The Economist

Torture, long a moral stain, is now hindering intelligence services’ attempts to fight terrorism

SPEND time with spies on either side of the Atlantic—and you will discover that they are worried. That is partly because their profession, already sullied in recent years, may be hit by more bad news. In Europe the ordeal has already begun: an officer in Britain’s MI5 is under police investigation, and prosecutors in Italy, Germany and Spain are looking at cases linked to the CIA’s actions. In America, the centre of the problem, the spooks are preparing themselves for an onslaught that could be as bad as anything since the Church commission in the 1970s. There are hints of criminal investigations against CIA officials and a battery of lawsuits—to extract information and to claim compensation. But for the leading spymasters, there is an even bigger worry: they are finding it increasingly hard to do their jobs properly (see article).

 The reason for all this? Torture. In the aftermath of the attacks on September 11th 2001, it became widely fashionable—in allegedly liberal parts of American academia as well as Dick Cheney’s office—to argue that torture was a necessary part of democracy’s defence. In fact, those who fought against that pernicious argument, including this newspaper, possibly underestimated our case. For all its short-term uses (both claimed and, alas, real), torture has always been illegal and immoral, and ultimately counter-productive too. Long before Abu Ghraib, it was obvious that it would create terrorists as well as help capture them. But the extent to which torture would corrode the West’s security networks that are supposed to fight terrorism is only now becoming clearer.

Torture throws sand into the gears of intelligence. At first harsh interrogation may well yield information, both valuable and valueless. But over time it chokes the defences of democratic societies, because their courts and political systems cannot digest it. The work of Western intelligence is becoming gummed up with legal protocol. More information has to be vetted by lawyers before being passed on. America has warned Britain that intelligence-sharing will be curtailed if its secrets are divulged in court. Equally, many worry about what will emerge in American proceedings. The first lesson of the September 11th attacks was that intelligence agencies have to work more closely; “need to know” had to yield to “need to share”. These days, alas, it has become “need to get a lawyer”.

Would you tip off Pakistan?

Fighting a global network like al-Qaeda requires a global network of intelligence agencies. The information they swap should remain confidential, so as to protect sources and (legitimate) methods. But if judges, elected politicians and voters do not have confidence in their spooks, the system unravels.

The task is to restore trust. But how? In America Barack Obama moved quickly to ban the most abusive methods of interrogation and promised to shut the detention centre at Guantánamo Bay. He released four Bush-era memos which had twisted legal doctrine until it proved that CIA interrogators could simulate drowning, among other techniques, without turning themselves into torturers.

Mr Obama’s stand against torture is a start. But the president and senior Republicans should reconsider their resistance to a “truth commission”, which could offer some immunity from prosecution to those who speak openly. An investigation would disrupt the intelligence services—but less than lengthy court battles, which would fail to stop revelations yet still leave a suspicion that wrongdoing remains hidden.

The third step is to be readier to prosecute terrorists for their crimes. The struggle against terrorism will be long; in a democracy methods have to be sustainable. Legal process is not a luxury for good times, but a tool to rob terrorists of legitimacy and show that locking them up is justified. That way those who share the terrorists’ religion or race are less likely to be silent accomplices. More could act as sources themselves.

Fighting terrorism will always be messy. Sometimes you have intelligence about an attack, but not enough evidence confidently to make an arrest; yet you don’t have the luxury of being able to wait. Western spies inevitably have to work with the secret police of Pakistan, Egypt and others who often abuse prisoners, but also have more access to jihadists than the West ever could. Here, co-operation is a matter of wary judgment, not absolutes. For the West to refuse to deal with such countries would be as wrong as for it to put its agents in rooms where electrodes touch flesh. In between, lies the murky territory in which the West must not only trade intelligence, but must also seek assurances that people are not being abused. Ultimately, if those assurances are broken, the West will have to limit its co-operation with abusive intelligence agencies—even if that might make information harder to get. Do not forget, though, that al-Qaeda has been unable to attack America since 2001 and Europe since 2005. That is in large part thanks to legitimate intelligence co-operation, not torture.

New York Times

Noah Feldman

Cambridge, Mass.

Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism, or is it continuing in the footsteps of the Bush administration?

We got a clue last week when the Justice Department filed an important document “refining” the government’s position in lawsuits over those held at Guantánamo Bay. Hailed by supporters as a leap forward, yet criticized by human rights groups as being little different from what came before, the filing reveals a distinctive approach to constitutional law. Cautious and modest where George W. Bush was ambitious and brash, Mr. Obama still claims the authority necessary to sustain almost everything his predecessor did.

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

The filing argues that the authorization for the use of military force passed by Congress after 9/11 — the contemporary equivalent of a declaration of war — gives the president the powers any sovereign would have under the general principles of the international law of war. Relying on international law to make sense of Congress’s grant of power has deep roots in our constitutional tradition.

In the context of America’s present global military posture, however, the rediscovery of this notion is little short of astonishing. The laws of war, mostly designed for old-fashioned struggles between sovereign states, often do not fit today’s circumstances. The Bush administration saw this mismatch as an occasion to treat the Geneva conventions as “quaint” (in the words of Alberto Gonzales, the former White House counsel).

The Obama lawyers, however, seem to believe that the international law of war is flexible enough to serve their interests — and even to expand the president’s power to detain suspects beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism.

Here is where the law gets complicated: In 2001, Congress told the president he could make war on anyone who had “planned, authorized, committed or aided” the Sept. 11 attacks. The Bush administration, though, went further; it claimed the power to detain any “enemy combatant,” defined to include “anyone who is part of or supporting Taliban or Al Qaeda forces or associated forces.” In an unfortunate legal overreach, one administration lawyer said the government could detain a “little old lady in Switzerland” whose donation to an Afghan orphanage ended up in the hands of Al Qaeda.

In place of the “enemy combatant” definition, the Obama administration now claims the right to detain anyone who “substantially supported” terrorists. Thankfully, the Obama standard would free the little old Swiss lady. But the words “substantial support” do not come from international law any more than Bush’s “enemy combatant” did.

The administration lawyers suggest in their brief that “substantial support” of terrorists could be defined by some unspecified analogy to the laws of detention in traditional armed conflict. Yet the details are left to the imagination; and when push comes to shove, this language might well include all the Guantánamo detainees, including those who never belonged to a terrorist group.

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Noah Feldman is a law professor at Harvard, a fellow at the Council on Foreign Relations and a contributing writer to The Times Magazine.

New York Times

Sheryl Gay Stolberg

WASHINGTON, Sept. 6 — President Bush said Wednesday that 14 high-profile terror suspects held secretly until now by the Central Intelligence Agency — including the man accused of masterminding the Sept. 11 attacks — had been transferred to the detention center at Guantánamo Bay, Cuba, to face military tribunals if Congress approves.

The suspects include Khalid Shaikh Mohammed, thought to be the Sept. 11 mastermind, and other close associates of Osama bin Laden. Mr. Bush said he had decided to “bring them into the open” after years in which the C.I.A. held them without charges in undisclosed sites abroad, in a program the White House had not previously acknowledged.

The announcement, in the East Room of the White House, was the first time the president had discussed the secret C.I.A. program, and he made clear that he had fully authorized it. Mr. Bush defended the treatment the suspects had received but would not say where the so-called “high-value terrorist detainees” had been held or what techniques had been used to extract information from them.

The transfer of the high-level suspects to Guantánamo Bay effectively suspended the extraordinary program, in which the intelligence agency became the jailer and interrogator of suspects counterterrorism officials considered the world’s most wanted Islamic extremists.

The government says the 14 terror suspects include some of the most senior members of Al Qaeda captured by the United States since 2001, including those responsible for the bombing of the destroyer Cole in 2000 in Yemen and the 1998 attacks on American embassies in Kenya and Tanzania. Most of the detainees have been interviewed extensively and are believed to have little remaining intelligence value.

With the transfer of the suspects to Guantánamo, which is run by the Defense Department, the International Committee of the Red Cross will monitor their treatment, Mr. Bush said. He used the East Room appearance to urge Congress to authorize new military commissions to put terror suspects on trial, replacing rules established by the administration but struck down in June by the Supreme Court.

“As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on Sept. 11, 2001, can face justice,” Mr. Bush said, to an audience that included family members of the victims. He added, “To start the process for bringing them to trial, we must bring them out into the open.”

To that end, the president sent Congress legislation proposing new rules for the commissions and detailing specific standards for the humane treatment of detainees. Yet the proposal hews closely to the old commission model, and it retains several provisions the court found troublesome, including language that permits defendants to be excluded from their own trials.

At the same time, the Pentagon released a new Army Field Manual that lays out permissible interrogation techniques and specifically bans eight methods that have come up in abuse cases. Among the techniques banned is water-boarding, in which a wet rag is forced down a bound prisoner’s throat to cause gagging; intelligence officials have said Mr. Mohammed was subjected to that treatment while in C.I.A. custody.

Although the C.I.A. has faced criticism over the use of harsh techniques, one senior intelligence official said detainees had not been mistreated. They were given dental and vision care as well as the Koran, prayer rugs and clocks to schedule prayers, the official said. They were also given reading material, DVD’s and access to exercise equipment.

Administration officials said the timing of Mr. Bush’s decision to bring the terror suspects to trial was driven not by politics but by the need to respond to the Supreme Court’s decision and the fact that the suspects were no longer regarded as sources of valuable intelligence.

On Capitol Hill, some Republicans reacted warily. But even those who criticized the proposal said it was imperative for Congress to pass legislation setting up tribunals soon.

“I do not believe it is necessary to have a trial where the accused cannot see the evidence against them,” said Senator Lindsey Graham, Republican of South Carolina, a former military prosecutor who has played a central role in the debate. But Mr. Graham said he believed his differences with the White House “can be overcome.”

Mr. Bush’s speech was the third in a series he is delivering on the war on terror in the days before the fifth anniversary of the Sept. 11 attacks, and it carried potential political benefits for a White House that is intent on maintaining Republican control of Congress this November.

The address helped put a face on the enemy, reminding Americans that while Osama bin Laden — to whom Mr. Bush referred repeatedly in a speech on Tuesday — is still at large, many terrorists have been captured. Five years after the attacks, Mr. Bush gave the families of Sept. 11 victims something to cheer about, and those in the audience did, as he announced he wanted to put the suspects on trial.

By moving the high-profile suspects to Guantánamo just two months before the midterm elections, the administration is putting intense pressure on lawmakers to act before adjourning to campaign. If Democrats try to thwart legislation to try senior members of Al Qaeda, they will risk being labeled weak on national security, a label they can ill afford in an election that may turn on the question of which party is better suited to keep Americans safe.

“This is certainly a logical and very sound step both substantively and politically,” said David Rivkin, who served in the White House counsel’s office under the first President Bush and is sympathetic to this administration’s approach. “It’s reminding the country and the world of the folks we are fighting against. Nobody can say these are just pitiful foot soldiers; these are pretty senior guys.”

The C.I.A. program, though officially a secret, has been the subject of numerous news reports in recent months. By speaking publicly about it for the first time, Mr. Bush hopes to build support for it on Capitol Hill, and in the public.

The White House released biographies of the 14 suspects and details of the accusations against them. They include such well-known Qaeda operatives as Abu Zubaydah, who the administration said was trying to organize a terrorist attack in Israel at the time of his capture, and Ramzi bin al-Shibh, who the authorities say helped facilitate the Sept. 11 attacks.

Despite the new information, human rights organizations were critical of Mr. Bush’s announcement.

“It’s wonderful that at last the United States has acknowledged that these detention sites exist,” said Larry Cox, executive director of Amnesty International U.S.A. But Mr. Cox described the program as “a form of torture,” and said the United States should suspend it.

In his speech, Mr. Bush fiercely resisted that characterization. “I want to be absolutely clear with our people, and the world,” he said. “The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it — and I will not authorize it.”

A senior intelligence official said there had been fewer than 100 detainees in the C.I.A. program since its inception shortly after the Sept. 11 attacks. Beyond the 14, the remainder have either been turned over to the Defense Department as so-called unlawful enemy combatants, returned to their countries of origin or sent to nations that have legal proceedings against them.

The official described the C.I.A. detainees as the government’s “single largest source of insight into Al Qaeda,” saying they accounted for 50 percent of everything the authorities had learned about the terrorist network. But, he said, “Some of these people have been held for a considerable period of time, and their intelligence value has aged off.”

Mr. Bush said the C.I.A. would not relinquish its capability to detain and question terrorism suspects, and the senior intelligence official said the administration intended that the program would continue. But agency officials — who feared employees might be subject to lawsuits or criminal prosecution — welcomed the hand-off of the detainees and the prospect that the C.I.A.’s role would be limited in future cases.

“I am confident that this will be greeted with relief by agency employees,” said Jeffrey H. Smith, a former general counsel for the C.I.A. “Many of them were uncomfortable with their role as jailers.”

Military justice experts say that if Congress passes the legislation, trials of some terror suspects at Guantánamo could begin relatively quickly, in three to four months. But the trials of the 14 high-value suspects, who are held in a special high-security facility separate from other detainees, might not begin for at least a year, because the government would have to build its case .

One expert who has been critical of the administration’s plan, Eugene R. Fidell, predicted that the proposal would attract a lawsuit.

“Going the way they have done this is in fact quite unfair to the very families of 9/11 victims who President Bush had at his meeting today,” Mr. Fidell said, “because those people need closure and in fact what he’s done is guarantee further protracted delay because of the inevitable litigation.”

On Capitol Hill, Democrats were also critical. Representative Jane Harman of California, the senior Democrat on the House Intelligence Committee, said Mr. Bush should have disclosed the program years ago and called his speech “the opening salvo in the fall campaign.”

David Johnston and Mark Mazzetti contributed reporting for this article.

New York Times

Mark Mazzetti and William Glaberson

WASHINGTON — President Obama signed executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.

The orders, which are the first steps in undoing detention policies of former President George W. Bush, rewrite American rules for the detention of terrorism suspects. They require an immediate review of the 245 detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.

And the orders bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

But the orders leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.

Details of the directive involving the C.I.A. were described by government officials who insisted on anonymity so they could not be blamed for pre-empting a White House announcement. Copies of the draft order on Guantánamo were provided by people who have consulted with Mr. Obama’s transition team and requested anonymity for the same reason.

In remarks prepared for delivery at his confirmation hearings to become director of national intelligence in the Obama administration, Dennis C. Blair, a retired admiral with a long background in intelligence, endorsed the new approach and promised to enforce it rigorously. “It is not enough to set a standard and announce it,” he said.

“I believe strongly that torture is not moral, legal or effective,” he told the Senate Select Committee on Intelligence. “Any program of detention and interrogation must comply with the Geneva Conventions, the Conventions on Torture, and the Constitution. There must be clear standards for humane treatment that apply to all agencies of U.S. Government, including the Intelligence Community,” his written statement said.

As for closing Guantanamo, he said that would take time but must be done because it has become “a damaging symbol to the world.”

“It is a rallying cry for terrorist recruitment and harmful to our national security, so closing it is important for our national security,” Admiral Blair’s statement said.

“The guiding principles for closing the center should beprotecting our national security, respecting the Geneva Conventions and the rule of law, and respecting the existing institutions of justice in this country. I also believe we should revitalize efforts to transfer detainees to their countries of origin or other countries whenever that would be consistent with these principles. Closing this center and satisfying these principles will take time, and is the work of many departments and agencies.”

The executive order on interrogations is certain to be received with some skepticism at the C.I.A., which for years has maintained that the military’s interrogation rules are insufficient to get information from senior Qaeda figures like Khalid Sheikh Mohammed. The Bush administration asserted that the harsh interrogation methods were instrumental in gaining valuable intelligence on Qaeda operations.

The intelligence agency built a network of secret prisons in 2002 to house and interrogate senior Qaeda figures captured overseas. The exact number of suspects to have moved through the prisons is unknown, although Michael V. Hayden, the departing director of the agency, has in the past put the number at “fewer than 100.”

The secret detentions brought international condemnation, and in September 2006, President Bush ordered that the remaining 14 detainees in C.I.A. custody be transferred to Guantánamo Bay and tried by military tribunals.

But Mr. Bush made clear then that he was not shutting down the C.I.A. detention system, and in the last two years, two Qaeda operatives are believed to have been detained in agency prisons for several months each before being sent to Guantánamo.

A government official said Mr. Obama’s order on the C.I.A. would still allow its officers abroad to temporarily detain terrorism suspects and transfer them to other agencies, but would no longer allow the agency to carry out long-term detentions.

Since the early days after the 2001 attacks, the intelligence agency’s role in detaining terrorism suspects has been significantly scaled back, as has the severity of interrogation methods the agency is permitted to use. The most controversial practice, the simulated drowning technique known as water-boarding, was used on three suspects but has not been used since 2003, C.I.A. officials said.

But at the urging of the Bush administration, Congress in 2006 authorized the agency to continue using harsher interrogation methods than those permitted for use by other agencies, including the military. Those exact methods remain classified. The order on Guantánamo says that the camp, which received its first hooded and chained detainees seven years ago this month, “shall be closed as soon as practicable, and no later than one year from the date of this order.”

The order calls for a cabinet-level panel to grapple with issues including where in the United States prisoners might be moved and what courts they could be tried in. It also provides for a new diplomatic effort to transfer some of the remaining men, including more than 60 that the Bush administration had cleared for release.

The order also directs an immediate assessment of the prison itself to ensure that the men are held in conditions that meet the humanitarian requirements of the Geneva Convention. That provision appeared to be a pointed embrace of the international treaties that the Bush administration often argued did not apply to detainees captured in the war against terrorism.

The seven years of the detention camp have included four suicides, hunger strikes by scores of detainees, and accusations of extensive use of solitary confinement and abusive interrogations, which the Department of Defense has long denied. Last week a senior Pentagon official said she had concluded that interrogators at Guantánamo had tortured one detainee, who officials have said was a would-be “20th hijacker” in the attacks of Sept. 11, 2001.

The report of Thursday’s announcement came after the new administration late Tuesday night ordered an immediate halt to the military commission proceedings for prosecuting detainees at Guantánamo and filed a request in Federal District Court in Washington to stay habeas corpus proceedings there. Government lawyers described both delays as necessary for the administration to make a broad assessment of detention policy.

The cases immediately affected include those of five detainees charged as the coordinators of the 2001 attacks, including the case against Mr. Mohammed, the self-described mastermind.

The decision to stop the commissions was described by the military prosecutors as a pause in the war-crimes system “to permit the newly inaugurated president and his administration time to review the military commission process generally and the cases currently pending before the military commissions, specifically.”

More than 200 detainees’ habeas corpus cases have been filed in federal court, and lawyers said they expected that all of the cases would be stayed.

Mr. Obama had suggested in the campaign that, in place of military commissions, he would prefer prosecutions in federal courts or, perhaps, in the existing military justice system, which provides legal guarantees similar to those of American civilian courts.

Some human rights groups and lawyers for detainees said they were concerned about the one-year timetable. “It only took days to put these men in Guantánamo; it shouldn’t take a year to get them out,” said Vincent Warren, the executive director of the Center for Constitutional Rights in New York, which has coordinated detainees’ lawyers.

But several groups that had criticized the Bush administration’s policies applauded the rapid moves by the new administration. Mr. Obama’s actions “reaffirmed American values and are a ray of light after eight long, dark years,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Mark Mazzetti reported from Washington, and William Glaberson from New York. Carl Hulse contributed reporting from Washington.

 Le front du désert : des camps européens de réfugiés en Afrique du Nord

This article first appeared in the German journal Konkret (issue 12/2004) and traces the implementation of the creation of migrant and refugee prisons, so called off-shore centres, in northern Africa, as part of the EU’s globalisation of migration control. With the example of recent developments in EU and particularly German and Italian relations with Libya, the author highlights the relationship between military, economic and migration control agreements between the EU and third countries and documents the devastating effect these have for migrants and refugees caught up in the militarisation of the EU’s external borders.

 »How can you forget the concentration camps built by Italian colonists in Libya into which they deported your great family – the Obeidats? Why don’t you have the self-confidence, why don’t you refuse?» the Libyan intellectual Abi Elkafi recently asked the Libyan ambassador in Rome, who had initiated the country’s orientation towards the West. «The reason I write to you are the atrocious new concentration camps set up on Libya’s soil on behalf of the Berlusconi government,» Elkafi wrote in an open letter.

 In June 1930, Marshal Petro Badoglio, the Italian governor of Libya, ordered the internment of large parts of the then 700,000 inhabitants of Libya. Within two years, more than 100,000 people had died of hunger and disease in the desert concentration camps. Around the same time, Badoglio had fortified the 300 kilometre long Libyan/Egyptian border line with barbed wire fence. This is how the Italian colonists destroyed the Libyan resistance. For years, they had not succeeded – neither by bombing villages and oases, nor by using poison gas. The current Italian government laughs at any demand for compensation, Abi Elkafi writes.

 Military camps for refugees – the reality of off-shore centres

Four years ago, the western press received first reliable reports on internment camps in Libya. In September and October 2000, pogroms against migrant workers took place in Libya and 130 to 500 sub-Saharan Africans were killed in the capitol Tripoli and the Tripoli area. To escape the persecution, thousands of builders and service sector employees from Niger, Mali, Nigeria, and Ghana fled south. Many of them were stopped at road blocks in the Sahara and taken to Libyan military camps. Le Monde Diplomatique reported on several camps in where migrants and refugees have been held since 1996 – about 6,000 Ghanaians and 8,000 people from Niger are supposed to be held in one of them alone. The Ghanaian president Jerry Rawlings visited the camp to bring back some hundred compatriots. The Somali Consultative Council appealed to Gaddafi on 22 February 2004 «to unconditionally release the Somali refugees who are imprisoned in your country and who have started a hunger strike immediately and not send them back to the civil war in Somalia.» In the beginning of October 2004, the Italian state TV channel RAI showed pictures from a Libyan refugee camp. Hundreds of people were depicted in a court yard, heavily guarded; the barracks apparently do not have sleeping facilities. Reports of some of the Somalis who have recently been deported to Libya confirm the existence of these camps.

Did the Libyan government originally build these camps in order to provide a labour force for major building projects in the south of the country (»greening the desert»)? Or are they an attempt to fight refugees in transit? In any case, the Libyan government already announced some time ago that undocumented immigrants would be imprisoned in southern Libya and deported. In December 2004, the Libyan interior minister Mabruk announced without further explanation that Tripoli had deported 40,000 migrants in the last weeks alone.

 These imprisonments and deportations have now become antecedents of the so-called off-shore centres of the European Union, propagated particularly by Germany’s interior minister Otto Schily. Libya is the first non-European country which allows for its camps to be integrated into the EU’s deportation policies. Together with the new airlifts to Tripoli, by which African refugees are being deported collectively from Italy since 2 October 2004, first facts of this regime have been created. At the beginning of October 2004, the designated and later suspended EU commissioner Buttiglione announced during his hearing before the European Parliament in Strasbourg that the EU did not want to create «concentration camps» in north Africa, but wanted to use the already existing camps «in which refugees are living under the most difficult circumstances.» At their informal meeting in Scheveningen on 30 September to 1 October 2004, the EU’s justice and interior ministers agreed in principle that the EU is striving for the creation of «reception camps for asylum seekers» in Algeria, Tunisia, Morocco, Mauritius and Libya, not under supervision of the EU but of the respective countries.

Mostly unnoticed by the public, the EU states that form the EU’s external borders are creating the preconditions for a new deportation regime. Whereas until recently, refugees and migrants who were stopped by border police were taken into the EU country, there are now enormous reception capacities on the Canary Islands and on the southern Italian and eastern Greek islands. This «initial reception» is no more intended to lead into European cities and the already meagre EU legal protection. The camps at Europe’s peripheries are typically located near airports on former military compounds, guarded by paramilitary troops and hardly accessible even for the UNHCR. Contact to the outside world is made extremely difficult if not impossible. The facilities are secured with modern prison equipment. The Canary islands currently hold camps with altogether 1,950 places.

These camps in the Canaries, southern Italy and eastern Greece, also mark the introduction of a social change initiated by EU states: in the 1990’s the boat people were welcomed by the Mediterranean population. Although the state declared a state of emergency when large refugee boats arrived and put them into stadiums, it remained a public event which attracted many inhabitants who drove to the stadium with clothes, blankets and food. With the new prison camps, the administration now systematically separates boat people from the society they arrive in and thereby creates the organisational preconditions for mass deportations to places outside the EU, far from any legal or societal control. Extraterritorial, law-free zones are being created at the fringes of Europe.

Since the beginnings of the 1990’s, Western European migration and refugee strategy papers point to the EU intending to export the asylum procedures to places outside Europe. They outline a global migration control approach that ensures that refugees and unwanted migrants from Africa, Asia and South America do not reach Europe anymore. Central to this concept are camps encircling Europe.

Up to now these plans could not be implemented. German authorities unsuccessfully attempted to enforce this practise in the early 1990’s after the war against Iraq, when the no-fly zone was created over Iraqi Kurdistan: they wanted to declare the area a «safe haven» for Iraqi refugees, to which they could be deported en masse. This did not succeed until the NATO war in Kosovo. Within a few weeks, the war zone was surrounded by refugee camps, thus stopping hundreds of thousands on their flight to the EU.

In the beginning of the current Iraq war, Tony Blair suggested the creation of refugee camps under the supervision of the EU but outside its territory. His «new vision for refugees», published in March 2003, foresaw returning those who would apply for asylum in the EU to outside the EU’s borders. His vision was one of a ’camp universe’, set up by EU officers and made up of Transit Processing Centres (TPC) in front of the gates of the EU, together with the UNHCR and the notorious International Organisation for Migration (IOM). From there they would be able to bring the refugees back to «safe» zones near their regions of origin and select a few for entry into the EU. When that plan became known to the public, it went down in a storm of protest.

Despite the public criticism, Otto Schily and Giuseppe Pisanu, the German and Italian interior ministers, developed the idea further in the summer of 2004. The European Commission together with the Strategic Committee for Immigration, Frontiers and Asylum (SCIFA) were to test preliminary measures of «a European asylum office with interception functions» in northern Africa (Schily in FAZ, 23.7.2004). In practise, this proposal implies that boat people coming through the Mediterranean were to be returned to camps located in Arab states – in collective procedures and without an individual check on their nationality, their flight route or reasons for flight. This practise is called refoulement and is explicitly prohibited in the Geneva Refugee Convention. EU Member States’ constitutions as well as the European Convention on Human Rights prohibit refoulement as well. However, this practise not only concerns the violation of rights of asylum seekers. In internment camps or when deported to desert areas without support, migrants, no matter if they flee from poverty and hunger or for other «economic» reasons, suffer the same fate they were trying to flee. They are threatened with imprisonment, abuse and death.

Testing and developing military technology in the fight against migration

Recent international events have changed the political, military and economic situation to such an extent that desert camps have now come within Schily’s and Pisanu’s reach. The first barrier for unwanted refugees and migrants is Europe’s external border policy. But since EU enlargement and the global «fight against terror», these policies are being formulated under different conditions. In 2001, the German and Italian interior ministries laid down their dream of an EU border police in EU documents. The plan was intended to bring the unsafe borders of certain members under centralised control. At first, the focus was on the eastern border of accession states, but the accession states were not exactly enthusiastic about the idea that especially German, together with other EU police officers, were to secure their eastern borders. They fear that a total closure of borders will create tensions with their eastern neighbours. Further, the German border guards have reaped antipathy in the local accession population in the Oder and Neiße region with their policing practises and the NS massacres committed by German troops in the Bug river region have by no means vanished from people’s memories.

Politicians of the South European front states – as they are called in official EU documents – have less scruples. The anti-terrorist measures against the Arab-Muslim population has enforced a development of strong external borders. The operative core of a future EU border protection is based on the greater Mediterranean region. The Mediterranean Sea is a new challenge for the control fanatics. The goal is the ’virtual’ extension of European borders to the North African coasts. Even the docking of the wooden boats is to be prevented. Furthermore, the border police long to control the Sahara-Sahel-zone, together with the military and European and American secret services, thus setting up a second ’rejection’ ring around Europe. Besides stopping refugees, the oil and gas production in the desert has to be secured. Thus, the border surveillance agreement between Italy and Libya provides for an internationalised control of the 2,000 kilometres long coast line and also the 4,000 kilometres long desert border of Libya.

This can hardly be achieved by boat and jeep patrols. Control technologies tried and tested in the most recent wars will therefore also be deployed. Detection of refugees by air with optronic and radar technology is currently being tested all over the Mediterranean.

The Spanish Guardia Civil has rediscovered the surveillance tower. From above, the visual and electromagnetic identification technique can continuously and automatically scan the Straits of Gibraltar and the Moroccan coast. Other parts of the coast, due to the earth curvature, cannot be controlled by means of towers only. Nevertheless, the Canary Islands and the Spanish South Coast are equipped with the tower technology. Tests are made to link all accessible data in real time in order to identify and follow all ships in the controlled area. This technology, known as SIVE (Sistema Integrado de Vigilancia Exterior), is now exported to the Greek islands.

Meanwhile, Italy is practising the use of drones, which are planned to being used in Libya’s desert borders. In October 2004, the Italian air force general Leonardo Tricarico announced that Italy had purchased five predator drones for 48 million dollars from the Californian arms company General Atomic Aeronautical Systems in San Diego. The US is using predators to chase al-Qaeda; the unknown flight object can also launch rockets. Tricarico explained that the Italian air force was planning to use the drones against terrorism as well as against irregular migration. By the end of October 2004, the Italian air force were trying to detect refugee boats from the air.

Testing of the new technologies at the South European ’front’ is co-ordinated by the so-called ad hoc centres of the EU preceding the future EU border agencies. Two sea surveillance centres are based in Spain and Greece, one air surveillance centre in Italy. Another one is responsible for ’risk analysis’. Taking the insurance business as an example and with the assistance of Europol, it is calculated where the greatest damage by irregular migration is imminent. There, surveillance is strengthened.

The ad hoc centres are combined in Schengen Committees, which by now should have long been subsumed within EU institutions regulated under the Amsterdam Treaty. These circles have launched new power centres to create an EU border protection within five years. Thus, SCIFA+ unifying the Schengen round with all EU border police forces was founded in 2002, and in 2003 the PCU was created – the coordinating unit of the practitioners. The latter sees itself as a crisis centre using focal points at the external borders to push through the centralised command structures, regarding the development of preventive measures and stringent controls of national border guard units as its duty.

It is hard to say whether these EU coordinated methods have failed so far, or whether they already have fatal outcomes. On the one hand, it is reported that a planned EU manoeuvre of various national naval units in the Straits of Gibraltar and around the Canary Islands was halted due to language difficulties. On the other hand, ’high tech’ is regarded as a magic potion that motivates border police and marines who believe their work thereby becomes more valuable. The intensified search with technical equipment in the Straits has already forced boat people to use more dangerous waters to come to Europe. It can also be assumed that EU agencies declared the arrival of boat people on the Italian island of Lampedusa ’a state of emergency’ in order to justify the need to implement extraordinary measures.

It is important to remember that according to official estimates, 400,000 to 500,000 people secretly cross the southern EU border every year. Whoever can afford it, arrives by plane with a false passport. Whoever has relatives and friends might go on one of the ferries engaged in the massive holiday traffic. Only the poor come on wooden boats. According to reliable calculations, more than 10,000 people drowned in the Mediterranean Sea since 1992, that is since visas became obligatory for the EU’s southern neighbours. The European governments, however, do not declare a state of emergency because of the huge death tolls, but because of the arrival of around 30,000 boat people per year. In late summer 2004, around 1,800 people reached the island of Lampedusa. Obviously a high figure for a small island but small compared to the Mediterranean figure as a whole. The Italian state and the EU use them as a warning to others. Deterrence is the goal.

Oil interests and migration control – the economic agenda

The second aspect which brought the Libyan desert camps within reach of Pisanu and Schily is of economic nature. Since the mid-1990’s, Gaddafi has slowly opened up Libya’s economy and thus the oil and gas industry to foreign investors. Besides Russia, Libya is the most important non-European oil supplier for Germany, whereas Germany is the most important goods supplier to Libya after Italy. In 2002, the German minister for trade and commerce announced an ’export offensive’ in the Middle East and North Africa – implying increasing investments in the oil and gas industry in these regions. The potential gains to be made from Libya have first priority here. In the 1970’s, before economic cooperation decreased, most of the German investments in North Africa and the Middle East were made in Libya. Now, the German Association of Chambers of Commerce and Industry does not only predict investment opportunities in the Libyan energy sector but also in infrastructure, telecommunication and health. Another big market is the food supply for the population, most of which has to be imported.

24 March 2004: The British prime minister Tony Blair visits Gaddafi. The Dutch-British oil company Shell receives a 165 million Euro contract to produce oil and gas in Libya, forming the basis of a «long-term strategic partnership». There is talk of a «oil against weapons» deal, because around the same time, the arms company BAE initiates talks on major business with Libya. Libyan’s armed forces want new equipment. The wish list includes night vision gear and air radars.

In July 2004, Libya clears the way for the participation of foreign investors in state companies. The government decides on the privatisation of 160 state companies, 54 of which cannot only sell shares to foreign investors but can be taken over by foreign capital by allowing for majority shareholding. The plan is to privatise 360 firms until 2008. At the end of July, the WTO lobbies for the accession of Libya. In August 2004, the German government re-introduces the so-called Hermes-Bürgschaften for Libya, which allows exporting companies to insure themselves against economic and political risk scenarios (many exporting firms can only export to certain countries with this guarantee).

On 5 September 2004, the Libyan state invites numerous interested firms from all over the world for a presentation on new oil and gas fields. The neo-liberal Libyan prime minister Shukri Ghanim announces that production licences will be put up for bidding in the coming months. According to recent estimates, Libya has the eighth biggest oil reserves world wide. The country currently produces 1,6 million barrels of crude oil per day. The goal is to increase production up to 2 million until 2010, with the help of numerous new foreign investments – in 1970, 3,5 million was produced per day. The low production costs and high quality of Libyan oil is attractive to foreign investors.

7 October 2004: Italian president Silvio Berlusconi visits Libya for the fourth time that year. This time to open the pipeline ’Greenstream’ of the ’West Libyan Gas Project’, built and operated by the Italian ’energy giant’ ENI, the number one of the foreign companies active in Libya. 6.6 billion dollars were invested into the 520 kilometres long pipeline, now supplying gas from the Libyan Mellitah to Sicily. Until now, it is the biggest Mediterranean project of its kind and makes a second pipeline for Algerian gas obsolete. The day for the opening was chosen to coincide with the «day of revenge» in Libya, which celebrates the victory over colonialism since the 1970’s. In consideration of Belusconi, Gaddafi renames it the «day of friendship» and declares the once despised enemy to be welcome guests.

11 October 2004: The EU foreign ministers meeting in Luxemburg resolve the political barriers to economic cooperation with Libya. The council of ministers revokes the relevant UN sanctions from 1992 and 1993. The arms embargo is also revoked by the general EU framework for arms exports to third countries. The precondition for these changes was the Libyan agreement to pay compensations for the victims of a bomb attack on a Berlin discotheque in 1986, similar to Libya taking responsibility for the attack on the Pan-Am machine which crashed over Lockerbie. Furthermore, Libya is introducing a neo-liberal market economy, as is laid down in the Euromed partnership agreements between the EU and its Mediterranean neighbouring states.

14/15 October 2004: Chancellor Schröder, accompanied by German industrialists, visits Gaddafi. Schröder signs a bilateral investment agreement and is present when oil and gas concessions are granted to the German Wintershall, a subsidiary of the BASF group, represented in the country since 1958 and one of the leading foreign producers with an investment of 1.2 billion dollars. During the chancellor’s visit, the German RWE group also started business in the oil and gas production, and the German Siemens group received contracts worth 180 million. Furthermore, the German government is interested in orders for «technical material like night vision gear or thermal cameras for border protection». Germany’s economic goal is to dominate the Libyan foreign investment market. When Gaddafi mentions to the chancellor that Rommel’s landmines are still causing accidents and that it was high times to clear them, the German side ignores the issue without comment.

The military and migration control – the foreign policy agenda

The third reason for Schily and Pisanu to be interested in the desert is of military nature and is closely connected with border fortification, camp policy and oil and gas production: the German economy openly links economic aims in North Africa and the Middle East with its military planning, because the markets in question are said to «have specific security risks». This is why on 11 February 2005, the Federal Association for German Industry and the Federal Association of German Banks directly linked its ’Conference on Financing in the Region North Africa Middle East’ to the ’Munich Security Conference’, which takes place annually to enable Western states to coordinate their military policies and war tactics. In February 2005, EU foreign policy therefore joined EU strategies regarding refugees, the military and the economy in the Mediterranean and the Middle East.

Like Pakistan and Turkey, Libya could soon be a privileged partner of the West as a stronghold against Islamism and Africa’s failing states. Because of his leading role in Africa’s integration and the African Union (which replaced the OAU in 2001), Gaddafi has a special influence in a lot of dependent states. This became clear during his role in freeing the hostages from Switzerland, Germany and Austria who were held in the Sahara. Negotiators and money from Libya also played a central role in the negotiations around some Western tourists, amongst them Germans, who were held by extremists on the Philippines in the summer of 2000. Now British officers will operate as consultants to the Libyan army. A military co-operation with Greece is agreed upon.

Resulting from a deal with Italy in 2003, Libya is currently purchasing boats, jeeps, radar equipment, and helicopters for border surveillance. Italian trainers and consultants are already in the country. According to press reports, Rome supplied tents and other material for three camps in Libya in the first days of August. «The camps are being set up», said Pisanu in an interview with the newspaper La Republica, «they were never under discussion». Meanwhile, the Italian navy is guarding large areas of the Libyan coast. Under pressure from Rome, Egypt is controlling the Red Sea for refugee ships. Funded with money from Italy, Tunisia is operating 13 deportation prisons of which 11 are kept secret, safe from public scrutiny. It is said that many of those refugees and migrants deported from Italy are being transported to the Tunisian-Algerian desert and abandoned there.

The German government is also responsible for arming the North African coast. According to the German defence ministry, Tunisia will receive six Albatross speed boats from the German navy. Already two years ago, it was agreed to deliver five speed boats to Egypt. In 2002, Algeria received surveillance systems at a value of 10,5 million EUR, Tunisia received communications and radar equipment for around 1 million EUR, Morocco received military trucks worth 4.5 million euro.

The Western industrial countries have described the assumed danger in and from the Mediterranean region in two scenarios: One focuses on Islamic fundamentalism, the other on uncontrolled migration. It is surprising how these two completely different social phenomena are conflated in this vision of threat. Agreements of the EU countries state that al-Qaeda and the boat people use the same North African networks. In the meantime, search units are being formed whose remits are to fight both enemies together.

Source

EDITORIAL

New York Times

 In a long series of valedictory speeches and interviews, President Bush and Vice President Dick Cheney have been crowing about Guantánamo Bay, secret prisons and abusive interrogations, claiming they met the highest legal standards and that no prisoner had been tortured. Fortunately, the truth broke through the noise, in the words of some of the very people ordered to carry out the policies.

 In an interview in The Washington Post, Susan Crawford, the retired judge who runs the military tribunals at Guantánamo, said that harsh interrogation methods had endangered the life of Mohammed al-Qahtani, a Saudi national accused of planning to take part in the 9/11 attacks. Authorized by then-Defense Secretary Donald Rumsfeld, they included sustained isolation, nudity and prolonged exposure to the cold.

 “We tortured Qahtani,” Judge Crawford said, adding that she was therefore unable to prosecute a man who seemed to pose a real threat to the United States.

Judge Crawford was not the only one speaking out. Major David Frakt of the Air Force Reserve, who was assigned to defend another Guantánamo prisoner, told MSNBC’s Rachel Maddow that he and all the other defense lawyers in the system consider the tribunals “unfair, rigged” and unconstitutional. He noted that his client’s prosecutor resigned to protest the lack of evidence in the case.

That is the real nature of Mr. Bush’s grotesque legacy: abuse and torture at an outlaw prison where hundreds of men — many of whom did nothing — have been held for years without real evidence or charges. And truly dangerous men were treated so badly that it may be impossible to bring them to justice.

It will be hard enough to close down Guantánamo as Barack Obama has vowed to do, but the legal burdens Mr. Bush is dumping on his successor are much greater.

The appalling Military Commissions Act of 2006, railroaded through Congress, must be repealed. Interrogation rules that respect American values and laws and the Geneva Conventions must be set for all government agencies, including the intelligence agencies.

And there is the profound question of whether the new administration should prosecute those who tortured and abused prisoners — and those who ordered them to do it. Judge Crawford’s legal finding that torture occurred adds a new complication, since a treaty obliges the United States to investigate such allegations.

We have heard a lot of talk about how the country needs to look forward and not backward. We certainly would like to forget the horrors of the last eight years. But you cannot fix something before you know exactly how it is broken. The clandestine system Mr. Bush and Mr. Cheney have built will not give up its secrets easily.

To ensure that the abuses stop, Mr. Obama and his administration will have to work hard to find out all that has happened. They will have to locate and override all of the policy memos, directives and executive orders that have redefined and condoned torture and other abuses. Guantánamo is the place to begin.

 The timetable: Mr. Obama is expected to announce as early as Wednesday that he is beginning the process of shutting Guantánamo. We hope he sets a target date. That may make it easier to persuade other governments to agree to accept some prisoners — one of the difficult challenges ahead. But we do not agree with critics who insist that date must fall within his first 100 days.

This page called early and often for closing Guantánamo. But we recognize that this is going to be very hard work.

 Sorting out the inmates: Mr. Obama’s lawyers will have to review every file, most of which the Bush administration has refused to turn over to any authority, including Congress. We know from bitter experience that the Bush administration’s judgment is worthless when it comes to what these prisoners may have done, how they have been treated and what justice they should face.

Just last week, Mr. Cheney claimed that the interrogation of prisoners like Khalid Shaikh Mohammed, believed to be the planner of 9/11, who was tortured by waterboarding, allowed the United States to capture a “very impressive” list of Al Qaeda leaders in 2003. If that is true, Mr. Obama needs to know who they are, where they are, and what was done to them in the last five years.

A blueprint: Senator Dianne Feinstein, the new head of the Intelligence Committee, has a bill for closing Guantánamo that Mr. Obama should embrace. It sets a one-year deadline and requires that every prisoner either be charged and tried in United States federal court; transferred for trial by an international tribunal under United Nations authority; returned to the custody of the government of their homeland, if that government does not abuse and torture prisoners; held as a prisoner of war; or, simply, released.

The separate system of tribunals created by the military commissions act must be abolished. They are a mockery of American justice, and utterly unnecessary.

It was extremely encouraging to hear Eric Holder, Mr. Obama’s choice for attorney general, say at his confirmation hearing on Thursday that the new administration is open to trying prisoners in the United States. It is appalling that an attorney general nominee has to say he respects the law, but such is the Bush legacy.

The real bad guys: After the prisoners are sorted out, Mr. Bush’s egregiously bad judgment leaves all Americans with a huge problem. The abuses authorized by top Bush officials, and so gleefully defended by Mr. Cheney in particular in the last few weeks, create the possibility that men like Mohammed al-Qahtani and Khalid Shaikh Mohammed will never be able to face justice in a real courtroom.

Mr. Obama’s team will have to come up with a solution that does not set such men free. We are not sure what it should be, but there is one unacceptable choice: creating a new detentions law that would allow them held without trial. That would merely compound Mr. Bush’s catastrophically bad choices.

Interrogations: The 2006 military tribunals law bound military interrogators to the Army field manual’s rules, which conform with the Geneva Conventions — unlike Mr. Bush’s policies. But, at Mr. Bush’s insistence, the bill carved out an exemption that allowed intelligence agencies to go on hiring civilian interrogators and to engage in practices that are clearly immoral and illegal. Ms. Feinstein’s bill would eliminate the loophole on how prisoners are treated and ban the use of civilian interrogators.

We were glad to hear Mr. Holder state that the Obama administration considers the Geneva Conventions binding. But we wish he had been more clear on a solution, beyond calling the Army field manual a “good start” for interrogation rules in C.I.A. prisons. We also were unclear from his answers whether Mr. Obama has decided, as he should, to ban civilian interrogators.

Mr. Holder unequivocally declared waterboarding to be torture, which his predecessors would not do. But this is not just about waterboarding. Other practices, like forced nudity, prolonged isolation, and extremes of heat and cold, are abuses under the same laws and treaties that prohibit torture. And Judge Crawford reminded us that torture is not necessarily just one terrible act. In the Qahtani case, she said: “This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive.”

C.I.A. prisons: We have never heard a convincing explanation for why the Central Intelligence Agency needs its own network of prisons beyond the reach of law, in undisclosed locations. If there is a good reason, we hope this administration will explain it. We are skeptical, and we urge Mr. Obama to support Ms. Feinstein’s bill, which would require the C.I.A. to report all detainees to the International Committee of the Red Cross.

We recognize that this is a daunting agenda, and that to succeed, Mr. Obama’s White House, Justice Department and Pentagon will also have to rebuild demoralized legal divisions where professionals were replaced with apparatchiks whose mission was to twist the law to justify their masters’ decisions.

This work is essential to restoring the rule of law. It is essential to restoring this country’s reputation around the world. And it is essential to restoring Americans’ faith in themselves and in their government. That is the only way to move forward.