The Intricacies of Deporting and Detaining Terrorists in Europe

By Devin Connor McMahon   Published 21 April, 2016

The Vitruvian Man, David Cameron, imprisonment

I. Introduction

The European Convention on Human Rights states, in Article 3, that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Much like the United States Supreme Court is charged with determining what is to be considered “cruel and unusual punishment,” it is the job of the European Court of Human Rights (ECHR) to determine whether the action of a member-nation should be considered “torture” within the meaning of Article 3. The case of Saadi v. Italy showed just how broadly the court interprets the “absolute prohibition” of torture when they ruled in favor of a convicted terrorist, allowing him to avoid extradition to his native land based on the assertion that it would violate Article 3 to send him back to a country which is known to torture prisoners.

This comment will argue that the ECHR’s broad interpretation of Article 3, while necessary to affirm their stance of absolute prohibition against torture, must result in member-nations preparing for future applicants who, like Saadi, may be able to fight extradition to their home countries based on the grounds that their native land is known to torture prisoners. This comment will explore the possibility of civil confinement in the context of a recent United States Supreme Court decision which allowed for continued detention and treatment, subsequent to the completion of one’s criminal sentence, based on the government’s responsibility to protect citizens from violent offenders. Part II will provide a brief background of Nassim Saadi’s court cases. Part III will analyze the balancing act of preserving the rights and protections afforded to individuals under the Convention and national laws, while simultaneously allowing authorities to protect European citizens by preventing the spread of terrorist organizations throughout Europe. This section will consider possible measures that member nations may take to contend with terrorists who must remain within their borders after completion of their imprisonment, including the possibility of further confinement or preemptive measures which would be authorized under Article 15’s provisions for “times of war or other public emergency.” Part III will introduce a relevant United States Supreme Court decision upholding a federal law authorizing further detention, after the completion of the individual’s criminal sentence, based on the “government's custodial interest in safeguarding the public” from violent offenders against children.

Part IV will analyze the recent European Human Rights Court case of Al Nashiri v. Poland, in which the applicant’s Article 3 rights against torture were violated. The analysis will show that civil detention would not only be in accordance with the principles of due process and prohibitions against torture, it would also be a welcome alternative to the current status quo for dealing with terror suspects, including tactics such as indefinite detention and “enhanced interrogation.”

II. Analysis of Saadi v. Italy

Nassim Saadi arrived in Italy from his homeland of Tunisia sometime in the late 1990’s and applied for a residency permit, which was eventually granted to him by the Bologna Police in 2001. Two days before his residency permit was set to expire in October of 2002, Mr. Saadi was arrested on four charges: conspiracy to commit acts of violence with the aim of spreading terror, falsification of documents, receiving stolen goods, and aiding and abetting illegal entry into Italian territory. At trial, evidence against the applicant included witness statements, proof of Saadi’s involvement in terrorist “training camps,” numerous false documents, and an intercept of a telephone call which records Saadi expressing “delight” to know that has brother had become a martyr in the “war against the infidel.” On May 9th, 2005 the Milan Assize Court ruled that the prosecution had failed to prove the defendant’s connection to international terrorism beyond a reasonable doubt; however, they found Mr. Saadi guilty of criminal conspiracy, resulting in a four and a half year prison sentence and deportation to Tunisia.

In the case before the ECHR, the court considered the domestic laws of Italy as well as international treaties to provide the framework for their analysis. Further, the court also presented evidence of diplomatic assurances from the Tunisian government promising that the applicant would not be subject to torture, along with reports and opinions on the status of human rights and the treatment of prisoners in Tunisia. The court’s ultimate determination was based on the rationale that, “where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3… Article 3 implies an obligation not to deport the person in question to that country.”

While I agree that the ECHR’s decision in Saadi v. Italy was consistent with the Convention’s strong stance against subjecting anyone to torture, the ruling does raise the inevitable question: what is a nation to do with an individual who has committed crimes within their borders whose deportation to their homeland is barred by Article III’s prohibition on torture? Although Mr. Saadi is just one man, the mass migration of over 1 million refugees has resulted in radical jihadists posing as asylum-seekers and entering into Europe using false identities with the intention of carrying out acts of terror against civilians. Human rights organizations have leveled countless accusations against the Syrian government and their leader Bashar al-Assad, claiming that the regime takes part in “repression of political and human rights activism; restrictions on freedom of expression; torture.” The ability of European nations to deport terrorists may be stalled or prevented by Article III or a litany of other possible reasons, and this paper will address measures those nations may take to detain those terrorists without violating their human rights or rights to due process.

III. Justification for Further Civil Detention in U.S. Supreme Court Decision

When a nation could otherwise rightfully deport someone with ties to terror, only to have the extradition barred by Article III, the country is left with a dangerous radical within their midst whom they must now continue to surveil so as prevent them from attempting to yet again harm civilians. This creates a unique burden on law enforcement, which must now monitor the individual while not violating his human rights or due process, since he is not facing charges. The basic principles of due process and double jeopardy prevent governments from detaining someone indefinitely; however, in the unique case of Nassim Saadi, the Italian Government never intended for him to be released back into the country. Had the Milan Court been aware that the extradition of the defendant would be barred by the ECHR, they may have sought to keep him in prison for a term longer than four and one-half years. Further, had the court known that Mr. Saadi would not face extradition, the argument could have been made for continued confinement based on Mr. Saadi’s mental state and likelihood to harm others and himself in the name of Islam. Although continued detention after completion of a sentence may seem contrary to the principles of due process, it has recently been sanctioned by the United States Supreme Court in order to prevent dangerous persons from being released from prison.

In United States v. Comstock, the United States Court of Appeals for the Fourth Circuit determined that the Adam Walsh Child Protection and Safety Act , (a law which allows for civil commitment of a person designated as “sexually dangerous” based on “clear and convincing evidence” that the person “has engaged or attempted to engage in sexual violence or child molestation”) did not violate the individual’s right to due process. While the case involves deep insight into the due process rights enshrined in the United States Constitution, the court focused on the fact that the individual will be subject to civil commitment to “receive treatment in a suitable facility” until discharged, rather than being subject to continued or indefinite imprisonment. Further illustrating that the individual is being held for treatment of a mental defect rather than as an extension of his punishment, the statute dictates that the Attorney General must consider the “suitability of the facility's rehabilitation programs in meeting the needs of the person.” It is my assertion that member nations which have signed onto the European Convention on Human Rights should adopt similar measures by which to deal with individuals with a propensity towards radical acts of religious violence as has been adopted in the United States when dealing with persons who have a propensity towards harming children. Continued civil commitment based on the justification of protecting the citizenry would be far superior to the indefinite detention that will be illustrated in Part IV.

In the United States, the argument for civil commitment for convicted radical terrorists is the same argument which would be made for the commitment of any other individual who is likely to cause harm to innocent people: “the duty to protect citizens from violent crime...belongs solely to the states.” The court in Comstock determined that this duty may require additional confinement and commitment beyond the duration of the prescribed criminal punishment for dangerous individuals who have been proven to be a threat to the citizenry by “clear and convincing evidence.” The distinction between criminal imprisonment and civil commitment is an important one to make, because of the fact that civil commitment “does not imply either the stigma which accompanies a criminal conviction, or the loss of liberty associated with criminal confinement.” The implementation of civil confinement for terror suspects would be an ethical improvement for the United States because (1) some justification must be proven by clear and convincing evidence in order to detain the suspect and (2) civil commitment would not involve torture or questionable interrogation tactics, nor the stigma which comes with criminal confinement or indefinite detention without the right to access counsel and contact family members.

Comparatively, the relevant language addressing an individual’s right to liberty and security is found in Article 5 of the European Convention on Human Rights. Much like the United States Supreme Court’s decision in Comstock, the Convention also recognizes, under limited circumstances, a “lawful detention of persons of unsound mind.” It is not hard to justify the labeling of radical jihadists as “of unsound mind,” particularly when they are operating under beliefs which direct them towards violent acts against innocent people and themselves. Based on the recent history of human rights violations done in the name of terrorism, the confinement of a radical jihadis such as Mr. Saadi to a facility which treated him as a mental patient would, in most instances, be a step forward as far as treatment is concerned. The next case is an example in which an applicant sought relief from the European Court of Human Rights based on Article 3 violation, but unlike in the case of Saadi v. Italy, the applicant was subject to multiple instances of torture and inhumane treatment at the hands of the United States following his extradition from Poland.

IV. Extradition to Torture; Analysis of Al Nashiri v. Poland in Contrast to Saadi v. Italy

In the recent decision of Al Nashiri v. Poland, the European Court of Human Rights determined that Poland had violated the applicant’s human rights by allowing the United States Central Intelligence Agency to secretly detain and torture the applicant on Polish soil. Additionally, by permitting the removal of the applicant to several secret prisons, as well as the notorious U.S.-operated detention center in Guantanamo Bay, the ECHR found that the Polish officials put him at a risk of further torture and the potential of capital punishment. By facilitating the United States CIA’s access to the applicant in Al Nashiri v. Poland, the Polish officials have allowed for exactly what the ruling in Saadi v. Italy was meant to prevent: an extradition of an individual from a European nation to a nation which permits torture.

Applicant Al Nashiri was suspected by the United States of playing a key role in organizing both the bombing of the USS Cole in Yemen (in which his cousin was killed after ramming the ship with a boat filled with explosives) and the bombing of a nearby French oil tanker, the MV Limburg, in the Gulf of Aden. Immediately following the attacks of September 11th, 2001, a Presidential authorization by George W. Bush created the “High-Value Detainees Programme” in order to identify and apprehend those with connections to al-Qaeda, and the Central Intelligence Agency (CIA) had designated Al Nashiri as a “High-Value Target.” In October of 2002, the applicant was arrested in Dubai and was subsequently placed in the custody of the CIA, then flown to a number of “black sites” in different nations, including Poland, Thailand, and one secret prison in Afghanistan known as the Salt Pit, where the applicant was forced to stand for two days while shackled to a ceiling. Subsequently the CIA engaged in further “Enhanced Interrogation Tactics” including waterboarding, mock executions with firearms and a power drill, prolonged standing while naked and hooded, and threats against his family. The European Court of Human Rights found that Poland, by virtue of their complicity in the CIA’s High Value Detainee Programme, had committed multiple violations of the Convention including an Article 3 Violation of the Prohibition of Torture, an Article 5 Violation of the applicant’s right to Liberty and Security, an Article 8 violation of his right to Private and Family Life, and an Article 13 violation of his right to an Effective Remedy.

Although the case of Al Nashiri v. Poland outlines torture that occurred over a decade ago, the United States has done little to improve its policies and procedures concerning the treatment of suspected terrorists. While I recognize the fact that most of these suspects are not going to be reformed, civil commitment would be a new avenue towards treatment of prisoners in a manner which respects international laws and the prohibition against cruel and unusual punishment found in 8th Amendment of the United States Constitution. Suspected terrorists should be treated in accordance with the international treaties and conventions governing prisoners of war; however, due to the nature of terror attacks on civilians, they are unlikely to be given the more humane treatment that some captive soldiers may have been afforded in the past. Civil commitment prior to or after criminal detention is a viable option for western nations who seek to confine terror suspects without the violations of human rights which were present in the case of Al Nashiri v. Poland. There is no need for a nation to stoop to the level of the enemy by engaging in torture and barbarism under the justification that they are protecting the citizenry. In a case such as Saadi v. Italy, if the applicant has shown by “clear and convincing evidence” that he is likely to contribute to the “war against the infidel,” the Italian Government would have been justified in detaining the applicant for the purpose of preventing him from harming others and himself, even if it so happens that he had already completed a prison sentence. If a similarly situated person had expressed homicidal and suicidal tendencies which were detached from religious belief altogether, a nation would also be justified in having that person placed in a treatment facility based on the government’s duty to protect its citizens.

Civil Confinement should be done in accordance with the laws already in place governing due process for civil commitment, allowing for the individual to have an advocate who will be able to introduce relevant evidence and seek the proper treatment and solution for their client, even if their client does not, at that moment, have a right to be released from state custody. Due process and right to counsel must be preserved for all people who are at risk of losing their liberty, and the process of civil confinement would allow for this to a far greater degree than is currently present, particularly when looking at the actions of the United States. Noting that the apprehension and interrogation of terror suspects is a time-sensitive matter, it is understandable that suspects may need to be held, on occasion, when there is not enough evidence to properly charge them in connection with a specific criminal act. For instances such as this, arrest followed by a civil confinement and close monitoring by authorities would not only be more compatible with international and domestic human rights laws, but also it could be done without hindering government officials’ ability to extract information from the suspects.

The events in Al Nashiri v. Poland provide an illustration of something that happens too often when western nations are dealing with terror suspects: violation of due process as well as domestic and international law in the name of fighting terrorism. Since 9/11, the United States has faced harsh criticism from Human Rights organizations citing widespread evidence of arrests, detentions, and interrogations in violation of international prohibitions on torture. The detention center in Guantanamo Bay where the applicant in Al Nashiri v. Poland was sent has become notorious for “enhanced interrogation” tactics which amount to torture, and for indefinite detentions whereby the accused is not permitted access to counsel. A 2003 Amnesty International report on the conditions under which the Guantanamo Bay detainees were held detailed the violations of international law and human rights:

A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation.

V. Conclusion

The events and rulings in Saadi v. Italy and Al Nashiri v. Poland illustrate the difficulty of preserving the values of due process and protection from torture in the context of apprehending and extraditing terrorists. Although the United States government has recently become notorious for unethical treatment of prisoners who are designated as terror suspects, the United States Constitution clearly prohibits cruel and unusual punishment, as well as indefinite detention without access to counsel. These basic principles of justice are also enshrined in the European Convention on Human Rights in Article 3’s Prohibition of Torture and 6’s Right to a Fair Trial. The Court in Al Nashiri v. Poland affirmed those values by delivering a clear ruling which puts each member nation on notice. The outcome of the case should cause European nations to think twice before allying themselves with the United States or any other nation which is willing to sacrifice the principles of humane treatment and due process for prisoners who are designated as “terrorists.”

About the Author
Devin-McMahon

Devin McMahon is a third-year law student at Suffolk University Law School in Boston, Massachusetts. His areas of interest include International Law, Human Rights, and Civil Rights.

Article picture: Article picture: Guantanamo Camp X-Ray. U.S. Army Military Police escort a detainee to his cell in Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during in-processing to the temporary detention facility on Jan. 11, 2002. The detainees are being given a basic physical exam by a doctor, to include a chest x-ray and taken and blood samples drawn to assess their health.

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