogation policies and techniques that resulted in torturing war-on-terror detainees. And the revelation
that the CIA flight that took el-Masri to Afghanistan had originated in Spain.
To de-escalate that situation, the US turned to then-Senator Mel Martinez, a Florida Republican and former chairman of the Republican National Committee. He was asked to deliver a delicate message to Spain: Don't indict.
Martinez delivered that stern warning during a visit to Spain. He told the Spaniards that trying to prosecute US officials "would chill US-Spanish relations."
Martinez did not receive satisfaction from senior Spanish officials. Instead, they lectured Martinez on Spain's separation of powers, and how the executive branch of government could not close any judicial investigation. But the Spanish were eager that this case not affect its overall relationship with the US
The case file is now in the jurisdiction of a Spanish magistrate. He has taken no further action on the indictments while he awaits an answer to the question he asked the Obama administration - whether it intends to open an investigation of its own.
US officials tried to influence Spanish prosecutors and government officials to head off court investigations into Guantánamo Bay torture allegations and secret CIA "extraordinary rendition" flights involving Spanish airspace, according to the US diplomatic cables released by Wikileaks
Among their biggest worries were investigations originated by the magistrate Baltasar Garzón, the storied jurist who had the Europe-wide arrest warrant issued for former Chilean strongman Augusto Pinochet.
Michael Ratner, president of the Center for Constitutional Rights (CCR) - which has played a major role in mobilizing lawyers to defend Guantanamo detainees, told this reporter, "The importance of this investigation cannot be understated. Contrary to statements by some, the Spanish investigations are not 'symbolic.' Just ask Augusto Pinochet, who was stranded under house arrest in England and who ultimately faced criminal charges in Chile because of the pressure of the Spanish courts."
But the diplomatic cables reveal that Garzon was seen by US officials as having "an anti-American streak." However, many observers doubt this assertion. Garzon has been a frequent visitor to the US, and has lectured before bar associations and at major law schools.
"We are certainly under no illusions about the individual with whom we are dealing," US officials said after Garzon opened an investigation into torture at Guantánamo Bay prison camp.
"Judge Garzon has been a storied and controversial figure in recent Spanish history, whose ambition and pursuit of the spotlight may be without rival," the US diplomatic cable said.
Garzón was deemed to put self-promotion first. "We suspect Garzón will wring all the publicity he can from the case unless and until he is forced to give it up," said the officials.
"It is hard for us to see why the publicity-loving Garzón would shut off his headline-generating machine unless forced to do so," they reported.
"We also fear Garzón - far from being deterred by threats of disciplinary action - may welcome the chance for martyrdom, knowing the case will attract worldwide attention."
When another Spanish magistrate began investigating the alleged use of a Spanish airport for secret CIA flights carrying terror suspects, officials noted that US policy was to deal with these cases in closed-door conversations with governments.
They were especially alarmed when magistrates and prosecutors in both Spain and Germany began comparing notes. "This coordination among independent investigators will complicate our efforts to manage this case at a discreet government-to-government level," they warned.
US officials noted, however, that their own government had not explicitly denied the allegations. "Our ability to beat down this story is constrained by the fact that we do not ourselves know, factually, what might have transpired five or six years ago as the battles in Afghanistan and Iraq began yielding large numbers of potentially dangerous terrorist detainees and unlawful combatants," they observed.
"Baring (sic) a categorical statement from the US government that no detainees passed through Spain - and we understand that might be undesirable from a policy standpoint even if factually correct - nothing but time is going to make this go away," they said.
"Top (Spanish) ministers moved quickly to let us know that the government is working to resolve this situation," the officials reported, naming the deputy prime minister, the foreign minister and the justice minister.
"The [Spanish] government must act carefully as it tries to influence Spain's fiercely independent judiciary," they noted. "In order to avoid aggravating the situation, Spanish government leaders must publicly show their respect for the independent workings of the courts."
It is worth noting that while America’s problems with both Spain and Germany began during the George W. Bush presidency, efforts to "disappear" them have been continued by the Obama Administration.
Presumably under the mantra of looking forward, not backward, the White House and the State Department believe they have an obligation to do whatever they can diplomatically to protect US personnel, US interests, and US reputation.
This is considered essential, albeit most observers contend that it does not come anywhere near meeting the transparency and accountability pledges made by the President during the campaign and beyond.
Some observers suggest it may also be useful to consider the extent to which the diplomatic efforts of the Obama Administration have been motivated by the desire to continue the tradition of "the imperial presidency" - the effort to maintain a strong executive branch, typified by George W. Bush.
In the view of one commentator, who prefers to remain anonymous, “If successful, the efforts of the Obama Administration would ‘diplomatically protect’ the US to deny all wrong-doing - and even keep the diplomats who are supposed to be conducting these delicate negotiations in the dark about what ACTUALLY happened.”
This observer added, “It's not just the abrogation of the promise of transparency, it's the apparent obliviousness to what transparency is meant to achieve: democratic decision-making, a healing in the vast horrible wound that's been opened between our human rights ideals and actual practices.”
But even if Obama’s diplomats are successful in suppressing anything that might embarrass the CIA, the military, or any other agency of government, its troubles would appear to be far from over.
Last week, in Madrid, the US-based Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR) asked a Spanish Judge to subpoena the former commanding officer at Guantánamo Bay to explain his role in the torture of four former detainees.
CCR and ECCHR filed a 12-page dossier detailing the key role of Major General Geoffrey Miller, who ran the island prison camp from November 2002 until April 2004, in the torture and other serious abuse of detainees held there.
In the dossier, the rights groups detail acts of torture and other war crimes committed against detainees, including the torture of CCR client Mohammed al Qahtani. Much of the documentation discussed in the dossier is drawn from US government reports.
Based on his record in Guantánamo, Miller was sent to Iraq in 2003 to share interrogation techniques from Guantánamo with US counterparts in Iraq: Miller is said to have wanted to "Gitmo-ize" Iraq and Abu Ghraib, including by having guards "soften up" prisoners. Shortly after Miller’s visit some of the most serious and notorious acts of torture at Abu Ghraib occurred.
"There is ample evidence - primarily from US government sources - that Geoffrey Miller played a central role in the torture of detainees at Guantánamo, and later in Iraq," said Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights. "It is time that he be called before a court of law to explain his role in the torture of detainees."
The above article originally appeared ib Truthout.org