Outsourcing A Real Nasty Job
Shipping terrorism suspects overseas for some tough questioning may make sense. But is it legal?
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.
John Yoo, a former deputy assistant attorney general and author of several of the interrogation memos, now teaches at the University of California-Berkeley law school. In a law review article on renditions published last year, Yoo employed precisely this reasoning. The September 11 attacks, he wrote, "triggered the President's authority as Commander in Chief and the United States' rights under international law to transfer custody of enemy prisoners to other nations."
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."
Promises, promises. The administration says it is in compliance with the convention because of its practice of seeking diplomatic promises that suspects sent abroad won't be tortured. "We seek assurances," said President Bush, who has declared that torture is never acceptable, "that nobody will be tortured when we render a person back to their home country."
Assurances may have value, but even Attorney General Alberto Gonzales has acknowledged that Washington "can't fully control" what happens to detainees transferred abroad for interrogation. CIA Director Porter Goss agreed, testifying earlier this year that once a terror suspect is out of American control, "there's only so much we can do."
That may be true for some of the countries to which terrorism suspects have been rendered since 9/11, including Uzbekistan, Syria, and Egypt. The State Department has reported patterns of torture and abuse of prisoners in all three places. "Governments that engage in torture," said Kenneth Roth, executive director of Human Rights Watch, "always try to hide what they're doing, so their 'assurances' on torture can never be trusted."
Senate Democrats have called for a formal review of the rendition program. But Republicans on the intelligence committee say that's unnecessary because the CIA's inspector general is investigating the matter.
With so many thorny issues, many legal experts believe the issue will wind up before the Supreme Court. "This will be a long-term struggle," says Kim Lane Scheppele, who teaches constitutional and national security law at the University of Pennsylvania. "And these issues will be the big issues of our time."
Those who practice before the high court make a habit of never predicting how it will rule. Still, there are some clues. Last June, the court rejected the Bush administration's core legal argument of executive authority, saying that Americans detained as "enemy combatants" can challenge their detentions before a neutral judge while granting non-Americans held at the Pentagon's prison camp at Guantanamo Bay, Cuba, the right to contest their incarceration in U.S. courts. "A state of war," wrote Justice Sandra Day O'Connor, "is not a blank check for the president . . . ."
All Aboard: Interrogation Express
No one knows how many terror suspects the United States has rendered to foreign governments, but the total is believed to be about several hundred. Terror suspects say they have been rendered to Egypt, Jordan, Syria, Uzbekistan, and Afghanistan, where they allege that they were tortured as part being interrogated. The U.S. State Department reports patterns of torture in each of these countries.
Maher Arar's route
1.Detained in the United States for 13 days, then sent to Jordan
2.Driven to Syria and detained, interrogated, and allegedly tortured for 12 months
3.Syria eventually releases him without charges. He now lives freely in Canada.
Countries where the United States has allegedly sent terror suspects for interrogation. (Quotes from U.S. State Dept.)
Egypt: "Security forces continued to mistreat and torture prisoners, arbitrarily arrest and detain persons,...."
Jordan: "The most frequently reported methods of torture included beating, sleep deprivation, extended solitary confinement, and physical suspension."
Syria: "Serious abuses included the use of torture in detention, which at times resulted in death."
Uzbekistan: "Police and the National Security Service routinely tortured, beat, and otherwise mistreated detainees to obtain confessions or incriminating information."
Afghanistan: "Security forces and police committed extrajudicial killings, and officials used torture in prisons."
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Graphic by Rob Cady-- USN&WR
This story appears in the May 23, 2005 print edition of U.S. News & World Report.