Extraordinary Rendition and the Wages of Hypocrisy

"Extraordinary rendition" is the governmental transfer without legal process of a person to another country where it is more likely than not he will be tortured. The case of the Syrian-born Canadian Maher Arar illustrates the gap between extraordinary rendition and the mundane legal process of extradition.

Detained in September 2002, at John F. Kennedy Airport while returning home from vacation, Arar was held in solitary confinement without access to legal counsel in a Brooklyn detention center on suspicion of being a member of al-Qaeda. He was first shipped off to Jordan against his will and subsequently transferred to a Syrian prison, where he was detained for nearly a year without charge or legal process. The 35-year-old software engineer recounts being beaten repeatedly with two-inch thick cables and threatened with electrocution while being questioned about al-Qaeda. After his release, the Syrian ambassador to the United States, Imad Moustapha, declared that Syria had found no evidence of Arar's complicity in terrorism.1 Arar's case is not unusual. There is substantial anecdotal evidence that the United States routinely and knowingly "outsources" the application of torture by transferring terrorist suspects to countries that violate international human rights norms.

Extraordinary rendition evolved out of pre-9/11 practices intended to facilitate the judicial process, and only after 9/11 became a purposive way to evade U.S. legal prohibitions against torture. Since the 1800s, the United States has "rendered" criminal suspects from overseas to be tried in the United States, and the U.S. Supreme Court twice endorsed criminal prosecutions after such "renditions to justice."2 In the 1980s, however, the United States began rendering suspects not only to the United States but also to third countries, such as Egypt, in expanding counterterrorism operations. In 1995, Pakistani intelligence arrested Ramzi Yousef, instigator of the 1993 World Trade Center bombing, in Islamabad, and handed him over for transport and trial in the federal court for the Southern District of New York.3 That same year, the Central Intelligence Agency (CIA) captured Talaat Fouad Qassem, a key leader and spokesman of alGamaa al-Islamiya, an Egyptian armed Islamist group, in Croatia. Later, Qassem disappeared into Egyptian custody.4

On September 17, 2001, America's rendition policy changed in scale and purpose. That day, President George W. Bush signed a secret presidential finding that authorized the CIA to kill, capture, or detain members of al-Qaeda anywhere in the world. Despite the magnitude of the powers granted in this order, the Bush administration has resisted efforts to secure its public disclosure. The order also authorized secret offshore prisons known as "black sites" where the CIA could send suspects for coercive interrogation of the sort that is illegal in the United States. The presidential finding did not require the CIA, in detaining and transferring suspects, to seek case-by-case approval from the White House, the State Department, or the Justice Department.5

The administration's avowed aim was to allow the transfer of suspects to jurisdictions with laxer constraints on coercive interrogation. Former director of central intelligence George Tenet candidly told Congress, "It might be better sometimes for...suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation techniques."6 Torture thus became a primary goal, not merely a collateral consequence, of rendition to third countries. In this respect, the post-9/11 extraordinary rendition system is qualitatively different from the renditions program that preceded it.

The practice of extraordinary rendition jars discordantly with the American commitment to government limited by law and due process. Disappearances and torture cannot be justified. Moreover, they do grave harm to U.S. strategic interests. The Bush administration's efforts to suppress public inquiry into these practices, and the hypocritical nature of its public statements with respect to them, have hindered cooperative international counterterrorism efforts.

Hollow Assurances

Before leaving on a whistle-stop European trip in December 2005 to Secure European cooperation in U.S. counterterrorism efforts, Secretary of State Condoleezza Rice gave a speech on the tarmac at Andrews Air Force Base seeking to allay mounting European concerns about extraordinary rendition. Rice claimed that rendition, as practiced by the United States, was permitted under both U.S. and international law. Her statement was unapologetic and unequivocal. "The United States does not permit, tolerate, or condone torture under any circumstances," she said. It was the "policy" of the administration, moreover, that "the United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.... The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured." She added, "Where appropriate, the United States seeks assurances that transferred persons will not be tortured."7

Rice's comments echoed previous statements by Attorney General Alberto Gonzales and President Bush. Nine months earlier, in March 2005, President Bush explained that the goal of extraordinary rendition was "to arrest people and send them back to their country of origin with the promise that they won't be tortured. That's the promise we receive." Attorney General Gonzalez said that it was U.S. policy not to send suspects "to countries where we believe or we know that they're going to be tortured." But Gonzalez cautioned that the United States "can't fully control" what happens to a suspect sent elsewhere.8

America's European allies responded skeptically, even contemptuously, to these justifications and rationalizations. The administration's use of phrases like "believe or know" revealed an underlying hypocrisy. An administration marketed in terms of plainspoken truthfulness was now resorting to anodyne and hypertechnical legalisms to evade admitting to a policy condoning torture. Both Rice and Gonzalez spoke of "policy" and carefully avoided talking of "law." A policy is a nonbinding preference that may be overridden.9 The term trades on a loophole embedded in federal statutes. When the United States ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994, it also adopted a swarm of "declarations," "reservations," and "understandings" that limit American duties under the convention. One of these caveats stated that ratification alone did not endow the convention's primary rules of conduct with legal force under U.S. law (i.e., the rules were non-self-executing). Laws would need to be enacted by Congress and signed by the president for legal consequences to flow.

One of the laws enacted to implement the convention addresses overseas transfers and renditions. The act, however, speaks of "policy," not binding law. The 1998 Foreign Affairs Reform and Restructuring Act states: "It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." In asserting that the United States was following the law with respect to rendition, Rice's and Gonzalez's statements failed to acknowledge the act's nonbinding character. The resulting divergence between public impressions and underlying legal realities hardly prompted confidence in the integrity of the administration's position.10

Rice's reference to diplomatic "assurances," or formal representations from one government to another concerning a specific suspect's treatment after transfer, were even more troubling. The form such assurances take is unclear. Nor is it clear which government agency is responsible for obtaining them. According to the Washington Post, the CIA'S general counsel demands a "verbal assurance from each nation that detainees will be treated humanely,"11 although written assurances also exist. In Maher Arar's case, the State Department apparently sought and received "appropriate assurances from Syrian officials" prior to his transfer.12

Such diplomatic assurances are intended to provide political figures with "plausible deniability"-the ability to dissociate themselves from an action or the clear and predictable consequences of that action. Except with extraordinary rendition, diplomatic assurances are not plausible. On the contrary, they underscore the hypocritical divergence between statements of American values on the one hand and U.S. practices on the other.

When Maher Arar was sent to Syria, it was no secret that torture was employed in Syrian prisons. A recent State Department human rights report takes Syria to task for "continuing serious abuses including the use of torture in detention, which at times, results in death; poor prison conditions; arbitrary arrest and detention; [and] prolonged detention without trial."13 When the CIA delivered Talaat Fouad Qassem to the Egyptian authorities, it was certainly aware of how he would be treated. A 2004 State Department report on Egypt paints a grim picture of "a systematic pattern of torture by the security forces" that included "stripping and blindfolding victims; suspending victims from a ceiling or doorframe with feet just touching the floor; beating victims with fists, whips, metal rods, or other objects; using electric shocks; and dousing victims with cold water."14

In light of such reports, let alone other evidence of the pervasive employment of torture by states that collaborate in extraordinary rendition, there is no reason to credit diplomatic assurances that rendered prisoners are not being tortured. Countries that routinely violate their own laws against torture and ignore their obligations under international conventions to which they are signatories are being asked by the U.S. government to "promise" not to treat rendered prisoners as they are known to treat their own prisoners. These assurances are simply not credible.

Such diplomatic assurances are sought as a cover for the administration's assertion that the United States is not violating its obligations under the Convention against Torture. This treaty, which the United States has signed and ratified, bars a signatory state from expelling, returning, or extraditing a person to another state "where there are substantial grounds for believing he would be in danger of being subjected to torture." These terms are not satisfied by empty formalities. The treaty directs signatories to "take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant, or mass violations of human rights." Thus the convention demands that the actual risk to a person be considered before transferring him to the custody of authorities in another country. It does not suffice to say that a country has anti-torture laws or that it has given assurances that a person will not be tortured. Indeed, as the Yale scholar Oona Hathaway has noted, "Treaty ratification is not infrequently associated with worse human rights ratings than otherwise expected." Whatever laws against torture may bind Syrian intelligence officers, they have little relevance to the question how a Maher Arar will be treated.15

Nor is there reason to believe that assurances given by the Syrian authorities were believed by the United States. As Human Rights Watch has noted, there is no known instance "where assurances have been sought from a county in which torture and ill-treatment were not acknowledged human rights problems."16 Every country to which the United States has rendered a terrorism suspect since 9/11 has been a persistent and egregious violator of human rights, and has been recognized as such by the State Department. The Bush administration, in seeking diplomatic assurances from these states that they will not torture rendered prisoners, is asking the American public and people elsewhere to believe a transparently absurd fiction.

Unsurprisingly, there is no evidence to suggest that the United States has ever protested to Syria, Egypt, or any other of its extraordinary rendition partners about torture after transfer. In February 2005, the new director of central intelligence, Porter Goss, told Congress that the CIA had an "accountability program" to monitor posttransfer conduct, but that once a prisoner was out of the CiA's control "there's only so much we can do."17 Indeed, why would the United States do anything if another country applied the "advanced interrogation techniques" the CIA had sought permission to use itself? Diplomatic assurances, in sum, are a convenient "check the box" means of evading the international prohibition against returns to torture.

International Outrage

A diplomatic strategy based on the assumption that others are fools is bound to fail. Disclosures of Maher Arar's removal to Syria, as well as of extraordinary renditions from Italy and Sweden to Egypt, combined with the Bush administration's refusal to acknowledge the hypocrisy of diplomatic assurances with respect to torture, triggered widespread revulsion at American conduct.

European audiences greeted secretary of State Rice's defense of extraordinary rendition with skepticism. European politicians and journalists roundly condemned the practice. A British Conservative MP described Rice's comments as "surgically precise language to obfuscate and distract" that had been "drafted by lawyers with the intention of misleading an audience." Journalists in Britain and elsewhere seized on the ambiguities in Rice's speech surrounding the term "policy" and the reliance on diplomatic assurances as evidence of overt hypocrisy on the part of the Bush administration.18 The weakness of the legal argument with respect to diplomatic assurances, moreover, unavoidably conveyed the impression that Rice believed her audience to be idiots or toadies.

The public uproar that followed revelations of the practice of extraordinary rendition led Canada, Sweden, Italy, Germany, and the European Union, to initiate judicial or parliamentary investigations of specific cases concerning their citizens or the use of their territory. During Rice's visit to Europe, German officials pressed her to clarify the American position. Rice's evasive responses only added fuel to the fire. "No one believes these [diplomatic] assurances," concluded the conservative German newspaper Die Welt. With less restraint, Berlin's Die Tageszeitung ran a fake CIA recruiting advertisement: "Torturers Wanted: U.S. Citizens May Not Apply." Rice's visit, rather than answering European concerns, served to crystallize the view, held across the European political spectrum, that the American government was engaged in morally reprehensible policies with which European states should have no truck.19

Rice's attempts to justify U.S. policy also prompted a sharply worded judicial rebuke. In December 2005, Britain's House of Lords, the nation's highest court, issued an opinion holding that evidence gained by torture could not be introduced in U.K. immigration proceedings. Uniformly praised across the political spectrum in Britain, the Lords' judgment goes out of its way to condemn the extraordinary rendition system in no uncertain terms. "The use of torture is dishonorable," wrote Lord Goff, who adjudicated the case. "It corrupts and degrades the state which uses it and the legal system which accepts it.... In our own century, many people in the United States, heirs to [the] common-law tradition, have felt their country dishonored by its use of torture outside the jurisdiction and its practice of extra-legal 'rendition,' of suspects to countries where they would be tortured." The reference to contemporary events, hardly essential to disposition of the case, flags a deepseated unease with American counterterrorism tactics.20

To many scholars of international relations, the violation of international legal norms and the widespread popular and judicial opprobrium engendered by extraordinary renditions are of little strategic consequence in the pragmatic world of international relations. The realist John Mearsheimer has written that states should be understood as "billiard balls"-i.e., discrete units whose internal politics are irrelevant to their foreign policy positions-acting in service of a clearly defined, rational "national interest." International legal norms, he contends, "have minimal influence on state behavior and thus hold little promise for promoting stability in the post-Cold War world."21 According to the Mearsheimer thesis, we should not worry about moral indignation over extraordinary rendition because it has scant relevance to the decisions of foreign governments respecting national security.

Mearsheimer's analysis may well be true in regard to relations between states. But in the context of counterterrorism operations against nonstate actors, domestic political pressure matters. Popular discontent and official investigations of U.S. misconduct on foreign soil have led to diplomatic pressure on Washington, and foreign governments have restricted intelligence and police cooperation with U.S. agencies. A further concern is that extraordinary rendition takes advantage of lawless elements in state intelligence and security services in receiving countries, as well as the gaps between different legal systems in which the legal protection of rights is unclear. As former CIA agent Reuel Marc Gerecht observes, by lending legitimacy to these holdouts against the rule of law, extraordinary rendition "works against the growth of democracy in the Middle East," which is "the only sure way of breaking bin Ladenism."22

The Harm Done

Consider first the diplomatic consequences of extraordinary rendition. In the "world of stark and harsh competition" depicted by Mearsheimer, states red in tooth and claw do not have time to pause and ruminate on the morality of counterterrorism cooperation, let alone sanction their allies for overreaching: "All states are forced to seek the same goal: maximum relative power."23 But disputes over extraordinary rendition have resulted in tangible setbacks for the United States. For example, in 2005, Foreign Minister Ben Bot suggested that the Dutch contribution to NATO deployments in Afghanistan would be jeopardized if American officials "continue[d] to beat around the bush" on the matter of black sites. In 2003, Turkish prime minister Recep Tayyip Erdogan refused to allow U.S. troops to be stationed on its border with Iraq out of a fear of public backlash against what was seen in Turkey as an illegal war. To be sure, the Turkish reaction did not concern extraordinary rendition and black sites, but it reflected the view of the Turkish public that the United States does not play by the same international rules as everyone else. (A popular recent Turkish motion picture casts Americans as villains for the unlawful invasion of Iraq and the torture of detainees there.) In Germany, too, a groundswell of public opinion opposed to Iraq invasion as illegal nearly stymied efforts by former chancellor Gerhard Schr?der to accord the United States overfly rights.24

Notwithstanding a shared vulnerability to al-Qaeda and its sympathizers, European governments have seen the advantage in yielding to public protests over extraordinary rendition. Their objections to extraordinary rendition are a way of seizing moral high ground, a valuable position as European governments try to foster good relations with their substantial Muslim communities, a task complicated by the recent dispute over cartoons first published in the Danish newspaper Jyllands-Posten that incited widespread unrest in the Middle East and Asia. Reflecting on growing European resistance to American counterterrorism positions, the writer Robert Kagan has observed that "ideals and self-interest frequently collide, and Europe's assaults on the legitimacy of U.S. dominance may also become an effective way of constraining and controlling the superpower." European positions on extraordinary rendition, in short, reflect a confluence of domestic electoral self-interest and international advantage. Even if Mearsheimer is correct that states act only out of narrowly conceived "national security" motives, institutions and laws may be seen as the best way of furthering that end. Deterioration in the tenor and amicability of alliances may be incremental. But each small setback directly harms American counterterrorism efforts. Given America's diminished reputation, other countries become less likely to accede to Washington's requests for aid. Resistance from allies furthermore undercuts Washington's ability to set the international agenda by establishing shared goals and values.25

Extraordinary rendition has also made cooperation between U.S. and European police and intelligence agencies more difficult. Faced with public pressure over news reports that European intelligence services were collaborating with U.S. agents in extraordinary renditions, European police and judiciaries have limited the scope of counterterrorism cooperation. For example, when Swedish television reported that Swedish police had handed over to the CIA two Egyptian asylum seekers who were sent back to Egypt (where one of the men was later allegedly tortured and tried and sentenced to 25 years in prison by a military tribunal), the resulting public outcry forced the Swedish police to issue regulations requiring that any prisoner transfer be conducted by Swedish officials.26

Resistance to intelligence and law enforcement cooperation with the United States comes from institutional sources too. As noted, the British House of Lords in December 2005 prohibited the use of possibly coerced evidence in political asylum and deportation matters, rejecting the claim, made by Eliza Manningham-Buller, head of Britain's security intelligence service MI5, that such tainted evidence was a vital source of intelligence. Manningham-Buller argued that eliminating use of this evidence would cut off one avenue for the apprehension and transfer of suspected terrorists.27

German prosecutors have faced serious difficulties prosecuting alleged co-conspirators in the 9/11 plot due to American refusals to share exculpatory evidence from captured senior al-Qaeda leaders held at black sites. Mounir el-Motassadeq's 2003 conviction as an accessory to the murder of the 9/11 victims was overturned on appeal because the U.S. government had declined to produce captured senior al-Qaeda members to testify at his trial. In his 2005 retrial, however, the United States provided some evidence from its interrogations at black sites, enough at least for Motassadeq to be convicted of a lesser charge of belonging to al-Qaeda. He was acquitted of the original conspiracy charge, however. Another German resident, Abdelghani Mzoudi, was acquitted of complicity in the 9/11 plot in 2004 due to American refusals to pass on evidence from interrogations at black sites.28

In another case, public prosecutors in Milan initiated an investigation into the actions of CIA agents who in February 2003 snatched an Egyptian cleric, Osama Moustafa Hassan Nasr, from the streets of Milan in broad daylight. As a university student, Nasr had joined Jamaat al-Islamiya, a loose coalition of Islamists who had hewed to violence even as Egypt's Muslim Brotherhood turned to political participation in the mid-1980s. When the state cracked down on Jamaat al-Islamiya, Nasr fled first to Albania, then to Germany, and finally to Italy, settling in Milan. After his kidnapping, Nasr's wife and two children had no word of him until April 2005, when they received a letter from him, mailed from Alexandria in Egypt. The kidnapping-"the inspiration of the CIA station chief in Rome, who wanted to play a more active role in taking suspected terrorists off the street"-was undertaken without full Italian cooperation.29

In June 2005, Milan prosecutor Armando Spataro issued arrest warrants charging 22 alleged CIA operatives with the kidnapping. Because these warrants are valid throughout Europe under EU rules, the persons named in them are subject to arrest if they enter any European country. Spataro explained that Nasr had been the subject of an ongoing Italian investigation, and that his kidnapping by the CIA had "seriously damaged counterterrorism efforts in Italy and Europe.... In fact, if [Nasr] had not been kidnapped, he would now be in prison, subject to a regular trial, and we would have probably identified his other accomplices." To make matters worse, a month after the kidnapping, the CIA had misleadingly reported to its Italian counterpart that Nasr had fled to the Balkans on his own volition. Revelations that the CIA operatives involved in the kidnapping had stayed in luxury hotels in Milan, Florence, and Venice before and after the kidnapping, racking up more than $100,000 in bills, added to the impression that the operation had been conceived in a reckless and foolish manner.30

There is yet another harm that results from extraordinary rendition, which is perhaps less dramatically evident than the harm done to ongoing investigations of terrorism suspects but no less damaging in the long run. When formal legal channels are circumvented, international judicial and prosecutorial cooperation is also weakened. By exploiting the fragility of the rule of law in countries such as Egypt and Syria, the extraordinary rendition system deepens that vulnerability. In the context of a long-term counterterrorism strategy that depends on eliminating lawless pockets in which alQaeda and other terrorist groups can thrive and on strengthening democratic governance in countries where terrorist groups seeks recruits, a tactic that retards the development of the rule of law is pernicious.

Extraordinary rendition strengthens intelligence services in nondemocratic states against forces seeking democratic reform. Since the overthrow of the Egyptian monarchy in 1952, Egypt has labored under "total executive domination," in which democratic and parliamentary resistance is subdued though a host of constitutional and extralegal methods. The parliamentary elections of 2005 were accompanied by violent repression by security forces. In December 2005, an Egyptian court sentenced Ayman Nour, the leading opposition figure, to five years of hard labor for election-related fraud in a case widely seen as retribution for his having run against the long-ruling Hosni Mubarek. The Egyptian prime minister has admitted that by mid-2005 Egypt had received "60 to 70" terrorist suspects through rendition or by extradition since 9/11. In the same period, Egypt received approximately $50 billion annually in U.S. aid, with a significant amount doubtless flowing to the security agencies that work with the CIA. Egyptian-American cooperation in extraordinary rendition strengthens the least law-abiding elements of the Egyptian state, its internal security forces, and thus corrodes the prospects for full Egyptian democracy.31

President Mubarek has declared that U.S. policy with respect to extraordinary rendition and black sites proves "that we were right from the beginning in using all means, including military tribunals, to combat terrorism." Sudan and Zimbabwe have justified "disappearances" of political foes to the ruling regimes on the ground that the United States also "disappears" people. American efforts to reform the United Nations Human Rights Commission have been stymied in part because the United States is no longer viewed as a credible human rights advocate. The Zimbabwean representative to that body swatted away American criticisms of abuses by his government, proclaiming that "those who live in glass houses should not throw stones." America, he said, had "a lot of dirt on its hands."32

The harm to the rule of law from extraordinary rendition and the condoning of torture is no abstract concern. Perceptive scholars of the Islamist threat say that political reform in the core Arab states such as Saudi Arabia and Egypt is pivotal in the effort to thin al-Qaeda's ranks. "Al Qaeda draws many of it[s] recruits from closed societies that are intolerant of dissent," observes the writer Peter Bergen. "For this reason it is no coincidence that Saudis and Egyptians play such a key role in the group." Bergen was echoing an insight stated by the 9/11 Commission, which underscored the need for the United States to "offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors," and to choose its allies carefully: "When Muslim governments, even those who are friends, do not respect these principles, the United States must stand for a better future." Extraordinary rendition, of course, is antithetical to these goals. "One of the lessons of the long Cold War," the commission noted, "was that short-term gains in cooperating with the most repressive and brutal governments were too often outweighed by long-term setbacks for America's stature and interests."33

Supporting the rule of law in the countries from which al-Qaeda and other terrorist organizations draw their recruits and the general task of moral leadership are intertwined. Undermining al-Qaeda's growth demands the strengthening of liberal democracy and political pluralism across the Middle East. The damage to the rule of law inflicted by extraordinary rendition retard this labor. In practical terms, extraordinary rendition empowers local factions who are opposed to democratic development. And to millions of Arabs and Muslims, stories of extraordinary rendition and secret offshore prisons speak louder than words about American values. They suggest that America is unwilling to accord foreigners the same basic human dignity enjoyed by its own citizens, that American ethics are purely instrumental. Extraordinary rendition has given al-Qaeda a potent recruiting tool. In the end, the battle of ideas that al-Qaeda has sought to precipitate may be the only war that really counts. In ceding the high moral ground, the United States is letting a precious advantage slip from its grasp.