I Cogitate

5/23/05
Outsourcing a real nasty job
Shipping terrorism suspects overseas for some tough questioning may make sense. But is it legal?
Danielle KnightU.S. News & World Report

The bill that passed last week was to authorize another $82 billion in military spending, mainly for operations in Iraq and Afghanistan. But lawmakers slipped in language that had nothing to do with money. Tucked away on Page 26 of the legislation, the members of Congress stated explicitly that no one in U.S. custody--American or foreigner--may be tortured or subjected to "cruel, inhuman, or degrading treatment." Human-rights groups applauded, but even now, no one can say for sure whether the legislation outlaws one of Washington's most secretive--and controversial--intelligence programs. It goes by a deliberately bland bureaucratic euphemism called "extraordinary rendition." What it means is that the CIA or other government agencies can send, or "render," terrorism subjects for interrogation to other countries, even those with records of human-rights violations and abuse of prisoners.

No one knows for sure how many people U.S. agencies have rendered to foreign governments, but the total is believed to be several hundred, and there is no dispute that the number has increased markedly since the 9/11 attacks. Maher Arar, a Canadian citizen, was one of the individuals rendered to a foreign government after the attacks. Born in Syria, the 35-year-old engineer was accosted by U.S. officials at New York's JFK International Airport in September 2002 on his way home to Ottawa from a vacation in Tunisia. The officials hauled Arar onto a small private jet and flew him to Jordan. He was then driven to Syria, where he was imprisoned, without charges, for 12 months. During his incarceration, Arar says, he was interrogated repeatedly about ties to terrorists, tortured, and beaten with an electric cable. After a year, Arar was set free, still without charges. Today, he is suing the U.S. government.

The legal underpinnings of the rendition program are more than a bit murky. The Bush administration says justification for the practice rests on several pillars. These include executive authority in times of war, something called the "states secrets privilege," which is not a law but a series of legal precedents, and the fact that Washington routinely seeks diplomatic assurances that terrorism suspects will not be tortured before they are sent abroad for interrogation.

Presidential policy. The legal authority may also rest, in part, on a still classified directive signed by President Bush after the attacks on the World Trade Center and the Pentagon. Some scholars speculate that the directive may include language about executive-branch authority similar to that contained in several Justice Department memos that surfaced after the detainee-abuse scandal at Iraq's Abu Ghraib prison. Those documents sought to legitimize coercive interrogation and torture techniques in Afghanistan, Cuba, and Abu Ghraib. The presidential directive, in other words, may argue that "there is no law that prohibits the administration from doing this," says Scott Silliman, director of the Center for Law, Ethics and National Security at Duke University.

Despite such arguments, there are sound legal bases to challenge the rendition program. Perhaps the strongest is the United Nations Convention Against Torture. The treaty was ratified by the United States in 1994 and later codified into federal law. The convention specifically prohibits transferring a legal detainee abroad if there are "substantial grounds for believing" that he or she will be subjected to torture there. Even here, though, certainty is elusive. Some legal experts say the convention is applicable only if it can be proved that it is "more likely than not" that a suspect will be tortured if he is sent to a specific country. "It's true, by definition, that extraordinary rendition is unlawful," says Joseph Margulies, the lead counsel in one of the Guantanamo Bay detainee cases heard before the Supreme Court last year. "The question is whether that illegality can be addressed in court . . . because the claims themselves are subject to a myriad of procedural defenses that are being raised by the government."

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OUTSOURCING TORTURE
JANE MAYER
The New Yorker
The secret history of America’s “extraordinary rendition” program.
Issue of 2005-02-14

On January 27th, President Bush, in an interview with the Times, assured the world that “torture is never acceptable, nor do we hand over people to countries that do torture.” Maher Arar, a Canadian engineer who was born in Syria, was surprised to learn of Bush’s statement. Two and a half years ago, American officials, suspecting Arar of being a terrorist, apprehended him in New York and sent him back to Syria, where he endured months of brutal interrogation, including torture. When Arar described his experience in a phone interview recently, he invoked an Arabic expression. The pain was so unbearable, he said, that “you forget the milk that you have been fed from the breast of your mother.”

Arar, a thirty-four-year-old graduate of McGill University whose family emigrated to Canada when he was a teen-ager, was arrested on September 26, 2002, at John F. Kennedy Airport. He was changing planes; he had been on vacation with his family in Tunisia, and was returning to Canada. Arar was detained because his name had been placed on the United States Watch List of terrorist suspects. He was held for the next thirteen days, as American officials questioned him about possible links to another suspected terrorist. Arar said that he barely knew the suspect, although he had worked with the man’s brother. Arar, who was not formally charged, was placed in handcuffs and leg irons by plainclothes officials and transferred to an executive jet. The plane flew to Washington, continued to Portland, Maine, stopped in Rome, Italy, then landed in Amman, Jordan.

During the flight, Arar said, he heard the pilots and crew identify themselves in radio communications as members of “the Special Removal Unit.” The Americans, he learned, planned to take him next to Syria. Having been told by his parents about the barbaric practices of the police in Syria, Arar begged crew members not to send him there, arguing that he would surely be tortured. His captors did not respond to his request; instead, they invited him to watch a spy thriller that was aired on board.

Ten hours after landing in Jordan, Arar said, he was driven to Syria, where interrogators, after a day of threats, “just began beating on me.” They whipped his hands repeatedly with two-inch-thick electrical cables, and kept him in a windowless underground cell that he likened to a grave. “Not even animals could withstand it,” he said. Although he initially tried to assert his innocence, he eventually confessed to anything his tormentors wanted him to say. “You just give up,” he said. “You become like an animal.”

A year later, in October, 2003, Arar was released without charges, after the Canadian government took up his cause. Imad Moustapha, the Syrian Ambassador in Washington, announced that his country had found no links between Arar and terrorism. Arar, it turned out, had been sent to Syria on orders from the U.S. government, under a secretive program known as “extraordinary rendition.” This program had been devised as a means of extraditing terrorism suspects from one foreign state to another for interrogation and prosecution. Critics contend that the unstated purpose of such renditions is to subject the suspects to aggressive methods of persuasion that are illegal in America ­including torture.

Arar is suing the U.S. government for his mistreatment. “They are outsourcing torture because they know it’s illegal,” he said. “Why, if they have suspicions, don’t they question people within the boundary of the law?”

Rendition was originally carried out on a limited basis, but after September 11th, when President Bush declared a global war on terrorism, the program expanded beyond recognition ­becoming, according to a former C.I.A. official, “an abomination.” What began as a program aimed at a small, discrete set of suspects ­people against whom there were outstanding foreign arrest warrants­came to include a wide and ill-defined population that the Administration terms “illegal enemy combatants.” Many of them have never been publicly charged with any crime. Scott Horton, an expert on international law who helped prepare a report on renditions issued by N.Y.U. Law School and the New York City Bar Association, estimates that a hundred and fifty people have been rendered since 2001. Representative Ed Markey, a Democrat from Massachusetts and a member of the Select Committee on Homeland Security, said that a more precise number was impossible to obtain. “I’ve asked people at the C.I.A. for numbers,” he said. “They refuse to answer. All they will say is that they’re in compliance with the law.”

Although the full scope of the extraordinary-rendition program isn’t known, several recent cases have come to light that may well violate U.S. law. In 1998, Congress passed legislation declaring that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”

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