February 6, 2007

February 6, 2007 | Commentary on Germany

Germany's Weak-kneed Approach to the War on Terror

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 outcome.

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 sources.

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 Berlin.

Nile Gardiner is a fellow at the Heritage Foundation and a former aide to Margaret Thatcher.

About the Author

Nile Gardiner, Ph.D. Director, Margaret Thatcher Center for Freedom
The Margaret Thatcher Center for Freedom

Related Issues: Germany

First appeared in the Süddeutsche Zeitung