"We don't torture people. Let me say that again to you. We don't torture people, OK." George Tenet, Director of Central Intelligence for the CIA (July 1997 to July 2004)
On 15 December 2014, the European Center for Constitutional and Human Rights (ECCHR) sent a letter to the Minister of Justice, Heiko Maas (Social Democratic Party of Germany, SPD), calling on the German government to request the extradition of thirteen former CIA-employees wanted by arrest warrants as well as to enforce the rights of CIA-victim and German citizen Khaled El Masri to a formal apology and reparation by the USA. El Masri was abducted by Macedonian officials at the Serbian-Macedonian border on 31 December 2003 and handed over to the CIA. They rendered him to a secret CIA detention center in Afghanistan where he was subjected to torture and abuse for more than four months. On 28 May 2004 the CIA brought him back to Albania and released him in the remote mountainside.
In January 2007, the Munich District Court issued thirteen arrest warrants against the CIA officials involved in this case on charges of causing grievous bodily harm and deprivation of liberty. However, to this day the German Federal Office of Justice refuses to officially ask the USA for extradition of the wanted persons.
In yesterday’s letter, ECCHR argues that due to the recently released Committee Study of the Central Intelligence Agency's Detention and Interrogation Program by the Senate Select Committee on Intelligence this decision must be re-examined. The report explicitly notes that El Masri was wrongfully detained in consequence of a confusion of names. It also states that the then CIA Director, despite having had acknowledged the unlawfulness of El Masri’s detention, refused to warrant any further action against the responsible CIA officials.
The discretionary decision by the German Federal Office of Justice not to ask for extradition was based on the interest of maintaining good diplomatic relations with the USA and later affirmed by the Cologne Administrative Court where El Masri challenged the government's decision. However, after the release of the Senat's report on CIA torture, asking for extradition of the thirteen CIA officials will not influence the diplomatic relations between Germany and the USA in the same way as it might have influenced them at the time of the last decision in 2007. In fact, it would serve the public interest of promoting criminal justice and would strengthen the enforcement of the UN Convention Against Torture. This convention outlaws torture worldwide and obligates all signatory states – among them the USA and Germany – to either prosecute or extradite those responsible for torture.
For more than ten years, judicial systems of various states have failed to legally address the injustice faced by El Masri and to compensate him. A civil action for compensation brought in the USA in May 2006 was dismissed by the US District Court for the Eastern District of Virginia and upheld by the appeals court based on the state secret privilege. A criminal complaint in Macedonia did not lead to effective investigations by the Macedonian prosecution services which was then subject to a ruling of the European Court for Human Rights against Macedonia.
ECCHR claims in its letter that the German government must request a formal apology and compensation to El Masri by the USA, if the German Federal Office of Justice still refuses to ask the USA for extradition. In earlier compensation cases brought against Germany by former Greek and Italian prisoners of war of the Nazi regime, Germany itself held the view that an individual could not directly bring a claim against another state. Instead the respective country of origin had to take action against the other state. If the German government, however, continuously refuses to support El Masri to enforce his rights against the USA, it is obliged to compensate El Masri ex gratia for being forced to waiving his rights due to diplomatic considerations. The Senat's (sic) report on CIA torture shows that the rendition of El Masri was by no means an exception but part of a systematic rendition and torture program. Germany must stand up for the law as an effective answer to significant forms of violence and torture."