By William Fisher
A few months ago – particularly after The Washington Post broke the story of secret U.S. “black sites” in Eastern Europe – it would have been difficult to pick up a newspaper or watch television without hearing the words “extreme rendition”.
Then, almost as suddenly as the issue appeared, it vanished. The world’s press stopped focusing on the U.S. practice of sending detainees to countries where they would likely be tortured or abused.
Last week, the rendition issue was back, but not in a way likely to please its opponents.
Rendition returned when a U.S. federal court dismissed a lawsuit against the Bush administration brought by Ottawa engineer Maher Arar, a Syrian-born Canadian citizen who was detained by U.S. authorities as a suspected terrorist during a stopover in New York as he returned from a vacation in September 2002. He was held virtually incommunicado by U.S. officials, and then sent to Syria, where he said he was tortured and held in a tiny cell he likened to a "grave" for nearly a year. He was never charged before Syria returned him to Canada.
Brooklyn District Court Judge David Trager cited the need for national security and secrecy in making his decision, but also raised the possibility of Canadian complicity in the decision to send Arar to Syria.
As in other recent cases, the U.S. government asserted the "state secrets" privilege, arguing the lawsuit must be dismissed because allowing it to proceed would necessarily involve the disclosure of sensitive information that would threaten national security or diplomatic relations if made public.
"The need for much secrecy can hardly be doubted," Trager wrote in an 88-page judgment. "One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria."
Canadian officials have always denied complicity in the decision to send Arar to Syria after he was held in U.S. custody for 13 days, but Arar said Justice Dennis O'Connor, who is examining the role Canadian officials played in the affair, should make special note of the judge's comments.
Arar also vowed he would never give up his quest to reverse the "evil'' done against him. "If the courts will not stop this evil act, who is going to stop this administration? Where do we go? The United Nations? We — me and others who have been subjected to this — are normal citizens who have done no wrong.”
He said, "They have destroyed my life. They have destroyed other lives. But the court system does not listen to us. The court system is what distinguishes the West from the Third World. When a court will not act because of `national security,' there is no longer any difference between the West and the Third World." His lawyers said they would continue the fight.
In Canada, Justice O'Connor is expected to issue an interim report next month.
The Arar suit was the first court test of the Bush administration policy of "extraordinary rendition," a practice often referred to as the outsourcing of torture.
Critics of the practice said the U.S. court’s decision gives Washington a green light to continue its practice of sending terrorist suspects to third countries where they could be tortured.
Arar's is just one of a number of well-documented cases in which suspects have been shipped to third countries with dubious human rights records where interrogation methods outlawed in the U.S. can be used.
In his decision, Judge Trager acknowledged Arar's fears of torture in Syria were real and cited the U.S. State Department's own report on human rights abuses there.
But he said such decisions were beyond the realm of his court. "A judge who declares on his or her own ... authority that the policy of extraordinary rendition is under all circumstances unconstitutional must acknowledge that such a ruling can have the most serious of consequences to our foreign relations or national security or both," he wrote.
The U.S. and other countries that practice extreme rendition often hide behind what critics call “the fig leaf of diplomatic assurances”. This means the rendering government asks the receiving government to promise not to torture or abuse prisoners.
But, critics say, documented evidence shows such assurances to be a sham. According to Dr. Beau Grosscup, professor of international relations at California State University and an expert on terrorism, “Diplomatic assurances are trumped by the military, police and intelligence 'counter-insurgency' programs that the two Cold War superpowers instituted and still run in many of these countries that train police and military personnel in torture.” Grosscup says, “The real attitude driving the 'rendition' efforts is: ‘Having paid to train them in torture, why not get our monies worth’.”
Ron Daniels, Executive Director of the Center for Constitutional Rights (CCR), a legal advocacy group based in New York which is helping in Arar’s defense, told IPS, “Torture is against the law in the United States. The Bush administration should not be attempting to avoid the laws of this country by sending people to be tortured over seas where other countries will do their dirty work out of the public eye. This is a barbaric practice with no place in the 21st Century.”
A Justice Department official said the ruling pleased the government.
At least one other rendition lawsuit has been filed in U.S. courts. Khaled Al-Masri, a German citizen born in Lebanon, took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days, without access to anyone, including his wife.
He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania. He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan.
U.S. Secretary of State Condoleezza Rice has defended the practice of rendition, saying it was a vital tool in the war on terror. But Ms. Rice said the U.S. does not "send anyone to a country to be tortured."
"The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured," she said. "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."
However, on a trip to Europe shortly after making these comments, Secretary Rice admitted to German Chancellor Angela Merkel that the rendition of Al-Masri was “a mistake”.
Does this mean renditions will not stop?
I wouldn't count on it!