OUTSOURCING TORTURE REDUX

By William Fisher

The American mainstream press has front-paged the exoneration by a Canadian government commission of Mahar Arar, the Canadian citizen who was detained by U.S. authorities at JFK International Airport in New York in 2002 after returning from a trip to Tunisia enroute to his home in Ottowa. He was questioned for 12 days without access to counsel, and then flown on a U.S. Government plane to Jordan, and finally overland to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months until the Syrians released him without charges.

Most media accounts of Mr. Arar’s ordeal have attributed this travesty to faulty intelligence passed to US authorities by the Royal Canadian Mounted Police, the RCMP. The Mounties characterized the now 37-year-old engineer as "an Islamic extremist individual," and had him – and his entire family, including a six-month-old infant -- placed on a US Al Qaeda no-fly watchlist.

Indeed, the Canadian information was grossly incorrect. The Chairman of the 2.5-year investigation, Ontario Justice Dennis O'Connor, concluded that "categorically there is no evidence" that Arar did anything wrong or was a security threat.

But headlines such as the one topping a New York Times editorial last week – “Tortured by Mistake” – are missing some larger points.

Point one is whether US intelligence agencies made any effort to verify the Canadian information, or merely accepted the word of a trusted neighbor. We will probably never know the answer, because the CIA and the FBI aren’t likely to ever tell us.

Point two is whether the US government sought the customary – and customarily useless – “diplomatic assurances” from the Syrians that they would not torture their detainee. The US State Department has been following this absurd protocol for years, receiving such assurances from some of the world’s most pernicious purveyors of torture. Again, we will probably never know because State has from the outset declined to cooperate with the Canadian inquiry.

In fact, the State Department has consistently refused to utter a single word of comment on the case. And, until last week, all other government officials were similarly silent.

Some time ago, we heard from Attorney General Alberto Gonzales, who said, "Mr. Arar was deported under immigration laws. He was initially detained because his name appeared on a terrorist list. He was deported according to our laws.” Gonzales said that Arar’s removal was “a deportation, not a rendition.”

But last week came a contradictory and bumbling statement from the Attorney General. Gonzales disputed Canadian findings that the US was responsible for deporting an innocent man. At a news conference about the Canadian commission’s finding that Mr. Arar was wrongly sent to Syria and tortured there, Mr. Gonzales replied, “Well, we were not responsible for his removal to Syria.” He added, “I’m not aware that he was tortured.”

The attorney general’s denial followed front-page news articles of the findings of the Canadian commission, which reported that American officials ordered him taken to Syria. Shortly afterward, a Justice Department spokesman attempted to clarify the AG’s remarks, saying Mr. Gonzales had intended to make only a narrow point: that deportations are now handled by the Department of Homeland Security, not the Department of Justice. The spokesman said the attorney general forgot that at the time of Mr. Arar’s deportation, deportation was still handled by the Immigration and Naturalization Service, then part of the Department of Justice. “He had his timeline mixed up,”

He also declined to elaborate on why Mr. Gonzales appeared to cast doubt on the Canadian finding that Mr. Arar had been tortured, except to note that Mr. Arar had brought a lawsuit against United States officials. The case was dismissed by a lower court after the DOJ invoked the so-called “state secrets” privilege.

The “state secrets” maneuver was rarely used before the Bush presidency. Since then, it has become standard practice for government lawyers. In response to a host of lawsuits against the US, the Department of Justice tells a judge that if the case were to go forward, it would expose national security secrets in open court. Judges have for the most part been compliant, and numerous suits have been dismissed as a result. They involve a variety of plaintiffs – from government whistleblowers to wrongly accused terrorists.

In addition to the dismissal of Mr. Arar’s suit, which he is now appealing, the “state secrets” privilege was used to silence Sibel Edmonds, an FBI translator who tried to report serious management and national security abuses at the Bureau. And, among the most egregious cases, a German citizen, Khaled al-Masri, was kidnapped by the CIA in Macedonia and taken to Afghanistan, where he was imprisoned incommunicado for five months. Al-Masri sued former CIA director George Tenet, but his case was dismissed on the basis of “state secrets.” The US Government never admitted its “mistake.”

Point three is larger still. Despite the Attorney General’s denials, Mr. Arar was spirited off to Syria under a CIA program known as “extraordinary rendition.” Authorized by a secret “finding” by President Clinton in 1995, and exponentially accelerated after the 9/11 attacks, this program was illegal before Arar’s kidnapping, was illegal after it, and remains illegal. It is illegal because it violates US and international law.

And, absent the strongest statutory action by Congress, we have little reason to believe that this President will not continue the rendition program when (or if) the dust settles on the current Congressional dispute over prisoner detention and treatment.

Why is “extraordinary rendition” illegal?

The US was one of the original signatories to the Geneva Conventions, of which the now much-discussed Common Article 3 is a part. The UN’s International Covenant on Civil and Political Rights (ICCPR) was ratified by the US in 1992. Two years later, the US ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Thus, all have become part of US law, as are all treaties ratified by Congress.
Common Article 3, with which the Supreme Court in the recent Hamdan decision, ruled that the US must comply in its treatment of detainees, applies to armed conflict. If the armed conflict is international -- between two or more states-- then they are governed by one set of rules. If the armed conflict is not international -- not between two or more states, but rather, between a state and armed groups or between armed groups -- then another set of Common Article 3 rules apply. This is the section the Supreme Court said governs the treatment of suspected terrorists.

All of these treaties prohibit inhumane treatment. Without doubt, this would include transfer of a person to a country either for the purpose inflicting inhumane treatment, or with the knowledge that such treatment is distinctly possible. And both the ICCPR and the CAT specifically prohibit "refoulement" -- the transfer of persons to countries where they may be tortured. Yet, since September 11, 2001, the number of renditions appears to be in the hundreds.

Egypt’s Prime Minister noted in 2005 that the US had transferred some 60-70 detainees to Egypt alone, and a former CIA agent with experience in the region believes that hundreds of detainees have been sent by the US to prisons in Jordan, Saudi Arabia, and elsewhere in North Africa and the Middle East.

The US has used the “diplomatic assurances” figleaf to continue this program. And Congress has largely turned a blind eye. It has failed to exercise anything approaching its oversight responsibilities where intelligence agencies are involved. Congressional hearings offering public testimony by CIA officials are extremely rare. And what the House and Senate Intelligence Committees learn in closed session remains largely secret – unless leaked to the media. This gives Congress a perfect cover for doing nothing.

A few legislators have tried to deal with the issue, with mixed success.

Most prominent among these is Sen. John McCain. Against the active lobbying of Vice President Cheney and other high administration officials, McCain – a tortured prisoner of war during Vietnam – successfully introduced his Detainee Treatment Act in 2005, as an amendment to a defense appropriations measure.
The McCain amendment prohibits the use of cruel, inhuman or degrading treatment against any individual in the custody or physical control of the Unite States. Passed by overwhelming majorities in both Houses of Congress, its effect was then diminished by a “signing statement” by President Bush. The President said, in effect, that he would follow the law unless it jeopardized national security.

Other legislators have had even less luck. A Massachusetts congressman, Edward Markey, introduced legislation last year to ban extraordinary renditions. A companion bill in the Senate -- the Convention Against Torture Implementation Act -- has been introduced by Sen. Patrick Leahy, a Democrat from Vermont, and ranking member of the Senate Judiciary Committee. Like Markey's, the Leahy bill would require annual reporting of countries that engage in torture, and prohibit the US government from transferring or rendering a detainee to a country that has a history of torture.

But it is unlikely these bills will ever come to a vote in either chamber. According to the New Yorker’s Jane Mayer, who has written authoritatively on extraordinary rendition and the connection of policymakers to torture, “Democrats don’t have the ability to hold hearings unless the party in power, the GOP, agrees. And Republicans have been loath to do that. There’s been none of the usual fact-finding with subpoena power,” she says.

Even now, with the Republican majority in the Senate facing an open rebellion by prominent members of their own party about how to implement the Hamdan decision, neither the legislation proposed by the White House nor the bill being pushed by the rebels – Senators McCain, Lindsey Graham, John Warner, Susan Collins, Olympia Snowe, and others -- mentions extraordinary rendition explicitly. Nor does it mention secret detention, another practice clearly in violation of US treaty obligations.

But unless Congress decides to abrogate the Geneva Conventions and kindred treaties altogether, rendition itself would constitute a clear violation.

Moreover, there is a strong case to be made that the techniques known to be used by the CIA in carrying out extraordinary renditions themselves constitute cruel, degrading and inhumane treatment – before the suspects themselves ever reach their destination prisons. We know from eyewitness testimony and various leaks to the media that typically masked CIA operatives forcibly abduct a suspect, strip him, insert a suppository into his anus to drug him, put a diaper on him, and then put him aboard a CIA-chartered aircraft, where he is placed in a standing position against a bulkhead with his wrists handcuffed above his head. He remains in that position until the plane lands.

That’s what reportedly happened to two Egyptians, who were free in Sweden awaiting a decision on their asylum application. They were kidnapped, flown back to Egypt, arrested by security services, and tried before a military court.

The take-offs, landings and flights of various CIA-leased aircraft over airspace in Europe and elsewhere have been meticulously documented, causing major disruptions in US relations with the European Union and other bodies.

Months after Dana Priest of the Washington Post broke the story of secret CIA prisons in Eastern Europe and elsewhere, and after the Supreme Court handed down its Hamdan decision, President Bush announced that these prisons would now be emptied and their occupants transferred to Guantanamo Bay, Cuba. Thus, he implicitly acknowledged that the US had used extraordinary renditions to transport detainees to these secret prisons.

There is only one reason prisoners are whisked off to other countries: To allow the CIA to use what President Bush euphemistically calls “alternative interrogation” methods outside the reach of US law. But neither the CIA secret prisons nor Guantanamo Bay are outside the reach of US law. The test is whether these people are effectively in US custody or under US control. The Supreme Court has said they are.

That said, the Congress – not the President – needs to figure out an equitable way to try them. Defense Secretary Rumsfeld has described these people as “the worst of the worst.” And likely some of them are. But we also know that there are prisoners at GITMO who have been cleared of any connection to terrorism, yet are still in detention; that many of them were simply in the wrong place at the wrong time; that many others were “bought” by the US military in Afghanistan for payments of $5,000 per head from Afghanistan’s Northern Alliance. Since the opening of the prison at GITMO, not a single inmate has been tried.

None of which will help Mahar Arar. The damage to his life cannot be undone. But an acknowledgement by the US of its role in his ordeal, apologies from both Canada and America, and payment of damages, would be reasonable places to begin.

But at the end of the day, it will be up to Congress not just to enact effective and fair legislation, but to begin to exercise the oversight responsibilities it has so recklessly ceded to the White House.