The House passed the 9/11 Commission bill yesterday on 282-134 vote, but not before they amended the torture outsourcing provision.
To read the NY Times, you'd think we'd won:
House leaders did agree to amend wording that would have allowed the government to deport foreign terror suspects to countries where they could face torture. The amendment, proposed by Representative John Hostettler, Republican of Indiana, would allow the Department of Homeland Security to detain the suspects but would bar deportation until after the State Department had sought assurances that they would not be harmed. "It will protect the American people from dangerous aliens while continuing our nation's proud history of providing refuge for the innocent," Mr. Hostettler said.
One problem: the State Department already seeks those assurances. In practice, they provide no protection at all against torture.
We got assurances from Syria that Maher Arar would not be tortured. But he alleges that:
The next day I was taken upstairs again. The beating started that day and was very intense for a week, and then less intense for another week. That second and the third days were the worst. I could hear other prisoners being tortured, and screaming and screaming.
Interrogations are carried out in different rooms. One tactic they use is to question prisoners for two hours, and then put them in a waiting room, so they can hear the others screaming, and then bring them back to continue the interrogation.
The cable is a black electrical cable, about two inches thick. They hit me with it everywhere on my body. They mostly aimed for my palms, but sometimes missed and hit my wrists. They were sore and red for three weeks. They also struck me on my hips, and lower back. Interrogators constantly threatened me with the metal chair, tire and electric shocks.
The tire is used to restrain prisoners while they torture them with beating on the sole of their feet. I guess I was lucky, because they put me in the tire, but only as a threat. I was not beaten while in tire. They used the cable on the second and third day, and after that mostly beat me with their hands, hitting me in the stomach and on the back of my neck, and slapping me on the face. Where they hit me with the cables, my skin turned blue for two or three weeks, but there was no bleeding. At the end of the day they told me tomorrow would be worse. So I could not sleep.
Then on the third day, the interrogation lasted about 18 hours. They beat me from time to time and make me wait in the waiting room for one to two hours before resuming the interrogation. While in the waiting room I heard a lot of people screaming. They wanted me to say I went to Afghanistan. This was a surprise to me. They had not asked about this in the United States.
They kept beating me so I had to falsely confess and told them I did go to Afghanistan. I was ready to confess to anything if it would stop the torture. They wanted me to say I went to a training camp. I was so scared I urinated on myself twice. The beating was less severe each of the following days.
Human rights groups reported on Arar's torture before he was released. His descriptions are entirely consistent with other prisoners' and human rights' groups description of what goes on in Syrian prisons. Off the record U.S. officials admit that Arar was tortured. On November 15, 2003, the New York Times reported that "American officials who spoke on condition of anonymity...say [Arar] confessed under torture in Syria that he had gone to Afghanistan for terrorist training, named his instructors and gave other intimate details."
But on less than a week later, Ashcroft was still saying it trusted that Syria had not tortured Arar: "I note the statement by the Syrian embassy ... regarding the treatment of Mr. Arar," Ashcroft said, "as that statement is fully consistent with the assurances that the United States government received prior to the removal of Mr. Arar," he told the Toronto Star. (The article was published on November 21, 2003, p. A13).
Again, it is not only Arar. Sweden received "diplomatic assurances" from Egypt that Ahmed Agiza and Muhamad al-Zery were tortured, and then proceeded to ignore their and cover up their allegations of torture.
According to the Washington Post,
In a report made public shortly afterward, Sven Linder, the Swedish ambassador to Egypt, wrote that Agiza and Zery told him they had been treated "excellently" in prison and that to him "they seemed well-nourished and showed no external signs of physical abuse or such things."
Another section of the ambassador's report that remained classified until recently, however, offered a different appraisal. It noted that Agiza had complained that he was subjected to "excessive brutality" by the Swedish security police when he was seized and that he was repeatedly beaten in Egyptian prisons.
According to the Swedish TV show Kalla Fakta:
Kalla Fakta has taken part of original documents which support the testimonies, and which prove that the two men have been systematically tortured, with electricity, blows and kicks.
On at least four occasions, Swedish authorities have received information through different channels from the men about what they have been subjected to.
A full Human Rights Watch report on the worthlessness of diplomatic assurances not to torture is available here.
Now, we do this already. But to my knowledge this is the first time it's gotten Congressional recognition--and since Congressional statutes can override treaties, and agency decisions and regulations cannot, this is a problem. (I think there is a plausible interpretation of this bill that does not get the Homeland Security completely off the hook and around the Torture Convention as long as Syria or Egypt says "we promise (wink) not to torture (nudge) this suspect." But it definitely gives them more legal cover to do what they want.)
The Hostettler amendment also allows indefinite detention of suspected terrorists at the Homeland Security Secretary's discretion. Tom Ridge would have to look over the file every six months and say "yep, I still think he's a terrorist", but that's it--no executive evidentiary hearing, let alone judicial review. Now, I certainly don't want terrorists allowed to walk free, I do think suspects are much better off being detained and interrogated in the United States than in Syria or Egypt, but if you think abuses can't happen here when you detain people indefinitely at the discretion of the executive, think again.
Finally, the Hostettler amendment does nothing to Section 3033, which allows the Homeland Security secretary almost complete discretion to deport a suspect to any country in the world. This will be very useful in future extraordinary renditions.
So it could have been worse, but despite what you may read in the clueless New York Times, it's quite bad enough.
UDPATE 2: in answer to constant reader Nell Lancaster's question in comments: Bush's official Statement of Administration Policy on H.R. 10. It states that "the administration supports passage of H.R. 10." It opposes the original version of 3032, but does so in language indicating support of the Hostettler amendment. (The SAP amendment came out before the Hostettler amendment). It says nothing about section 3033.