Two days after taking office, on January 22nd of this year, President Barack Obama issued a remarkable executive order to address some of the worst civil liberties abuses of the Bush administration. The order, among other things, forbade the CIA from running prisons outside the United States or engaging in other practices that had brought the US government into such disrepute under Obama’s predecessors.
The order also established a commission, chaired by Attorney General Eric Holder, to study some of these issues, including one of the most controversial, namely that of “extraordinary renditions,” or the practice of the Clinton and Bush administrations of sending people suspected of terrorist activity or connections to other countries to be interrogated. On Monday August 24, the Commission issued a three page summary of its recommendations. A full report of these recommendations will be issued on September 21. It will then be up to Obama to accept or reject them, in whole or in part. But there is disappointment by civil libertarians because the recommendations leave the door open to the continued use of rendition of suspects to foreign countries.
The Bush administration and extraordinary renditions
Civil libertarians worldwide, and some foreign governments, had complained bitterly that people were being snatched off the street of foreign countries (with or without the connivance of those countries’ governments) and spirited away to yet other countries where they would be interrogated under vicious torture to give information supposedly used to the “War Against Terror,” Under Bush, this was being done on a large scale.
Although previous administrations, including that of Bill Clinton, had engaged in this sort of “extraordinary rendition,” the Bush administration went hog wild with it, creating a whole system of special air transport and secret bases in dozens of countries in Europe and elsewhere. Individuals targeted by the secret CIA rendition teams, almost all of them Arab, Middle Eastern or Muslim men, were taken out of US facilities in Iraq and Afghanistan or Guantanamo Bay in Cuba, or were snatched off airplanes or off the streets of other countries and transported to Egypt, Jordan, Syria, Afghanistan, Uzbekistan or other countries, where they would be interrogated, apparently on the basis of lists of questions or of information sought by the United States. This interrogation was carried out without the slightest attention to rights of due process or prisoners’ rights, and included various kinds of torture and mistreatment including violent beatings, neglect and humiliation. The host countries would then report the results of these interrogation activities back to the United States.
The Bush administration did everything it could, including flat out lying by then Secretary of State Condoleezza Rice and others, to deny that such activities were going on.
But the sheer scale of the extraordinary rendition program and the number of different countries involved, wittingly or unwittingly, with the process of capturing people, transporting them, sometimes through several other countries, to their places of detention and torture, and then trying to cover up the tracks, led to widespread revelations about these activities in the world press.
This in turn led to bitter political conflicts both within and between European countries. In both Italy and Germany, judicial authorities tried order the arrest of CIA operatives who had kidnapped citizens or residents and spirited them off to torture centers, only to be blocked by their respective countries’ executives on security grounds, this of course in connivance with the Bush administration. A commission of the Council of Europe, headed by a member of the Swiss Senate, Dick Marty, carried out an investigation of these activities which, along with press revelations, demonstrated that numerous European countries, including the United Kingdom, Portugal, Poland, the Czech Republic and Romania, were highly complicit in the US extraordinary renditions program, either helping to identify people to be snatched, winking at the passage of CIA rendition aircraft through their airspace and airport facilities, or, in some cases, actually running illegal prisons on their national territory. Within the United States, there was uproar in Congress, and various investigations, all of which were stiff-armed by the Bush administration.
The reasons for using extraordinary rendition are now well known. In US and international law, including treaties to which the US is signatory, there are only two legal ways in which an individual can be held against his or her will: As a person charged with a crime (in which case due process including considerations of probable cause, and rights of representation of an attorney, habeas corpus and other constitutional guarantees come into play) or as prisoners of war (in which case the Geneva Conventions apply, including the ones that protect prisoners from forced interrogation). Torture is never permitted, though not unknown in police lock-ups in various parts of the country. Therefore in cases going back to the Reagan administration, selected individuals would be “rendered” to other countries where these guarantees do not exist. It is important to note that extraordinary rendition not only makes interrogation under torture possible, but also makes it impossible for the prisoner, even if not physically tortured, to appeal his or her detention or to assert any kind of due process rights. It is similar to the practice under the old French monarchy in which certain decrees by the king would allow a person to be locked up in the Bastille without any right to trial whatsoever.
Some egregious examples
Under the exuberant use of extraordinary rendition by the Bush administration, situations occurred in which people’s lives were made a living Hell because of mistaken identity or other kinds of false information. German citizen Khalid El-Masri, for example, was snatched by authorities in Macedonia, where he was on vacation, and whisked away by the rendition process in 2003 because someone confused him with another man, a suspected Al Qaeda operative, with a similar name. Neither “Khalid” nor “El Masri” is particularly uncommon among Arab names, but at any rate the similarity was enough to doom El Masri to a horrible ordeal. He was then sent to a CIA detention facility in Afghanistan where he was viciously tortured, and nearly died in a hunger strike which he started to protest his detention. When the CIA finally realized they had the wrong man, they dumped him in the wilds of Albania without money, and without informing the Albanian authorities about his identity and situation. El Masri filed suit against the CIA but US federal courts dismissed the suit on national security grounds. There is no doubt that if El Masri had not been taken outside of Germany, or if he had been taken to the United States instead of Afghanistan, he could have availed himself of due process rights such as legal representation, and even if his rights had been violated, he would have had redress.
In El Masri’s case, it appears the CIA did the torturing itself, but safely beyond US borders. But like all US industries, this is often subcontracted. Another case, which created a conflict between the United States and Canada, the job of torturing a “rendered” prisoner was “outsourced” to Syrian authorities. In September 2002, Maher Arar, an Engineer with dual Canadian-Syrian citizenship, was on his way home to Ottawa, Canada from a visit to Tunisia when he was arrested by US immigration authorities during a layover at JFK airport in New York. He was not allowed a lawyer, on the grounds that he was not a US citizen. Arar was eventually spirited away to Syria, where he was tortured by Syrian operatives to get him to confess to being involved in terrorism. The terrorism charge came from shaky information gathered by Canadian police, guilt by association, and also from information from another individual held by U.S. forces in Afghanistan, who was tortured into falsely identifying Arar (from a photograph) as a terrorist. So in this case, false information obtained by torture was used to grab an innocent man, who was then also tortured. And this was relatively early in the Bush administration; they had not hit their stride yet.
Arar found ways to fight back. With the aid of the Center for Constitutional Rights in New York, he filed suit (Arar v Ashcroft et al) against the US government, then Attorney General John Ashcroft and others, alleging violations of Fifth Amendment due process rights, and filed a claim under the Torture Victims’ Protection Act of 1992. In 2006, a federal district court judge dismissed the suit on the grounds that it would harm national security. The dismissal was upheld on appeal; however the Center for Constitutional Rights asked for a hearing en banc by the 2nd Circuit Court of Appeals, and a ruling on this is pending at writing (read about the case on the Center for Constitutional Rights’ website at http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft). Meanwhile, Arar has received compensation from the Canadian government to the tune of about $10 million US, plus apologies from US congresspersons and other political figures.
The extraordinary rendition program, along with the scandals of Guantanamo and Abu Ghraib, did more than perhaps anything else to discredit the United States in the eyes of the world and to show its stance of defending human rights as being hypocritical. Many, for example, have pointed out that the United States has refused to extradite right-wing Cuban exile figure Luis Posada Carriles, wanted in several countries for blowing up a Cuban civilian airliner in 1976 with the loss of 72 lives, to either Cuba or Venezuela. The reason? He might be tortured there, and U.S. law forbids extraditing or deporting anyone to a country that practices torture. The evidence that Posada would be tortured in Cuba or Venezuela is no more than hearsay. Yet under the extraordinary rendition program, hundreds of people were transferred to other countries, whose well known records on torture are infinitely worse, precisely so that they could be tortured – for the benefit of US intelligence!
Reactions to the commission recommendations
So the world was eagerly awaiting the report of the Commission that President Obama named on January 22. But so far the results have been disappointing. All that has been released is a brief summary, containing some good items, but in which very little is said about extraordinary rendition. Unfortunately, what little is said indicates that the Commission does not anticipate ending the practice entirely, but intends simply to tighten up the process of getting assurances from the governments that receive “rendered” prisoners that they won’t torture them. The ACLU expressed disappointment in this recommendation, pointing out that such recommendations are, effectively, not worth the paper they are written on.
And surely, the whole point of extraordinary rendition to foreign countries with rotten human rights records is to be able to torture the prisoners?
This reporter talked to Maria Lahood, senior staff attorney and part of the team at the Center for Constitutional Rights, which has been doing the heavy lifting in US courts for the Arar case and many others related to the issues torture, the Guantanamo prisoners and other repressive policies of the US government. She points out that torture is not the only issue. Extraordinary rendition is also purposed to evade guarantees of due process enshrined in the US Constitution and Bill of Rights, which previous administrations have seen as an obstacle to pursuing the war on terrorism.
Lahood points out also that until we see the full report in September plus the Obama administration’s reaction to it, we will not fully know to what extent there will be a continuation with, or a break from, past repressive policies. But she urges progressive people in the United States not to sit back and wait passively in the meanwhile. We can still call on the Obama administration to modify the commission recommendations in such a way as to outlaw extraordinary rendition.
“We have to let the administration know that neither torture nor complicity in it will be tolerated,” Lahood explains. She says that we should be calling for accountability for past actions under the extraordinary rendition program, and for full redress for victims like Mr. Arar and hundreds of others.