Obsidian Wings

Possible Good News

by hilzoy

From the Center for Constitutional Rights (h/t Anderson):

"The Second Circuit Court of Appeals issued an extremely rare order that the case of Canadian rendition victim Maher Arar would be heard en banc by all of the active judges on the Second Circuit on December 9, 2008. For the court to issue the order sua sponte, that is, of its own accord without either party submitting papers requesting a rehearing, is even more rare. (...)

The Center for Constitutional Rights (CCR) case seeks to hold accountable the high level administration officials responsible for sending Maher Arar to be tortured and interrogated in Syria for a year – a practice known as an extraordinary rendition. Based on faulty information, Mr. Arar was detained as he was changing planes at JFK airport on his way home to Canada from a family vacation. A Canadian citizen, he pled with officials not to send him to Syria, the country of his birth, because he would be tortured there.

After nearly two weeks in New York, with access to counsel and the court obstructed, he was flown to Jordan on a chartered jet in the middle of the night and taken by land to Syria. Mr. Arar was tortured, interrogated and kept in a 3x6x7-foot underground cell for a year until the Syrian government, finding no connections to terrorism, released him home to Canada.

CCR originally filed the case in the Eastern District of New York in January 2004; the first ruling, in February 2006, dismissed the case on the grounds that allowing it to proceed would harm national security and foreign relations. CCR appealed the decision, arguing before a three-judge panel in November 2007, but the Court of Appeals issued a 2-1 decision in June 2008 along similar lines."

What this means is: a panel composed of three judges on the Second Circuit ruled against Maher Arar in June. The entire Second Circuit Court has just issued an order saying: wait, we want to rehear this case -- all of us, not just a panel of three. It's unlikely that they would have done that if they didn't disagree with the panel in some way, and still more unlikely that they would have decided to rehear the case without waiting to be asked, as they did here.

This could be very good news. I hope so: it just should not be possible for our government to kidnap someone, ship him off to Syria knowing that he will be tortured, and then have no one be in any way accountable.

Arar update

by Katherine

Maher Arar remains, officially, too dangerous to fly over U.S. air space.

U.S. officials won't say what the sources of information against him are. I have a guess as to some of them. I've posted it before, but it's not widely known enough, so here's one more vain effort.

"They told him yes, he could invent a story"

by Katherine

Von notes below that Syrian intelligence forces beat Maher Arar into falsely confessing that he had received terrorist training in Afghanistan. It's actually worse than that. Arar wasn't just tortured into a false confession in a Syrian prison. He also seems to have been sent to be tortured in Palestine Branch partly because of false confessions that two other Canadian citizens made under torture in the same prison.

Their names are Ahmad Abou El-Maati and Abdullah Almalki. Unlike Arar, they both traveled to Syria voluntarily. El-Maati flew to Damascus for an arranged marriage in November 2001. Almalki went there to visit relatives in May 2002. Both were arrested by Syrian intelligence forces when they arrived at the Damascus airport, and taken to a prison called the Palestine Branch. Both have since been released, returned to Canada, and given detailed chronologies of their experiences in Syria to their lawyers. (Here is a PDF of El-Maati's chronology; here is a PDF of Almalki's).

Maher Arar's Case Dismissed

by hilzoy

Maher Arar's case has been dismissed. You can read Katherine's summary of the case here, a press release from Arar's attorneys here, and the decision itself here (pdf).

I've read the decision, but do not feel competent to address the legal issues it raises. (Most of them involve things like jurisdiction and standing.) However, there is one point on which I disagree strongly with the Court. Apparently, one of the counts could have proceeded had the Court not found that the national security questions it raises require that it be deferred to Congress or the executive. The courts, according to the decision, lack the foreign policy expertise to decide such questions, and therefore they should be left to the "political branches" of the government.

I think this is just wrong. Article VI of the Constitution states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby". We have entered into the Convention Against Torture. Article III of that Convention states that "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." There are very substantial grounds for believing that someone rendered to Syria, as Arar was, would be tortured, even leaving aside the possibility that we asked the Syrians to torture him. We have therefore violated one of those treaties which are, according to the Constitution, the law of the land.

This means that the extradition of Maher Arar is a violation of the law. It may also have foreign policy implications, but it does not thereby cease to be a violation of the law. And while conducting foreign policy may not fall within normal judicial expertise, reading laws, and determining whether the facts in evidence warrant conviction under them, is exactly what judges do. If determining when conduct violates a law and when it does not does not fall within their purview, I have no idea why on earth we bother to have them.

Moreover, while the Court argues that Congress has not addressed the issue of extraordinary rendition, I would have thought that it did so by ratifying the Convention Against Torture, thereby making it the law of the land.

The only way I can see of holding that Maher Arar's detention should not be justiciable is to say that when something is both (a) a violation of law and (b) significant for foreign policy, its foreign policy significance should trump its illegality. But this would be crazy. Do we really want to say that whenever foreign policy is in any way involved, our laws cease to apply? That whatever our officials do that relates to foreign policy is therefore immune to legal scrutiny? I don't.

The Court also makes much of various prudential arguments against the courts' considering issues that bear on foreign policy. But there are, I think, compelling prudential arguments on the other side as well. For one thing, treaties are not just vague gestures in the general direction of an intention; they are legally binding documents, and should be treated as such. When a treaty specifically outlaws certain forms of conduct, and our government engages in them anyways, our word as a nation is at stake. It would be nice to think that no administration would ever choose to ignore treaties, but Maher Arar's case is itself evidence that sometimes they do.

If there is no way of holding officials accountable under treaties (which almost by definition involve "foreign policy considerations"), then nothing prevents administrations from treating treaties as worthless scraps of paper. There are, it seems to me, very strong prudential arguments against allowing this to happen. And the courts would not be intruding where they do not belong: as I've said, according to the Constitution, treaties are law, and so in adopting a treaty, the Congress is making the conduct they preclude the courts' business.

That someone on a stopover in an airport can be detained by our government, sent to Syria to be tortured, held for ten months, and be left without any legal recourse is unconscionable. Coming just after the Abu Ghraib photos, it leaves me speechless.

Not So Extraordinary After All

by Katherine

It was almost two years ago that I asked the question, "How Extraordinary is Extraordinary Rendition?"; whether what was unusual about the U.S. sending Maher Arar to be tortured in Syria without any real evidence that he was a terrorist was that it happened, or that we knew about it. The answer seems to be "that we knew about it." As Hilzoy noted below, the Washington Post reported Sunday that the CIA is investigating up to 36 "erroneous renditions".

So. Who are these men? We know of at least two: Maher Arar and Khaled el-Masri (whose case is decribed in the Post article). Who else?

I don’t know what standard they use to declare a rendition erroneous—whether the suspect needs to affirmatively show innocence, or merely that he does not produce "actionable intelligence" and there is no evidence against him other than his own or someone else's confessions under torture. There are also many cases where I have no real idea about the suspect’s guilt or innocence. So the CIA could be including some of the other renditions that have been publicly reported in that total.

But I have followed this subject very closely, and I definitely do not know about three dozen renditions that a CIA officer would be likely to describe as "erroneous." Nowhere even close to that.

And where are these men? It is possible that some of them were released, but neither they nor their family has ever spoken to the press or a human rights organization. In the cases that we do know of, there is often a fairly long delay between the suspect’s release & his speaking to the press or the public, so it is possible that some may choose never to do this at all. Perhaps that is even a condition of their release from custody. But does that describe 25 or 30 of them? I doubt it. I really doubt it.

Of the 20-odd renditions that I do know of, a very small number of people have been freed: Maher Arar, Mamdouh Habib and Khaled el-Masri. That’s it. Muhammad al-Zery was reportedly released from an Egyptian prison but remains under surveillance and cannot leave the country or speak freely about what happened to him. The rest remain in prison—whether it’s Guantanamo, some CIA detention site, or foreign custody. We know from reading Priest’s description of el-Masri’s case that the discovery of a suspect’s innocence does not necessarily immediately lead to his release. And Khaled el-Masri is a German citizen. Mamdouh Habib is Australian. Maher Arar is Canadian. It is not a coincidence that the men released are citizens of wealthy, Western democracies that are U.S. allies.

Based on all of this, I would guess that most of the thirty-odd prisoners who were “erroneously rendered” are still in prison somewhere. I would also guess that some of them are still being subjected to torture right now.

But this won’t end when they stop being tortured, or when they are released from prison. Not for them.

Still Not Surprised

by hilzoy

From Newsweek:

"An FBI agent warned superiors in a memo three years ago that U.S. officials who discussed plans to ship terror suspects to foreign nations that practice torture could be prosecuted for conspiring to violate U.S. law, according to a copy of the memo obtained by NEWSWEEK. (...)

In a memo forwarded to a senior FBI lawyer on Nov. 27, 2002, a supervisory special agent from the bureau's behavioral analysis unit offered a legal analysis of interrogation techniques that had been approved by Pentagon officials for use against a high-value Qaeda detainee. After objecting to techniques such as exploiting "phobias" like "the fear of dogs" or dripping water "to induce the misperception of drowning," the agent discussed a plan to send the detainee to Jordan, Egypt or an unspecified third country for interrogation. "In as much as the intent of this category is to utilize, outside the U.S., interrogation techniques which would violate [U.S. law] if committed in the U.S., it is a per se violation of the U.S. Torture Statute," the agent wrote. "Discussing any plan which includes this category could be seen as a con-spiracy to violate [the Torture Statute]" and "would inculpate" everyone involved.

A senior FBI official, who asked not to be identified because the issue is sensitive, said the memo was not an official bureau legal conclusion. (...) But another senior U.S. law-enforcement official familiar with the memo, who also asked not to be identified, said the memo reflects concerns among many agents and lawyers about "rendition." Intel officials estimate that more than 100 terror suspects have been rendered to foreign countries by the CIA under a classified directive signed by President George W. Bush after 9/11."

No surprises here either, although the extent to which this administration seems to have been determined to disregard the advice of anyone who disagrees with them is, as always, mind-boggling. But mind-boggling things are not necessarily surprising, these days.

Torture: Making Things Clear

by hilzoy

In the course of a somewhat frustrating NYTimes article on what he calls 'Torture Lite', Joseph Lelyveld writes this:

"It has been more than a year now since we (and, of course, the region in which we presume to be crusading for freedom) were shown a selection of snapshots from Abu Ghraib with their depraved staging of hooded figures, snarling dogs and stacked naked bodies. For all the genuine outrage in predictable places over what was soon being called a ''torture scandal'' -- in legal forums, editorial pages, letters columns -- the usual democratic cleansing cycle never really got going. However strong the outcry, it wasn't enough to yield political results in the form of a determined Congressional investigation, let alone an independent commission of inquiry; the Pentagon's own inquiries, which exonerated its civilian and political leadership, told us a good deal more than most Americans, so it would appear, felt they needed to know. Members of Congress say they receive a negligible number of letters and calls about the revelations that keep coming. ''You asked whether they want it clear or want it blurry,'' Senator Susan Collins, a Maine Republican, said to me about the reaction of her constituents to the torture allegations that alarm her. ''I think they want it blurry.'' "

"Wanting it clear" means wanting an honest, open debate about what we want interrogators to do in our name. In the course of that debate, those who favor torture would have a chance to make their case. Is it useful in interrogations? Do ticking time bomb scenarios actually occur, and if so, how often? How much actionable intelligence have our "stress positions" and our "Fear Up Harsh" and "Pride and Ego Down" tactics actually yielded? Those who oppose torture would have a chance to ask: do these benefits, if they exist, outweigh the dangers of adopting a policy that seems to invite abuse? Do they create more terrorists than they allow us to capture or thwart? Have they made enemies of people who might have supported us? And are these methods consistent with our values as a nation, and with our noblest aspirations? When both sides had made their case, we could then decide openly what we want to do, and decide it as a nation.

"Wanting it blurry" means wanting to avoid that debate. It means caring less about considering the extremely serious issues at stake and getting them right than about being able to duck the uncomfortable knowledge that debating those issues might force on us. It means caring less about our country, its ideals, and its honor than about our own peace of mind, even when we have reason to think that that peace of mind might be undeserved. It means being willing to let taxi drivers whom we know to be innocent be beaten to death, detainees be sodomized with chemical lightsticks and have lit cigarettes stuck in their ears, and fourteen year olds be "suspended from hooks in the ceiling for hours at a time" while being beaten, in order to preserve the illusion that our own hands are clean.

Wanting it clear is for adults. Wanting it blurry is for children, who hope that problems they don't attend to will go away. And it is unworthy of citizens of a great democracy.

Susan Collins thinks that her constituents "want it blurry". Apparently, other members of Congress agree. As citizens of a democracy, we cannot react to this insulting idea by bemoaning the apathy of some unspecified group of other people. We are the people Collins is talking about, and it is up to us to prove her, and those who agree with her, wrong. So let's do it.

Here are links to the email addresses of your Senators and Representatives. Write them and let them know that you want things clear. For my part, I have done three things:

First, the Senate Judiciary Committee held hearings into detention at Guantanamo today. I wrote Senators Arlen Specter (the Chair) and Patrick Leahy (the ranking democrat) to thank them, and to urge them to hold more extensive hearings, so that we can fully debate all the issues raised by Guantanamo and come to considered conclusions.

Second, I wrote to ask my Senators to support S 654, and my Representative to support HR 952. Since none of my elected representatives has signed on as a sponsor of these bills, I asked each of them to do that as well. (If you click the links for each bill, you can find the lists of sponsors.)

S 654 and HR 952 are two similar bills, the first in the Senate and the second in the House. They would ban extraordinary rendition: sending people to other countries where we know they might be tortured: countries like Uzbekistan, Syria, and Egypt. (I wrote about HR 952 a few months ago.) If you need background on extraordinary rendition, you could read, well, any of Katherine's many posts about it on this blog, or this New Yorker article. It's an odious practice, and should be stopped. But both of these bills will die without more popular support. It is up to us not to let that happen.

Third, in all these emails I also wrote that I thought it was very important that the Congress conduct hearings on the following questions:

• What kinds of interrogation procedures, and procedures to 'set the conditions' for interrogation, have been used in our detention facilities at Guantanamo, in Iraq and Afghanistan, and in undisclosed locations? (This question should cover the conduct not just of the military, but also of the intelligence services and military contractors.)
• What were the costs and benefits of each of those kinds of procedures? Which produced useful information? Which needlessly destroyed good will in Iraq or Afghanistan, or harmed our reputation as a nation committed to human rights and human dignity? Which, on reflection, do we think we should have used, and which do we think we should have placed off limits?
• Why did we use those procedures we now think we should not have used? If they were authorized, by who? If not, what led interrogators or guards to use them, and how can we prevent this in future?
• What standards should we adopt going forward, so that we can be as certain as possible that interrogation and detention will take place as we as a nation think right? And how can we ensure that we live up to these standards?

And I added that these hearings should be extensive, so that the important issues they raised could be fully debated.

What you write is, of course, up to you. But I'd urge you to write something, and to try to get others to do so as well. We all know why it matters. It's up to us to act on what we know.

To My Government: Please Stop.

by hilzoy

From the New York Times:

"Seven months before Sept. 11, 2001, the State Department issued a human rights report on Uzbekistan. It was a litany of horrors.

The police repeatedly tortured prisoners, State Department officials wrote, noting that the most common techniques were "beating, often with blunt weapons, and asphyxiation with a gas mask." Separately, international human rights groups had reported that torture in Uzbek jails included boiling of body parts, using electroshock on genitals and plucking off fingernails and toenails with pliers. Two prisoners were boiled to death, the groups reported. The February 2001 State Department report stated bluntly, "Uzbekistan is an authoritarian state with limited civil rights."

Immediately after the Sept. 11 attacks, however, the Bush administration turned to Uzbekistan as a partner in fighting global terrorism. The nation, a former Soviet republic in Central Asia, granted the United States the use of a military base for fighting the Taliban across the border in Afghanistan. President Bush welcomed President Islam Karimov of Uzbekistan to the White House, and the United States has given Uzbekistan more than $500 million for border control and other security measures.

Now there is growing evidence that the United States has sent terror suspects to Uzbekistan for detention and interrogation, even as Uzbekistan's treatment of its own prisoners continues to earn it admonishments from around the world, including from the State Department."

More below the fold.

Support A Ban On Extraordinary Rendition

by hilzoy

Via email, Katherine the Sorely Missed tells me that Edward Markey has introduced a bill, H. R. 952, that would outlaw extraordinary rendition. Most readers of this blog are probably familiar with extraordinary rendition, but just in case: Katherine summarized the issues in an earlier post, in which she wrote: ""Extraordinary rendition" is the euphemism we use for sending terrorism suspects to countries that practice torture for interrogation. As one intelligence official described it in the Washington Post, "We don't kick the sh*t out of them. We send them to other countries so they can kick the sh*t out of them.” "

Markey's bill would require the Secretary of State to produce annually "a list of countries where there are substantial grounds for believing that torture or cruel, inhuman, or degrading treatment is commonly used in the detention of or interrogation of individuals." It would then prohibit the transfer of prisoners or detainees to any country on the most recent list, or to any other country which there is reason to think might transfer someone to a country on that list. This prohibition can be waived if we have reason to think that the country has ended the practices that got it on the list, and if "there is in place a mechanism that assures the United States in a verifiable manner that a person transferred, rendered, or returned will not be tortured or subjected to cruel, inhuman, or degrading treatment in that country, including, at a minimum, immediate, unfettered, and continuing access, from the point of return, to each such person by an independent humanitarian organization." But it cannot be waived on the basis of mere assurances that the person will not be tortured.

Extraordinary rendition is a loathsome practice. If we have grounds to think that someone is a terrorist, we ought to charge that person and try him or her in a court of law. If we do not have enough evidence to bring charges, our response should be to try to develop some, not to ship that person off to another country to be tortured. This is completely inconsistent with our respect for the rule of law, and with our claim to basic decency. It is unworthy of our country, and it should be banned.

Unfortunately, it seems unlikely that it will be. A few weeks ago, Bob Herbert wrote:

"Unfortunately, the outlook for this legislation is not good. I asked Pete Jeffries, the communications director for House Speaker Dennis Hastert, if the speaker supported Mr. Markey's bill. After checking with the policy experts in his office, Mr. Jeffries called back and said: "The speaker does not support the Markey proposal. He believes that suspected terrorists should be sent back to their home countries."

Surprised, I asked why suspected terrorists should be sent anywhere. Why shouldn't they be held by the United States and prosecuted?

"Because," said Mr. Jeffries, "U.S. taxpayers should not necessarily be on the hook for their judicial and incarceration costs."

It was, perhaps, the most preposterous response to any question I've ever asked as a journalist. It was not by any means an accurate reflection of Bush administration policy. All it indicated was that the speaker's office does not understand this issue, and has not even bothered to take it seriously.

More important, it means that torture by proxy, close kin to contract murder, remains all right. Congressman Markey's bill is going nowhere. Extraordinary rendition lives."

This issue is too important, both to those individuals directly affected by it and to our moral standing as a nation, to let this bill die quietly. I would urge those of you who support this bill to write your representatives (you can find their email addresses here) and urge them to support the bill, and (if they are not already among its co-sponsors) to co-sponsor it. I would also ask those of you who have blogs to consider linking to this post and writing on this topic. Bloggers, notably including Katherine, helped bring the practice of extraordinary rendition to people's attention, and bloggers may be able to help raise awareness of this bill, or at least raise the political costs to those who oppose it. This is not a bill that should die without anyone noticing, and we can work to make sure that it doesn't.

This should not be a liberal or conservative issue; it's an issue that concerns all Americans as Americans. I love my country. I want it to stand for what's right, and that includes standing for human rights and against torture. That's why I support this bill, and why I hope that others will as well.

Extraordinary Rendition

At Katherine's request, an open thread to discuss the New Yorker article on Extraordinary Rendition.

[To make things a little more accessible I have moved Katherine's primary comment on this up to the post itself (hope you don't mind)--Sebastian]  See below: