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February 18, 2013

German Prosecutor Would Have Filed Indictments for CIA Rendition Had US Provided Information

Posted in: Justice,US Foreign Policy,War on Terrorism,WikiLeaks

The German newspaper Spiegel has an interview with a German prosecutor, who ultimately decided not to file indictments in the case of Egyptian Muslim cleric Abu Omar. Omar was kidnapped in a CIA operation in Italy and rendered to Germany and then Egypt, where he was tortured.

Last week, according to Reuters, a Milan appeals court in Italy sentenced the country’s foreign military intelligence chief, Niccolo Pollari, to 10 years in jail for his role. Pollari’s former deputy, Marco Mancini, was sentenced to 9 years. The sentencing followed a move by the court to sentence the American former CIA station chief to seven years in absentia for his involvement. And the court awarded 1 million Euros in damages to Omar along with one half a million Euros to his wife.

As Spiegel reporter Britta Sandberg put it, the judge “did not only decide” on the “guilt or innocence of the Italian and American agents and not only about the legality of kidnapping in the fight against terrorism. He also delivered a verdict as to whether a European government can use the pretext of state secrets to avoid being accountable before the law.”

The sentencing showed Italy, in fact, has a judicial system willing to go after people for committing crimes and participating in operations responsible for human rights abuses, like torture. It also reminded the world that officers in the CIA responsible for a program of kidnapping, torture and detention without charge or trial will face no punishment for their actions. President Obama and Attorney General Eric Holder have allowed CIA officers to move forward with their lives without the threat of being convicted and sentenced to jail. And no officials in high-ranking positions of government will ever be held accountable for authorizing the kind of criminal conduct that recently earned the Italian foreign military intelligence chief a ten-year sentence in prison.

According to a report by the Open Society Justice Initiative, Omar was “taken to the NATO military base in Aviano, Italy, flown to the NATO military base in Ramstein, Germany, and flown to Cairo, Egypt on a ‘CIA-leased’ plane.” Eberhard Bayer, 62, sought to investigate the actions of CIA agents in Germany, but the investigation was terminated when it became clear it would be impossible to figure out the names of the CIA operatives involved.

Spiegel asked Bayer if the German justice system had failed because the Italian justice system had “successfully investigated the role of people involved in Italy.” Bayer answered:

We really tried everything but in the end we couldn’t find out which CIA agents were in Ramstein. We knew which plane landed, we had a list of US pilots who fly this plane and even checked credit card payments and hotel bookings around the air base to find out who could have been there on Feb. 17, 2003. Nothing. And Abu Omar unfortunately couldn’t identify any of his kidnappers.

One wonders if Bayer could have consulted with Italian prosecutor Armando Spataro. He used thousands of phone calls to do “meticulous research” that eventually led to indictments. Weren’t any of the CIA officers in Italy involved in the flight that landed at Ramstein?

In any case, the newspaper raised the fact that Italy had been able to check telephone calls made by CIA involved in the rendition. Bayer replied, “In Germany we don’t have access to such data from so far back. The abduction happened back in 2003.”

Bayer told Spiegel, “We got in touch with the air base in Ramstein, which was cooperative at first but then informed us that no information would be coming from the US. And the German Justice Ministry told us it had no information that went beyond what it had read in the newspapers.”

During one of Secretary of State Condoleezza Rice’s visits to Berlin, the German Foreign Ministry was to ask her about Omar’s case. Bayer said the Foreign Ministry told him “there was no exchange of information.

A search of the US State Embassy cables released by WikiLeaks does not show a record of any meeting between a German foreign minister and Rice. However, Abu Omar does appear in the cables.

A secret cable sent out April 28, 2006, ahead of a meeting between Attorney General Alberto Gonzales with German interior minister Wolfgang Schäuble highlighted:

…The German Bundestag established April 7, after months of media and political speculation, an investigatory committee to look into German intelligence service activities in Iraq, alleged rendition flights, and the alleged detention of German citizens. These issues remain sensitive throughout the German political spectrum. Schaeuble himself stated publicly late March that the U.S. would “soon” release German resident / Turkish national Murat Kurnaz from Guantanamo. He might also raise German citizen Khaled el Masri and Germany’s pending request for legal assistance. El Masri filed a civil suit in the United States. Germany also sought information in 2005 about the alleged rendition, reported in the German press, of Egyptian citizen Abu Omar from Italy via the U.S. Air Base at Ramstein in Germany…

In October 2006, legal adviser to Rice, John Bellinger, visited Germany to discuss legal issues in the war on terror. A “scenesetter” informed him that Omar’s case did not get as much “press play” as Khalid El Masri’s case (another CIA rendition), but German media and politicians were focusing on it. They were interested in the “alleged transit of an aircraft in Germany en route between Italy and Egypt. Politicians cite this case as justification for seeking more information concerning passengers and cargo of US aircraft transiting U.S. military airfields in Germany.”

A December 2006 cable noted German federal prosecutor Kay Nehm “declined to investigate the alleged ‘abduction’ by CIA officers of Egyptian national Abu Omar” in 2004. She ruled “the alleged CIA ‘abduction’ was not the result of political persecution and referred the case back to local prosecutors.”

At the end of October, it was reported that a secret intelligence report showed the CIA had attempted to persuade Germany to help tamp down European criticism of its torture flight program by offering the country access to one of its citizens being held by Morocco. [*This individual was Mohammed Haydar Zammar. For more on his case, go here.]

Bayer concluded in the Spiegel interview, “What happened in Milan and Ramstein is a disgrace and should be prosecuted. If it had been possible, we would have filed indictments.” Either because the US obstructed justice or they sought to make deals, CIA officers were saved from being put on trial.

Germany was clearly complicit in allowing the CIA rendition program to use German territory. It is no wonder that German officials would have cooperated with the US to prevent an investigation. But, at least prosecutors appear to have tried to investigate players involved.

Both Germany and Italy put the United States to shame. Prosecutors in foreign countries should not have had to grapple over the obligation to prosecute CIA officers involved. The Obama administration should have disclosed to the public the names of those who engaged in criminal activity and they should have investigated and prosecuted those officers. Instead, much of the CIA rendition, detention and interrogation program remains secret and kidnappings continue to be a tool agents can use in the war on terror without fear of prosecution.


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