Transferred to Torture
Stay up to date with the latest headlines via email.
When Maher Arar arrived at John F. Kennedy airport in New York City on Sept. 26, 2002, he had no idea his life was about to be radically changed. Arar, a 31-year-old computer consultant and Canadian citizen, was en route from Zurich to Montreal to attend to business following a family vacation in Tunisia, according to a lawsuit he filed against U.S. officials in 2004. He was standing in line waiting to pass immigration inspection when an immigration officer asked him to step aside to answer some questions.
As FBI agents, immigration officials and NYPD officers questioned Arar, he asked to consult an attorney. U.S. officials told Arar that only U.S. citizens had the right to a lawyer and locked him up in the Metropolitan Detention Center in New York City, where he endured more interrogation about his friends, the mosques he attended, his letters and e-mails. U.S. officials then demanded that he "voluntarily" agree to be sent to Syria, where he was born, instead of home to Canada (Arar holds dual citizenship). Arar refused, according to Amnesty International, explaining that he was afraid he would be tortured in Syria for not completing his military service. After more than a week in detention, U.S. authorities determined that Arar was "inadmissible" to the United States based on secret evidence and notified him that he would be deported to Syria.
They took him to New Jersey in the middle of the night and loaded him onto a small plane that stopped in Washington, D.C., and then Rome before proceeding to Jordan. Local authorities in Jordan chained and beat Arar, bundled him in a van and drove him across the border to Syria, where Arar was beaten with electrical cables, interrogated about his acquaintances and beliefs, and kept in a tiny cell for months at a time.
"I first thought they would keep me in that place, which I now call the grave, for a short period so that they could put pressure on me," Arar told AI. "But I was kept in that dark and filthy cell for about 10 months and 10 days. That was torture."
After three consecutive days of beating and interrogation, he said, "I could not take the pain any more and I falsely confessed of having been to Afghanistan." After the Canadian government intervened, Syrian authorities released him in October 2003 -- more than one year after his ill-fated attempt to change planes in New York City -- with an acknowledgment that there was no evidence that he was ever involved in terrorism.
What U.S. authorities did to Arar -- and the dozens of other men they have rounded up far from any battlefield and shipped abroad to countries that systematically use torture -- is known as "extraordinary rendition." The procedure violates both U.S. and international law. The United States never charged Arar with a crime. He did not get an opportunity to challenge or even learn of the "secret evidence" that U.S. authorities used to justify his apprehension, transfer and detention. The U.S. government does not even acknowledge the program of extraordinary rendition to which Arar lost a year of his life -- despite countless newspaper articles quoting "unnamed officials" familiar with the program. The Bush administration has vigorously fought efforts to challenge the program in court.
Extraordinary rendition is one of several tactics that belong to a new intelligence paradigm operating in the global war on terror. This paradigm is marked by a shift away from evidencebased proceedings and toward intelligence-gathering -- as both the goal of interrogation and detention, and as the justification for treatment outside the usual system of judicial oversight. In the name of security, the new tactics sidestep traditional due process and humane treatment guarantees. The Bush administration argues that, at this historical moment, it is too dangerous to respect the traditional laws of war that forbid torture and abuse, as well as the human rights rules of due process that safeguard against ill treatment.
The origins of extraordinary rendition lie in an earlier procedure known as "rendition to justice." Approved by President Reagan in the 1980s, this form of rendition was aimed at bringing suspects to the United States to stand trial for terrorist crimes. Rendition to justice was an irregular way to obtain custody over an individual for trial in countries where there was no functioning government (such as Lebanon during the civil war) or places where no government had custody over the suspect (such as on the high seas). Despite the obvious human rights concerns associated with any informal seizure, this kind of rendition was aimed at bringing suspects into the regular criminal justice system, where their due process rights were respected. Rendered defendants faced charges and stood trial in U.S. federal courts.
In response to terrorist attacks against the United States in the 1990s, the policy began to change. The goal of bringing suspects before a U.S. court morphed into "taking al-Qaeda fighters off the street" by transferring them to a country that was interested in detaining them, according to former CIA official Michael Scheuer, a self-identified architect of this transitional rendition program. At a forum at the University of Virginia School of Law, Scheuer emphasized that the new rendition program -- authorized by President Clinton -- had neither trial nor interrogation as its aim. Instead, the focus was on "causing them to 'be incarcerated somewhere,'" Scheuer said. Such renditions circumvented the legal extradition process and its accompanying human rights guarantees. The U.S. government winked at the detention of suspected terrorists regardless of whether they had been tried.
The terrorist attacks of Sept. 11, 2001, pushed the U.S. government into uncharted territory. Under pressure to obtain "actionable intelligence," the Bush administration took the final step and twisted the practice of rendition to justice into rendition to torture. According to Washington Post investigative reporter Dana Priest, President Bush signed a Presidential Finding six days after the attacks that authorized the CIA to kill, capture or detain suspected al-Qaeda members anywhere in the world. This classified document apparently became the basis for a new, integrated system of illegal tactics: U.S. authorities render suspects to the custody of foreign governments known for torture, or they secretly detain them in CIA-run "black sites." These "black sites" are nowhere acknowledged by U.S. officials, who have said that they can neither confirm nor deny the use of secret prisons.
In a leaked memo dated November 2002, an FBI supervisory special agent warned his superiors that extraordinary rendition was illegal and explained that the intent of rendition was "to utilize, outside the U.S., interrogation techniques that would violate" federal criminal law outlawing torture. Carrying out an extraordinary rendition, he concluded, would amount to a federal crime, and plans to carry out such a transfer would amount to conspiracy to commit torture.
A large body of human rights law supports this view. International treaties and customary law forbid transferring a suspect to a country where he faces a risk of being tortured. This rule applies to everyone and may not be suspended in relation to suspects accused of terrorism. The Bush administration insists it sends suspects only to countries that have given "diplomatic assurances" that they will not torture, but such agreements are secret, unreliable and legally insufficient. In the years since 9/11 the United States government has sent an unknown number of individuals -- current estimates from human rights experts range from one hundred to several thousand -- to countries where they are at risk of torture.
In December 2003, two months after Arar's release, Muhammad al-Assad was eating dinner with his family in Dar es Salaam, Tanzania, he told AI, when armed men appeared at his door and demanded that he hand over his passport. Al-Assad was terrified and immediately moved to comply. According to his account, the unidentified men promptly hooded al-Assad, who is a citizen of Yemen, handcuffed him, and stuffed him into a car. They drove him to an apartment, where they questioned him about his passport. "I was very, very frightened, and kept asking what was happening to me," he said.
After four hours, they forced him onto a plane that took off in the night. When the plane landed, he was brought to another cell, still hooded and shackled. He said, "I was so afraid that I couldn't move, so I stood very still there for a very long time until finally someone looked in and shouted in Arabic, 'Sit down!'" A man and a woman who identified themselves as FBI agents questioned al-Assad; behind them hung a picture of the President of Djibouti. These were the only clues he had about who was holding him and where he was. His interrogators questioned him about the fact that six years before, he had leased office space he owned in Tanzania to a Saudi charity named the Al-Haramain Islamic Foundation, a group the U.S. authorities suspected was linked to terrorist funding.
After two weeks al-Assad's captors forced him to board another plane to a cold locale, where he was housed in two dark, filthy detention centers. After about three months in this unknown location, al-Assad was transferred once more. This time, several unidentified men wearing all black carefully prepared him for the trip by dressing him in plastic underwear and blue overalls, and then shackling, hooding and handcuffing him before putting him on a waiting plane.
After several hours, the plane landed, and al-Assad was whisked by helicopter and car to a facility where he would spend the next 13 months, with no communication with the outside world. AI believes this detention center, which looked new, was a CIA "black site." During his time there, al-Assad saw no one other than his guards, interrogators and interpreters. The guards, dressed entirely in black, communicated with each other wordlessly, through hand signals -- descriptions that closely match the testimony of two other detainees held in secret detention, Salah Nasser Salim 'Ali and Muhammad Faraj Ahmed Bashmillah.
Under the Freedom of Information Act (FOIA), Amnesty International USA and the International Human Rights Clinic of New York University School of Law have jointly submitted requests to the Departments of Defense, Justice, State, Homeland Security and to the CIA for records concerning "disappeared" detainees, including "ghost" and unregistered detainees/prisoners -- individuals who were or are held by, or with the involvement of, the United States and about whom the United States has not provided public information. AI has intensively researched and reported on the practice of extraordinary rendition and the cases of individuals who have been the subjects of such practices. Despite the evidence, the U.S. government has not officially acknowledged the existence of such a program and refuses to discuss the matter. When the U.S. delegation was asked recently about this practice by the Committee Against Torture in Geneva, the delegation head replied, "No comment." These FOIA requests have been filed in an attempt to force government agencies to make public further information about these secretive practices. Amnesty International is represented by Wilmer Cutler Pickering Hale and Dorr LLP.
Although interrogators questioned al-Assad during the first several months of his imprisonment at this "black site," the questioning ended long before he was released. On May 5, 2005, al-Assad was -- for the last time -- put on a plane. This time, he landed in Yemen. At the request of U.S. officials, Yemeni authorities held him, as they ostensibly waited for information about his alleged crime. None was ever produced, so a prosecutor interviewed him, and al-Assad admitted to using a false passport. He spent nine months in Yemeni detention before a court charged him with procuring a forged travel document. He pled guilty, and the judge released him after finding that he had served sufficient time for this crime -- including time served in "prisons outside the country" in secret U.S. detention. After his release, al-Assad told AI that he would forge a new life: "It has to be a new life, because I will never recover the old one."
Unlike extraordinary rendition, secret detention does not have clear predecessors in U.S. intelligence history. Robust norms exist to proscribe secret detentions under international and regional human rights law. In the European, Inter-American, and United Nations human rights systems, a deep jurisprudence has developed against this practice -- more properly called enforced disappearance -- based on the lessons of Latin America's "dirty war." Although the rules against enforced disappearance are clear, human rights organizations believe the U.S. government has detained several dozen individuals in secret CIA-run "black sites." In Iraq, the United States has reportedly held "ghost detainees," prisoners whose names have apparently been taken off rolls to allow for secret interrogation.
On the basis of "intelligence" secretly shared among governments, individuals are abducted, forcibly transferred and held incommunicado. Because they do not have access to a court or tribunal, these detainees cannot challenge the information that triggered their treatment in the first place.
One of the most basic tenets of human rights law is that a person may not be deprived of his liberty except on the basis of evidence that he may contest. Similarly, detainees captured on a battlefield are entitled to a hearing if there is doubt about their status as combatants. This is partly to guard against erroneous detentions like those of Arar and al-Assad. By discarding such bedrock principles, the U.S. government threatens the entire edifice of human rights.
In February the lawsuit that Maher Arar filed against U.S. officials for his extraordinary rendition was dismissed. A few months later, a judge threw out a case filed by the ACLU challenging an erroneous secret detention by the United States. In both cases, federal judges reasoned that national security mandated dismissal. In effect, maintaining the secrecy of rights-trampling anti-terror programs was judged to be more important than upholding the human rights of those wrongly caught up. This reasoning may be subject to attack under the Supreme Court's June decision in Hamdan v. Rumsfeld. In the context of military tribunals, the Court held that detainees captured in the war on terror enjoy, at a minimum, the most basic rights guaranteed by the laws of war. What this will mean for rendition and disappearances may soon be determined: both suits are on appeal. Supreme Court Scraps Bush's Military Commissions: Congress to Set New Standards
The U.S. Supreme Court's June decision in Hamdan v. Rumsfeld declared that the Bush administration's military commissions violated domestic and international law. At this pivotal moment for human rights, Amnesty International is mounting a vigorous member letter campaign to urge Congress to bring all prisoners in Guantanamo and other locations to fair trial without further delay or release them with full protections. Now is the chance for policy makers to uphold the rule of law.
In its ruling, the Court determined that President Bush was not authorized to convene the commissions in the form that he did. After Sept. 11, 2001, President Bush issued an Executive Order establishing military commissions to try "enemy combatants." As envisioned by the president, the commissions fell far short of fair trial standards enshrined in U.S. and international law. President Bush declared that Common Article 3 of the Geneva Conventions, which establishes minimum standards of treatment for anyone involved in armed conflict situations, including humane treatment and a fair trial, did not apply to al-Qaeda or Taliban detainees captured in Afghanistan. The Hamdan ruling quashed this arbitrary use of presidential power, marking an important victory for fundamental human rights.
The ruling could be the first step in securing detainees' basic rights under international law. Yet even as Congress held July hearings on a system of justice for detainees, the Bush administration, unfazed by the Supreme Court's rebuke, urged Congress to codify practices that denied detainees some of the fair trial safeguards provided in courts martial or civilian courts.
Congress is now examining how to proceed in trying detainees at Guantanamo Bay and faces a clear choice: rubber-stamp the military commission system and continue to flout international law and opinion, or stand up for the rule of law and insist that suspects are prosecuted according to the standards enshrined in U.S. law.
Margaret Satterthwaite is faculty director of the Center for Human Rights and Global Justice at New York University School of Law, where she co-teaches the international human rights clinic. She serves on AIUSA's Board of Directors.