February 6, 2007
By Nile Gardiner, Ph.D.
The huge controversy in Germany over the Khaled al-Masri case
does not bode well for transatlantic cooperation in the war against
Al Qaeda. Prosecutors in Munich have issued warrants for the arrest
of 13 alleged CIA agents, prompting growing concern in Washington
regarding Germany's commitment to aggressively fighting the war
against terrorism. It threatens to derail much of the progress made
by Chancellor Angela Merkel in improving relations with the White
House since the downfall of Gerhard Schroeder.
The suspected CIA personnel are accused of abducting al-Masri, a
German national of Lebanese descent, on the Serbian-Macedonian
border in 2003, as part of the U.S. policy of extraordinary
rendition. Al-Masri was allegedly detained and mistreated for five
months in Afghanistan as a terror suspect, in what may have been a
case of mistaken identity. He was subsequently released in Albania,
and his case has become a cause celebre for human rights groups in
Europe and the United States, as well as for left-wing German
politicians. It has prompted a major German parliamentary
investigation that has drawn in Foreign Minister Frank Walter
Steinmeier, whose own political fate could be sealed by the
The Munich warrants are the most significant legal challenge so
far to U.S. anti-terror operations on European soil. They come in
the wake of attempts by Italian prosecutors in Milan to indict 25
presumed CIA agents over the abduction of Egyptian cleric Osama
Mustafa Hassan. There is little chance however that the Americans
named in the case will ever stand trial in Germany, and German
courts cannot try suspects in absentia. A federal judge has already
dismissed a civil lawsuit filed by al-Masri in the United States,
on the grounds that it would compromise "state secrets".
The U.S. Justice Department has refused to cooperate with the
German investigation, and the Bush Administration is highly
unlikely to acquiesce in any extradition attempts. The CIA has
never acknowledged that they held al-Masri, and German prosecutors
have had to rely largely upon unsubstantiated evidence from media
In the eyes of the U.S. Executive Branch, the warrants are
entirely worthless, and merely confirm that the United States was
right not to sign on to the International Criminal Court and other
supranational legal institutions that could be used against
American military and intelligence personnel.
The over-zealous actions of the German prosecutors will though
have some far-reaching implications, especially if the federal
Government in Berlin is seen to support efforts by German courts to
seek the extradition of U.S. agents. The degree to which the
Chancellor ultimately champions this case will have a direct impact
on the immediate future of U.S.-German relations. The al-Masri
issue could also open up a huge can of worms relating to earlier
cooperation between Berlin and Washington over rendition. It is
ludicrous to believe that CIA operations on European soil would
have been carried out without the consent and cooperation of
sovereign national governments.
The huge publicity surrounding the al-Masri case can only damage
future cooperation between the United States and Germany over the
war on terror. Washington will be increasingly wary of passing on
information to its German counterparts, for fear of it being
exposed later in German courts. U.S. intelligence officials will
avoid setting foot in Germany if there is any prospect of their
being arrested and put on trial. The al-Masri issue will ultimately
have a chilling effect on U.S.-German cooperation, downgrading
Germany's status as a close ally, and undermining Germany's
long-term national security.
The fight against al-Qaeda is a global war that requires a high
degree of cooperation between the United States and key European
allies. There can be no doubt that Germany has benefited from
American intelligence information in combating Al Qaeda, and vice
versa. It would be tragic if this exchange of information were to
be halted because of politically driven attempts strike a blow
against an unpopular U.S. tool in the war on terror: rendition.
Rendition has become a dirty word in much of Europe, even though
a large number of European governments, Germany included, have
cooperated in the past with this policy. No matter how hated it is
among European political elites, it is a practice that will
continue to be used by the United States. The prevailing view in
the Bush Administration is that the United States must continue to
aggressively pursue those who threaten the security of the free
world and must resist the temptation to blunt her most effective
weapons in the face of criticism from the EU, the Council of
Europe, the UN, and other supranational institutions.
Rendition has proved a highly effective tool in the war against
terrorism and has pulled large numbers of extremely dangerous
terror suspects off the streets. In all probability, many lives,
both American and European, have been saved by this practice. The
U.S. rendition policy is not intended to facilitate the torture of
detained suspects. Torture is against U.S. law, and government
policy requires that American officials must obtain assurances from
countries where detainees might be transferred that no methods
contrary to international and U.S. law will be employed.
There is a growing sense in Washington that Germany and other
leading European nations underestimate the nature of the threat the
West is facing. The legal fallout from the al-Masri case will
reinforce the view that Berlin is not pulling its weight in the war
against terrorism, and has adopted a weak-kneed approach. There
remains widespread unhappiness on Capitol Hill over the German
Government's decision last year to free Hezbollah terrorist
Mohammad Ali Hammadi, convicted of murdering U.S. navy diver Robert
Stethem. The United States unanimously passed a sense of the Senate
resolution last May condemning the decision "as a signal of
weakness to terrorist groups." There is a real prospect that the
Hammadi issue, as well as the al-Masri dispute, will seriously
undermine future U.S.-German cooperation.
It is important that Chancellor Merkel and her advisers do not
underestimate the potential long-term damage of the Munich arrest
warrants. Germany's drive to prosecute American government
officials over the alleged mistreatment of al-Masri sets a
dangerous precedent, with far-reaching implications. It could
result ultimately in a freeze in U.S.-German intelligence
cooperation, an end result that would greatly harm German
interests, undermining Germany's ability to combat Islamic
terrorism on her own soil. There can be no doubt that Al Qaeda will
be the ultimate beneficiary of any divide between Washington and
Gardiner is a fellow at the Heritage Foundation and a
former aide to Margaret Thatcher.
First appeared in the Süddeutsche Zeitung
The huge controversy in Germany over the Khaled al-Masri case does not bode well for transatlantic cooperation in the war against Al Qaeda. Prosecutors in Munich have issued warrants for the arrest of 13 alleged CIA agents, prompting growing concern in Washington regarding Germany’s commitment to aggressively fighting the war against terrorism.
Nile Gardiner, Ph.D.
Director, Margaret Thatcher Center for Freedom
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