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The
War Profiteers - War Crimes, Kidnappings & Torture |
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CIA-Kidnappings: Document COREU CFSP/SEC/1126/06, Classified
Restreint UE |
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Introduction This page lists the correspondence between
representatives of the European Union and the site owner with regards to his
application for public access to document COREU CFSP/SEC/1126/06 of the
Council of the European Union. The Council classified the document and
originally refused to grant public access to it. The site owner became aware of the document through
the final
report on the CIA kidnappings aka “renditions” in Europe by the Temporary
Committee of the EU, which was published on January 30th, 2007. Here are the passages, which cited the document: “[…] 25. Is outraged by the proposal which was to
have been made by the then Council Presidency to set-up a joint ‘framework’
with the US on standards for the rendition of terrorism suspects, as
confirmed by those who took part in the meeting of the Council’s Working
Party on Public International Law (COJUR) and the Transatlantic Relations
Working Party (COTRA) with senior representatives of the US Department of
State held in Brussels on 3 May 2006; “26. Calls for the disclosure of the results of the
discussions conducted with the United States, according to Gijs de Vries, on
the definitions of ‘rendition’ and ‘extraordinary rendition’; […]” |
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Events
in Reversed Chronological Order October 31st,
2008 - Reply letter by Applicant July 18th,
2008 - Draft Letter by the EU Council June 2nd,
2008 - 2nd Reply Letter by
European Ombudsman May 22nd,
2008 - Reply Letter by the European
Ombudsman May 5th, 2008 - Applicant’s Follow-up Letter to European
Ombudsman April 7th, 2008 - Acknowledgement of Receipt by the
Secretariat of the European Ombudsman April 2nd, 2008 - Applicant’s Complaint to the European
Ombudsman March 3rd,
2008 - 3rd Denial of Access by the EU
Council February 12th,
2008 - 2nd (Confirmatory)
Application for Access by Applicant January 30th,
2008 - 2nd Denial of Access by the EU
Council January 28th,
2008 - Request for Clarification by Applicant January 24th,
2008 - 1st Denial of Access by the EU
Council January 14th,
2008 - Original Application for Access to
Document by Applicant |
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Related Document May 11th, 2006 - Outcome of the
EU-US Ministerial Troika on Justice and Home Affairs on 3 May 2006 Report by the
Council of the European Union “[…] Delegations in the meeting were led by: on EU
side: Austria: Liese Prokop (Minister of Interior) and Karin Gastinger
(Minister of Justice), Finland: Kari Rajamäki (Minister of Interior) and
Leena Luhtanen (Minister of Justice), European Commission: Franco Frattini
(Vice-President, Commissioner), Council Secretariat: Ivan Bizjak (General
Director) - on US side: Alberto Gonzales (Attorney General) and Michael
Jackson (Deputy Secretary of Homeland Security) […]” “[…] Counter-terrorism and Human Rights - The EU
side stated that our response to terrorism should always be based on and
legitimated by our commitment to essential values like democracy and respect
of fundamental rights. [The rest of the text has been redacted] […]” |
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Correspondence/History October 31st, 2008 - Reply Letter by Applicant Subject: Request for public access to a document
relating to a report of the EU-Troika meeting with the US authorities held on
3 May 2006 Observations Having reviewed the Council’s position, I will take
up the opportunity to respond as follows: The Council has stated in its opinion that the
requested document “falls within the sphere of international relations” and
that a disclosure would impair a “public interest with regards to
international relations” – once this interest has been established. The Council
refers hereby to Article 4(1) of Regulation 1049/2001 of the European
Parliament and of the Council. Furthermore, the Council alleges that “the
statements of reasons” had “fully enabled the applicant to understand the
reasons for the refusal” and that any disclosure of the document, partial as
well as full, would be “detrimental to the good functioning of the relations
between the EU and the US.” Besides the above,
the Council does not offer any explanation or information on how a
partial or full disclosure of the document would detrimental to the public
security with regards to international relations. The Council not even
discusses the administrative process that led to the refusal for disclosure
of the document. As I have stated before, numerous crimes and
violations of national laws of EU countries have been broken by the U.S.
government and certain government agencies of EU countries, such as Poland,
Italy or Romania. Other EU governments, such as Ireland, the United Kingdom
of Germany have chosen to turn a blind eye towards the criminal acts, such as
kidnapping and false imprisonment by the CIA and the U.S. military, while
they have occurred. There are several cases, where the citizens of EU
countries have been lied to by their respective governments with regards to
the involvement and knowledge of the criminal acts committed by the U.S.
government. Yet, despite all of this and despite a great public
interest in that matter, which the Council has indirectly acknowledged in their
latest opinion, it has made its decision in favor of a secret government,
which shields the disclosure of activities contrary to the law of the land
and towards human rights. The decision of the Council not to disclose the
document is certainly not based on a mandatory decision, which it was forced
to by the law. The wording of the regulation 1049/2001 is vague and ambiguous
and it leaves the Council the choice to invoke secrecy, as it deems
appropriate, without having to bother with public scrutiny or an outside
review of the administrative process. At least, such is the interpretation of
the Council. The decision of the Council not to disclose the
document or at least part of it, is based on political considerations. The
purpose for that decision was to serve the interests the U.S. administration
and certain ERU government agencies that have either condoned or participated
in illegal activities. In view of what has happened on the territory of the
EU and the crimes that have been committed, the Council clearly fails to
serve the interests and the public security of its citizens. Sincerely yours, Martin Ottmann July 18th,
2008 - Draft Letter by the EU Council “[…] a)
Applicability of the exception under the third indent of Article 4(1)(a) of
the Regulation “11. The applicant
claims that, given the grave illegalities surrounding the incidents invoked
in the requested document and the EU Member States' involvement in these
activities, the exception relating to the protection of international
relations under Article 4(1)(a), third indent, is inapplicable to the present
case. By this argument, the complainant essentially contends that, having
regard to the specific facts of the case, the need for transparency is so
pressing that it overrides the need to protect the document in question from
disclosure. “12. First of all,
the Council would recall that the exceptions provided for in Article 4(1)(a)
of the Regulation, including the protection of public interest as regards
international relations, are mandatory. In consequence, once it is
established that the requested document falls within the sphere of
international relations and that the protection of the invoked interest would
be impaired if the document were to be disclosed, the institution must refuse
public access. There is neither a need nor even a possibility to balance the
protected interest against other interests. “13. In the light
of the foregoing, after having determined that the conditions were met for
the application of the international relations exception pursuant to Article
4(1)(a), third indent of the Regulation, the Council was bound to refuse
access to the requested document, without the possibility of weighing the interest
in the good functioning of the transatlantic relations against the public
interest in the disclosure of the document, evoked by the applicant. “b) Applicability
of the exception under Article 4(3) of the Regulation “14. The
complainant contends that when evoking the exception under Article 4(3) of
the Regulation (internal decision-making of the institution) for refusing
public access, the Council did not take into account the existence of an
immense public interest which, in the complainant's view, outweighed the
possible damage resulting from disclosure. “15. In this
regard, the Council would point out that, in its decision of 3 March 2008 on
the applicant's confirmatory application - which is subject of the present
complaint - it did not invoke Article 4(3) of the Regulation to refuse access
to the document and therefore it cannot be accused of having failed to
appreciate the pressing public interest, in accordance with Article 4(3) of
the Regulation. “16. In this respect,
your attention is drawn to the fact that the initial decision in the two-step
administrative procedure is not, as such, open to review. As it has been
consistently held by the Court of Justice, ‘in the case of acts or decisions
adopted by a procedure involving several stages, in particular where they are
the culmination of an internal procedure, an act is, in principle open to
review only if it is a measure definitely laying down the position of the
institution at the end of that procedure, and not a provisional measure
intended to pave the way for the final decision’ (case T-70/04 Franchet and
Byk v. Commission [2006] ECR II-2023 para. 46). “c) Reasons for
refusing partial access “17. The Council
would emphasise that it did consider the possibility of granting partial
access under Article 4(6) of the Regulation. However, as it is clear from
paragraph 7 of the decision on the confirmatory application, the Council
found that partial access could not be granted, ‘as the information contained
in the document forms an inseparable whole’. “18. The statement
of reasons underlying the decision refusing public access fully enabled the
applicant to understand the reasons for the refusal. In particular, it was
possible to understand, firstly, that the entire document falls within the
sphere of international relations and secondly, that, due to its sensitive
content, disclosure in full or in part of the document would be detrimental
to the good functioning of the relations between the EU and the US. “19. The Council
would point out that it was not possible to provide all information as to why
the document cannot be disclosed without revealing its contents and without
thereby depriving the exception of its very purpose. In this respect, it
would recall that the Court has consistently held the brevity of the
institution's statement of reasons for the rejection of a request for public
access when relying on one of the mandatory exceptions in Article 4(1)(a)
does not constitute a failure to state reasons as long as it enables the
applicant to understand or ascertain the reasoning followed, to enable him to
challenge that refusal effectively before the Court and to enable that court
to review the legality of the contested decision. “20. As to the
possibility of releasing only those parts of the document which set out the
position of the EU, the Council would reiterate that the information
contained in the document forms an inseparable whole, in the sense that it
would be impossible to disclose the comments by one of the parties without
also uncovering the position of the other party to the discussions. “21. Finally, as
regards the complainant's request to receive public access to those parts of
the document setting out the legal position of the negotiating partners, the
Council reiterates that the exception relating to the protection of
international relations covers all information contained in the document. “22. For the
reasons set out above, the Council believes the complaint to be unfounded. “Pierre de Boissieu […]” June
2nd, 2008 - 2nd
Reply Letter by European Ombudsman Dear Sir, On 22 May 2008, I
opened an inquiry into your complaint, which concerns the Council’s refusal
to grant you access to document COREU CFSP/SEC/1126/06, classified Restreint
UE, which contains a report of the EU-Troika meeting with the US authorities
held on 3 May 2006. Prior to that, and
as you will recall, the legal officer in charge of the case called you on May
5 2008 in order to ascertain whether you were only interested in full access
to the relevant document or whether, eventually, you would also be satisfied
with partial access to the document concerned. Your reply was that you would
indeed be happy if partial access were to be granted, i.e. access to those
parts of the document that were of interest to you. It was on this
basis that I decided to open an inquiry into your complaint. On 5 May, you sent
me an additional e-mail in which, further to the above-mentioned telephone
conversation of the same day, you confirmed that you would eventually be
satisfied with partial access to the above document and specified those parts
of the document that were of interest to you. Unfortunately, and
due to an oversight for which I apologise, this e-mail has not been enclosed
in my letter of 22 May 2008 in which I asked the Council for an opinion on
your complaint. I have however now
forwarded a copy of your e-mail to the Council, so that it can be taken into
consideration by the Council when it prepares its opinion on your complaint. Yours sincerely, P. Nikiforos
Diamandouros The European
Ombudsman May 22nd, 2008 - Reply Letter by European Ombudsman Dear Sir, On 1 April 2008,
you made a complaint to the European Ombudsman concerning the refusal of the
General Secretariat of the Council of the European Union to grant access to
document COREU CFSP/SEC/1126/06, classified Restreint UE, which contains a
report of the EU-Troika meeting with the US authorities held on 3 May 2006. The claim that I
have asked the Council to submit an opinion on is the following: The
complainant claims that the General Secretariat of the Council should grant
access to the document. The examination of
your complaint is under way and I shall let you know its preliminary outcome
as soon as possible. In my letter to the Council, I indicated that I would
appreciate it if, in its opinion, the Council could also address the
following two specific issues: Firstly, in its
decision of 3 March 2008 rejecting the confirmatory application the Council
argued that Article 4(1)(a), third intent of Regulation 1049/2001 is
applicable, since it would be difficult to address certain issues with the US
if the latter had reason to believe that “the positions taken by it in
meetings not open to the public may be made public unilaterally by the EU
side”. However, it is not clear how this reasoning could entitle the Council
to refuse to grant access to those parts of the document which do not set out
the position of the US, but the position of the EU. Secondly, I note
that the reasoning used by the Council in order to refuse partial access is
extremely brief and limited to stating that “the information contained in the
document forms an inseparable whole”. In accordance with
Articles 2(2) and 3(1) of the Statute of the European Ombudsman, I have
informed the Secretary-General of the Council of your complaint and asked him
to submit an opinion on it by 31 August 2008. When the opinion is received, I
will forward it to you with an invitation to submit observations, if you so
wish, within one month. […] Yours sincerely, P. Nikiforos
Diamandouros The European
Ombudsman May 5th,
2008 - Follow-up Letter to European
Ombudsman Dear Mr.
Verheecke, In response to our
telephone conversation of today, May 5th, 2008, I hereby would like to
confirm to you again in a written form to you that I agree of having only
partial access to document COREU CFSP/SEC/1126/06. As I have pointed
to you, I am solely interested in information on legal aspects with regards
to the “rendition” (aka kidnapping) program of the U.S. government that are
covered by the above mentioned document. Specifically I am
interested in the following information: - the legal
position of the negotiating partners (U.S. & EU) with regards to the
“rendition” program and the kidnapping activities of the U.S., - any mentioning
of a discussion over legal issues with regards to the “rendition” program, - any mentioning
on the legality of past and possible future “rendition” activities by either
the U.S. or the EU, - any mentioning
of past and future legal agreements between the U.S. and the EU with regards
to the “rendition” program. I am not
interested in any other subjects that are mentioned in the document and I do not
request access to such information. I hope that I have
sufficiently clarified my position. Thank you for your
assistance. Sincerely yours, Martin Ottmann April 7th,
2008 - Acknowledgement of Receipt by the
Secretariat of the European Ombudsman Dear Sir/Dear
Madam, Your complaint
dated 02/04/2008 was received by the Office of the European Ombudsman on
02/04/2008 and was assigned registration number 0944/2008/BU. It will be dealt
with by Mr. Olivier Verheecke […]. The Ombudsman can
only make inquiries into complaints that meet the criteria of admissiblity
set out in the Treaty establishing the European Community and the Statute of
the European Ombudsman. Information concerning the admissibility of your
complaint will be communicated to you as soon as possible. […] Sincerely yours, João Sant’Anna Head of the legal
department April 2nd,
2008 - Applicant’s Complaint to the
European Ombudsman […] Question 3:
Denial by the Council of the European Union with regards to my request and my
confirmatory application under Regulation (EC) No. 1049/2001 for access of
document COREU CFSP/SEC/1126/06, classified RESTREINT UE, which contains a
report of the EU-Troika meeting with the US authorities held on 3 May 2006.
The Council has informed me by letter on March 3rd, 2008 that it would not
grant me access to the above-mentioned document. Question 4: The
Council has wrongly refused to grant me access to document COREU
CFSP/SEC/1126/06. Considering the various past violations of national law in
EU member states, committed by the U.S. authorities and certain government
agencies of EU member states in relation with incidents of kidnapping,
illegal detention and illegal transportation of detainees by the C.I.A. and
the U.S. Department of Defense within the past 7 years, the EU Council should
be forced to disclose all its negotiations, consultations and discussions
with the U.S.A. with regards to this subject. The general public has been
repeatedly lied to by EU governments with regards to the extent of the
illegal detentions and kidnappings committed by the U.S. authorities. Due to
the involvement of EU governments in criminal activities in connection with
the illegal kidnappings and detentions, Article 4(1)(a) becomes void. There
is legitimate reason to believe that there exists criminal intent within EU
governments intent to allow, condone and support the criminal activities of
the current U.S. government. Therefore the general public should be fully
informed of the intentions of the U.S. government and the EU Council, which
exists to represent the interests of the EU citizens. Question 5: The EU
Council should grant me (and the general public) full access to document
COREU CFSP/SEC/1126/06. […] Question 7: I have
used all the possibilites of redress with regards to the EU Council. In its
letter from March 3rd, 2008 the General Secretariat of the EU Council
informed me of the possibility to file a complaint against their decision
with the EU Ombudsman, which I am doing hereby. […] March 3rd,
2008 - Reply/Renewed Denial for Access by Council of the European Union Dear
Mr. Ottmann, Please
find enclosed the reply from the Council to your confirmatory application
dated 12 February 2008. […] Yours
sincerely, Marc
Lepoivre […] The Council has carefully considered this
confirmatory application under Regulation (EC) No 1049/2001 (OJ L 145 of
31.5.2001, p. 43) and Annex II to the Council’s Rules of Procedure (Council
Decision 2006/683/EC, Euroatom - OJ L 285 of 16.10.2006, p. 47). 1. The applicant refers to document COREU
CFSP/SEC/1126/06, classified RESTREINT UE, which contains a report of the
EU-Troika meeting with the US authorities held on 3 May 2006. 2. By letter dated 30 January 2008, the General
Secretariat refused to grant access to this document prusuant to Article
4(1)(a), third incident, and Article 4(3) of the Regulation (protection of
the public interest with regard to international relations and protection of
the Institution’s decision-making process). 3. Whilst referring in his confirmatory application
to Articles 19 and 42 of the Charter of Fundamental Rights of the European
Union, Article 6 of the Treaty of Lisbon and to Recital (2) and Article 2 of
Regulation 1049/2001, the applicant essentially claims that there “exists an
immense public interest which outweighs by far any possible negative effects
resulting from the disclosure of these EU/US discussions”, and that the
citizens have full right to be granted access to the requested document.
Maintaining secrecy on this document would, in the applicant’s view, entail
refusal to provide “complete transparency” and “covering up possible rights
violations”. 4. The Council has thoroughly re-examined the
document concerned and carried out consultations with the department of its
General Secretariat in charge of this matter, and has came to the following
conclusion. 5. Document COREU CFSP/SEC/1126/06 contains the
report of the EU-US meeting held in the framework of the transatlantic
dialogue, during which sensitive issues in the filed of the fight against
terrorism were discussed. It reports in detail on the positions taken by both
sides. It contains an analysis and comments on this area of co-operation and
an assessment on how the issues have so far been addressed by the two
parties. 6. Given the sensitive content of the document, the
Council considers that its disclosure would be detrimental to the good
functioning of the relations between the EU and the US. It would hinder the
diplomatic efforts being made to find constructive solutions to the
outstanding issues in sensitive political areas. If the United States had
reason to believe that the positions taken by it in meetings not open to the
public may be made public unilaterally by the EU side, it would be difficult,
if not impossible, to address controversial issues between the two sides in
this format. This would not only breach the mutual confidence in the future
negotiations by also in turn, make it considerably more difficult to reach
agreement between the two sides. 7. The Charter of Fundamental Rights of the European
Union and the Treaty of Lisbon have not yet entered into force. The current
framework is Article 255 of the EC Treaty, on which Regulation 1049/2001 -
hence also Article 4(1)(a) thereof - are based. 8. The Council has also looked into the possibility
of disclosing parts of the document pursuant to Article 4(6) of the
Regulation. However, as the information contained in the document forms an
inseparable whole, partial access cannot be granted. 9. In the light of the above, access to the document
is denied in its entirety pursuant to Article 4(1)(a), third intent, of the
Regulation (protection of the public interest as regards international
relations). February 12th,
2008 - Renewed Request for Access to Council of the European Union Dear Sirs, With regards to your letter from January 30th, 2008
I am applying hereby to reverse your decision with regards to document “COREU
SEC/1126/06” and grant me access to it. I strongly oppose the reasons for withholding the
document, which you have laid out in your letter. My rights as a citizen of
the European Union and the specific circumstances surrounding the various
illegal kidnappings and detentions, which had been planned and conducted by
the U.S. government on the territory and in the air space of the European
Union, justify my right to access the above-mentioned document. Article 42 - “Right of access to documents” - of the
“Charter of Fundamental Rights of the European Union” (2000/C 36401) states:
“Any citizen of the Union, and any natural or legal person residing or having
its registered office in a Member State, has a right of access to European
Parliament, Council and Commission documents.” |