Renditions: Extraordinary, erroneous, ineffective?
Last Updated Feb. 5, 2007
To Canadians, Maher Arar is the most well-known example. Germans know about Khaled al-Masri and in Italy, it's Osama Mustfafa Hasan, also known as Abu Omar, who gets the headlines.
What all three have in common, aside from being Muslims, is extraordinary rendition. Each has been taken forcibly to another country, allegedly by U.S. intelligence, to be interrogated or tortured about allegations of involvement in international terrorism. Arar and al-Masri have been released and declared innocent. Abu Omar remains in prison in his native Egypt.
More than 150 men, almost all of Muslim or of Middle Eastern origin, have been subjected to extraordinary rendition since the attacks of Sept. 11, 2001, according to U.S. media reports.
Khaled al-Masri was subjected to 'extraordinary rendition' in 2004, spending five months in a cell at Bagram airforce base in Afghanistan. U.S. officials now admit that his detention was a case of mistaken identity. (Thomas Kienzle/Associated Press) But these three cases are provoking public outrage and official action by the home governments of the countries where the men live: Arar got an apology and compensation from Canada; German prosecutors have issued arrest warrants for 13 Americans suspected of involvement in the al-Masri case; judges in Milan are demanding that 26 alleged CIA agents testify in a preliminary hearing about Abu Omar's forced deportation.
Civil and legal rights campaigners say it's time for Washington to take a long, hard look at extraordinary rendition. Does it work? Is it worth the cost? Is information obtained from torture in third-country jails even accurate, let alone legally permissible?
There's even a new name for the controversial practise if it turns out that the victim is innocent: erroneous rendition.
From small beginnings
When the United States began its covert program of seizing foreign nationals and sending them to third countries, it was known simply as rendition. That was the 1990s when a man named Michael Scheurer ran the CIA's al-Qaeda desk.
"We wanted to find a way to get confirmed or convicted al-Qaeda fighters off the street," Scheurer said, "to places where they already had legal problems, a warrant, a conviction in absentia, so we took them to where their crimes could be adjudicated."
'Nobody wanted any surprises," retired CIA agent Michael Scheurer
CIA agents have no legal powers of arrest, Scheurer points out, and rendition had to be negotiated carefully with countries where suspects were picked up and those where they were handed over to the authorities. "Nobody wanted any surprises," says the now-retired covert agent.
Everything changed after 9/11. President George W. Bush declared war on terrorism, and vowed to bring America's enemies to justice. That meant sweeping new powers for U.S. intelligence agencies, including a new CIA program of "extraordinary rendition." The added element was the urgent U.S. need to know about the 9/11 plot and future threats to American soil. A scheme that began as a way to get al-Qaeda members "off the streets" became an exercise in extracting information from suspects, often using methods that wouldn't be allowed under United States law.
A 'catalogue of horrors'
Throughout 2002, Bush administration lawyers came up with a baffling array of definitions of permissible interrogation techniques, based on definitions of Afghanistan as a "failed state" and al-Qaeda and Taliban fighters as "illegal enemy combatants," not prisoners of war. Heavily criticized by human rights groups, this policy stopped short of the most brutal forms of physical and mental torture.
Extraordinary rendition didn't. Suspects picked up on Afghan battlefields, Pakistani madrassahs or, as in Maher Arar's case, at JFK airport in New York were sent to Jordan, Egypt, Syria and Bagram airbase outside Kabul. Interrogators weren't hindered by due process or by the American legal system. Suddenly, torture became possible. "It was a catalogue of horrors," said Anthony Romero of the American Civil Liberties Union, "you began to hear about outrages of every kind."
"It is simply unacceptable to torture someone to get information to prove his innocence." Mandred Gjindic, Khaled al-Masri lawyer
News emerged of so-called "black prisons" where the CIA held "ghost prisoners" whose identities were unknown. Eventually, as the Arar and al-Masri cases showed, evidence emerged that the U.S. had made some egregious errors of rendition. Al-Masri's German lawyer, Manfred Gnjidic, says the United States has admitted that his client was a victim of mistaken identity when he was picked up at the Serbia-Montenegro border in December 2003.
"Khaled al-Masri spent five months being questioned and abused in a jail cell in Bagram [Afghanistan]." Gjjidic said, "He was never charged with anything. It is simply unacceptable to torture someone to get information that proves his innocence. Someone gave the order to do that and they must pay the price for that decision."
Former Italian spy chief Nicolo Pollari appeared before judges in Milan to answer questions about the 'extraordinary rendition' of Abu Omar. Arrest warrants for 26 CIA and Italian agents have also been issued in the case. (Alessandra Tarantino/Associated Press) In Italy, even a former head of Italy's spy service is caught up in the Abu Omar case. Late last month, Nicolo Pollari was questioned by magistrates in Milan over his role in the abduction and rendition of the controversial Egyptian cleric, allegedly by the CIA and Italian intelligence. Omar was under investigation for links to al-Qaeda when he was seized in Milan and taken to his native Egypt in 2003, but he has never formally been charged with a crime.
Torture not just illegal
Critics of extraordinary rendition don't just want it abolished because it's illegal, and has subjected innocent men to unthinkable ordeals, but also question whether it works at all as a means of thwarting militant activities.
"Information obtained like that [from torture] is not something I'd look upon as valid," says Michael Scheuer, "especially when you're dealing with people like these [al-Qaeda militants]. They'll tell you anything that advances their cause, no matter what you do to them. They never stop fighting jihad."
In the pages of the U.S. media, a parade of retired intelligence and law enforcement officials are expressing similar opinions. Torture is not only illegal and immoral, but ineffective, they're saying. Any confessions or information obtained from torture are unreliable. It's difficult, if not impossible, to find favourable opinions of rugged interrogation techniques any more.
"You end up radicalizing the entire population," Tom Parker, former MI5 agent
Dan Coleman, a retired FBI agent who worked on many counter-terrorism cases, says traditional police work and due process produce more concrete results than flashy rendition programs and rough interrogation tactics. Speaking to Jane Mayer of The New Yorker, Coleman was scornful of former colleagues in the CIA who, he said, "seemed to think there were different rules" after Sept. 11, 2001."
Giving foreign terror suspects their rights under U.S. law actually made them more co-operative, in Coleman's experience. "The lawyers show these guys there's a way out. It's human nature, people don't co-operate with you unless they have some reason to."
Others agree. Tom Parker, a former British intelligence officer who teaches at Yale, said his country had learned hard lessons from its mistakes in Northern Ireland in the 1970s, when IRA suspects were subject to tough physical questioning. It didn't work, Parker said.
"The U.S. is doing what the British did, detaining people and violating their civil liberties. It did nothing but exacerbate the situation. You end up radicalizing the entire population."
Rendition's uncertain future
Faced with a wave of criticism and adverse international reaction, the U.S. administration appears to be distancing itself from extraordinary rendition. European governments have been embarrassed by the revelation, in a report last year by Swiss Senator Dick Marty, that many of them worked closely with Washington in rendition cases. That co-operation will be much more difficult in future.
The warrants for CIA suspects in Germany and Italy probably won't result in arrests or charges, sources close to the two investigations say, but revelations in court about rendition will add to public pressure for more checks and balances on a discredited practise.
Arar and al-Masri are both considering new lawsuits to seek redress for their ordeals. U.S. courts have rejected attempts by both to sue the government and the CIA but lawyers are planning appeals and fresh submissions. The very due process that extraordinary rendition ignored may just prove its undoing.