PRECEDENT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS TO THE CIA'S HIGH VALUE DETAINEES PROGRAM IN AND THROUGH EUROPE

I. INTRODUCTION: "THE SPIDER'S WEB" Rendering terror suspects to nations that permit the use of torture is one of several methods the United States has added to its national security arsenal in recent decades. News leaks and reports regarding the "outsourcing of terror" are not new, especially after September 11, 2001. According to a former CIA official, "[w]e pick up a suspect or we arrange for one of our partner countries to do it. Then the suspect is placed on civilian transport to a third country where, let's make no bones about it, they use torture. If you want a good interrogation, you send someone to Jordan." (1) Jordan is a United States ally that is--according to other former officials--"willing to help any way they can" and has "the most professional and sophisticated interrogators [the United States] can rely on." (2) Reports by Amnesty International and other news sources have identified Jordan as a transit or destination point for terror suspects apprehended in Afghanistan or Pakistan. (3) Allegations of torture associated with the rendition of terror suspects to Jordan should not be surprising. A U.S. State Department country report on human rights in Jordan that was released on March 6, 2007, referred to a number of torture allegations and other basic human rights violations committed by its government. (4) Recent charges that European nations have played a role in the United States' practice of rendition were much more surprising. A number of European nations have been sharp critics of United States' policies regarding the continued detention of inmates at Guantanamo Bay, including European nationals. (5) Most importantly, Europe arguably has the world's strongest regional human rights treaty in existence: The European Convention on Human Rights. (6) The first major account of alleged "black sites" on European soil was reported in a November 2, 2005, Washington Post story by Dana Priest. (7) According to the article, the CIA developed a global transit and detention system with little strategic planning or forethought shortly following September 11, 2001. Terror suspects captured in Afghanistan, Pakistan, or other nations by the U.S. military or intelligence services of partnering agencies were classified into two different groups. Those with questionable intelligence value were provided to the governments of Egypt, Jordan, and Morocco for interrogation. A second group of about thirty detainees, considered to be high value intelligence sources, were imprisoned in secret sites directly financed and operated by CIA personnel at Guantanamo Bay, a location in Thailand, (8) and undisclosed Eastern European nations. (9) Following the Washington Post's article, further revelations were reported about the extent of the CIA system by a variety of sources. On November 7, 2005, Human Rights Watch issued a press release stating that their independent research confirmed the Post's report. (10) According to its accounts, examination of flight records of a CIA operated airplane indicated that in 2003 and 2004, it had transported a number of detainees between Afghanistan, Guantanamo Bay, Morocco, Romania, and Poland. (11) The same day the Council of Europe appointed Dick Marty, a Swiss member of the Parliamentary Assembly, to lead an investigation into the alleged prisons in the Council's member-states. (12) Soon afterwards, Marty requested information on air traffic patterns from EuroControl, Europe's unified air traffic management organization, and the European Union's Satellite Centre. (13) The Council of Europe's Secretary General, Terry Davis, also sent a formal questionnaire to every member-state of the Council on November 21, 2005, requesting information on how the member-states' national laws prevented cooperation with foreign intelligence services to secretly detain individuals. (14) In December, Secretary of State Condoleezza Rice issued a statement intimating that any actions taken by the United States in Europe were conducted with regard to the full sovereignty of host nations, and that she could not "discuss information that would compromise the success of intelligence, law enforcement and military operations. …