C Explanatory
memorandum by Mr Marty, rapporteur
1 Introduction
“Real power begins where secrecy
begins.” Hannah Arendt
(The Origin of Totalitarianism,
1951)
1.1 Procedure
1. A motion for a resolution of 6 May 2009 tabled by
Mr Marty and others (
Doc.
11907) was referred to the Committee on Legal Affairs and Human
Rights for report on 29 May 2009. Mr Dick Marty was appointed rapporteur
at the committee's meeting on 23 June 2009. The committee held a
hearing with experts at its meeting in Tbilisi on 17 September 2010.
The report of the hearing was declassified by the committee on 5 October
2010.
Note
1.2 Background
2. The motion for a resolution on which this report
is based is also the result of knowledge acquired in preparing the
reports on illegal transfers of detainees and secret CIA detentions
Note and on the terrorism blacklists
of the United Nations Security Council and of the European Union.
Note We described how our research into
the activities of the CIA and the implication of the authorities
of European states came up against a real wall of silence from the
governments of the countries whose secret services were suspected
of collaborating with the CIA in illegal activities. Questionnaires
sent out on the committee’s behalf brought extremely formalistic replies
lacking in substance or were simply ignored, even after reminders.
It was only by resorting to other sources of information, such as
“whistle-blowers”,
Note honest officials of the United States
and of European countries, who were no longer willing to be accessories
to criminal acts, that we were able to discover part of the truth.
Once the “truth process” was in motion, others felt motivated or
even compelled to react, and our findings, for which there was already
considerable evidence at the time, all proved to be correct, and
were even supplemented by further revelations – such as, for example,
the existence of other “secret CIA prisons” in Lithuania, in addition
to those we had already revealed in Poland and Romania.
3. It should be emphasised, however, that, for the most part,
these additional revelations were the outcome, not of parliamentary
and judicial inquiries launched in the wake of the two Parliamentary
Assembly reports and that of the European Parliament, but of relentless
efforts by investigative journalists and non-governmental organisations.
The fact is that the official investigations are stalled or have
even already been abandoned or dismissed without addressing the
merits of the cases, as in the case of the compensation claims brought
before the American courts by victims of the renditions. Official
procedures have in every case come up against the argument of state
secrecy, used by the governments concerned to impede the course
of justice and the requests of the parliamentary commissions of
inquiry set up in several countries. We consider that this is simply unacceptable:
a democratic state based on the rule of law is duty-bound to have
judicial and parliamentary mechanisms to get to the bottom of serious
human rights violations committed by agents of the executive, however
“special” they may be. A “licence to kill” (or to abduct and torture)
only exists in certain films, and in dictatorial regimes. In democratic
systems, parliaments, as representatives of the people, have a right
and duty to know what the government is doing, and the justice system
has a duty to prosecute and punish the perpetrators of criminal
acts, including, where appropriate, agents of the executive. The
principles of separation of power and checks and balances must not
only be quoted in nice speeches; they must above all be implemented.
4. Plainly, however, this clear and simple rule does not seem
to apply, or at least not completely, to the activities of so-called
special services, and particularly when they claim to act in the
framework of the fight against terrorism. This fight, as we have
already shown, has already given rise to numerous abuses and violations
of human rights, with doubtful results, contributing to increase
the number of terrorist recruits
Note and creating a climate of sympathy
for those criminals who can thus pretend that they fight against
a system which employs criminal methods.
5. It is obvious that all states, including democratic law-based
states, legitimately feel the need to protect their secrets. I do
not wish to attempt in this report to develop a “positive” definition
of the notion of state secrecy. Suffice it to say that an excessively
broad and/or vague definition of state secrecy as protected by the laws
criminalising espionage or violations of state secrecy poses a danger
to freedom and allows all kinds of abuse. But the subject of this
report is not the danger represented by abuse of the notion of state
secrecy to silence or even imprison journalists, scientists, lawyers
and other “whistle-blowers”.
Note This report is intended to focus
on abuse of state secrecy to prevent or block judicial or parliamentary
inquiries set up to establish the truth about unlawful acts committed
by agents of the executive. In this context, it is enough, where
the definition of state secrecy is concerned, that we agree on a
distinction between legitimate secrets and others which do not warrant
protection. A “negative” definition is therefore sufficient: secrets
not “worthy of protection”
Note are those
which in reality relate to information pertaining to the personal
or political responsibility for criminal acts. If we agree on this
premise, it is enough to identify appropriate procedures for ensuring
that judicial and parliamentary oversight bodies are able to perform
their task of doing justice and establishing the truth without jeopardising
the (only) legitimate state secrets. That is the purpose of this
report, which will attempt to take stock of efforts to perform judicial
(section 2 below) and parliamentary (section 3 below) scrutiny of
alleged illegal activities by the secret services,
Note before
suggesting, by way of a conclusion, some possible solutions to remedy
the shortcomings observed.
2 Attempts
at judicial scrutiny of alleged illegal activities by the secret
services
2.1 Criminal proceedings
against secret agents responsible for criminal acts
6. At the hearing in Tbilisi, Mr Armando Spataro, the
Milan prosecutor responsible for prosecuting the abductors of Abu
Omar,
Note described the
difficulties which the Milan prosecutor’s office had encountered
in this case. The Italian Constitutional Court confirmed the lawfulness
in principle of the proceedings against the CIA and SISMI
Note (the Italian military
intelligence agency), which even led to convictions – the only ones
handed down so far against participants in the CIA programme of
illegal transfers and secret detentions. A total of 25 people, including
22 CIA agents and an American military officer, were sentenced to
lengthy terms of imprisonment, the American citizens
in absentia. Their extradition has
never been officially requested by the Italian government, despite
the existing extradition treaty between the two countries which
foresees the extradition of their own nationals. Two Italian secret
agents were also convicted of participation in this abduction. The
Milan Court of Appeal upheld these convictions on 15 December 2010.
Note However,
the former head of SISMI, Mr Pollari, and other senior military
intelligence officials could not be prosecuted because they had
not been released from their professional secrecy obligations in
accordance with the procedure designed for this purpose. The evidence
against him and his colleagues could not be divulged for reasons
of state secrecy. Mr Armando Spataro, the chief prosecutor in charge
of the case, explained the relevant Italian legislation in his statement
at the hearing in Tbilisi in September 2010. The law provides for
an adversarial procedure with, at last instance, a decision by the
Constitutional Court, which has the power to lift the secrecy imposed
by the prime minister. In the Abu Omar case, the Constitutional
Court issued some rather general guidelines which need to be applied
by the ordinary courts to each document and witness on a case-by-case basis.
Their application of the rules may be subject to appeals to higher
courts. According to Mr Spataro, everything depends on how the legislation
is applied in practice, which may lead to tensions between the judiciary
and the executive.
7. As regards the German part of the abduction of Abu Omar in
Milan, who was flown from there to Egypt via the American base in
Ramstein, a judicial investigation was initiated by the public prosecutor’s
office in Zweibrücken. As already mentioned in my 2006 report,
Note this investigation
was unsuccessful owing to the lack of co-operation by the American
authorities, from whom the prosecutor’s office had requested information concerning
the movements of American personnel involved in the prisoner’s transfer
from the Aviano base in Italy via Ramstein.
8. With regard to the abduction of Khaled El Masri, the Munich
prosecutor’s office conducted an investigation which resulted in
arrest warrants against 13 CIA agents. This investigation, of remarkable
quality like that in Milan, made it possible to identify those responsible
and to trace the victim’s movements, leaving no doubt as to the
truthfulness of his account. But, as we regret to note, the arrest
warrants were never transmitted to the competent American authorities
via diplomatic channels, as required under the co-operation agreement
in criminal matters between Germany and the United States. A complaint
by Mr El Masri before the Administrative Court in Cologne aimed
at obliging the government to request the extradition of these agents
by the United States was rejected. The Court argued that the government
had a margin of appreciation allowing it to take into account the
fact that the United States had announced from the outset that any
extradition request would be refused on national security grounds.
NoteNote
9. In Poland,
Note judicial proceedings which looked
quite promising have so far failed to produce any results, also
because of the American authorities’ refusal to provide the requested
judicial assistance. The first request in March 2009 was rejected
in October 2009. The American authorities have not yet given a decision
on the second request, lodged on 22 March 2011. One interesting
development came when Abd al-Rahim al-Nashiri and Abu Zubaydah (who
are currently being held at Guantanamo Bay) were granted victim
status. But the prosecutorial enquiry started only in March 2008,
almost three years after credible allegations of secret detentions
in Poland first emerged.
10. The Polish Helsinki Foundation, in tandem with the Open Society
Justice Initiative, has succeeded in obtaining and publishing some
important information, including data collected by the Polish Air
Navigation Services Agency (PANSA) on suspicious movements of aircraft
belonging to CIA shell companies,
NoteNote information which the Polish authorities
officially refused to disclose to us and to the European Parliament during
our inquiries in 2006/2007. These data, along with those made available
to the Helsinki Foundation by the Polish Border Guard, provide definite
proof that seven CIA-associated aircraft landed at Szymany airport between
5 December 2002 and 22 September 2003.
Note
11. The Polish Helsinki Foundation noted a positive change of
attitude on the part of the prosecuting authorities, reporting that
they have released more information of late and that their second
request to the United States for judicial assistance shows how seriously
they are taking the case. In a recent development, prosecutor Jerzy
Mierzewski was removed from the file and replaced by the recently
appointed deputy appellate prosecutor Waldemar Tyl.
Note Adam
Bodnar, of the Polish Helsinki Foundation, criticised this decision as
“irrational” and expressed his fear that sooner or later the Polish
investigation would be discontinued, as had happened in Lithuania,
Note for which there was “no objective
reason”. The new prosecutor in charge of the case, Mr Tyl, called
the worries “groundless“. Time will tell.
12. The Polish prosecuting authorities have not yet secured the
desired co-operation from the American authorities or even an opportunity
to hear Mr al-Nashiri himself as a witness. But the data collected
by the Polish Helsinki Foundation and the victims’ lawyers should
be sufficient to confirm the presence at the Stare Kiejkuty site
of half a dozen detainees and to identify the head of the “black
site” and at least one other person alleged to have committed acts
which are described as “unauthorised and undocumented” in the Report
by the CIA Inspector General (see below) and which seem to correspond
to the definition of torture in Article 3 of the European Convention
on Human Rights (ETS No. 5, “the Convention”) as interpreted by
the European Court of Human Rights (“the Court”) in the case of
Ireland v. United Kingdom.
Note The Polish prosecuting
authorities therefore have a duty, under the Court’s case law, to
investigate these acts and prosecute those responsible, especially
as one of them, a private contract worker, is not even covered by
any form of immunity.
13. The human rights NGO Open Society Justice Initiative (OSJI)
recently lodged an application against Poland before the European
Court of Human Rights on Mr al-Nashiri’s behalf. This is the second
application by a victim of CIA renditions. It has two main strands
relating to fundamental values of the Council of Europe. Where the
first is concerned, namely the ill-treatment allegedly suffered
by Mr al-Nashiri on Polish territory, even under the control of
American agents, Poland could be found responsible for violations
of Article 3 of the Convention in view of the Polish authorities’
failure to discharge their responsibility to protect all persons
on national territory from torture. If the direct responsibility
of the Polish authorities cannot be proved, the Court’s case law
concerning a procedural violation of Article 3
Note may also be applicable
in view of the alleged failure of the judicial authorities to fulfil
their positive obligation to conduct an effective investigation
despite there being strong evidence that such acts had taken place.
The second strand of the application concerns Mr al-Nashiri’s transfer
from Poland to Guantanamo Bay, where he was allegedly subjected
to further ill-treatment; following this transfer, he now risks
being subjected to a manifestly unfair trial by a military commission
and – this would be a most blatant violation of the European Convention
on Human Rights – being sentenced to death.
Note The European
Court of Human Rights has already held in its case law
Note that
extradition to a country in which the person is in danger of being
sentenced to death may constitute a violation of Articles 2 and
3 of the Convention. A fortiori, that must be the case when the
death penalty is likely to be imposed following unfair proceedings, such
as those conducted by the Guantanamo Bay “military commissions”,
NoteNote not to mention the use of torture. The
work of al-Nashiri’s lawyers has been made extremely difficult by
state secrecy issues because everything Mr al-Nashiri says is presumed
to be classified. Lieutenant Commander Stephen Reyes, Mr al-Nashiri's
military defence counsel, has provided the following description
of events:
"A few months ago,
I was asked by the government for the correct spelling of my client's
name, according to him. I was unable to answer this simple question,
because any statements made by my client are presumed to be top
secret."
14. In Lithuania, the prosecuting authorities launched a criminal
investigation following the revelations of the parliamentary inquiry
Note concerning
the existence of two “black sites” in the country. The investigation
drew in particular on information published in February 2010 in
the United Nations joint study on secret detention,
Note which was based on analysis of
flight plans and “data strings”, analogous data to those already
used by us to discover the existence of “black sites” in Poland
and Romania. The British NGO Reprieve also gave the Lithuanian Attorney-General
some important elements in its letter of 21 September 2010.
NoteNote Reprieve presented information according
to which a “high-value detainee” known as
Abu
Zubaydah had been detained secretly in Lithuania between 2004 and
2006, in the course of a journey which had allegedly taken him from Thailand
to Szymany in Poland, then to Guantanamo Bay and Morocco. After
his spell in Lithuania between spring 2004 and September 2006, he
was allegedly returned to Guantanamo Bay. But the Lithuanian prosecuting
authorities eventually suspended their investigation without any
result – despite protests by Amnesty International.
Note Amnesty
International considers that numerous “obvious” leads had not been followed
up by the prosecutors, who in their view also accepted too easily
the limits imposed on their investigation by the invocation of state
secrecy. The prosecutor’s office, for its part, justifies its decision
to suspend the investigation by the statute of limitations for a
possible abuse of authority and by the refusal of the American authorities
to provide the information requested. We consider that the lack
of co-operation of the American authorities, as noted before in
relation to the German, Italian and Polish authorities, raises a
serious problem indeed. This situation is also due to the attitude
of those European governments, which abandoned all control over
the use of their own infrastructures they unconditionally put at
the disposal of the American administration, in the wake of the
acceptation of the implementation of Article 5 of the NATO treaty
Note and of the
operative measures accepted by the members of the alliance.
Note In
this way, the European governments effectively placed themselves
in a position of reliance or even dependence on the good will of
the American authorities.
15. The European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT), in its report on the
visit to Lithuania from 14-18 June 2010, published with the agreement of
the Lithuanian authorities on 19 May 2011,
Note provided an initial evaluation
of the criminal investigation concerning the secret prisons, raising
critical questions as to the promptness of the investigation, the comprehensiveness
of its scope and its thoroughness. Most importantly, for this report,
the CPT pointed out that it
“did
not receive the specific information it requested, either during
the above-mentioned meeting or from the Lithuanian authorities’
response of 10 September 2010. … It is affirmed that more specific information
cannot be provided as the major part of the data gathered during
the investigation constitutes a state or service secret.”
The
CPT has an impeccable track record, over 20 years, of keeping the
confidentiality of information received in the pursuit of its delicate
mission. It publishes only the final report, and only upon the request
of the national authorities. It is therefore unacceptable, in my
view, that even the CPT did not get access to the information required
in order to determine, in accordance with its mandate, whether the
investigation by the Lithuanian prosecutor’s office into the serious
torture allegations in question was performed with due diligence,
as required both by the European Convention against Torture and
Inhuman and Degrading Treatment and the European Convention on Human
Rights.
16. In Spain, criminal proceedings were also initiated following
publication of the Assembly report. The United States put pressure
on the Spanish authorities not to press charges, as can be seen
from the publication of US diplomatic cables via Wikileaks.
Note
17. In Portugal too, criminal proceedings were initiated to no
effect, despite the determination of Portuguese MEP Ana Gomes, who
appealed against the closure of the investigation while drawing
the attention of the prosecuting authorities to its many shortcomings.
18. In “the former Yugoslav Republic of Macedonia”, Khaled El-Masri
– a German of Lebanese origin arrested at the border, held for 23
days in a hotel in Skopje by Macedonian agents, then handed over
to CIA agents to be detained and ill-treated in American prisons
in Afghanistan
Note – filed a complaint with the Skopje public
prosecutor on 6 October 2008 for illegal detention and abduction
and for torture or inhuman and degrading treatment. According to
the complainant, no investigative steps were taken following his
complaint. On 20 July 2009, Khaled El-Masri, with the help of OSJI,
lodged an application with the European Court of Human Rights against
“the former Yugoslav Republic of Macedonia”.
Note This
was the first rendition case to be brought before the Court.
19. In France, in the so-called Karachi affair, a “priority question
of constitutionality” challenging the current official secrets legislation
was referred to an anti-terrorist judge. If the question, which
was remitted initially to the Paris Court of Appeal, passes the
final stage of the Court of Cassation, the Constitutional Council
will give a ruling on the validity of the legislation in question
within a period of three months.
Note According
to the law of 29 July 2009, judges may no longer enter certain places
such as ministries or police premises or seize documents or other
items there unless they are accompanied by the Chair of the Consultative
Commission on National Defence Secrecy – who must also give the
minister an opinion on whether or not use of the seized documents
or other items should be authorised. The list of “classified places”
is itself classified. A judge wishing to conduct a search must therefore
find out from the Ministry of Justice, which keeps the list, whether
the place he plans to search is on the list. Clearly these rules
further complicate the work of judges in cases aimed at establishing
the truth about the conduct of the executive authorities concerned.
20. In the United Kingdom, criminal proceedings relating to involvement
in renditions have been brought in only one case – that of an MI5
agent (“witness B”) alleged to have aided and abetted the mistreatment
of Binyam Mohamed, whom he interrogated in Pakistan during his detention
under the control of American agents. The Attorney General called
for a police investigation in March 2009, but the investigation
failed to produce sufficient evidence, as announced by the Director
of the Crown Prosecution Service on 17 November 2010.
Note Other criminal investigations
concerning this case are still ongoing.
NoteNote
21. In the United States, no criminal proceedings have been brought
against the perpetrators or instigators of acts of torture (such
as waterboarding). The Obama administration preferred to draw a
line under the acts of its predecessors, even – and that is difficult
to understand, not to say shocking – for those who went beyond the
authorisation to employ the “11 techniques” for interrogation (including
waterboarding) covered by the infamous “torture memos”
Note issued by the Justice Department’s
Office of Legal Counsel (OLC) under
the Bush administration. Indeed, the report by the CIA Inspector
General, John Helgerson, parts of which were published on 24 August
2009, reveals “undocumented and unauthorised” practices going beyond
the “11 techniques”, such as operating a power drill and a handgun
close to the head of the blindfolded victim, (as was the case, for example,
of al-Nashiri), excessive use of waterboarding (over 180 times in
one case), or threats against members of the victim’s family. Those
responsible for these practices are therefore not covered by the
“good faith” argument applied by the Justice Department’s Office
of Professional Responsibility (OPR) to those who confined themselves
to implementing the methods described in the “torture memos”; this
applies also to the authors of these documents, which are in effect
handbooks for acts of ill-treatment, which in most cases constitute
real acts of torture. The Attorney General, Minister of Justice
in the American system, therefore has a discretionary power to prosecute,
or not, the perpetrators of those acts. A preliminary review seems
to be pending by prosecutor John Durham at the request of Attorney
General Eric Holder “into whether federal laws were violated in
connection with the interrogation of specific detainees at overseas
locations”. In any case, the authors of the “torture memos” and
those who carried out “in good faith” the acts described in them
appear to be excluded from the scope of this inquiry.
Note Mr Holder appears to have accepted
at the end of June 2011 the recommendation by Mr Durham to conduct
a full criminal investigation, but limited to two deaths which occurred during
detention under American control (one in Iraq and one in Afghanistan).
Note This would be perfectly in line with
the spirit of President Obama’s famous speech on national security
on 21 May 2009,
NoteNote in which he advocated a “forward-looking”
approach to the fight against terrorism (according to the infamous
principle, found in many other cases of impunity, according to which
“the past is the past”). This promise of impunity for the American
perpetrators and instigators of violations committed in the exercise
of their official duties is one of the few undertakings in this
speech which President Obama has honoured. Those not honoured include
the closing down of Guantánamo Bay prison camp and the abolition
of military commissions to try foreign nationals held outside the
United States and accused of terrorism. I share the view of Kenneth
Roth, Executive Director of Human Rights Watch, who considers that
President Obama effectively treated torture as an unfortunate political
choice rather than a crime and that his decision to end the abusive
methods of interrogation will remain uncertain, being easily reversible,
unless and until the legal prohibition of torture is clearly re-established.
Note
2.2 Actions for damages
brought by victims of unlawful acts
22. Khaled El-Masri, arrested in Skopje, held and ill-treated
in American prisons in Afghanistan, brought an action for damages
against CIA agents before American courts.
Note His
complaint, supported by the American Civil Liberties Union (ACLU),
a non-governmental organisation for the defence of human rights,
was dismissed after the US administration – President Obama’s –
had invoked the doctrine of state secrets privilege.
Note According to this doctrine, dating
back to the time of the cold war, American courts cannot proceed
with a case when the administration invokes “state secrets privilege”.
In these proceedings, I intervened as
amicus
curiae before the Supreme Court of the United States
to explain that Mr El-Masri’s ordeal could by no means be considered
a “state secret”, given that all details needed to substantiate
the damages claim were known to the public and appeared in the Assembly’s
reports of 2006 and 2007. Unfortunately the Supreme Court, in a
narrow vote, did not see fit to intervene.
23. The ACLU also supported the complaint of five other victims
of renditions – Binyam Mohamed, Abu Elkassim Britel, Ahmed Agiza,
Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi – against the private company
Jeppesen Dataplan Inc. Jeppesen’s implication in the transfer of
suspected terrorist prisoners for purposes of inflicting torture
was publicly certified by documentary evidence and eye witnesses,
including a former Jeppesen employee who had also been told by a
senior company manager about financial profits derived from these
“torture flights”. The complaint was nevertheless dismissed on 13
February 2008
Note after state secrets privilege was
yet again invoked by the Director of the CIA. The ACLU appealed,
at first successfully: a bench of three judges of the Court of Appeal
overturned the decision of dismissal at first instance and referred
the case back for the proceedings to be continued.
Note The
Court of Appeal noted that the government’s argument for the dismissal
of the case in its entirety from the outset had “no logical limit”
and was tantamount to asking that the courts should effectively
remove every action declared secret by the government from all judicial
scrutiny, consequently freeing the CIA and its associates from all
the demands and limitations prescribed by law. The court recalled
that the executive’s prerogatives on grounds of security were not
the sole constitutional values at stake. The constitution most certainly
would contemplate a role for each of the three powers when individual
freedoms were at stake. But the administration appealed to a full
bench of 11 judges of the Court of Appeal, which finally accepted
the plea of state secrets privilege by a very narrow majority, six votes
to five.
Note An
appeal by the ACLU to the Supreme Court of the United States was
denied on 16 May 2011.
NoteNote I had joined an
amici curiae brief by professors
and representatives of human rights organisations in support of
the application.
Note I should like to pay tribute, once
again, to American civil society, which is engaged without fail
in order to help the United States regain their position as leader
in the defence of civil liberties and fundamental rights.
24. Maher Arar, a Canadian of Syrian origin, was subjected to
a “rendition” and handed over by the CIA, with the co-operation
of Canadian police, to Syria, where he was atrociously tortured.
He succeeded in having the role played by the Canadian authorities
elucidated and obtained financial compensation for his dreadful
ordeal.
Note As to the role
played by the United States authorities, Arar, with the help of
the Center for Constitutional Rights, brought an action for damages
against the former Attorney General John Ashcroft and other representatives
of the Bush administration.
Note In February 2006, accepting the
US Government’s plea of state secrets privilege, the complaint was
dismissed on grounds of national security and foreign policy considerations.
Note The
Court of Appeal upheld the dismissal.
Note The
United States Supreme Court refused to review the case.
Note It
should be recalled that no accusation was ever made against Arar.
His life and that of his family was turned upside down and he will
suffer to the end of his days from the after-effects of this terrible experience.
But once again, the perpetrators of this criminal act go unpunished
and the victim has not even obtained one dollar of compensation
or even an apology from the authorities of a country that is generally considered
as highly civilised and very democratic. In this particular case,
the Canadian authorities have in fact assumed their responsibilities.
But this is an exception. Can one still talk of the rule of law
in these circumstances?
25. The actions for damages brought by victims of renditions therefore
proved unsuccessful in the end. The reason in each case was the
government’s plea of state secrets privilege. The complaints were
dismissed from the outset because, the government contended, the
proceedings could not go ahead without disclosure of secrets imperilling
state security. On each occasion, the public interest in state security
has been held against the victim’s “private” interest in seeing
justice done – as if there was not a public interest in every citizen
being able to obtain justice and as if justice could not be done
without duly protecting the legitimate interests of the state.
26. A legislative initiative seeking to limit improper assertion
of state secrecy privilege (bill H.R. 984), though favourably received
in committee, has not yet been passed for want of parliamentary
time.
Note President Obama’s administration
did not take a stance on this initiative; instead, the Justice Department
adopted directives on self-surveillance – which, in the opinion
of the ACLU, would “change nothing” compared to the present situation,
27. In the United Kingdom, 16 people (including Bisher al-Rawi,
Jamil el Banna and Binyam Mohamed) who accused the British security
forces of abetting their transfer abroad in order to be tortured
received significant financial compensation.
Note The government, which continues
to refuse to admit that the authorities committed wrongful acts
engaging their legal responsibility, signified its wish to avoid
the continuation of the court proceedings already brought by six
former Guantánamo prisoners which could have lasted for at least
another three years and cost millions of pounds. A pragmatic solution,
certainly, but is this really an act of justice?
28. The origin of this “friendly settlement” is worth outlining
as it may help provide a better grasp of the attitude – protective
of the rights of persons before the courts – adopted by British
justice towards the government’s will to keep its actions and mistakes
secret. Indeed, Binyam Mohamed, supported by the British NGOs Liberty
and Justice, sought a court injunction that the government release
to him the seven-paragraph account of the ill-treatment which he
underwent in American custody in Pakistan, to assist his defence
against charges of terrorism in the United States. Following a High
Court ruling in his favour, the government issued a certificate
of “public interest immunity” (PII) on the ground that the publication
of this information, which the British authorities had received
from their US counterparts, without the consent of the latter, would
imperil co-operation and intelligence sharing with the US authorities
in future. The court at first refused the request to make these
seven paragraphs public. It subsequently authorised publication
of the text after President Obama’s election, arguing that there
was no longer a cogent basis for the fear that the US Government
would react negatively to publication. The British Government appealed,
and the Court of Appeal decided on 10 February 2010 that the seven
paragraphs could be published. The government’s counsel, having
received the draft judgment of the Court of Appeal, made the unusual
request to the presiding judge of the Court of Appeal (the Master
of the Rolls) that a paragraph be deleted from the draft judgment.
On 26 February, the Master of the Rolls refused the government’s
request and published the contentious paragraph with only minor
changes.
29. In separate proceedings, Binyam Mohamed and other former Guantánamo
inmates lodged complaints against the British Government claiming
damages for the part of the British secret services in the unlawful detention
and ill-treatment undergone by the plaintiffs. The government asked
the court to sit in camera (closed material procedure), with the
plaintiffs and their counsel barred from the hearing of the case,
leading to a “closed judgment” which they would not be allowed to
see. On 18 November 2009, the High Court assented to the government’s
request. On 4 May 2010, however, the Court of Appeal held that “a
litigant’s right to know the case against him and to know the reasons
why he has lost or won is fundamental to the notion of a fair trial”. The
British Supreme Court confirmed the judgment of the Court of Appeals
in the Al Rawi case on 13 July 2011.
Note
30. The arguments of senior British judges
Note must
challenge all those, outside the United Kingdom too, who accept
the argument that publication of information in the context of judicial
and other proceedings which originates from an allied secret service
is harmful to future international co-operation. The judges pointed
out that among allied countries united in the common cause of defending
the law-based state against the terrorist threat, all operators
knew that a court of justice in each country could intervene and
not accept the principle, which is generally accepted by intelligence
agencies, according to which the agency which has provided the information
is solely responsible for deciding on its use and its control, in
particular in cases where the publication of an information item
could not in any circumstances prejudice state security. The Court
of Appeal specified that it did not object to the actual principle
of safeguarding secrets affecting state security, but that it was
a matter for justice to weigh the assertions of the government regarding
the need to keep a given piece of information secret.
31. These decisions also informed the (new) British Government’s
preference for negotiating a “friendly settlement” of the cases
already pending before the courts, which also facilitated the holding
of an independent extrajudicial inquiry to elucidate once and for
all the British authorities’ involvement in the unlawful detentions and
ill-treatment committed in connection with the fight against terrorism,
as Prime Minister David Cameron announced on 6 July 2010.
NoteNote
3 Parliamentary inquiries
into alleged illegal activities by the secret services
32. In Germany, the
Bundestag carried
out what is probably the most probing and serious parliamentary inquiry
into the allegations of secret detentions and unlawful transfers
of detainees, between 2006 and June 2009. But as I was able to observe
at my own hearing before this commission of inquiry, political loyalties
had far greater prominence than the will to get at the truth. So
it was mainly thanks to the dedication of the representatives of
the small opposition parties in confronting the “grand coalition”
of the time between Christian Democrats and Social Democrats that
the requests for sensitive information were put to the government.
The commission of inquiry heard numerous witnesses, former ministers
and senior officers of the secret services among them, and victims
including Khaled El-Masri and Murat Kurnaz. The commission, including
the representatives of the governing majority, ended up fully convinced
of the truth of Khaled El-Masri’s statements. It is thus all the
more surprising that the authorities of “the former Yugoslav Republic
of Macedonia” should persist in denying the obvious. However, the
commission was unable to ascertain whether top German political
leaders were informed of the activities in question.
NoteNote This is not surprising: the government
refused to provide important items of information and presented
documents that were largely redacted for “state secrecy” reasons.
Civil servants called to testify were given very limited authorisations
of disclosure. This irritated a number of parliamentarians who seized
the Federal Constitutional Court to assert their rights regarding information.
The Constitutional Court found largely in favour of the complainants
– but its judgment came too late, on 17 June 2009, at a time when
the commission of inquiry had just completed its work and the Bundestag’s
term of office was drawing to a close. The judgment
Note is nevertheless of great importance
for the future, in circumscribing more clearly the executive’s monopoly
on information in matters concerning state secrecy and national
security and in considerably widening parliamentary rights as regards
information. The arguments of the German court deserve full attention,
not only in Germany, but also in the other member states of the
Council of Europe.
33. The Federal Constitutional Court stressed that, in each case,
the government’s interest in protecting its internal decision-making
process must be weighed against the parliament’s interest in being
informed, with due regard to the separation of powers. The latter
interest weighed very heavily when it was a matter of detecting possible
breaches of the law and like abuses within the government.
Note The
executive must give specific and detailed reasons and not merely
refer in general terms to state secrecy as justification for withholding information.
In other words, specific information must be given that allows the
verification – ultimately by the Constitutional Court itself – of
the cogency of those reasons in the case in point. The highest German
court recalled that the safeguarding of the state’s interests, including
its security, was equally and jointly assigned to the government
and to the parliament by the constitution (
Grundgesetz).
The parliament and its organs were not to be regarded as third parties
from whom information must be kept secret to protect the interests
of the state. The court observed that the parliament had its own
rules guaranteeing the protection of state secrets and that a risk
of leaks existed in all state organs.
Note Information
on contacts with foreign secret services was not automatically shielded
from parliament’s requests for disclosure. The reasons why publication
of this information could be harmful to future co-operation between
these services should have been explained. The court emphasised
that the mere fact that the publication of such information might
embarrass the government did not constitute a danger to the interests
of the state, but a consequence, ordained by the constitution, of
the exercise of the right of parliamentary inquiry.
Note The court recalled that a commission of
inquiry performed a function of oversight which by its very nature
demanded the disclosure of information even against the government’s
wishes. The purpose of a commission of inquiry could be precisely
the detection of abuses and infringements of the law, in order to
clarify accountability for these and to take effective measures
to guard against them in future. The court stressed that there should
be no “areas exempt from oversight” when it came to investigating
breaches of the law or like abuses.
Note For the function of parliamentary oversight
– viewed by the court as one of the oldest and most important rights
of parliament – to be effective, the government must not be in a
position to determine the scope of an investigative mandate and
of the inquiry commission’s right to demand evidence, otherwise
it would take control over its own overseers.
Note The court considers that, while the
preparation of government decisions and the decision-making process
were generally part of the “central area of the executive’s responsibility”
(
Zentralbereich exekutiver Eigenverantwortung),
that was not necessarily so once the decision is taken and the case
under consideration has played out. Yet even in an
ex post assessment the effect of
granting exhaustive information on an analogous future case must
be taken into account.
34. In the United Kingdom, the All Party Parliamentary Group on
Extraordinary Rendition
(APPG)
made up of some sixty members of the House of Commons and the House
of Lords and chaired by the Conservative MP Andrew Tyrie, has worked
tirelessly since 2005 trying to shed light on British involvement
in the CIA’s programme of transfers of detainees.
Note It was thanks to the detailed and
praiseworthy work of this informal all-party group of parliamentarians
(and the witnesses and experts whom it heard, in particular the
lawyers of the British NGO
Reprieve)
that the cases of Bisher Al-Rawi, Jamil el-Banna and Binyam Mohamed
were reconstituted in detail. The APPG also involved itself in an
information-seeking campaign in the United Kingdom and the United
States alike, basing its requests on the laws governing freedom
of information (Freedom of Information Act/FOIA) existing in both
countries. On 18 April 2011, the Information Rights Tribunal instituted
by the British FOIA took a remarkable position inspired by the spirit
of openness of the British courts already noted with regard to civil
proceedings; it invalidated the refusal of the Ministry of Defence
to deliver to the APPG information on agreements concerning the
treatment of prisoners. The tribunal’s argument is telling: “Since
… protection of fundamental rights is known to be a core value of
the government of the United Kingdom, it is difficult to see how
any responsible government with whom we have friendly relations
could take offence at open disclosure of the terms of an agreement
or similar practical arrangements to ensure that the law is upheld.”
Note Note that the FOIA type instruments
existing in various countries can be very useful not only to parliamentary
investigators but also to players in civil society (as was the case
especially in the United Kingdom, the United States and Poland).
35. The Intelligence and Security Committee (ISC) has also conducted
two inquiries, one on British involvement in the questioning of
prisoners in Afghanistan, at Guantánamo and in Iraq, and the other
more specifically concerning the British authorities’ knowledge
of, and possible collusion in, the American programme of renditions.
The inquiries led to the publication of crucial information concerning
in particular the cases of Binyam Mohamed and of Jamil el Banna
and Bisher al Rawi.
NoteNote But it turned out that the executive authorities
had withheld from the ISC numerous documents (42) subsequently made
public in the context of judicial procedures (below). The letter
of 8 February 2010 from Jonathan Sumption, the Government’s legal counsel
in the Binyam Mohamed case,
Note reveals
the tensions between the services concerned and the ISC. The paragraph
which Mr Sumption wanted deleted from the draft judgment included,
according to the letter, observations to the effect that the officers
of the Service had deliberately misled the ISC in this regard and
that “this reflects a culture of suppression in its dealings with
the Committee, the Foreign Secretary and indirectly the Court”.
The weakness of the parliamentary machinery for oversight of the
British secret services was highlighted by Professor Leigh at the
hearing before the Committee on Legal Affairs and Human Rights on
17 September 2010. Reforms to strengthen the ISC were recommended
as from July 2007 in the Green Paper on the governance of the United
Kingdom. But there has been no change in the arrangement whereby
– unlike other standing committees – the ISC’s members are not elected
by the parliament but appointed by the prime minister in consultation
with the leader of the opposition, a procedure that is still in
force and was also criticised by British participants in the hearing.
Note
36. Preparations for the special inquiry announced in July 2010
under the aegis of judge Sir Peter Gibson (“Detainee inquiry”) have
reached a decisive stage. In February 2011, nine British NGOs
Note issued Sir Peter Gibson
with a reminder of the demands which an investigation must fulfil
in order to comply with Article 3 of the European Convention on
Human Rights, as interpreted by the European Court of Human Rights.
As far as our assignment is concerned, the most important points
raised in this letter
Note are the obligation to provide victims with
effective remedies enabling them to ascertain the truth and to secure
recognition of their suffering, guarantees that it will not recur,
and adequate compensation.
Note In
addition, the need for an independent mechanism to decide whether
or not to publish information collected by the investigation – it
being understood that the investigation may rightfully take cognisance
of all items of information and finally the power of the inquiry
to compel if necessary the co-operation of the agencies concerned
by allowing access to the documents and witness statements which
it needs to perform its function – on this topic. The prime minister’s announcement
that the Cabinet Secretary and the heads of the intelligence services
had instructed all staff to co-operate fully in the investigation
has been deemed insufficient to ensure the production of documents
and the attendance of witnesses in all cases. Initial replies from
the United Kingdom Government did not convince the NGOs, as they
fear that the inquiry might not proceed in a human-rights compliant
manner. On 6 July 2011, the terms of reference and rules of procedure
for the enquiry were published,
Note as well as a direct response from
the government to NGOs' concerns. The NGOs concerned do not appear
to be satisfied. The criticism concerns mainly the fact that there
will be neither a mechanism independent of the government to decide
on the publication of information, nor a meaningful participation
of past and present detainees or of other interested parties.
Note Under
these circumstances, the former detainees and the NGOs would refuse
to take part in this inquiry.
Note
37. In Lithuania, the
Seimas finally
undertook a fairly serious inquiry, following some initial hesitations. Indeed,
when ABC News caused an outcry by mentioning anonymous sources linked
with the CIA which claimed that Lithuania had provided a site outside
Vilnius where “high-value detainees” were held up to the end of
2005, the chairperson of the parliamentary committee on national
security and defence, Mr Arvydas Anusauskas, initiated a preliminary
inquiry. The fairly swift conclusion presented at a joint meeting
of that committee with the committee on external relations was that
there was not enough evidence to justify the opening of a formal
parliamentary inquiry.
Note But on the occasion
of the visit of the Council of Europe Commissioner for Human Rights,
Thomas Hammarberg, in October 2009, the Commissioner and the President
of Lithuania, Ms Grybauskaite, publicly expressed scepticism about
the preliminary inquiry. On 5 November 2009, the Lithuanian Parliament
finally instructed the committee on national security and defence to
undertake a full parliamentary inquiry, which yielded its results
as early as 22 December that year. Despite the short time allowed,
the findings were quite substantial: Lithuanian agents had participated
in the American programme of transfer of prisoners and secret prisons;
it was possible to trace at least six landings of aircraft used
in this programme. The CIA asked the Lithuanian secret service (SSD)
for assistance in preparing places of detention for persons suspected
of activities linked with terrorism, and two locations are said
to have actually been prepared for this purpose: the first had apparently
never been used while the investigation was unable to establish
whether people had actually been held prisoner at the second (at
Antaviliai on the outskirts of Vilnius). But it reportedly emerged
that the CIA agents had been able to use it as they pleased without
the slightest oversight by the SSD at certain periods. Finally the
investigation was also unable to establish whether the state’s top
leaders were informed of this co-operation. The investigation caused
a spate of resignations including those of the SSD chief Povilas
Malakauskas and Foreign Affairs Minister Vygaudas Usackas. The main
recommendation of the parliamentarians’ report was to open the judicial
investigation mentioned above, currently impeded by complete lack
of co-operation from the US authorities.
38. During the parliamentary inquiry, members of the commission
were able to visit the two sites in question but the authorities
did not allow access for media and civil society representatives.
39. However, the CPT was able to tour the two sites during a visit
to Lithuania between 14 and 18 June 2010. The report on the visit
was published with the consent of the Lithuanian authorities on
19 May 2011.
Note The CPT concluded
that “the premises did not contain anything that was highly suggestive
of a context of detention; at the same time, both of the facilities
could be adapted for detention purposes with relatively little effort”.
Note
40. In Poland, the commission responsible for oversight of the
intelligence services,
Note generally working
in camera and, in such cases, without minutes, held a one-day meeting
on 21 December 2005 to discuss the allegations of secret CIA prisons
in Poland. The only public indication given by the commission was
that there had not been any CIA prisons in Poland.
41. In Romania, parliament has also conducted no more than a superficial
inquiry, of which a critical presentation was already given in my
2007 report. Unfortunately, there has been nothing to add since
then.
42. The parliament of “the former Yugoslav Republic of Macedonia”
has undertaken no inquiry. Moves by individual parliamentarians
such as Silvana Boneva and Slobodan Casule did not lead to the appointment
of a special commission of inquiry into the El Masri case. The Chair
of the Committee on European Affairs, Ms Carolina Ristova Aseterud,
would rather have co-operated with the European Parliament special
commission (TDIP) than commence her own inquiry. But this co-operation
has not given rise to any results.
43. On 14 November 2007, the Swiss Federal Council – the government
– had thousands of documents confiscated and destroyed at the Office
of the Attorney General (OAG). This is definitely the world turned upside
down – the executive carrying out a search and seizure with a judicial
authority in the midst of criminal proceedings! In fact, these actions
concerned ongoing criminal proceedings against the Tinner family,
father and two sons, all engineers, suspected of trafficking in
nuclear materials. The Tinners were apparently active in this field
for many years, having had close contacts in succession with the
notorious scientist Abdul Qaader Kahn, father of the Pakistani nuclear
programme and suspected of being one of the principal actors of
illicit trafficking in nuclear plans and materials, working with
the intelligence services of various countries. The Tinners had
allegedly worked,
inter alia,
for the CIA. The intervention of the Swiss Government took place
in response to pressure by the US authorities, who had requested
the Swiss Government hand over sensitive information and documents
collected during the judicial proceedings “in order to guard them
more securely”
Note (which insinuates that the Swiss
authorities were unable to do so themselves). Besides, even before
the seizure of the documents and their destruction, the Swiss Government
had refused to grant a request from the OAG (the authorisation of
the executive is needed in such cases) to extend the proceedings
to possible violations of articles 271 (illicit acts on behalf of
a foreign state) and 301 (military espionage to the detriment of a
foreign state) of the Criminal Code. This would obviously have drawn
Swiss and foreign intelligence agents into the investigation, in
particular the CIA, which had acted on Swiss territory for many
years.
44. In order to justify such a massive intervention, which was
unprecedented in Swiss judicial history, in the midst of ongoing
judicial proceedings, aimed at eliminating evidence, the Swiss Government
invoked an exceptional right based on constitutional provisions
intended in fact for wartime situations.
Note The
government based itself on a legal opinion prepared by its own services.
This government intervention is in fact an act of sabotage of the
criminal proceedings, as decisive elements of proof were destroyed.
It also prevents shedding light on the activities of Swiss and foreign
intelligence services over the last twenty years in the field of
nuclear proliferation. Without denying the sensitivity of this case
and the very real danger caused by the documents which were destroyed
(which could have, in extremis, aided the construction of nuclear
bombs), the modalities of the government’s intervention, which violated
the separation of powers in a way that we dare qualify as spectacular,
give nevertheless rise to questions. Could an agreed solution, in
particular with the Federal Supreme Court, really not be envisaged?
In any case, we believe that, for the future, different procedures should
be put in place. Does the executive really have the monopoly on
wisdom? Under the rule of law, should such decisions not be taken
jointly with the other powers, which also have the well-being of
the state in mind? We cannot hide our deception with the lukewarm
reaction of the Swiss political class to this decidedly worrying case.
4 Conclusions
4.1 Assessment of the
situation and the efforts being made
45. From the cases examined above results a rather unsatisfactory
picture, which is under a number of aspects clearly unacceptable
in a democratic system under the rule of law. Numerous European
governments seem to have accepted the doctrine of the previous US
Administration: terrorism is a phenomenon that cannot be dealt with
by the judiciary and, to the extent that one claims to be at war,
the Geneva Conventions are not or only very partially applicable.
Worse: security must have precedence over freedom, as if the two
concepts were irreconcilable. It is obvious that over the last years,
also due to the overdramatisation of the “war on terror”, the balance
between the different powers of state has shifted in favour of the
executive, to the detriment of parliament and of the judiciary.
Parliaments are not without blame for this situation. Numerous parliamentarians
seem to give priority, all too often, to governmental and party-political
solidarity rather than to their duty to assume their responsibility
of critical scrutiny. Democracy, as we know, is based on a complex
and delicate balance which must be protected carefully. I believe
that it is precisely up to the parliamentarians who belong to this
Assembly to be particularly vigilant on this point and to be at
the forefront to defend the fundamental principles of the separation
of powers and of checks and balances. The systematic and arbitrary invocation
of the state secrecy privilege, in particular for the purpose of
ensuring the impunity of public officials, is a dangerous movement
against which parliamentarians must be the first to react.
46. But it must also be acknowledged that some positive signs
have emerged, in particular from the judiciary. We have referred
to examples in the United Kingdom and Germany.
Note The questioning
yet responsible approach of higher courts in these countries with
regard to state secrecy’s role as an obstacle to judicial and parliamentary
scrutiny of the executive helps us to arrive at proposals which
are applicable also in other countries.
47. At (inter-)parliamentary level, the Declaration of Brussels,
adopted on 1 October 2010 at the Sixth Conference of the Parliamentary
Committees for the Oversight of Intelligence and Security Services
of the European Union Member States,
Note has the
advantage of recognising quite explicitly that there is a need for international
co-operation between bodies scrutinising the activities of the secret
services. The main proposal (under point
b of
the Declaration), which is to set up a European Intelligence Review
Agencies Network, was an item on the agenda of the Conference of
the Speakers of European Union Parliaments in Brussels on 4 and 5
April 2011. The Speaker of the Belgian Senate, Mr Danny Pieters,
presented a plan for a database for the exchange of information
between the relevant parliamentary committees in the context of
the establishment of a “network of European expertise relating to
parliamentary oversight of the security and intelligence services”.
Note These initial attempts to improve
co-operation between parliamentary committees for the oversight
of secret services should be welcomed. In my view, these efforts
should be continued and stepped up. In particular, the restrictions
spelt out in point
c of the
Declaration – especially the clause according to which the initiative
should not serve as an instrument to launch joint investigations
or to exchange operational or classified information – should not
be considered as final. These restrictions show the hesitations
still existing at this level, even among parliamentarians from countries
as close as the European Union member states. The contrast with
the ease with which European secret services co-operate, even with
colleagues from countries which are much less concerned about democracy
and respect for human rights, is striking, and shows how much more
work needs to be done. It is to be hoped that this work will include
the extension of the future European information network to all
the Council of Europe member states, which are all subject to the
same rules under the European Convention on Human Rights.
48. However, to have the right and the ability to gain access
to such a network, all the Council of Europe member states which
do not yet have a parliamentary committee for the oversight of secret
services must set one up at national level. For this purpose, it
is important to recall the compilation – prepared at the request
of the United Nations Human Rights Council by Martin Scheinin, Special
Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism – of good practices with regard
to legal and institutional frameworks and measures which intelligence
agencies are required to take in order to ensure respect for human
rights when combating terrorism, including their oversight. This
compilation also includes measures intended to establish controls
over the activities of these agencies.
Note The 35 good practices described
by the Special Rapporteur cover matters such as the tasks of secret
services and their limits, measures to protect human rights, state
responsibility for the actions of secret services and the individual responsibility
of agents; regarding oversight mechanisms, the proposed measures
cover their legal basis, the powers of investigation of the oversight
bodies and, in particular, oversight of international co-operation activities.
49. Regarding the arrangements for oversight of secret services,
the European Commission for Democracy through Law (Venice Commission)
has also made a significant contribution.
Note The Venice Commission has already
highlighted the need to monitor the security services more effectively
to prevent them from developing a “state within the state” mentality.
It notes rightly that proper government scrutiny, based on internal
review and proper documentation of political directives (“paper
trails”), is one of the prerequisites for effective parliamentary
oversight. It also points out that international exchanges of intelligence
can easily escape existing national oversight mechanisms. Another
important point raised by the Venice Commission is the fact that
the European Convention on Human Rights requires the functions of
oversight and redress (which must be available to persons who claim
they have suffered damage due to secret service activities) to be
exercised by different bodies. For judicial scrutiny to be effective,
judges must be independent and have the necessary expertise. However,
steps also have to be taken to avoid “case-hardening” on the part
of judges who may come over time to identify too much with secret
agents and their culture. The Venice Commission therefore recommends
that this role is not assigned to the same judges for too long.
Note
50. Finally, the fundamental role played by whistle-blowers must
not be forgotten. The importance of their contribution is in fact
proportionate to the extent that secrecy is still imposed. It is
not exaggerated that, still today – and in some cases even more
so than in the past – we are confronted with a real cult of secrecy; secrecy
as an instrument of power, as Hannah Arendt reminds us in the citation
at the very beginning of this report. It is therefore justified
to say that whistle-blowers play a key role in a democratic society
and that they contribute to making up the existing deficit of transparency.
We said so before: the Assembly’s reports of 2006 and 2007 and,
more recently, the revelations concerning “black sites” in Lithuania
are due to a large extent to honest officials who, for ethical reasons
and taking great risks, could not and would not take part any longer
in illegal activities or cover them up by remaining silent. In this
connection, we should also remember Bradley Manning, the young American
soldier accused of providing Wikileaks with a large number of confidential documents.
High-ranking American officials and numerous voices of international
public opinion have expressed indignation at the inhuman and degrading
treatment which Mr Manning is said to have undergone.
NoteNote It
will be up to the courts to judge. But we cannot ignore that according
to the very accusations made against him we are indebted to him
for the publication both of a recording of a helicopter attack in
Iraq, in which the crew seems to have intentionally targeted and
killed civilians.
Note The video recording seemingly indicates
a deliberate criminal act which deserves at least an investigation,
which, without this indiscretion, would have never been requested.
This is a classic example of an illegitimate secret.
Note In addition, the publication of a large
number of embassy reports has allowed us to learn significant details
of important recent events and which are obviously of general interest.
We must not forget either that these publications have brought numerous
confirmations of findings included in the Assembly’s reports of
2006 and 2007 on the CIA flights and secret prisons.
Note All
those who at the time called for “proof, proof!” have in any case
been well served.
51. Before making practical proposals, we should sum up some basic
principles.
4.2 Basic principles
for judicial and parliamentary scrutiny of the secret services
1. There must not be any “areas removed from any kind of control”,
as the German Constitutional Court states very convincingly. It
must therefore be possible for the criminal and civil courts and
parliamentary committees of oversight to investigate serious allegations
of crimes and human rights violations without being prevented from
doing so through the unilateral and apodictical reliance, by the
very agencies being investigated, on state secrecy or national security
to block access to relevant information.
2. The three powers of the state – the executive, the judiciary
and parliament – are, as has also been pointed out by the German
Constitutional Court, jointly and equally responsible for safeguarding
the state’s interests and security. There is no reason why parliamentary
and judicial institutions and the people working there should be
trusted any less than executive bodies and their staff. All three
powers can and must make the necessary arrangements for secrets
threatening state security not to be disclosed.
3. Breaches of the law and comparable abuses by state agents
are not by their nature legitimate secrets. This is also true for
information on individual or political responsibility for such acts.
Even if there is no specific legislative provision on the subject,
the courts have the right, and I would even say the duty, not to
consider such facts as secrets worthy of protection by way of interpretation
of the law. In democracies governed by the rule of law, it is precisely
the role of judicial and parliamentary control mechanisms to hold
the perpetrators, organisers and instigators of such acts accountable
to the people.
4. To prevent legitimate secrets from being revealed because
they are inextricably linked to illegitimate ones, courts and parliamentary
committees of inquiry must foresee suitable procedures making it
possible both to protect legitimate secrets and to prosecute the
perpetrators of crimes and award damages to victims.
5. These principles also apply, and are particularly relevant,
in the field of international co-operation in the fight against
terrorism and organised crime. It is unacceptable for acts of co-operation,
and in some cases complicity, between secret services in different
countries to escape the usual oversight to which they are subject
in their own country – a situation which each service puts down
to the potential threat to future co-operation with others. Increased
co-operation between secret services – which is a good thing in
itself in the light of the international nature of terrorism and
organised crime in particular – must go hand in hand with equivalent
co-operation and mutual trust between oversight bodies. The United
Kingdom judges quoted above presented a convincing argument when
they placed provisos on the “control principle”, according to which
the service which first unearthed a piece of information has control
over it. When services from partner countries work together to protect
democratic states from the threat of terrorism, it goes without
saying that the courts in each of the countries involved may ask
for explanations from the perpetrators of any crimes committed in
this process and require the service in question to disclose information
which may even come from a partner service as part of a clearly
defined procedure including appropriate safeguards. On this point,
we refer to the highly pertinent considerations of the British judges
we quoted above. Note
4.3 Proposals to improve
scrutiny of secret services
52. The dualist system of scrutiny of the work of the
secret services, by both the judiciary and parliament, which exists
in most of the countries examined, seems to be at least in principle
a reasonable approach, though at times very sketchy in its practical
application.
53. To make that scrutiny more effective, it should first be made
clear, through legislation or judicial interpretation, that secrets
relating to individual criminal or political responsibility for
crimes and/or serious human rights violations are not covered by
laws designed to protect state secrets and national security.
54. The next stage is to prevent the disclosure of legitimate
secrets by setting up special judicial procedures in countries which
do not yet have them to ensure the handling of “legitimate” secret
information during criminal proceedings or civil actions for damages
with appropriate care and discretion.
55. Concerning parliamentary scrutiny, committees for the oversight
of secret services need to be set up in countries where such bodies
do not yet exist, or existing oversight committees reinforced and
given sufficiently extensive investigating powers and resources
to effectively investigate suspected abuses, where necessary against
the will of the services concerned and the government. These committees
must be independent from government in every respect, with members
appointed by parliaments themselves, and have their own investigative
capability. A “general inspector” of secret services should monitor
the work of secret services regularly and have the power to refer
to the oversight committee if necessary. The committee must be able
to fully protect legitimate secrets which it learns of in the course
of its work and bring cases to the attention of the courts and,
in certain particular cases, alert public opinion when it identifies
abuses committed by the secret services, particularly human rights
violations.
56. It is obvious that differences of opinion may occur between
the three powers of the state, in particular as to the notion of
secrets deserving protection and of the right of public opinion
to be informed. A secure mechanism could be set up for the settlement
of disputes between the executive and the judicial or parliamentary
institution involved in a specific set of proceedings. Matters could
be referred to this mechanism according to a similar procedure to
that governing preliminary rulings. Such a body could be made up
of judges, assisted by specially sworn-in experts on secret services,
who would have access to any information held by the executive without
exception and to rule in full knowledge of all the facts on disputes
concerning the appropriateness of disclosing sensitive information
between courts and parliamentary committees of inquiry on the one
hand and the executive authorities on the other. Proceedings before
this mechanism should be confidential but adversarial, to enable
balanced decisions to be taken in full knowledge of all the interests
and issues at stake. The mechanism should also be authorised to
submit documents in which certain passages considered very sensitive
have been rendered illegible to courts or parliamentary bodies or
to hand over information on condition that it is dealt with following
a procedure that guarantees the necessary confidentiality.
57. To reflect the internationalisation of the work of the secret
services, judicial and parliamentary scrutiny of these services
will also have to take place on an international scale. From a practical
viewpoint, this means setting up arrangements to facilitate contact
between parliamentary committees (such as regular joint sessions and
the appointment of contact persons). The network of European expertise
relating to parliamentary oversight of the security and intelligence
services should be strengthened and extended to cover all the oversight
committees of all the Council of Europe member and observer states.
58. To conclude, the protection of whistle-blowers should be enhanced,
as the Assembly has already recommended in
Resolution 1729 (2010) and
Recommendation
1916 (2010), based on Pieter Omtzigt’s above-mentioned report. Beyond
the offences he may have committed, Bradley Manning acted as a whistle-blower
and should be treated as such. This means his motivations should
be taken into account, which are certainly not those of a terrorist.
We therefore join Amnesty International in expressing, vis-à-vis
the American authorities, our worries as to the treatment he receives.
Note
