Ordinary Rendition

(an update on the Arar case and related "renditions", since this is my last week in some time with a web connection of my own.)

Dana Priest of the Washington Post continues to be the best U.S. reporter on this subject. Here's her latest, (co-authored by Joe Stephens, at a link that does not require registration. Excerpts:

None of the arrangements that permit U.S. personnel to kidnap, transport, interrogate and hold foreigners are ad hoc or unauthorized, including the so-called renderings. "People tend to regard it as an extra-judicial kidnapping; it's not," former CIA officer Peter Probst said. "There is a long history of this. It has been done for decades. It's absolutely legal."

("Absolutely legal" is debatable, at best, under the Torture Convention and its implementing legislation in the United States. I have vague plans to do a paper on this next year, but I will probably have to make it boring and law-school-y if I want to use it to fulfill my school's requirements. But "approved by the Justice Department and the President" is true. )

In fact, every aspect of this new universe -- including maintenance of covert airlines to fly prisoners from place to place, interrogation rules and the legal justification for holding foreigners without due process afforded most U.S. citizens -- has been developed by military or CIA lawyers, vetted by Justice Department's Office of Legal Counsel and, depending on the particular issue, approved by White House General Counsel's Office or the president himself.

Much larger than the group of prisoners held by the CIA are those who have been captured and transported around the world by the CIA and other agencies of the U.S. government for interrogation by foreign intelligence services. This transnational transfer of people is a key tactic in U.S. counterterrorism operations on five continents, one that often raises the ire of foreign publics when individual cases come to light.

For example, on Jan. 17, 2000, a few hours before Bosnia's Human Rights Chamber was to order the release of five Algerians and a Yemeni for lack of evidence, Bosnian police handed them over to U.S. authorities who flew them to Guantanamo Bay.

The Bosnian government, faced with public outcry, said it would compensate the families of the men, who were suspected of having made threats to the U.S. and British embassies in Bosnia.

The same month, in Indonesia, Muhammad Saad Iqbal Madni, suspected of helping Richard C. Reid, the Briton charged with trying to detonate explosives in his shoe on an American Airlines flight, was detained by Indonesian intelligence agents based on information the CIA provided them. On Jan. 11, without a court hearing or a lawyer, he was hustled aboard an unmarked U.S.-registered Gulfstream V jet parked at a military airport in Jakarta and flown to Egypt.

It was no coincidence Madni ended up in Egypt. Egypt, Morocco, Jordan and Saudi Arabia are well-known destinations for suspected terrorists.

"A lot of people they (the U.S.) are taking to Jordan, third-country nationals," a senior Saudi official said. "They can do anything they want with them, and the U.S. can say, 'We don't have them.' "

CIA Director George J. Tenet, testifying earlier this year before the commission investigating the Sept. 11 attacks, said the agency participated in more than 70 renditions in the years before the attacks. In 1999 and 2000 alone, congressional testimony shows, the CIA and FBI participated in two dozen renditions.

Christopher Kojm, a former State Department intelligence official and a staff member of the commission, explained the rendition procedure at a recent hearing: "If a terrorist suspect is outside of the United States, the CIA helps to catch and send him to the United States or a third country," he testified. "Though the FBI is often part of the process, the CIA is usually the main player, building and defining the relationships with the foreign government intelligence agencies and internal security services."

Newsweek wrote a story about this too, which contains this excerpt:

The administration also began "rendering"—or delivering terror suspects to foreign governments for interrogation. Why? At a classified briefing for senators not long after 9/11, CIA Director George Tenet was asked whether Washington was going to get governments known for their brutality to turn over Qaeda suspects to the United States. Congressional sources told NEWSWEEK that Tenet suggested it might be better sometimes for such suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation methods. By 2004, the United States was running a covert charter airline moving CIA prisoners from one secret facility to another, sources say. The reason? It was judged impolitic (and too traceable) to use the U.S. Air Force.

There is also a NY Times story that describes some of the DOJ's advice on these matters:

Another memorandum from the Justice Department advises officials to create a situation in which they could plausibly claim that abused prisoners were never in United States custody.

That memorandum, whose existence was acknowledged by two former officials, noted that it would be hard to ward off an allegation of torture or inhuman treatment if the prisoner had been transferred to another country from American custody. International law prohibits the "rendition" of prisoners to countries if the possibility of mistreatment can be anticipated.

The former officials said that memorandum was explicit in advising that if someone were involved in interrogating detainees in a manner that could cross the line into torture or other prohibited treatment, that person could claim immunity only if he or she contended that the prisoner was never in United States custody.

How they decided a U.S.-registered and CIA staffed Gulfstream jet did not count as United States custody, I don't precisely know.

How they decided in the Arar case that JFK airport, a Brooklyn detention center, a car ride to Newark airport, a small plane to Washington, and a jet to Jordan, all staffed by U.S. officials, did not count as U.S. custody, I understand still less. Maybe they did not follow the memo's advice; maybe they found a way to convince themselves that accepting Syria's "assurances" brought them into compliance with the torture convention. Or perhaps they just thought they could keep all this classified, and no one would ever find out.

They were wrong about that last one, but not so far wrong. Unless my googling skills have failed me, the White House still has never been asked about extraordinary rendition, or what happened to Maher Arar. After all, there are no pictures.

Comments

[Jesurgislac]

Bisher al-Rawi and Jamil al-Banna, legal residents of the UK, were arrested in the Gambia, November 2002, detained for a month by the local police, handed over to US agents and flown to Bagram Airbase in December 2002, detained in Afghanistan for three or four months until their were flown to Guantanamo Bay in March 2003. cite

They are still being held in Guantanamo Bay, claimed to be "enemy combatants", and though they have been in US custody for nearly 18 months, no charge has been brought against either of them, and their families have not been notified what they are accused of. (Beyond, that is, "flying while Muslim.") Shamefully, the UK government appears not to be pressing for their release, because they are not British nationals: the UK claims that only their country of birth can assist them. (This may be an example of "dry British wit": Bisher al-Rawi is an Iraqi refugee.)

It's hard to see how any of this could possibly be legal. The US government is getting away with kidnapping "suspects" and holding them without charge because it can - neither more nor less.

[Jane Austen]

Katherine,

Kerry's blog seems rather accepting of posts from any supporter. I posted my piece highly critical of Kerry's New York non-campaign. Why don't you start posting your Maher Arar commentary there? If you prefer, I will post relevant messages from your blog there. I don't mind pretending I am Katherine R:)

Jane