On the campaign trail, Donald Trump repeatedly promised to keep the Guantanamo Bay detention facility open and to “load it up with some bad dudes.” He also pledged to bring back waterboarding and “a hell of a lot worse,” because “torture works” and even “if it doesn’t work, because they deserve it.” And he said he would “take out terrorists’ families.” Although Trump was reported to have changed his mind about torture after speaking to retired Gen. James Mattis in November, the transcript of his New York Times interview was subsequently corrected to show Trump did not actually say that he had changed his mind. More recently, Trump has tweeted that the remaining Guantanamo detainees should be held indefinitely, which could be seen as support for indefinite detention without trial. Although all of Trump’s nominees publicly stated that they do not share his views on the desirability and effectiveness of torture, Trump’s comments cannot be discounted, as presidents generally try to fulfil their campaign promises. It is also worth noting that in his written responses to post-confirmation questions for the record, the newly confirmed CIA Director Mike Pompeo gave himself more wiggle room on torture than he did in his confirmation hearing.
Just Security has several excellent posts addressing the applicable domestic and international laws on torture, the difficulties government actors will face in trying to bring back torture, and why the question of torture should be governed by law and not opinion polls. But given his campaign promises, and his policy pronouncements since, it’s worth examining whether the Trump administration will be able to obtain the cooperation of its European allies should it choose to do so. In particular, the European Court of Human Rights (ECtHR) has elaborated multiple standards barring Council of Europe states from cooperating in extraterritorial violations of human rights (i.e. the rights to life, liberty and a fair trial, as well as the prohibition of torture, inhumane and degrading treatment and punishment). These decisions result from cases concerning Guantanamo detainees and the abusive practices associated with the detention facility there. The ECtHR’s jurisprudence could constrain the Trump administration when it pursues counterterrorism cooperation from its European partners. Therefore, the Trump administration’s approach towards human rights will be a major factor in convincing the ECtHR to uphold the continued legality of data and intelligence sharing agreements and counter-terrorism cooperation between Europe and the U.S.
Responsibility of European states for U.S. detention, interrogation and rendition practices
The ECtHR has constrained Council of Europe states’ ability to cooperate with a U.S. counterterrorism policy that violates human rights in four cases directly addressing issues concerning Guantanamo Bay. These include “enhanced interrogation” (which the Court has found constitutes torture) and “extraordinary rendition,” which build on long-established case law and principles. While the ECtHR has been careful to emphasize in all four cases that it did not seek to “adjudicate on or establish the state responsibility of the [U.S.],” the ECtHR has found Council of Europe states to be in breach of their obligations under the European Convention on Human Rights (ECHR) as a result of the treatment of persons in U.S. custody failing to meet ECHR standards (see Note 3 of Ryan Goodman and Vladyslav Lanovoy’s post for more on the distinction between State responsibility and human rights obligations).
The ECtHR holds Council of Europe states responsible in two ways: first, acts performed by foreign officials (e.g. CIA officers) on their territory with the acquiescence or connivance of local authorities; and second, the transfer of persons whom the state knew or should have known faced a real risk of being subject to a violation of ECHR rights at their destinations (e.g. rendition to Guantanamo Bay). The Court has also found that the use of “state secrets” doctrines to “obstruct the search for truth” and prevent an effective investigation “capable of leading to the identification and punishment of those responsible for the alleged events” violates the prohibition of torture and inhuman or degrading treatment and punishment (Article 3 ECHR).
Breaches of the prohibition on torture
In all four cases, the ECtHR found that the detainees’ treatment violated Article 3 ECHR. In El-Masri v Macedonia, the ECtHR held that El-Masri’s “capture-shock” treatment at Skopje Airport at the hands of a CIA rendition team amounted to torture. The Macedonian Government was held responsible because its officials and security forces were complicit in the operation. The Court also found that the Macedonian Government was responsible for exposing El-Masri to the risk of further treatment in violation of Article 3 by transferring him into the custody of the U.S. authorities when the latter’s use of “enhanced interrogation” had been publicly reported.
In Al Nashiri v Poland and Husayn (Abu Zubaydah) v Poland, the ECtHR held that the “enhanced interrogation, which the CIA had used at its secret “black site” in Poland, constituted torture. Even though the CIA was responsible for the torture, and it was unlikely that the Polish officials had witnessed or known exactly what had happened, the ECtHR held Poland responsible because it had acquiesced and connived in the CIA’s High Value Detainee Program. The ECtHR also found Poland responsible for exposing the detainees to a foreseeable serious risk of further ill-treatment and conditions of detention in breach of Article 3, because Polish authorities knew that the transfers of detainees to and from its territory were by means of “extraordinary rendition.”
Finally, in Nasr and Ghali v. Italy, the ECtHR found the Italian authorities in violation of Article 3 as they knew or should have known that Abu Omar’s “extraordinary rendition” by CIA agents to Egypt, where he was tortured, had placed him at a real risk of being subject to treatment contrary to Article 3.
Collectively, these four cases mean that Council of Europe states will find themselves in breach of their ECHR obligations should they cooperate with the Trump administration if it decides to adopt counterterrorism practices similar to the Bush-era practices of “enhanced interrogations” or “extraordinary renditions”.
While there is a varying degree of compliance with ECHR obligations across the 47 states of the Council of Europe, press and political pressures will mean that states that value and take pride in their respect for human rights will find it difficult politically to cooperate with the Trump administration should it gain notoriety for torture, or inhumane or degrading treatment. Alex Whiting has already highlighted in this post how NATO partners became reluctant to transfer detainees to U.S. custody after news of torture at Abu Ghraib prison in Iraq surfaced. Council of Europe states will be shy in cooperating with a U.S. administration known for torture, especially after they were burnt by the legal and political backlash against the Bush-era practices. Blair government officials in the United Kingdom are still being sued for their complicity in the Bush-era CIA detention and interrogation program (and the U.K. Supreme Court has just green-lighted such lawsuits). Conversely, some European political leaders may build electoral support by promising not to cooperate with Trump administration policies that violate human rights.
Breaches of the right to liberty and security of the person
The ECtHR has also found breaches of the right to liberty and security of the person (Article 5 ECHR) in all four cases. Notably, it not only held each Council of Europe state responsible for unlawful deprivations of liberty on its territory or within its jurisdiction (cf. Boumediene v Bush), but also for transfers of persons where there was a real/foreseeable risk that their right to liberty would be flagrantly violated, for example, “if the receiving State arbitrarily detained an applicant for many years without any intention of bringing him or her to trial [or] if an applicant would be at risk of being imprisoned for a substantial period in the receiving State, having previously been convicted after a flagrantly unfair trial.” Council of Europe states therefore have an obligation not to transfer persons into U.S. custody, if there is a real risk they face indefinite detention as Trump has recently advocated for current Guantanamo detainees.
Breaches of the right to a fair trial
The ECtHR has also found that Council of Europe states have an obligation under Article 6 ECHR (the right to a fair trial) not to transfer persons into U.S. custody if there is a real and foreseeable risk that they could face a “flagrant denial of justice.” This means that Council of Europe states will violate Article 6 ECHR should they cooperate with the U.S. government and it plans to use evidence obtained through torture (as defined by the ECtHR) to convict suspected terrorists, it plans to use a detention procedure that is manifestly contrary to the right to a fair trial, or it plans to subject detainees to prolonged and arbitrary detention.
Policy options for the Trump administration
Given the jurisprudence of the ECtHR (and the political pressure facing European governments), the Trump administration faces a policy choice: (1) it can adopt such practices, knowing that this may result in a breakdown or weakening in counterterrorism cooperation with its Council of Europe allies; or (2) it can repudiate such practices and instead reassure its Council of Europe allies that it will guarantee the human rights of transferred persons, in order to continue close counterterrorism cooperation.
If the Trump administration chooses the first policy option, this would prevent or at least slow down Council of Europe states from cooperating in the transfer of persons to U.S. custody or detention because of their obligations under the ECHR. It could also have broader implications on counterterrorism cooperation, and amplify existing legal and policy risks, possibly creating new constraints where none exist today.
There are several cases currently before the ECtHR challenging the legality of intelligence sharing arrangements revealed by the Snowden disclosures, and it is difficult to imagine that concerns about whether shared intelligence is used to facilitate human rights violations will not influence the ECtHR’s rulings, or be the subject of future litigation before it. In this regard, the case of 10 Human Rights Organisations (including the American Civil Liberties Union) v United Kingdom will be worth watching as it concerns the question of whether the lack of a legal framework governing access to and use of intercepted material shared by a foreign intelligence agency, as well as the lack of minimum safeguards to protect privacy and freedom of expression, violates the ECHR. If the NGOs win this case, and the ECtHR holds that intelligence sharing must be subject to legal frameworks with adequate safeguards, there will be a strong possibility that the ECtHR will subsequently insist that outgoing intelligence sharing be subject to safeguards against violations of ECHR rights such as the prohibition of torture, right to liberty and right to a fair trial.
Of more immediate concern, are the two recent challenges to the EU-U.S. Privacy Shield data transfer agreement by Digital Rights Ireland and French privacy groups, both of which assert that the Privacy Shield agreement do not adequately protect Europeans’ rights and which are likely to be resolved within the next few years. These cases concern the transfer of EU citizens’ data from the 28 EU Member States to the U.S., an activity governed by EU law (a different legal regime from the ECHR, which is often of direct, binding effect in domestic legal systems – see this post for a primer), and to which the EU Charter of Fundamental Rights applies (which EU actors must respect, as well as EU Member States insofar as they are applying EU law), which includes not just a right to privacy but also a right to protection of personal data.
Quite apart from privacy and data protection concerns, should the Trump administration come to be seen as using intelligence obtained to commit egregious human rights abuses (such as killing, torture or indefinite detention without trial), this is likely to provide an additional reason for the Court of Justice of the European Union (CJEU) to invalidate the Privacy Shield agreement, just as it did so with the Safe Harbor agreement, preventing U.S. companies from transferring EU citizens’ data outside of the EU without a new agreement with more robust safeguards. The CJEU decision invalidating the Safe Harbor agreement demonstrated that the CJEU is willing to prioritize the protection of EU citizens’ personal data and privacy over the concerns of intelligence agencies in having bulk interception powers and the costs of compliance of U.S. tech companies.
The CJEU has recently demonstrated once again that it is not afraid to compel EU countries to change their own data retention regimes, in its ruling that general and indiscriminate retention of electronic communications is forbidden by EU law, and that such retention must be restricted to “fighting serious crime”.
While some have detected a growing divide between European governments and regional courts on mass surveillance, European States and EU actors often have different legal obligations under the different legal frameworks of the ECHR and EU law which give rise to different consequences, and the Privacy Shield agreement, as an act of the European Commission rather than a Member State, would be politically much easier for the CJEU to invalidate than the domestic legislation of a Member State. It would therefore be legally risky for the Trump administration to pursue counterterrorism policies that do not respect human rights, as this would increase the likelihood that the CJEU invalidates EU-US data cooperation agreements such as the Privacy Shield.
There may also be heavy political costs of the Trump administration adopting counterterrorism policies that countenance human rights violations: such as the voluntary withholding of information and cooperation by European and non-European intelligence services and governments, and loss of U.S. soft power. As previously mentioned, NATO partners became reluctant to transfer detainees to U.S. custody after news of torture at Abu Ghraib surfaced. And Chancellor Angela Merkel of Germany conditioned continued cooperation between Germany and the U.S. on U.S. respect for shared values, including the rule of law, human dignity and non-discrimination, in her congratulatory statement to Trump. Other European governments that take their human rights obligations seriously or are forced by domestic political and legal pressures to do so may not be able to cooperate with a Trump administration engaged in torture or other controversial violations of human rights. The Trump administration will therefore need to consider the possible political as well as legal costs of adopting counterterrorism policies that egregiously violate human rights.
Policy options for European actors
There are a number of policy actions that could be undertaken by European partners who wish to ensure respect for European values such as the rule of law and human rights in the fight against terrorism. Firstly, European partners may follow Merkel’s lead in setting out shared values as the basis for counterterrorism cooperation, specifically advocating that their countries commit to respecting the relevant ECHR standards in their dealings with the Trump administration, and publishing policy guidance and standards that incorporate these standards, including the “real risk” and “acquiescence or connivance in acts of foreign officials” modes of liability. Secondly, European partners can ensure that their legal frameworks incorporate these standards, and can go further by ensuring that their data and intelligence sharing agreements include adequate protections against the violation of Convention rights. Thirdly, European partners can ensure that their governments are as transparent and accountable in their counterterrorism cooperation as possible, bearing in mind Louis Brandeis’ famous advice that “sunlight is said to be the best disinfectant” alongside the ECtHR’s rejection of the “state secrets” doctrine being used to obstruct in the search for truth. Finally, European partners can seek to put in place effective complaint and remedy mechanisms, so that problems can be surfaced and redressed quickly, given the length of time needed to obtain recourse from the ECtHR.
Conclusion