Extraordinary rendition

N379P, one of the planes used by the CIA

Extraordinary rendition is an American government term for an extra judicial procedure that sends criminal suspects, generally suspected terrorists, to countries other than the United States for imprisonment and interrogation. Critics have accused the CIA of rendering suspects to other countries in order to avoid US laws prohibiting torture and have called the this "torture by proxy"^[1].

Media reports describe suspects being arrested, blindfolded, shackled, and sedated, and transported by private jet or other means to the destination country. The reports also say that the rendering countries have provided interrogators with lists of questions. Although Egypt has been the most common destination, suspected terrorists have been rendered to other countries, such as Jordan, Syria, Morroco, and Uzbekistan.

In a number of cases, suspects to whom the procedure is believed to have been applied later appeared to be innocent.^[2]

According to former CIA agent Bob Baer, "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear - never to see them again - you send them to Egypt."^[3]

Ownership of aircraft

The planes used in extraordinary renditions are not leased by the CIA, but instead they are owned by a CIA shell company. The shell company has no employees, no business premises, and no website. In lieu of these, it has a CIA-contracted lawyer who provides a mail drop, registers the company with the state and the planes with the FAA, and interfaces in other necessary ways with government agencies and the public. The lawyer provides many of the legal services needed by a normal company, including a place to serve legal papers and court documents on the company.^[4]

1990s

The procedure was developed by Central Intelligence Agency officials in the mid-1990s who were trying to track down and dismantle militant Islamic organizations in the Middle East, particularly Al Qaeda. At the time, the agency was reluctant to grant suspected terrorists due process under American law, as it could potentially jeopardize its intelligence sources and methods. The solution the agency came up with, with the approval of the Clinton administration and a presidential directive, was to send suspects to Egypt, where they were turned over to the Egyptian mukhabarat, which has a reputation for brutality. This arrangement suited the Egyptians, as they had been trying to crack down on Islamic extremists in that country and a number of the senior members of Al Qaeda were Egyptian. The arrangement suited the US because torture is banned under both US and international law.

The argument for rendition made by defenders of the practice is that culturally-informed and native-language interrogations are more successful in gaining information from suspects. For instance, interrogators of one terrorist suspect prayed to Mecca five times per day in the presence of the suspect until he became willing to talk ^[5]. Nevertheless, there have been many reports of the use of torture by these governments on suspects rendered to them.

The first individual to be subjected to rendition was Talaat Fouad Qassem, one of Egypt's most wanted terrorists, who was arrested with the help of US intelligence by Croatian police in Zagreb in September 1995. He was interrogated by US agents on a ship in the Adriatic sea and was then sent back to Egypt. He disappeared while in custody, and is suspected by human rights activists of having been executed without a trial.

In the summer of 1998, a similar operation was mounted in Tirana, Albania. Wiretaps showed that five Egyptians had been in contact with Ayman al-Zawahiri, Osama bin Laden's deputy. During the course of several months, Shawki Salama Attiya and four militants were captured by Albanian security forces collaborating with US agents. The men were flown to Cairo for interrogation. Attiya later alleged that he had electric shocks applied to his genitals, was hung from his limbs, and was kept in a cell with dirty water up to his knees.

Examples

"Snatches, or more properly "extraordinary renditions," were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgement of the host government.... The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: Lloyd says this. Dick says that. Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."^[6]

"In 1995, Scheuer said, American agents proposed the rendition program to Egypt, making clear that it had the resources to track, capture, and transport terrorist suspects globally—including access to a small fleet of aircraft. Egypt embraced the idea. "What was clever was that some of the senior people in Al Qaeda were Egyptian," Scheuer said. "It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated." Technically, U.S. law requires the C.I.A. to seek "assurances" from foreign governments that rendered suspects won’t be tortured. Scheuer told me that this was done, but he was "not sure" if any documents confirming the arrangement were signed."^[7]

Post 9/11

While extraordinary rendition was originally developed by the CIA, the Justice Department and the Defense Department also do renditions. Initially, the procedure was applied primarily to individuals for whom there were outstanding arrest warrants. After the 9/11 attacks the program appears to have been expanded and some believe it now encompasses individuals for whom there are but vague suspicions. Critics charge that the program has "spun out of control", and has been used against large numbers of individuals. In a lengthy investigative report published by The New Yorker in February 2005, journalist Jane Mayer cited 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, as estimating that a hundred and fifty people have been rendered since 2001.

Proponents of extraordinary rendition, and the similarly controversial concept of unlawful combatant, argue that torturing terror suspects, however distasteful, is necessary to help prevent further terrorist attacks, which may only be a matter of hours or days away. Critics argue, however, that such practices are unethical, unconstitutional, and skirt the Geneva Conventions. Even within the US government, opinions are divided; the State Department opposes ignoring the Geneva Conventions, and has warned the Bush administration that not only could US soldiers be denied protection of the conventions but that President Bush and other members of the administration could also be prosecuted for war crimes.

Aside from ethical issues, pragmatic reservations have also arisen about the practice. For one, it appears that while torturing a suspect frequently results in a confession, the confessions tend to be useless; a suspect will say nearly anything to end his or her suffering. Some investigators argue that better results are achieved by treating suspects with respect, allowing them due process, and arranging plea bargains with defense lawyers.

In addition, evidence obtained illegally or under duress is inadmissible in US courts, and this hampers court cases against suspected terrorists in the US. The trial of Zacarias Moussaoui, the only person to be indicted in the US in connection with the 9/11 attacks, has run aground because of Moussaoui's requests for access to confidential documents and the right to call al-Qaida members held in captivity in Guantánamo as witnesses, a demand rejected by government attorneys on the grounds that it would compromise confidential sources.

Furthermore, Amnesty International mentions Muhammad al-Assad, Salah Nasser Salim ‘Ali and Muhammad Faraj Ahmed Bashmilah. The three, all Yemeni nationals, had "disappeared" in 2003, and had been kept in complete isolation – even from each other – in a series of secret detention centres apparently run by US agents.^[8]

Based upon statements by current and former intelligence officials and diplomats from three continents, the Washington Post reported^[9] that captives might be subject to techniques of interrogation illegal in the United States. Since it might violate US law these suspects are flown to facilities around the world. Eight countries have been implicated, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba.

The CIA and the White House strongly resist an indepth investigation into the details of rendition, regarding the subjects detained and the facilities used throughout the world.^[10] Critics think this procedure might be kept from scrutiny as it could result in legal challenges to the U.S. government, inside the U.S. as well as in those countries used for detention.^[11]^[12] For a more detailed discussion on these possible violations of U.S. and international law please see below and unlawful combatant.

Following the allegations by the Washington Post and Human Rights Watch, the European Union has said it will examine whether the US Central Intelligence Agency (CIA) has set up secret jails(jails in foreign countries operated by the CIA) for terror suspects in Europe. Such detention centers would violate the European Convention on Human Rights and the international Convention Against Torture, treaties that all EU member states are bound to follow. ^[13]^[14]^[15] In addition to their own investigation the European countries will formally request an answer from the Bush administration on the matter.^[16]^[17]^[18]

A comment by FAIR^[19] on the Washington Post's decision, to withhold the locations of these secret prisons, was that since the revelations "could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad," the Post did its part to minimize these risks. Yet, according to FAIR, "the possibility that illegal, unpopular government actions might be disrupted is not a consequence to be feared, however--it's the whole point of the U.S. First Amendment. Furthermore, by not disclosing these locations it would make it impossible to have them to closed and thereby the Post is enabling the rendition, secret detention, and torture of prisoners at these locations to continue. Another consequence might be that U.S. soldiers and civilians are put at risk."^[20]

Manfred Nowak, a special rapporteur on torture, has catalogued in a 15-page U.N. report presented to the 191-member General Assembly that the United States, Britain, Canada, France, Sweden and Kyrgyzstan are violating international human rights conventions by deporting terrorist suspects to countries such as Egypt, Syria, Algeria and Uzbekistan, where they may have been tortured.^[21]

Business daily Handelsblatt reported November 24, 2005, that the CIA still uses an American military base in Germany to transport terrorism suspects without informing the German government. The Berliner Zeitung reported the following day there was documentation of 85 takeoffs and landings by planes with a "high probability" of being operated by the CIA, at Ramstein, the Rhine-Main Airbase and others. The newspaper cited experts and "plane-spotters" who observed the planes as responsible for the tally.^[22]

In 2002, the Council of Europe's Human rights commissioner Alvaro Gil-Robles witnessed 'a smaller version of Guantanamo', he told France's Le Monde newspaper.^[23]^[24] Gil-Robles told the daily he had inspected the centre, located within the US military's Camp Bondsteel in Kosovo, in 2002, to investigate reports of extrajudicial arrests by NATO-led peacekeepers. ^[25]

"The United States is holding at least twenty-six persons as “ghost detainees” at undisclosed locations outside of the United States," Human Rights Watch said on December 1, 2005, as it released a list^[26] naming some of the detainees. The detainees are being held indefinitely and incommunicado, without legal rights or access to counsel.^[27]

An article in the Washington Post December 04, 2005, reports that Khaled Masri, a German citizen, was erroniously imprisoned by the CIA. Fearfull this might expose the covert program to apprehend suspects outside of the US and fly them to other countries, and thereby upon up legal challenges, the German government was requested not disclose what it had been told even if Masri went public. Related to this some CIA officials have argued that Guantanamo Bay has become, as one former senior official put it, "a dumping ground" for CIA mistakes.

Although the mistake was admitted to Germany's then-Interior Minister Otto Schily, the CIA tried to keep the specifics of Masri's case from becoming public.^[28] A German prosecutor works to verify or debunk Masri's claims of kidnapping and torture, yet that part of the German government which was informed has remained silent on the subject. Masri's attorneys have filed a lawsuit in U.S. courts.

According to the same article in the Washington Post "Members of the Rendition Group follow a simple but standard procedure: Dressed head to toe in black, including masks, they blindfold and cut the clothes off their new captives, then administer an enema and sleeping drugs. They outfit detainees in a diaper and jumpsuit for what can be a day-long trip. Their destinations: either a detention facility operated by cooperative countries in the Middle East and Central Asia, including Afghanistan, or one of the CIA's own covert prisons -- referred to in classified documents as "black sites," which at various times have been operated in eight countries, including several in Eastern Europe."^[29]^[30]

The Guardian reports on December 5, 2005, that the British government is "guilty of breaking international law if it knowingly allowed secret CIA "rendition" flights of terror suspects to land at UK airports, according to a report by American legal scholars."^[31]^[32]

According to ABC News two of the facilities, in countries mentioned by Human Rights Watch, have been closed following the recent publicity. CIA officers say the captives were relocated to the North-African desert. All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA's secret arsenal, the so-called "enhanced interrogation techniques" authorized for use by about 14 CIA officers.^[33]

Responding to mounting European concerns Condoleezza Rice said: "Renditions take terrorists out of action, and save lives," and she explained rendition is not unlawful. While Dr Rice denied that the CIA used torture, she refused to address the allegations of covert prisons that have caused consternation across Europe and not least in Romania.^[34]^[35]^[36] As to the legallity of extraordinary rendition this position is disputed by legal experts which can be seen here.^[37]^[38] Human Rights Watch has revealed Poland was the heart of the CIA's secret detention network in Europe.^[39]

A story in The Los Angeles Times on December 8, 2005, seems to corroberate the claims of "torture by proxy." It mentions the attorneys for Majid Mahmud Abdu Ahmad, a detainee held by the Pentagon at Guantanamo Bay, filed a petition to prevent his being transfered to foreign countries. According to the petition's description of a redacted classified Defense Department memo from March 17, 2004, its contents says "officials suggested sending Ahmad to an unspecified foreign country that employed torture in order to increase chances of extracting information from him."

Mr Falkoff, representing Ahmad, continued: "There is only one meaning that can be gleaned from this short passage," the petition says. "The government believes that Mr. Ahmad has information that it wants but that it cannot extract without torturing him." The petition goes on to say that because torture is not allowed at Guantanamo, "the recommendation is that Mr. Ahmad should be sent to another country where he can be interrogated under torture."^[40]

In a report, regarding the allegations of CIA flights, on December 13, 2005, by the rapporteur and Chair of the Parliamentary Assembly of the Council of Europe’s Committee on Legal Affairs and Human Rights, Swiss senator Dick Marty, it was concluded: "The elements we have gathered so far tend to reinforce the credibility of the allegations concerning the transport and temporary detention of detainees - outside all judicial procedure - in European countries."^[41]^[42]^[43]

Following mounting scrutiny in Europe the US Senate is about to approve a measure that would include amendments requiring the director of national intelligence to provide regular, detailed updates about secret detention facilities maintained by the United States overseas, and to account for the treatment and condition of each prisoner.^[44]

Examples

A Pakistani newspaper reported that in the early hours of October 23, 2001 a Yemeni citizen, Jamil Qasim Saeed Mohammed, a 27-year-old microbiology student at Karachi University, was spirited aboard a private plane at Karachi's airport by Pakistani security officers.

In October 2001, Mamdouh Habib, who lives in Australia and has both Australian and Egyptian nationality (having been born in Egypt), was detained in Pakistan, where he was interrogated for three weeks, and then flown to Egypt in a private plane. From Egypt, he was later flown to a US airbase in Afghanistan, and then on to Guantanamo Bay, from where he was finally released without charge in January 2005.^[45]

In 2002, captured Al Qaeda leader Ibn al-Shaykh al-Libi was rendered to Egypt where he was allegedly tortured. The information he provided to his interrogators formed a fundamental part of the Bush administration case for attacking Iraq. Al-Libi later recanted his story and it is generally believed that his stories of contact between the Saddam Hussein regime and Al-Qaeda were fabricated to please his interrogators. ^[46]

Mohammad Al-Zery and Ahmed Agiza, two Egyptians, who had been seeking asylum in Sweden, were arrested by Swedish police in December 2001. They were taken to an airport and put on an executive jet with an American registration with a crew of masked men. Within hours, they were flown to Egypt, where they were imprisoned, beaten, and tortured. A Swedish diplomat visited them several weeks later. Agiza was charged with being an Islamic militant and he was sentenced to 25 years. Al-Zery wasn't charged, and after two years in jail he was sent to his village in Egypt.

In 2003, Khaled el-Masri, a Kuwait-born citizen with German nationality, was detained by Macedonian agents in Republic of Macedonia. While on vacation in the republic, local police, apparently acting on a tip, took him off a bus, held him for three weeks, then took him to the Skopje airport where he was turned over to the CIA. El-Masri says he was injected with drugs, and after his flight, he woke up in an American-run prison in Afghanistan containing prisoners from Pakistan, Tanzania, Yemen and Saudi Arabia. El-Masri claimed he was held five months and interrogated by Americans through an interpreter. He alleges he was beaten and kept in solitary confinement. Then, after his five months of questioning, he was simply released. "They told me that they had confused names and that they had cleared it up, but I can't imagine that," El-Masri told ABC News. "You can clear up switching names in a few minutes." He was flown out of Afghanistan and dumped on a road in Albania, from where he made his way back home in Germany. Using a method called isotope analysis, scientists at the Bavarian archive for geology in Munich subsequently analyzed several strands of his hair and verified his story. During a visit to Washington, German Interior Minister Otto Schily was told that American agents admitted to kidnapping el-Masri, and indicated that the matter had somehow gotten out of hand. Masri was held for five months largely because the head of the CIA's Counterterrorist Center's al Qaeda unit "believed he was someone else," one former CIA official said. "She didn't really know. She just had a hunch."^[47]^[48]

Maher Arar, a Syrian-born Canadian citizen, was detained at Kennedy International Airport on 26 September, 2002, by US Immigration and Naturalization Service officials. He was taken to Jordan and then Syria, where he was interrogated and tortured by Syrian intelligence. Arar was eventually released a year later after it was determined he had no ties to terrorist groups. The Canadian government lodged an official complaint with the US government protesting Arar's deportation.

In June 2005, Italian prosecutor Guido Salvini issued a warrant for the arrest of 13 persons said to be agents or operatives of the CIA. On February 17, 2003 they are alleged to have kidnapped Hassan Mustafa Osama Nasr, also known as Abu Omar, as he walked to his mosque in Milan for noon prayers. Omar was flown to Egypt for interrogation. His family and friends claim that he has been repeatedly tortured. Court documents in the case indicate that the 13 suspects were implicated, in part, by extensive cell phone records which allowed Milan police to reconstruct their movements for the nine days they were in the city. At the time of his disappearance, Italian police were investigating allegations that Nasr had tried to recruit jihadists. Salvini said the abduction was illegal because it violated Italian sovereignty and that it disrupted an ongoing police investigation. Egypt has refused Italian requests for information on the whereabouts of Nasr. On December 6, 2005, the Washington Post reported Italian court documents and interviews with investigators showed the CIA tried to mislead Italian anti-terrorism police who were looking for the cleric. The CIA's substation chief in Milan, identified in court records as Robert Seldon Lady, has been implicated in the abduction. In a written opinion upholding the arrest warrant, judge Enrico Manzi wrote that the evidence taken from Lady's home "removes any doubt about his participation in the preparatory phase of the abduction."^[49]^[50] Mr Lady however, thinks the evidence has been gathered illegally. Furthermore, he insists he is onnocent.^[51]

Binyam Mohammed, an Ethiopian student who lived in London, was apprehended in Pakistan. He allegedly spend three years in so called "black sites." He was supposed to be part of a plot involving Jose Padilla. The Observer reported: He went to Pakistan in June 2001 because, he says, he had a drug problem and wanted to kick the habit. He was arrested on 10 April at the airport on his way back to England because of an alleged passport irregularity. Initially interrogated by Pakistani and British officials, he told Stafford Smith: 'The British checked out my story and said they knew I was a nobody. They said they would tell the Americans.'^[52]

In late 2001 Saddiq Ahmad Turkistani was freed by US forces from a Taliban prison in Kandahar, Afghanistan. At a news conference he told reporters and U.S. officials he had been wrongly imprisoned for allegedly plotting to kill Osama bin Laden. He was then taken to a U.S. military base in Afghanistan, where he was stripped, bound and thrown behind bars. According to U.S. lawyers who represent him, in January 2002 he was sent to the U.S. detention facility at Guantanamo Bay, Cuba. Nearly four years later, Turkistani remains there, despite being cleared for release early 2005 after a government review concluded he is "no longer an enemy combatant." It is unclear exactly when that determination was made, but Justice Department lawyers gave notice of it in an Oct. 11 court filing.^[53]

Treaty obligations

The UN Convention against Torture (UNCAT) Article 3 states:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Any state that is a signatory of the UNCAT and passes an individual to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture would be in breach of their treaty obligations, which most Western governments would be reluctant to do.

The United States Senate, however, ratified the treaty with certain reservations, declarations, and understandings, which may alter the nature of their treaty obligation with regard to UNCAT Article 3. Congressional Record S17486-01 II.3 reads "the United States understands the phrase, 'where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in Article 3 of the Convention, to mean 'if it is more likely than not that he would be tortured.'" This "understanding" with regard to U.S. ratification perhaps increases the difficulty of proving a treaty violation.

Secret detention is prohibited under international human rights standards. Principle 6 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions states that "governments shall ensure that persons deprived of their liberty are held in officially recognized places of custody, and that accurate information on their custody and whereabouts, including transfers, is made promptly available to their relatives and lawyers or other persons of confidence."

"Disappearances" are crimes under international law, involving multiple human rights violations. In certain circumstances they are crimes against humanity, and can be prosecuted in international criminal proceedings. The defining characteristic of a "disappearance" is that it puts the victim beyond the protection of the law, while at the same time concealing the violations from outside scrutiny, making them harder to expose and condemn, and allowing governments to avoid accountability. The United Nations General Assembly has said that enforced disappearance "constitutes an offence to human dignity, a grave and flagrant violation of human rights and fundamental freedoms ..." The ICRC has said of "disappearances", that "no one has the right to keep that person's fate or whereabouts secret or to deny that he or she is being detained. This practice runs counter to the basic tenets of international humanitarian law and human rights law."

The UN, "Declaration on the Protection of All Persons from Enforced Disappearances" of 1992 states that "any act of enforced disappearance is an offence to human dignity", which "places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life".

The Rome Statute of the International Criminal Court defines the crime against humanity of "enforced disappearance of persons" as "the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time."^[54]

Other countries

In 2003, Britain's Ambassador for Uzbekistan, Craig Murray made accusations that information was being extracted under extreme torture from dissidents in that country, and that the information was subsequently being used by Britain and other western, democratic countries which disapproved of torture^[55]. In March 2003 he was informed in the London offices of the Foreign and Commonwealth Office (FCO) by Sir Michael Wood, chief Legal Adviser, that it was not illegal under the UN Convention Against Torture for Britain to obtain or to use intelligence gained under torture, provided the British Government did not use torture or request that a named individual be tortured. The unanimous Law Lords judgment on December 8, 2005 confirmed this postion. They ruled that under English law as it had existed for hundreds of years, that "torture and its fruits" could not be used in court^[56], but the information obtained by torture could be used by the British police and security services as "it would be ludicrous for them to disregard information about a ticking bomb if it had been procured by torture."^[57]

Murray's accusations did not lead to any investigation by his employer, the FCO, and he resigned after disciplinary action was taken against him in 2004. No misconduct by him was proven. The Foreign and Commonwealth Office itself is being investigated by the National Audit Office because of accusations that it has victimised, bullied and intimidated its own staff^[58].

Murray later stated that he felt that he had unwittingly stumbled upon what has been called "torture by proxy"^[1]. He thought that Western countries moved people to regimes and nations where it was known that information would be extracted by torture, and made available to them.

Murry states that he was aware from August 2002 "that the CIA were bringing in detainees to Tashkent from Baghram airport Afghanistan, who were handed over to the Uzbek security services (SNB). I presumed at the time that these were all Uzbek nationals – that may have been a false presumption. I knew that the CIA were obtaining intelligence from their subsequent interrogation by the SNB." He goes on to say that he did not know at the time that any none Uzbek nationals were flown to Uzbekistan and although he has studied the reports by several journalists and finds their reports credible he is not a first hand authority on this issue.^[59]

Manfred Nowak, special rapporteur on torture, has catalogued in a 15-page U.N. report presented to the 191-member General Assembly that the United States, Britain, Canada, France, Sweden and Kyrgyzstan are for violating international human rights conventions by deporting terrorist suspects to countries such as Egypt, Syria, Algeria and Uzbekistan, where they may have been tortured.^[60]