Costs of War: The Rendition Repeat
By Shaun Waterman for ISN
Almost lost in the clamor over the decision to appoint a special prosecutor to review detainee interrogations and the release of a long-secret external pageCIA inspector general’s report on the Agency’s use of “enhanced interrogation techniques,” which critics say amount to torture, the Obama administration on Monday announced that a special interagency task force had completed its review of detention and interrogation policy.
The task force recommendations were not released, but a external pagepress statement from the Justice Department said that they had proposed “a specialized interrogation group to bring together officials from law enforcement, the US Intelligence Community and the Department of Defense” to question so-called high-value detainees “in a manner that will strengthen national security consistent with the rule of law.”
The group - housed within the FBI - would use only those interrogation techniques authorized by the external pageUS Army Field Manual on Interrogation, the statement said.
But the statement added that the new administration would continue the Bush-era policy of extra-judicial transfer of suspected terrorists to third countries - a practice known as rendition.
Human rights advocates said they were disappointed over the decision to continue accepting assurances about detainee welfare from countries to which they were transferred.
The task force reviewed seven different kinds of detainee transfer, said Justice Department spokesman Dean Boyd, including those using immigration powers, repatriations from the Guantanamo Bay detention center, and those undertaken using “intelligence authorities” - generally referred to as renditions.
The US government has been criticized for transferring detainees to countries like Egypt, Saudi Arabia and Syria, which are known to practice torture. Bush administration officials said they always sought diplomatic assurances from such countries that detainees would not be tortured. Their policy - which will continue under the new administration - was not to transfer detainees “to a country where it is more likely than not that the individual will be tortured,” Boyd said.
But ACLU attorney Jonathan Hafetz said that such assurances were not sufficient to ensure that the US was honoring its commitments under the UN Convention on Torture.
“The United States should not be transferring detainees to countries that have an established record of torture [...] this is a legal requirement, not a policy choice,” he told ISN Security Watch.
“Diplomatic assurances have not proved adequate in the past to prevent abuse [...] they were used repeatedly by the previous administration to circumvent its obligations under the UN convention,” added Hafetz.
Aziz Huq, an attorney who represented several terror detainees and is now an assistant professor at University of Chicago, was more blunt.
“These assurances, as a matter of law and fact, are worth slightly less than the paper they are written on,” he told ISN Security Watch.
“You are asking countries that violate their own law and treaty obligations [by torturing people] to promise that they won’t torture these particular detainees [...] that is an extraordinarily weak promise to rely on,” he said.
In its statement, the external pageJustice Department said it would beef up the safeguards for renditions and other forms of detainee transfer, including “that agencies obtaining assurances from foreign countries insist on a monitoring mechanism [...] to ensure consistent, private access to the individual who has been transferred, with minimal advance notice to the detaining government.”
But Huq noted that European nations - which have grappled with similar issues regarding the welfare of individuals extradited or deported - had found such mechanisms hard to enforce. “They have a more robust program of assurances and it doesn’t work. There have been transfers to Russia for example [...] the fact is, once these people are transferred, there is no way to prevent them being tortured. They are out of your jurisdiction, you cannot get access to them.”
And human rights groups noted that such monitoring mechanisms were ineffective in the case of external pageMaher Arar, a Syrian-born Canadian erroneously identified as a terror suspect while transiting the US in 2002. Authorities deported Arar to Syria, which provided assurances he would not be tortured, but kept him in a cell the size of a coffin and beat him anyway.
Canadian consular officials visited Arar several times while he was being held in Syria, but he was too scared to report he was being tortured, according to a Canadian government investigation of the case.
More recently, the US has chosen not to rely on such assurances from certain countries. US authorities decided not to return several members of the Uighur ethnic group held at Guantanamo Bay to China, for example, because of fears they might be tortured - effectively acknowledging that assurances cannot be relied upon.
But the absence of any independent review of such transfers before they are made means that the US will continue to be able to use these assurances as a fig-leaf to cover its failure to protect the rights of detainees.
“Detainees need to have means of challenging their transfer before an independent body,” Devon Chaffee of Human Rights First told ISN Security Watch. The task force’s recommendations “do not appear to provide any independent review on the front end,” she added.