A Kidnapping in Milan: The CIA on Trial

by Hendricks, Steve

  “What are you afraid of?” he said to one hesitant builder. “That everything will explode in your house? Tell me at least if Mahmoud has gotten the gas canister.”

  Another time, he boasted, “I do not fear death … because the jihad is the jihad, and to kill is easy for me.”

  These and other conversations moved the Italians, in November of 1996, to raid more apartments and arrest more Islamists, who were found to possess gas canisters, remote-control transmitters, and other materials in the bomb-making line.

  Eventually Kamel was arrested in Jordan, and Atmani was arrested in Bosnia. Both were extradited to France and convicted of conspiracy and trafficking in false documents, but their sentences were short—eight years for Kamel, five for Atmani—and were further shortened for good behavior in prison. On release, they returned to Canada, which ruffled many Canadians, but since Canada had itself passed Atmani back to Bosnia, the nation’s moral footing was, like its dollar, weak.

  All of this was to say that until Operation Sphinx marooned Anwar Shaaban in Bosnia, he and the mosque on Viale Jenner were part of a web of terrorism whose filaments stretched around the globe. He made the most of his marooning by becoming more of a battlefield general than he had been. He apparently led the Islamists to victory at the battle of Vozuca, after which he magnanimously gave captives the chance to convert to Islam and tortured only those who refused. By some accounts, he took his eldest son, who was maybe twelve, into battle with him and trained his two younger sons for the day they might bear the familial arms. A few years later two of the sons may have been videotaped in Chechnya hacking the heads off Russian soldiers—“a way to harden them,” said a terrorist who saw the tape and thought it was they.

  Several months after being marooned, Shaaban planned a rendezvous with his good friend Talaat Fuad Qassim, honorifically Abu Talal, who was usually regarded as Gamaa’s leader in Europe. Abu Talal was yet another expatriate of Egypt, which had sentenced him to death in absentia for plotting to murder anti-Islamist officials and intellectuals. He had spent time among the mujahidin of Afghanistan before seeking refuge in Denmark, and he was as important a creator and quartermaster of the Islamic Brigade as Shaaban. Shaaban had once brought him to Italy on a kind of violent guest-lectureship. “The Muslim,” Abu Talal had told his audience, “has the duty to be a terrorist, in the sense that he has to terrorize the enemies of Allah to represent peace and security to the faithful. Terrorism against the enemies of God is a duty in our religion.” Mubarak’s Egypt had pressed Denmark to extradite Abu Talal, but the Danes were deaf to Egypt’s plea, as they were to the pleas of every state that might murder a returnee. The Danes did not, however, leave Abu Talal to his own devices. After he and several followers were suspected of conspiring in the Trade Center bombing of 1993, Danish police arrested them and found in their apartments a chemical commonly used in bombs, formulas for building bombs, and sketches of what seemed to be bombing targets in Europe. Fingerprints on some of the seized items matched fingerprints on bomb-making manuals that had been seized in New York from one of the would-be Trade Center bombers. But Denmark, like most other countries, had no law against possessing such chemicals or formulas or sketches of buildings, and the fingerprints, while suggestive, proved nothing. The Danish police had to release the suspects. Insult to the police’s injury, the ministry for immigration later granted two of them asylum on grounds of persecution in Egypt.

  In September of 1995 Abu Talal flew on a false passport from Copenhagen to Zagreb, the capital of Croatia. He intended to continue overland to Bosnia to meet Shaaban and other leaders of the Brigade. Instead, he disappeared. He was the first subject—an honorand of sorts, although he did not live long enough to understand his place of honor—of a new American program that had been created for men just such as him.

  IN 1883 a larcenist and embezzler named Frederick Ker, who had been indicted in Chicago for his sins, fled to Peru, and the U.S. government hired the Pinkerton Detective Agency to bring him back. Peru and the United States had recently signed an extradition treaty, and Pinkerton’s agent carried the proper paperwork to extradite Ker, but when he arrived in Lima, he found it occupied by Chile, and there were no Peruvian officials to whom he could submit his papers. So he extemporized. With the help of the Chilean army, he kidnapped Ker and put him on a U.S. warship bound for Honolulu, then on another ship bound for San Francisco, then on a train to Chicago, where he was convicted. Ker appealed his conviction on grounds that his kidnapping and return violated the extradition treaty, but the U.S. Supreme Court ruled against him. In Ker v. Illinois, the court held that trial courts need be concerned only with trying a fugitive like Ker, not with how he had come to trial. It did not matter that Congress and the president had made law an extradition treaty that outlawed kidnapping. Mere law, the justices implied, was no match against the imperative of prosecuting a lawbreaker.

  The better part of a century passed before the Supreme Court reconsidered Ker. In 1952 a murderer named Shirley Collins objected to having been kidnapped in Chicago (apparently association with that city was bad for fugitives) by Michigan lawmen, who took him home and won his conviction. On Collins’s appeal, the Supreme Court upheld his conviction and said that nothing in the Constitution prevented such a kidnapping. What mattered, again, was that he came to trial, not how. Although Collins’s case occurred entirely within American borders, the court in Frisbie v. Collins made clear that the same principle applied to international abductions. The principle and supporting ones became known as the Ker-Frisbie doctrine, which permitted bounty hunters to snatch suspects abroad and return them to trial in America. Later rulings very slightly limited the doctrine. For example, an appellate court (though not the Supreme Court) held that a Ker-Frisbie kidnapping might be invalidated if the kidnappers engaged in “conduct of a most shocking and outrageous character,” like torture.

  The doctrine seems to have been used only occasionally over the next few decades. Its most famous victim was a Mexican doctor, Humberto Alvarez-Machain, who, the U.S. Drug Enforcement Administration alleged, helped Mexican drug lords prolong the suffering of a DEA agent whom they tortured to death in 1985. The DEA put out a bounty on Alvarez-Machain, and soldiers of fortune kidnapped him in Guadalajara and flew him to El Paso. At trial the doctor argued that he had to be set free because the DEA had violated the extradition treaty between the United States and Mexico. Unlike the Peruvian government in the case of Frederick Ker, the Mexican government had objected to the trespass on its sovereignty, which, along with other developments in international law and due process, seemed to give greater potency to the argument that it was illegal for U.S. agents to violate an extradition treaty. But in United States v. Alvarez-Machain the Supreme Court not only upheld Ker-Frisbie but expanded the doctrine by saying that Mexico had been aware of it for some time and could have demanded the treaty be changed to rule out Ker-Frisbie kidnappings. (The court had a fanciful notion of the balance of power between Mexico and the United States.) Alvarez-Machain was eventually acquitted at trial, whereupon he returned to Mexico, sued the United States, and won an award, which, however, was reversed by the Supreme Court. The U.S. government, the court ruled, could not be held liable for crimes it committed beyond its borders—a precedent with consequences decades later.

  After Alvarez-Machain, governmental kidnappings of this sort came to be known in U.S. law enforcement circles as Mexican extraditions. More delicate law enforcers preferred the term “rendition,” which rested awkwardly on the modern ear but which had a long pedigree. In his Eikonoklastes of 1649, Milton spoke of Charles I’s “rendition afterward to the Scotch Army,” and the Encyclopædia Britannica of 1860 spoke of the “rendition of fugitive slaves by the Northern States.” “To render” shared a root with “to rend,” to tear, and was kin to “to surrender,” to give up.

  The impolite term “Mexican extradition” did, however, accurately reflect that such kidnappings were reserved for the Third World. The First World wo
uld not tolerate them. In 1983 the U.S. government charged billionaire Marc Rich with dodging $50 million in taxes, and he fled to Switzerland. The U.S. Marshals Service put together a plan to kidnap him, but the Swiss government got wind of it and warned, in a general way, that anyone who attempted a kidnapping in Switzerland would be arrested and prosecuted. The Marshals abandoned their plan. (Rich was eventually pardoned by Bill Clinton in the inglorious last hours of his presidency.)

  An evolution in American renditions occurred in 1986. The year before, terrorists hijacked the cruise ship Achille Lauro, murdered a wheelchair-bound American, and extorted a plane to fly them from Egypt to Tunisia. On President Reagan’s orders, U.S. fighter jets forced the plane to land at a NATO air base in Sicily, where Reagan demanded the hijackers be handed over to America. But the Italian government entertained the idea that Sicily was part of Italy and that consequently it had jurisdiction over the hijackers. Moreover, even if Italy had wanted to give them to the United States, the U.S.–Italian extradition treaty applied, which meant the hijackers had the right to argue against extradition in court and Italy had the right to consider the merits of the case. While the White House and Palazzo Chigi debated these points, armed Navy SEALs faced off against armed Italian troops on the Sicilian tarmac. In the end Reagan reluctantly agreed that Italy was not Mexico and backed down. Italy then enraged him further by releasing two of the hijackers (apparently to appease Egypt, which feared violence otherwise), but it tried and convicted the remaining three.

  The Achille Lauro hijacking was not the only terrorist affront to American might in 1985. A few months earlier, terrorists had hijacked a TWA flight from Athens to Rome, killed a U.S. Navy diver onboard, and negotiated safe passage to Beirut, where they did not much trouble to hide themselves. They were not extradited, however, because the Lebanese government was devastated by civil war and could not exert its sovereignty.

  Reagan responded in 1986 by signing National Security Decision Directive 207, which, lest Ker-Frisbie not be clear enough, appears to have authorized the CIA to capture terrorists abroad and bring them to trial in the United States. The directive has never been made public. At roughly the same time, the CIA founded a Counterterrorist Center, which over the next two decades would lead the American struggle against terrorism. Reagan’s directive was a mixed blessing for the CIA. Most of the agency’s officials seem to have been pleased by the authority to render, but many of them did not look forward to trying the renderees in court. The CIA was not in the habit of gathering evidence in a way that would hold up at trial, and even if it had been, its officers had no desire to make their evidence public, to say nothing of how either the evidence or the defendant had been collected.

  A way around these problems was for the CIA to collaborate with the FBI, which was used to gathering court-worthy evidence and to having its methods made public. There were drawbacks, however, to such a collaboration. For one thing, the two agencies had an old and caustic rivalry, and many of their principals detested one another. Previous attempts at cooperation had fared badly. For another, FBI director William Webster had reservations about kidnappings à la Ker -Frisbie by the FBI or anyone else. Although the FBI had been given authority by Congress to arrest terrorists anywhere in the world, Webster believed Congress had meant the FBI to make those arrests only with the approval of the countries where the terrorists were found or, lacking such approval, to make them in international territory. Webster may also have reasoned (and as a former judge, was in a place to know) that Ker-Frisbie had survived so long because it had been invoked infrequently. If the CIA and FBI began rendering alleged terrorists willy-nilly the Supreme Court might reverse parts of the doctrine. He also believed, correctly, that a rendition from a country with a functioning government was a violation of international law, whatever U.S. law had to say about it, and that it would be politically foolish to outrage other countries with renditions unless they were absolutely necessary. He said he would let the FBI help the CIA but only on his terms. The CIA agreed, perhaps reluctantly.

  Their first collaboration was Operation Goldenrod. The reference—botanic? chromatic? phallic?—is unknown. Their prey was Fawaz Yunis, a Lebanese terrorist who in 1985 had hijacked a Jordanian plane and blown it up after releasing its passengers and crew. Yunis had since been seen in Beirut, where he had taken up drug dealing. In 1987 the CIA and FBI lured him to Cyprus and from there to a yacht offshore. The bait was a narcotics deal and two female FBI agents whom the bashful American press later described as “casually attired”—they were wearing shorts and halter tops. Once in international waters, the FBI put cuffs on Yunis, transferred him to a Navy munitions ship, and flew him to Andrews Air Force Base. He was tried in federal court on evidence the FBI had collected and was sentenced to thirty years. (He served half that before being deported to Lebanon in 2005.)

  Although the operation had come off well, for the next few years the United States seems to have rendered minimally—partly because it was not every day that horny, avaricious terrorists could be lured to international waters and partly because Reagan appointed the cautious Webster director of the CIA. In 1992 Reagan’s successor, the first President Bush, issued National Security Directive 77, which apparently clarified and may have expanded the CIA’s authority to seize alleged terrorists abroad. NSD-77, however, remains secret. President Clinton, succeeding Bush, not only let NSD-77 stand but put it to work immediately. His national security adviser, Richard Clarke, later wrote, “The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: ‘Lloyd says this. Dick says that.’ Gore laughed and said, ‘That’s a no-brainer. Of course it’s a violation of international law. That’s why it’s a covert action. The guy is a terrorist. Go grab his ass.’ ” It is believed that Clinton ordered the guy’s ass grabbed but that the CIA did not succeed in the grabbing. Clinton clarified his rendition policy in Presidential Decision Directive 39, which he issued in June 1995, shortly after the bombing of the federal building in Oklahoma City. The directive said that when the CIA, FBI, and other law enforcers wanted to bring alleged terrorists to trial in the United States, they should first seek the help, or at least the consent, of the nations where the terrorists were found. The FBI had captured Ramzi Yousef with such help from Pakistan a few months earlier. If, however, those nations did not cooperate, Clinton authorized U.S. officers to seize and render the terrorists on their own.

  At about the same time the staff of Clinton issued his directive, his National Security Council conceived a new kind of rendition. Rather than catch a man and take him, as ordinarily, to the United States, the CIA could catch him and take him, extraordinarily, to a third country—an “extraordinary rendition.” The third countries would be dictatorships that could imprison or execute the victims as they chose. They might also interrogate the victims with more success than the CIA since they knew their homegrown terrorists well and could also be more savage in their questioning. Savagery, according to some (though not all) advocates of extraordinary rendition, could produce better intelligence than more-decorous questioning. But getting intelligence seems to have been a far subsidiary goal to getting rid of terrorists without due process. The promise of extraordinary rendition was that it would be swift and neat. The CIA had only to get a tip about a terrorist, snatch him, ship him, and walk away. Clinton approved, and the first victim was Abu Talal.

  WHEN ABU TALAL left Denmark for Bosnia in September of 1995, an intelligence service tipped the CIA that he was on the move. It is not known which service gave the tip, although it seems not to have been Denmark’s. The Danes’ views on the rights of man—to wit, that every man had them—had long been a frustration to the CIA. A more likely source was Egypt’s Mukhabarat, which monitored Abu
Talal closely. The CIA had been interested in Abu Talal because of the links between his cell and the World Trade Center bombing and because he was suspected of having had a hand in the near assassination of Mubarak in Ethiopia earlier in 1995. His role atop Gamaa also made him a prize. When the CIA recommended his rendition to the National Security Council, the NSC, Clinton chairing, approved. The United States seems not to have told Denmark that it was about to kidnap one of its wards.

  After arriving in Zagreb, Abu Talal met with an interpreter and retired to his lodgings, where, next morning, he was arrested by Croat police. He was never heard from again. When his associates asked the government why he had been taken and what had come of him, the Croats said he had been arrested for entering the country on a false passport, had been held for six days, then had been deported. They did not say from which port. Narrowly speaking, the Croats were not lying, for they did indeed hold Abu Talal for some days, after which they deported him—to the custody of the United States. Precisely what happened next has never been discovered. Officials in the Egyptian government later said off the record that Abu Talal was taken to a U.S. warship in the Adriatic, interrogated for two days, then passed to Egypt. If it was true that the Americans held him only two days, they almost certainly had little interest in getting information from him. A thorough interrogation would have taken several days at the least and probably, given how devoted he was to his cause, weeks or months. A brief detention suggested the United States wanted him only to disappear. Whatever the case, he was given to Egypt, and Egypt advertised the fact, both to threaten other terrorists and to chide Europe for harboring them. Abu Talal’s fate is unknown, but almost certainly he was interrogated, brutalized, and destroyed. Egypt never said more about the affair, and the United States never said anything at all.

  A month after Abu Talal disappeared, in October of 1995, a suicide bombed a police station in the Croatian town of Rijeka. The assault was poorly executed. The station was perched on high ground, above Victims of Fascism Street, and the bomber could not get his homely Fiat Mirafiori with Italian license plates close enough to the building to bring it down. He wounded twenty-nine people but succeeded in killing only himself. Next day, news bureaus in Cairo received a fax from Gamaa saying the bombing was a retaliation for the capture of Abu Talal. “Close the gates of hell which you have opened upon yourselves,” the facsimilists warned. “Otherwise you will be starting a war the end of which only God knows.”