A History of the World Since 9/11

by Dominic Streatfeild

  Mallorcair didn’t keep records of passengers on the jets, but staff mentioned that the company’s minibus had ferried the Americans to their hotel, fifteen minutes drive from the airport. The Agency it seemed, favoured two Mallorcan hotels: the Gran Melia Victoria, a five-star establishment overlooking the marina, and the Marriott Son Antem. A little cursory digging by police and journalists at the hotels, and they struck gold. The CIA agents had checked in, and paid for their hotel rooms, individually. Reception had logged their names, passport details and credit-card numbers.

  A picture of the entire operation now emerged. Boeing Business Jet N313P had stopped off in Mallorca before moving on to Skopje to pick up el Masri and deliver him to Kabul. The rendition team had stayed the night at the Marriott. After he had been rendered, the jet had returned to refuel for the trip back to the United States. Weather on the eastern seaboard was bad, so the flight home was delayed; the crew had spent two nights at the Gran Melia Victoria.

  During their time there, a number of CIA staff had made phone calls. The Gran Melia had a list of their home telephone numbers.

  If things were going badly for the rendition programme on the journalistic front, they were hardly improving on the diplomatic one. On 31 May 2004, Daniel R. Coats, the US Ambassador to Germany, met the German Interior Minister. There had been an unfortunate mistake, he told him. The United States had accidentally kidnapped one of his citizens. Coats apparently apologized for the error and warned that el Masri might attempt to go public with his story. If that happened, he requested that Germany remain silent on the issue: there was a risk of exposure of clandestine intelligence operations, and a chance that a case like this might open up the US government to legal challenges. Besides, the CIA had hardly covered itself with glory. This was embarrassing stuff.

  Requests for silence on the matter were not destined to achieve a great deal. The CIA’s rendition programme was unravelling. Parliaments in Canada, Italy, France, Portugal, Sweden, the Netherlands and the United Kingdom would shortly open investigations into kidnaps of their citizens. The European Union would designate a special rapporteur on the issue. The Press was close behind. By January 2005, Khaled el Masri was all over the newspapers. In March, the Washington Post printed a story about the Salt Pit in Kabul, asserting publicly for the first time that an unnamed Afghan had been murdered there in 2002. When it was reported the same month that Spanish police were investigating CIA flights through Mallorca, the Agency launched what appears to have been a damage-control exercise. Yes, Khaled el Masri had been rendered. It was all the fault of a senior officer in the al-Qaeda Unit.

  ‘She didn’t know,’ an unnamed source told the Washington Post. ‘She just had a hunch.’

  Not everyone agreed with this verdict. One senior CIA officer who helped compile the Agency’s file on el Masri views the story as an abomination.

  ‘There is no rendition that was ever conducted on the basis of one piece of information, or on the hunch of a CIA officer,’ he says today. ‘For someone to say that any single person – especially in the Operations Division – could authorize a rendition off his or her own hook, without enormous input from the legals and probably from the National Security Council, it’s just completely wrong.’ Someone was not telling the truth. A complete lie,’ he says of the story. ‘I was there.’

  The story failed to stop the flow, anyway. Throughout 2004 and 2005, a steady stream of accounts about the CIA’s rendition operations came out, each revealing more information than the last, each adding to the puzzle and offering assistance to others searching for the truth about the Agency’s conduct in the War on Terror.

  In 2005, the debate turned towards the courts when the American Civil Liberties Union (ACLU) picked up the el Masri case. To ACLU, rendition was the worst symptom of the White House’s persistent undermining of human rights in the War on Terror: despite the administration’s tendency to harp on about the importance of international treaties and human rights, the White House was going out of its way to destroy the legal structures that supported the whole process. Warrantless wiretapping, incarceration of foreign nationals without trial, military tribunals, illegal enemy combatants, ‘enhanced interrogation’, reversal of the presumption of innocence, racial profiling, data mining: these were the true products of the War on Terror. They stank. And the greatest reek of all came from rendition: a government-sanctioned programme to kidnap, transport, incarcerate and torture suspects who were denied legal representation, denied the rights to access a court, denied any sort of legal rights whatsoever.

  El Masri was a poster case for all rendition victims, both innocent and guilty. Here was a man whose every human right had been systematically violated. Here was a chance to challenge the entire programme.

  For six months, ACLU worked with el Masri and his German lawyer, preparing their case. Finally, on 6 December 2005, they filed El Masri versus Tenet in a Virginia courthouse. The defendants were George Tenet, Premier Executive Transport Services, Aero Contractors Ltd of Johnston County, North Carolina (contracted by PETS to operate N313P) and twenty ‘John Does’, ten of whom were the CIA agents responsible for the kidnap, the other ten being employees of the defendant corporations. Token damages of $75,000 were demanded.

  ACLU’s timing was flawless. The day the case was filed, Secretary of State Condoleezza Rice began a state visit to Germany. The moment she arrived in Berlin, she was faced with a barrage of questions about rendition. Her position was not helped by German Chancellor Angela Merkel. In a press conference, Merkel stated that she had spoken privately with the Secretary, who had admitted the CIA had kidnapped the wrong man.

  ‘I’m able to say that we actually talked about that one particular case,’ Merkel informed journalists, ‘and that the American Administration has admitted that this man was erroneously taken . . . the American Administration is not denying that it took place.’

  But it was. What the Secretary had actually said – Rice’s aides later clarified – was that, ifmistakes had been made, the United States would work to rectify them. Certainly, she had not made the admission the Chancellor had mentioned. ‘We’re not sure,’ one US official told a journalist, ‘what was in [Merkel’s] head.’

  Rice had been aware the issue would come up during her trip. The day before she left the United States, she had made a public statement at Andrews Air Force Base defending rendition. It included a number of interesting points. In cases where regular extradition was impossible, she stated, ‘the local government can make the sovereign choice to co-operate in a rendition’. In these cases, she went on, ‘The United States has fully respected the sovereignty of other countries that cooperate in these matters.’ But co-operation was ‘a two-way street’: US intelligence helped to protect European countries from terrorist attacks, saving European lives. ‘It is up to these governments to decide if they wish to work with us.’

  Overtly, Rice appeared to be suggesting that, if European nations didn’t like what the United States was up to, they had every right not to accept their intelligence assistance in the future. Covertly, however, her emphasis on ‘co-operation’ with the CIA’s rendition programme implied something rather different: that the United States had not violated the sovereignty of these nations – not because renditions had not taken place, but because the countries had co-operated. They had known what was going on.

  To the administration and the CIA, criticism from Europe on rendition was hypocritical. If European nations had had objections to this kind of thing, they should either have voiced them before they signed up to the War on Terror, or not signed up at all. Instead, they had all looked the other way. Now, here were those same Europeans scrambling over each other to avoid being implicated, feigning ignorance and desperately pointing the finger at the United States.

  Michael Scheuer, who designed the rendition programme, was incensed. ‘All of the Europeans that we dealt with were eager to have the information that was derived from renditions,’ he says. ‘None of them,
of course, really wanted us to tell them how we got it.’

  The issue of how the United States got its intelligence on rendition suspects came centre stage with el Masri. According to the official version, a ‘gung-ho’ CIA officer without sufficient intelligence had acted alone, on a hunch. The unofficial version, however, was very different. Rendition wasn’t some kind of lottery. El Masri was not kidnapped simply on the basis of a mix-up regarding his name. There had been a profusion of intelligence about him, some of it predating 9/11.

  ‘Credit records, phone records, travel patterns,’ explains one of the officers who compiled the el Masri file. ‘We were not the only country, or the only intelligence service, who thought he was someone we wanted off the street.’ According to this officer, prior to his rendition intelligence on el Masri had been passed on to the CIA by ‘three or four European allies’. The United States had not acted alone in the case of Khaled el Masri.

  Not that this ever came out. In Germany and Macedonia, when the question of who in the government had known about el Masri’s rendition was asked, the answer was unanimous: no one. Macedonia – which had apprehended him, informed the CIA of his capture, then held him for twenty-three days in a hotel room waiting for a rendition team to become available – denied that anything had happened at all. According to the Minister of the Interior, el Masri had been interviewed by border guards when he entered Macedonia on New Year’s Eve 2003, but had been sent on his way and had enjoyed a three-week holiday in the country. Rendition stories, he said, were ‘speculative and unfounded’.

  German politicians lost no time in denying their involvement, too. Foreign Minister Frank-Walter Steinmeier said he was ‘nauseated’ by reports implicating Germany in the rendition. ‘Let me make it clear,’ he told Parliament in December 2005. ‘The Government and [security services] did not aid and abet the abduction of German citizen El Masri.’

  German intelligence had known nothing of the affair whatsoever – despite the fact that questions to be put to el Masri, as well as background information on Neu-Ulm, had been handed to the CIA; despite the fact that a German, ‘Sam’, had visited el Masri in the Salt Pit repeatedly, asked him if he wanted anything ‘from home’ and had accompanied him back to Europe.

  Were the Germans informed? The CIA officer who worked on the Masri file laughs: ‘I would say if you wrote that,’ he says, ‘you would not find many people who would contest it.’

  The fact was that, while very few knew what, exactly, rendition entailed, everyone recognized that it was going on. The British provided questions for rendered suspects. The Polish and Romanians provided interrogation sites. Germany provided briefings and background intelligence. Macedonia provided el Masri. Everyone let the planes land and refuel. No one turned down the intelligence yield at the end of the process. Everyone was complicit. Everyone was guilty.

  Meanwhile, most of these nations seized on the exceptional nature of the post-9/11 threat, then used it as a justification for enacting domestic legislation that aped US policy regarding human rights: restrictions of rights for foreigners and asylum seekers; indefinite incarceration of suspects without trial; withdrawal of the right to an attorney; suspension of habeas corpus; enhanced surveillance techniques. The list went on and on.

  ‘I do not underestimate the ability of fanatical groups to kill and destroy,’ conceded Lord Hoffmann in a famous judgment on the incarceration of terror suspects without trial in the United Kingdom in December 2004. ‘But they do not threaten the life of the nation.’ The real threat to the United Kingdom, he warned, ‘comes not from terrorism but from laws such as these’.

  Five years later, the Human Rights Council’s Eminent Panel of Jurists on Terrorism, Counter-Terrorism and Human Rights agreed. After an exhaustive three-year study of the effects of the War on Terror on human rights globally, the Panel concluded that human rights protections, assembled over the last sixty years, had been corroded to the point where the international legal order was in jeopardy Especially worrying was that the nations that had previously argued for the primacy of human rights were the very same nations now busily opting out of them. The result was ‘perhaps one of the most serious challenges ever posed to the integrity of a system carefully constructed after the Second World War’.

  The report ended with a warning. Human rights protections were the cornerstone upon which democracy was built. It was likely to prove far harder to rebuild this cornerstone than it was to break it. ‘States tamper with this framework at their own peril,’ stated the Panel. ‘It is difficult to exaggerate the risk to society as a whole when governments depart from their obligations in this way.’ On 11 September – or perhaps more accurately, 17 September, when President Bush signed the CIA’s Memorandum of Notification – America had sneezed. The world had caught a cold.

  Two years after Hoffmann’s comment, another British law lord, Lord Stein, specifically addressed the issue of rendition in a lecture at the Bar Council. ‘In operating the system of secret rendition the Bush administration placed itself above the law and placed the individuals concerned beyond the protection of the law,’ he stated. ‘Since Nuremberg, such kidnapping has constituted a war crime under international law. Those consciously involved are subject to the universal criminal jurisdiction of international law.’

  Stein’s comments proved prescient when twenty-six CIA operatives were named and indicted in Italy for their involvement in the rendition of a Muslim cleric, Abu Omar, in 2003. Among them were the Italian CIA station chief Jeffrey Castelli and the station chief in Milan Robert Seldon Lady. Although the Italian government never officially demanded the extradition of the American intelligence officers, their names were passed on to Interpol and warrants were issued for their arrest.

  ‘I think,’ says former CIA assistant-general counsel John Radsan, ‘I probably wouldn’t travel outside the United States if I was one of these people.’

  Such was the profusion of information changing hands on the Internet that it was only a matter of time before the CIA agents involved in the el Masri rendition were fingered, too. From photocopies of their passports taken at Mallorcan hotels, journalists obtained pictures of the rendition team; from invoices and credit-card slips, they obtained their pseudonyms. Then, by running names and aircraft qualifications through the FAA databases, they correlated these pseudonyms with real names. Those unwary enough to have made calls during the rendition operation were traced via their home telephone numbers.

  In 2007, for the first time in any rendition case, German reporters publicly named members of the team: Eric Robert Hume, Harry Kirk Elarbee, Lyle Edgard Lumsden, James Kovalesky. Reporters doorstepped the CIA men, visited their houses, dug further. To prove that information-gathering was not an exclusive preserve of the CIA, investigators demonstrated how much they knew. Hume was thirty-five, had a beard, lived with his father, had two dogs and co-owned a fishing boat. Kovalesky drove a Toyota Previa, collected model trains and had a degree in microbiology. Lumsden, whose friends called him ‘Uncle Bud’, was born in 1956, served in the US army and spoke Serbo-Croat. His wife’s name was Janet.

  Eleven American men and two women were duly charged with kidnapping in Germany. None attended court. None will attend court: German authorities refused to forward extradition papers for the team. But it’s unlikely they’ll be taking vacations in Germany or Europe, any time soon.

  Inside the CIA, the most worrisome aspect of all this was not the hypocrisy of Europeans in the War on Terror or even the public naming of people who had worked for the Agency. What really rankled was that these guys were essentially taking the blame for doing what they had been ordered to do. The way the story played out in the Press, the Central Intelligence Agency, yet again, had broken the law. Not true.

  ‘This isn’t something where an Agency officer just wakes up one morning and decides he’s going to conduct a rogue operation,’ says one officer briefed on the el Masri case. ‘It just doesn’t work like that. Everything is done once a policy
decision is made at the White House.’

  John Radsan agrees. ‘Don’t believe this was some devious operation that the officers came up with on their own, without presidential authorization,’ he says, ‘without lawyers approving it.’ The CIA was following orders.

  A number of former Agency staff stress that, while some at Langley had been keen to increase the remit of the rendition programme immediately after 9/11, others had been wary.

  ‘[Post-9/11] there was a level of concern,’ says Radsan. ‘Concern about secret prisons, the aggressive interrogations – many of these tactics that were adopted after 9/11 . . . They said to themselves, “This stuff will come back to hurt us. We don’t do these kinds of things. This is not our forte. We’re not a paramilitary organization, we don’t run secret prisons.”’

  Michael Scheuer puts the decision to upgrade the rendition programme down to a lack of any sort of overall plan on behalf of the White House. ‘The Executive Branch after 9/11 was in a state of panic, because they didn’t have anything they could do to protect the United States,’ he says. ‘The only game in town was the CIA’s rendition programme. The rendition programme was never designed to be anything more than a complement to full US government counter-terrorism policy but it turned out to be the only policy’

  CIA officers for and against extraordinary rendition both agree on one thing: they were only going to do what they were told to do, and they were only going to do what was legal.

  ‘Not only were they ordered to do it,’ says Scheuer, ‘but they were told on paper, repeatedly, that it was fully compliant with US law’

  When that turned out not to be true, the obvious next step for the administration was simple: blame the CIA. What was so surprising for many Agency staff was not that it happened, but that it took so long.