Global Policy Forum

By William Fisher*

The debate over whether the United States can legally torture terrorism suspects will soon move from the Senate—where a flawed compromise has been reached—to the House. In this debate, the tragic case of Maher Arar should be Exhibit A. The American mainstream press has front-paged the exoneration of Maher Arar, the Canadian citizen who was flown to Syria, imprisoned in a coffin-size cell and tortured for 10 months until the Syrians released him without charges. But headlines such as the one topping a New York Times editorial last week—"Tortured by Mistake"—are missing some larger points.

Most media accounts of Arar's ordeal have attributed this travesty to faulty intelligence passed to U.S. authorities by the Royal Canadian Mounted Police, the RCMP. The Mounties characterized the now 37-year-old engineer as "an Islamic extremist individual," and placed him—and his entire family, including a six-month-old infant—on a U.S. al-Qaida no-fly watchlist.

Arar was detained by U.S. authorities at JFK International Airport in New York in 2002 after returning from a trip to Tunisia en route to his home in Ottowa. He was questioned for 12 days without access to counsel, and then flown on a U.S. government plane to Jordan, and finally overland to Syria. Indeed, the Canadian information was grossly incorrect. The chairman of the two-and-a-half-year investigation, Ontario Justice Dennis O'Connor, concluded that "categorically there is no evidence" that Arar did anything wrong or was a security threat.

The first point being missed is whether U.S. intelligence agencies made any effort to verify the Canadian information, or merely accepted the word of a trusted neighbor. We will probably never know the answer, because the CIA and the FBI aren't likely to ever tell us.

The second is whether the U.S. government sought the customary—and customarily useless, to be sure—"diplomatic assurances" from the Syrians that they would not torture their detainee. The U.S. State Department has been following this absurd protocol for years, receiving such assurances from some of the world's most pernicious purveyors of torture. Again, we will probably never know because State has from the outset declined to cooperate with the Canadian inquiry. In fact, the State Department has consistently refused to utter a single word of comment on the case. And, until last week, all other government officials were similarly silent.

Some time ago, we heard from Attorney General Alberto Gonzales, who said, "Mr. Arar was deported under immigration laws. He was initially detained because his name appeared on a terrorist list. He was deported according to our laws." Gonzales said that Arar's removal was "a deportation, not a rendition." But last week came a contradictory and bumbling statement from the attorney general. Gonzales denied Canadian findings that the U.S. was responsible for deporting an innocent man. At a news conference about the Canadian commission, Gonzales replied, "Well, we were not responsible for his removal to Syria." He added, "I'm not aware that he was tortured."

The attorney general's denial followed front-page news articles of the findings of the Canadian commission, which reported that American officials ordered him taken to Syria. Shortly afterward, a Justice Department spokesman attempted to clarify the AG's remarks, saying Gonzales had intended to make only a narrow point: that deportations are now handled by the Department of Homeland Security, not the Department of Justice. The spokesman said the attorney general forgot that at the time of Arar's deportation, deportation was still handled by the Immigration and Naturalization Service, then part of the Department of Justice. "He had his timeline mixed up."

He also declined to elaborate on why Gonzales appeared to cast doubt on the Canadian finding that Arar had been tortured, except to note that Arar had brought a lawsuit against United States officials. The case was dismissed by a lower court after the DOJ invoked the so-called "state secrets" privilege. The "state secrets" maneuver was rarely used before the Bush presidency. Since then, The state secrets privilege has become standard practice for government lawyers, who argue to a judge that if the case were to go forward, or if certain evidence were to be presented, it would expose national security secrets in open court.

In addition to the dismissal of Arar's suit, which he is now appealing, the "state secrets" privilege was used against a German citizen, Khaled al-Masri, who was kidnapped by the CIA in Macedonia and taken to Afghanistan, where he was imprisoned incommunicado for five months. Al-Masri sued former CIA director George Tenet, but his case was dismissed on the basis of "state secrets." The U.S. government never admitted its "mistake."

The third point missing from the mainstream coverage of Arar's case is the entire issue of rendition itself. Arar was spirited off to Syria under a CIA program known as "extraordinary rendition." Authorized by a secret "finding" by President Clinton in 1995, and exponentially accelerated after the 9/11 attacks, this program was illegal before Arar's kidnapping, was illegal after it and it remains illegal. It is illegal because it violates U.S. and international law.

The U.S. was one of the original signatories to the Geneva Conventions, of which the now much-discussed Common Article 3 is a part. The U.N.'s International Covenant on Civil and Political Rights (ICCPR) was ratified by the U.S. in 1992. Two years later, the U.S. ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Thus, all have become part of U.S. law, as are all treaties ratified by Congress. The Supreme Court's recent ruling on Hamdan reaffirmed this.

All of these treaties prohibit inhumane treatment. Without doubt, this would include transfer of a person to a country either for the purpose inflicting inhumane treatment, or with the knowledge that such treatment is distinctly possible. And both the ICCPR and the CAT specifically prohibit "refoulement"—the transfer of persons to countries where they may be tortured. Yet, since 9/11, the number of renditions appears to be in the hundreds.

Egypt's Prime Minister Ahmed Nazif noted in 2005 that the U.S. had transferred some 60 to 70 detainees to Egypt alone, and a former CIA agent with experience in the region believes that hundreds of detainees have been sent by the U.S. to prisons in Jordan, Saudi Arabia, and elsewhere in North Africa and the Middle East.

The U.S. has used the "diplomatic assurances" fig leaf to continue this program. And Congress has largely turned a blind eye. It has failed to exercise anything approaching its oversight responsibilities where intelligence agencies are concerned. Congressional hearings offering public testimony by CIA officials are extremely rare. And what the House and Senate Intelligence Committees learn in closed session remains largely secret—unless leaked to the media. This gives Congress a perfect cover for doing nothing.

A few legislators have tried to deal with the issue, with mixed success. A Massachusetts congressman, Edward Markey, introduced legislation last year to ban extraordinary renditions. A companion bill in the Senate—the Convention Against Torture Implementation Act—has been introduced by Sen. Patrick Leahy, a Democrat from Vermont and ranking member of the Senate Judiciary Committee. Like Markey's, the Leahy bill would require annual reporting of countries that engage in torture, and prohibit the U.S. government from transferring or rendering a detainee to a country that has a history of torture. But it is unlikely these bills will ever come to a vote in either chamber.

The compromise bill agreed on by the White House and the famous "Republican rebels"—Senators McCain, Lindsey Graham, John Warner, Susan Collins, Olympia Snowe and others—fails to mention extraordinary rendition explicitly. But unless Congress decides to abrogate the Geneva Conventions and kindred treaties altogether, rendition itself would constitute a clear violation.

There is a strong case to be made that the techniques known to be used by the CIA in carrying out extraordinary renditions constitute cruel, degrading and inhumane treatment—before the suspects themselves ever reach their destination prisons. We know from eyewitness testimony and various leaks to the media that typically masked CIA operatives forcibly abduct a suspect, strip him, insert a suppository into his anus to drug him, put a diaper on him and then put him aboard a CIA-chartered aircraft, where he is placed in a standing position against a bulkhead with his wrists handcuffed above his head. He remains in that position until the plane lands.

That's what reportedly happened to two Egyptians, who were free in Sweden awaiting a decision on their asylum application. They were kidnapped, flown back to Egypt, arrested by security services, and tried before a military court. The take-offs, landings and flights of various CIA-leased aircraft over airspace in Europe and elsewhere have been meticulously documented, causing major disruptions in U.S. relations with the European Union and other bodies.

Months after Dana Priest of the Washington Post broke the story of secret CIA prisons in Eastern Europe and elsewhere, and after the Supreme Court handed down its Hamdan decision, President Bush announced that these prisons would now be emptied and their occupants transferred to Guantanamo Bay, Cuba. Thus, he implicitly acknowledged that the U.S. had used extraordinary renditions to transport detainees to these secret prisons—and he promised that we would do so again in the future.

There is only one reason prisoners are whisked off to other countries: To allow the CIA to use what President Bush euphemistically calls "alternative interrogation" methods outside the reach of U.S. law. But neither the CIA secret prisons nor Guantanamo Bay are outside the reach of U.S. law. The test is whether these people are effectively in U.S. custody or under U.S. control. The Supreme Court has said they are.

Which won't help Maher Arar. The damage to his life cannot be undone. But an acknowledgement by the U.S. of its role in his ordeal, apologies from both Canada and America, and payment of damages, would be reasonable places to begin.

But at the end of the day, it will be up to Congress not just to enact effective and fair legislation, but to begin to exercise the oversight responsibilities it has so recklessly ceded to the White House.

About the Author: William Fisher has managed economic development programs in the Middle East, Africa, Latin America and Asia for the U.S. State Department and the U.S. Agency for International Development. He served in the international affairs area in the administration of President John F. Kennedy.