[Ppnews] A Call to End All Renditions

[Political Prisoner News]

http://www.counterpunch.org/cohn02112009.html

February 11, 2009


The Slippery Slope Between Ordinary and Extraordinary


A Call to End All Renditions

By MARJORIE COHN
The Jurist

Binyam Mohamed, an Ethiopian residing in Britain, 
said he was tortured after being sent to Morocco 
and Afghanistan in 2002 by the U.S. government. 
Mohamed was transferred to Guantánamo in 2004 and 
all terrorism charges against him were dismissed 
last year. Mohamed was a victim of extraordinary 
rendition, in which a person is abducted without 
any legal proceedings and transferred to a 
foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing 
Boeing subsidiary Jeppesen Dataplan, Inc. of 
flying them to other countries and secret CIA 
camps where they were tortured. In Mohamed’s 
case, two British justices accused the Bush 
administration of pressuring the British 
government to block the release of evidence that 
was “relevant to allegations of torture” of Mohamed.

Twenty-five lines edited out of the court 
documents included details about how Mohamed’s 
genitals were sliced with a scalpel as well as 
other torture methods so extreme that 
waterboarding “is very far down the list of 
things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former 
Jeppesen employee as saying, “We do all of the 
extraordinary rendition flights – you know, the 
torture flights.” A senior company official also 
apparently admitted the company transported 
people to countries where they would be tortured.

Obama’s Justice Department appeared before a 
three-judge panel of the Ninth U.S. Circuit Court 
of Appeals Monday in the Jeppesen lawsuit. But 
instead of making a clean break with the dark 
policies of the Bush years, the Obama 
administration claimed the same “state secrets” 
privilege that Bush used to block inquiry into 
his policies of torture and illegal surveillance. 
Claiming that the extraordinary rendition program 
is a state secret is disingenuous since it is has 
been extensively documented in the media.

“This was an opportunity for the new 
administration to act on its condemnation of 
torture and rendition, but instead it has chosen 
to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama's state secrets claim, 
these men will be denied their day in court and 
precluded from any recovery for the damages they 
suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s 
representative appeared in the Jeppesen case, the 
new President had signed Executive Order 13491. 
It established a special task force “to study and 
evaluate the practices of transferring 
individuals to other nations in order to ensure 
that such practices comply with the domestic 
laws, international obligations, and policies of 
the United States and do not result in the 
transfer of individuals to other nations to face 
torture or otherwise for the purpose, or with the 
effect, of undermining or circumventing the 
commitments or obligations of the United States 
to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It 
also ensures humane treatment of persons in U.S. 
custody or control. But it doesn’t specifically 
guarantee that prisoners the United States 
renders to other countries will be free from 
cruel, inhuman or degrading treatment that 
doesn’t amount to torture. It does, however, aim 
to ensure that our government’s practices of 
transferring people to other countries complies 
with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant 
on Civil Political Rights (ICCPR), a treaty the 
United States ratified in 1992. Article 7 of the 
ICCPR prohibits the States Parties from 
subjecting persons “to torture or to cruel, 
inhuman, or degrading treatment or punishment.” 
The Human Rights Committee, which is the body 
that monitors the ICCPR, has interpreted that 
prohibition to forbid States Parties from 
exposing “individuals to the danger of torture or 
cruel, inhuman or degrading treatment or 
punishment upon return to another country by way 
of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close 
as expeditiously as possible any detention 
facilities that it currently operates and shall 
not operate any such detention facility in the 
future.” The order does not define 
“expeditiously” and the definitional section of 
the order says that the terms ‘detention 
facilities’ and ‘detention facility’ “do not 
refer to facilities used only to hold people on a 
short-term, transitory basis.” Once again, “short 
term” and “transitory” are not defined.

In his confirmation hearing, Attorney General 
Eric Holder categorically stated that the United 
States should not turn over an individual to a 
country where we have reason to believe he will 
be tortured. Leon Panetta, nominee for CIA 
director, went further and interpreted Order 
13491 as forbidding “that kind of extraordinary 
rendition, where we send someone for the purposes 
of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the 
same standard used by the Bush administration, 
which reportedly engaged in extraordinary 
rendition 100 to 150 times as of March 2005. 
After September 11, 2001, President Bush issued a 
classified directive that expanded the CIA’s 
authority to render terrorist suspects to other 
States. Former Attorney General Alberto Gonzales 
said the CIA and the State Department received 
assurances that prisoners will be treated 
humanely. “I will seek the same kinds of 
assurances that they will not be treated 
inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully 
control what that country might do. We obviously 
expect a country to whom we have rendered a 
detainee to comply with their representations to 
us . . . If you’re asking me, ‘Does a country 
always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is 
apparently the tip of the iceberg. Maher Arar, a 
Canadian born in Syria, was apprehended by U.S. 
authorities in New York on September 26, 2002, 
and transported to Syria, where he was brutally 
tortured for months. Arar used an Arabic 
expression to describe the pain he experienced: 
“you forget the milk that you have been fed from 
the breast of your mother.” The Canadian 
government later exonerated Arar of any terrorist 
ties. Thirteen CIA operatives were arrested in 
Italy for kidnapping an Egyptian, Abu Omar, in 
Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to 
engage in rendition to detain and interrogate 
terrorism suspects and transfer them to other 
countries. “If we capture a high-value prisoner,” 
he said, “I believe we have the right to hold 
that individual temporarily to be able to debrief 
that individual and make sure that individual is 
properly incarcerated.” No clarification of how 
long is “temporarily” or what “debrief” would mean.

When Sen. Christopher (R-Mo.) asked about the 
Clinton administration’s use of the CIA to 
transfer prisoners to countries where they were 
later executed, Panetta replied, “I think that is 
an appropriate use of rendition.” Jane Mayer, 
columnist for the New Yorker, has documented 
numerous instances of extraordinary rendition 
during the Clinton administration, including 
cases in which suspects were executed in the 
country to which the United States had rendered 
them. Once when Richard Clarke, President 
Clinton’s chief counter-terrorism adviser on the 
National Security Council, “proposed a snatch,” 
Vice-President Al Gore said, “That’s a 
no-brainer. Of course it’s a violation of 
international law, that’s why it’s a covert 
action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary 
rendition and extraordinary rendition. “Rendition 
has to end,” Michael Ratner, president of the 
Center for Constitutional Rights, told Amy 
Goodman on Democracy Now! “Rendition is a 
violation of sovereignty. It’s a kidnapping. It’s 
force and violence.” Ratner queried whether Cuba 
could enter the United States and take Luis 
Posada, the man responsible for blowing up a 
commercial Cuban airline in 1976 and killing 73 
people. Or whether the United States could go 
down to Cuba and kidnap Assata Shakur, who 
escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t 
very productive,” a former CIA official told the 
Los Angeles Times. After a prisoner was turned 
over to authorities in Egypt, Jordan or another 
country, the CIA had very little influence over 
how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the 
identities, fate, and current whereabouts of all 
persons detained by the CIA or rendered to 
foreign custody by the CIA since 2001. Those who 
ordered renditions should be prosecuted. And the 
special task force should recommend, and Obama 
should agree to, an end to all renditions.

This column originally ran in 
<http://jurist.law.pitt.edu/forumy/2009/02/call-to-end-all-renditions.php>The 
Jurist.

Marjorie Cohn is president of the National 
Lawyers Guild and a professor at Thomas Jefferson 
School of Law. She is author of 
<http://www.amazon.com/exec/obidos/ASIN/0977825337/counterpunchmaga>Cowboy 
Republic. Her articles are archived at 
<http://www.marjoriecohn.com>www.marjoriecohn.com.(The 
views expressed in this article are solely those 
of the writer; she is not acting on behalf of the 
National Lawyers Guild or Thomas Jefferson School of Law)




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