Extraordinary renditions. January 2009 An International Bar Association Human Rights Institute background paper

Extraordinary renditions January 2009 An International Bar Association Human Rights Institute background paper

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Introduction 1.1 Extraordinary rendition is the term given to the secret transfer of suspects from one country to another without legal protection such as extradition laws and treaties. In the US s war on terror it has been carried out almost exclusively by American officials to transfer non- American terror suspects to destinations throughout the world. The US Administration has also acknowledged the existence and use of secret detention centres run by the US Central Intelligence Agency (CIA), where many of these transferred suspects are taken. 1.2 This paper aims to examine the CIA s extraordinary rendition and secret detention programmes. Given the official secrecy involved, the examination is limited in its scope, but relies on the little that has been reported publicly about what has happened through this programme. The paper looks at the conditions of detention and interrogation during extraordinary rendition, and the legality and utility of the programme. It also considers the cases of erroneous extraordinary rendition whereby detainees have been proven to be innocent. 1.3 The US rationale for this practice is similar to that for Guantánamo Bay: to remove suspects from circulation and to facilitate their interrogation. 1 However, it is unclear why an alternative practice to Guantánamo Bay is required, given that detainees there have also been interrogated harshly and detained without charge. 1.4 Information relating to the number of detainees held in these secret facilities is scarce. It has therefore been difficult for the international community to assess the use of extraordinary rendition by the United States and its partner states. However, some findings have been possible. This paper aims to set out what is known about the United States extraordinary renditions programme, during both the Clinton and Bush administrations. Following this, what is known about the modus operandi of the US process, the conditions of detention and the nature of interrogations is reviewed. This is followed by an assessment of the legality and utility of extraordinary renditions. Erroneous extraordinary renditions, in which the person is innocent, are highlighted as an area of significant concern. Finally, extraordinary renditions in other countries and European involvement in particular are discussed. 1.5 Extraordinary rendition results in the disappearance of suspects from public view. There is no independent oversight by the ICRC. The international community is unaware of how many suspects have been extraordinarily rendered. Some of those who have been rendered to Guantánamo Bay have resurfaced and been named following legal challenges, but those rendered elsewhere remain anonymous in most cases. In addition to Guantánamo Bay, those who are rendered may end up in either other CIA-run secret detention facilities located around the world or in the detention facilities of other countries such as Jordan, Syria, and Egypt. It is believed that those who are rendered to CIA-run secret detention facilities are perceived to be of high value in relation to information they are suspected of knowing. 2 1 White House Press Release, Executive Order Trial of Alien Unlawful Enemy Combatants by Military Commission, 14 February 2007 at www. whitehouse.gov/news/releases/2007/02/20070214-5.html (last viewed 1 December 2007). 2 Ibid. Extraordinary renditions background paper November 2008 53

Extraordinary rendition under the Clinton administration 1.6 The use of extraordinary rendition was developed by the CIA and authorised by presidential directive under the Clinton Administration during the 1990s. 3 The original author of the policy, Michael Scheuer, recently testified before the Committee of Foreign Affairs of the US Congress. He stated that the original purpose of the programme was to capture men who were planning or had been involved in terrorist attacks and deliver them to other countries that had outstanding warrants for their arrest. 4 The purpose of the programme was not interrogation and information gathering as interrogation in the absence of CIA officials would mean that information was filtered. Furthermore, it could have been obtained under torture and, therefore, its reliability could not be assessed. 1.7 Scheuer stated that the programme was first proposed to Egypt in 1995. 5 According to Scheuer, Egypt was the obvious choice as it was the second largest recipient of US foreign aid after Israel, it was a key strategic ally, and its secret police force, the Mukhabarat, had a reputation for brutality. US law required the CIA to seek assurances from foreign governments that rendered suspects would not be tortured. This requirement stems from the United States obligations under Article 3 of the CAT. 6 However, Scheuer s testimony before Congress makes it clear that such assurances were not deemed important. He stated: 7 I would not, however, be surprised if their treatment was not up to US standards. This is a matter of no concern as the Rendition Program s goal was to protect America, and the rendered fighters delivered to Middle Eastern governments are now either dead or in places from which they cannot harm America. Mission accomplished, as the saying goes. 1.8 According to investigative journalist Stephen Grey, the US-practice of extraordinary renditions developed in Tirana, Albania, in July 1998. 8 The rendition of five Egyptian Islamist Militants in 1998: 9 A team of CIA operatives ran an operation with Albania s secret police. They tracked down and tailed a group of five Egyptian Islamist militants, foiling their plan to destroy a US embassy with a truck bomb. They were captured together and taken to police headquarters where, as the CIA waited outside, they were physically tortured. They were then bundled into an unmarked US Gulfstream jet waiting at the airport and flown to Cairo. 3 Fact Sheet: Extraordinary Rendition, American Civil Liberties Union, 6 December 2006 at www.aclu.org/safefree/extraordinaryrendition/ 22203res20051206.html (last viewed 4 April 2008). 4 Extraordinary Rendition in US Counterterrorism Policy: The Impact on Transatlantic Relations, Committee on Foreign Affairs of the House of Representatives, 17 April 2007 at http://foreignaffairs.house.gov/110/34712.pdf (last viewed 4 April 2008). 5 Jane Mayer, Outsourcing Torture: The secret history of America s extraordinary rendition program, The New Yorker, 14 February 2004, at www.newyorker.com/archive/2005/02/14/050214fa_fact6?currentpage=1 (last viewed 4 April 2008). 6 Article 3 of CAT requires states not to 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. 7 Scheuer s testimony to Committee on Foreign Affairs, Extraordinary Rendition in US Counterterrorism Policy: The Impact on Transatlantic Relations, Committee on Foreign Affairs of the House of Representatives, 17 April 2007, at http://foreignaffairs.house. gov/110/34712.pdf (last viewed 4 April 2008). 8 Stephen Grey, America s Gulag, The New Statesman, 14 May 2004, at www.newstatesman.com/200405170016 (last viewed 4 April 2008). 54 Extraordinary renditions background paper November 2008

After being handed over to the Egyptian government, Ahmed Osman Saleh was suspended from the ceiling and given electric shocks; he was later hung after a trial in absentia. Mohamed Hassan Tita was hung by his wrists and given electric shocks to his feet and back. Shawki Attiya was given electric shocks to his genitals, suspended by his limbs and made to stand for hours in filthy water up to his knees. Ahmad Ibrahim al-naggar was kept in a room with water up to his knees for 35 days; had electric shocks to his nipples and penis; and was hung without trial in February 2000. Extraordinary rendition under the Bush administration 1.9 The practice of extraordinary rendition was extended under the Bush Administration following the terrorist attacks of 11 September 2001. 10 Reports that terror suspects were being held by the CIA in undisclosed locations around the world began to surface in 2002. 11 Public knowledge of the existence of US-run secret prisons, which are also known as black sites, became widespread following a front page article in the Washington Post by investigative reporter, Dana Priest. 12 She reported that the system had been operating for nearly four years and that black sites had been located in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small centre within the larger detention facility at Guantánamo Bay. 1.10 In December 2005, ABC News reported that the black sites in Romania and Poland had been closed down and that detainees had been transferred to another site in the north-african desert. 13 The report stated that CIA-run detention facilities started after the capture of Abu Zubaydah in Pakistan. After being treated for a gunshot wound to his leg, he was taken to a disused warehouse on an active military base in Thailand where he was subjected to waterboarding. According to reports, the simulated drowning lasted 35 seconds before he begged for mercy and agreed to cooperate. 1.11 In 2005, certain CIA officials appeared to become nervous about the legal ramifications of their interrogation techniques and destroyed videotapes of a number of interrogations. 14 The official reason given for this destruction of evidence was that it was to protect the identities of the interrogators. 9 Ibid. 10 Scheuer s testimony to Committee on Foreign Affairs, supra note 7. 11 Ghost Prisoner: Two Years in Secret CIA Detention, Human Rights Watch, February 2007, at www.hrw.org/reports/2007/us0207/index.htm (last viewed 4 April 2008). The first official acknowledgement occurred in February 2003, during the prosecution of Zacarias Moussaoui for his participation in the September 11 attacks. He was denied access to an exculpatory witness Ramzi bin al-shibh, who the US Administration was forced to admit was being held at a secret location overseas. 12 Dana Priest, CIA Holds Terror Suspects in Secret Prisons: Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11, The Washington Post, 2 November 2005. at www.washingtonpost.com/wp-dyn/content/article/2005/11/01/ AR2005110101644.html (last viewed 4 April 2008). 13 Brian Ross and Richard Esposito, Sources Tell ABCS News of Top al-qaeda Figures Held in Secret CIA Prisons, ABC News, 5 December 2005, at http://abcnews.go.com/wnt/investigation/story?id=1375123 (last viewed 4 April 2008). After extensive analysis of flight records, Algeria has been named as a likely location of a secret detention facility in the Council of Europe Report; Dick Marty, Alleged Secret Detentions and Unlawful Inter-State Transfers of Detainees Involving Council of Europe Member States, Parliamentary Assembly of the Council of Europe, 12 June 2006, Doc 10957, at http://assembly.coe.int/committeedocs/2006/20060606_ejdoc162006partii-final.pdf (last viewed 22 February 2008). 14 Randall Mikkelsen and Tabassum Zakaria, Democrats fury grows over destroyed CIA tapes, Reuters, 7 December 2007, at www.reuters.com/ article/newsone/idusn0654798320071207 (last viewed 9 April 2008). Extraordinary renditions background paper November 2008 55

1.12 On 6 September 2006, the US Administration officially acknowledged the CIA-run secret prison system. President Bush announced that 14 high value prisoners had been transferred to Guantánamo Bay, having been secretly detained by the CIA for years. 15 He also referred to the CIA s alternative set of procedures for interrogations (of which waterboarding is the most infamous). He announced that the CIA-run secret prison system was empty. It is likely that this was partly due to the Supreme Court s decision in Hamdan v Rumsfeld, holding that Common Article 3 of the Geneva Conventions applied to all those detained by the United States in the war on terror. 1.13 To alleviate the concerns about prosecutions for war crimes, President Bush signed the Military Commissions Act into law in October 2006. It limited the definition of war crimes under the War Crimes Act 1997 from all breaches of Common Article 3 of the Geneva Conventions, to grave breaches of the Article, and removed subjecting a detainee to an unfair trial from the list of war crimes altogether. 16 The provisions were backdated so as to have effect from 1997, thus covering the United States entire war on terror. In addition, President Bush recently vetoed the Information Authorization Bill, which would have restricted the CIA s ability to interrogate terror suspects to methods that do not involve the use of physical force. 17 President Bush justified his decision on the grounds that such restrictions would deprive the United States of a vital means of intelligence gathering. 1.14 There is increasing evidence that the secret CIA system is functioning again. In June 2007, a group of six NGOs released a report alleging that at least 39 suspects have disappeared within the CIA system. 18 The report specifically names three detainees Pakistani Hassan Ghul, Saudi Arabian Ali Abu al-rahman al-faqasi al-ghamdi and Libyan Ali Abdul-Hamid al-fakhiri whose detention by the United States has been officially acknowledged but whose fate and whereabouts remain unknown. The report also highlighted the detention of suspects family members, in particular the two young sons of Khalid Sheikh Mohammed, aged seven and nine, who were used as a psychological lever during his interrogations. 1.15 In September 2007, the Director of the CIA reported that fewer than 100 people had been detained at CIA s facilities. 19 Whilst 14 of these detainees have been transferred to Guantánamo Bay, it is unclear what has happened to the remainder of the group. The Director also reported that the number of renditions to third states since the beginning of the war on terror is between 40 and 60, although this has not been verified. 20 15 White House Press Release, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006, at www.whitehouse.gov/news/releases/2006/09/20060906-3.html (last viewed 22 February 2008). 16 Questions and Answers about the Military Commissions Act of 2006, Human Rights First, at www.humanrightsfirst.org/us_law/etn/ca3/hrfca3-102406.html (last viewed 11 April 2008). 17 Bush on Veto of Intelligence Bill, New York Times, 8 March 2008, at www.nytimes.com/2008/03/08/washington/08cnd-ptext. html?ref=washington (last viewed 9 April 2008). 18 Off the Record: U.S. Responsibility for Enforced Disappearances in the war on terror, June 2007, at www.reprieve.org.uk/documents/ OFFTHERECORDFINAL.pdf (last viewed 4 April 2008). 19 Transcript of Remarks by Central Intelligence Agency Director, General Michael V Hayden at the Council on Foreign Relations, 7 September 2007, at https://www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreignrelations.html (last viewed 17 February 2008). 20 Ibid. 56 Extraordinary renditions background paper November 2008

The modus operandi of extraordinary renditions 1.16 The CIA has a fixed modus operandi when carrying out extraordinary renditions. 21 The first step of this process is a security check prior to departure, which reportedly takes 20 minutes. During this security check, the detainee is stripped naked, receives a full body cavity search, is drugged via a suppository forced into the anus, and is then dressed so as to prohibit any sense of the outside world. The suspect is then forced onto a waiting plane and strapped down or shackled to a stretcher. He is not allowed to move, eat or drink throughout the flight. The extraordinary rendition of Khaled el-masri: 22 Khaled el-masri is a German citizen of Lebanese origin. He was detained by Macedonian border police at the end of 2003. According to el-masri, when he was taken to the airport, he was beaten, stripped naked and thrown to the ground. A hard object was forced into his anus. When his blindfold was removed he saw seven to eight men dressed in black and hooded. He was placed in a diaper and sweatsuit, blindfolded, shackled and placed on to a plane where he was chained spreadeagled to the floor. He was flown to Kabul via Baghdad where he was interrogated and detained for four months. By mid-april, an American official confirmed to him that he was innocent but told him that only officials in Washington could authorise his release. On 28 May 2004, el-masri was dumped on a hillside in Albania and subsequently returned to Germany. 1.17 The CIA justifies these actions by asserting that their first priority is to protect the lives of their officers. 23 However, a report for the Council of Europe found that security considerations do not justify the systematic violation of human rights and dignity. 24 The report concluded that the primary purpose of this systematic practice actually appeared to be the humiliation of detainees. Extraordinary renditions to other countries 1.18 It appears that in spite of the United States criticisms of their poor reputation for human rights and the practice of torture 25 the countries which most often receive transfers are Egypt, 26 Syria 27 and Morocco. 28 Other countries reported to be receivers of extraordinary 21 Marty, supra note 13. 22 Ibid, 25. 23 Ibid, 22, quote from Scheuer. 24 Ibid, 24. 25 For example see the US Department of State s Country Report on Human Rights Practices 2005. For Egypt see www.state.gov/g/drl/ rls/hrrpt/2005/61687.htm, for Syria see www.state.gov/g/drl/rls/hrrpt/2005/61699.htm and for Morocco see www.state.gov/g/drl/ rls/hrrpt/2005/61695.htm (last viewed 20 February 2008). 26 For example see the cases of Ahmed Agiza and Mohammed Alzery (El Zari) as documented by the UN Committee Against Torture, Communication No 233/2003, UN Doc CAT/C/34/D/233/2003 (2005), decision of 20 May 2005, at www1.umn.edu/humanrts/cat/ decisions/233-2003.html (last viewed 23 April 2008). Also see the case of Abu Omar, currently being investigated in Italy, and reported in Marty, supra note 13. 27 For example see the case of Maher Arar, investigated by the Commission of inquiry into the action of Canadian officials in reaction to Maher Arar, set up on 5 February 2004, available at www.commissionarar.ca/eng/index.htm (last viewed 23 April 2008). 28 For example see the case of Binyam Mohamed al Habashi as documented by his lawyer, Clive Stafford Smith in Bad Men: Guantanamo Bay and the Secret Prisons (Orion, 2007), ch 4. Extraordinary renditions background paper November 2008 57

rendition include Pakistan, Jordan, Afghanistan, Romania, Uzbekistan, Algeria, Iraq and Poland. 29 1.19 In 2006, John Bellinger, Chief Legal Advisor to the Department of State stated: 30 To the extent that extraordinary rendition as I have seen it defined means the intentional transfer of an individual to a country, expecting or intending that they will be mistreated, then the United States does not do extraordinary renditions to begin with. The United States does not render people to other countries for the purpose of being tortured, or in the expectation that they will be tortured. 1.20 However, Scheuer, the original CIA author of the extraordinary renditions programme, directly contradicted Bellinger in his testimony before the US Congress. Scheuer testified that under the Bush Administration there were no qualms at all about sending people to Cairo and kind of joking up our sleeves about what would happen to those people in Cairo in Egyptian prisons. 31 Furthermore, Scheuer testified that this was clearly communicated to the US Administration. 32 1.21 Scheuer s testimony is supported by the testimonies of detainees who have been subjected to extraordinary renditions to other countries. A particularly well-documented case is that of Binyam Mohamed. 33 The extraordinary rendition and torture of Binyam Mohamed to Morocco: 34 Mohamed was born in Ethiopia, but his family fled to the United Kingdom after the Ethiopian Government was replaced by military rule in 1992. He was detained at Karachi airport in April 2002 by Pakistani immigration police. Ten days later, he was handed over to the FBI. After that he was interviewed by British officials who said that they were from MI6. One of them told him he was going to be sent to be tortured by the Arabs. On 21 July 2002, he was taken to a military airport in Islamabad and subjected the usual security checks in preparation for the rendition. He was flown to Morocco. He described a detention facility which matches the description of Temara, a notorious prison close to Rabat. His treatment started with threats. The guards talked about torture and rape. The questions he was asked during interrogations made him realise that the information was coming directly from London and that British officials would not be coming to help him. It was when he was given a Qur an soaked in something like diesel that he released that his Muslim captors were not going to spare him. He was interviewed by Sarah, a Canadian in August 2002. She was meant to be a mediator between him and the Americans. When she left, the cycle of torture started. Mohamed states: 29 Marty, supra note 13, 17. 30 Ibid, 54. 31 Scheuer s testimony to Committee on Foreign Affairs, supra note 7. 32 Ibid. 33 Clive Stafford Smith, supra note 28, ch 3. 58 Extraordinary renditions background paper November 2008

They d ask me a question. I d say one thing. They d say it was a lie. I d say another. They d say it was a lie. I could not work out what they wanted to hear. They d say there s this guy who says you re the big man in al-qaeda. I d say it s a lie. They d beat me. I d say, OK it s true. They d say OK, tell us more. I d say, I don t know more. They d beat me again. Mixed with the beatings was second-degree torture. He was told that there was worse to come and spent nights listening to other people screaming across the hall. Mohamed was told by his Moroccan captors that the United States had a story they wanted from him and it was their job to get it. He states: They talked about Jose Padilla and they said I was going to testify against him and big people. They named Khalid Sheik Mohammed, Abu Zubaydah and Ibn Skeikh al-libi. I was meant to be working with these people, giving them ideas like the dirty bomb. It is hard to pin down the exact story, because what they wanted changed all the time. First in Morocco it changed, then when I was in the Dark Prison, then in Bagram and again in Guantánamo Bay. One night, the cycle of violence escalated. Mohamed was hung up against a wall, his clothes were cut off, and a small cut was made to his chest with a scalpel. His captors then started to make cuts to his penis. Sessions of making cuts to his penis continued on an irregular basis, and he was subjected to other similar and even worse acts of torture during this time. A different type of torture also started in an effort to brainwash Mohamed. He was subjected to deafening music for hours. His captors drugged his food and strapped him down to a mattress to insert IVs of heroin into him. After 18 months, Mohamed was rendered out of Morocco by the Americans and was eventually taken to Guantánamo Bay where he faces trial by military tribunal. European involvement in extraordinary renditions 1.22 In Europe, Romania and Poland have been most widely accused of housing secret CIA detention cells. 35 Two key reports have been published by European institutions regarding the involvement of European countries in the United States extraordinary renditions programme. The Council of Europe Report in 2006 concluded that secret detention facilities had existed and unlawful inter-state transfers of terror suspects had taken place in Europe. 36 Moreover, it found that some European countries were voluntarily involved with the CIA s programme. 37 34 Ibid. 35 The Governments of Romania and Poland have not officially admitted it but there is substantial evidence of the secret detention facilities. See Marty, supra note 13. 36 Ibid. 37 The proposition that the sovereignty of countries in Europe has not been violated by the CIA is strongly supported by Scheuer s testimony to Congress (supra note 7). He maintains that to his knowledge the CIA has never kidnapped a renditions target in Europe and that claims to the contrary by the Italian Government is either a misstatement or lie. Extraordinary Rendition in US Counterterrorism Policy: The Impact on Transatlantic Relations, Committee on Foreign Affairs of the House of Representatives, 17 April 2007, at http://foreignaffairs.house.gov/110/34712.pdf (last viewed 4 April 2008). Extraordinary renditions background paper November 2008 59

1.23 In the case of el-masri (discussed above in paragraph 1.16), it is not clear at which point the German authorities were informed of the situation. The Council of Europe Report opines that German intelligence would have been informed by the Macedonian authorities when el-masri was captured. Furthermore, the report notes that the nature of questioning by US officials strongly suggests that German officials must have been involved in feeding information to the United States. 38 By mid-may, el-masri was interviewed in the US-run secret prison in Kabul by a German intelligence officer. The report also notes that Macedonian officials were evasive about questions regarding their role in el-masri s abduction. Some officials stated that the questions were a thinly veiled attempt to discredit Macedonia s prospects for European integration. 1.24 Another report was published by the Temporary Committee of the European Parliament of the European Union in January 2007. 39 It concluded that many European countries tolerated illegal actions of the CIA including secret flights over their territories. 40 Furthermore, the report categorically rejected a proposal to regulate extraordinary renditions at an international level. The conditions of detention in CIA-run secret prisons 1.25 Little is known about the conditions of detention in CIA-run secret prisons. However, three Yemeni nationals, Muhammad al-assad, Salah Nasser Salim Ali and Muhammad Faraj Ahmed Bashmilah, have reported their experiences. 41 According to their reports, they were held in US custody for 18 months, during which time they were moved several times. They reported they were held in complete isolation in cells with blank walls, no floor coverings and no windows. They were also reportedly subjected to constant low-level white noise, which was sometimes replaced by loud western music. 42 For over a year the men did not know which country they were in or the time of day. They spoke with no one except their interrogators. None of the men ever saw each other, or any other detainee, but one of the men calculated that some 20 people were being taken to the shower room in his section each week. Interrogations in CIA-run secret prisons 1.26 Details of the CIA s enhanced interrogation programme remain classified. However, Human Rights First have stated that there are credible reports that interrogation techniques include: waterboarding; exposure to extreme cold (including induced hypothermia); stress 38 Marty, supra note 13. 39 Report on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners, Temporary Committee of the European Parliament of the European Union, 30 January 2007, A6-0020/2007, at www.europarl.europa.eu/comparl/tempcom/tdip/ final_report_en.pdf (last viewed 4 April 2008). 40 The countries named and shamed were Austria, Belgium, Cyprus, Denmark, Germany, Greece, Ireland, Italy, Poland, Portugal, Romania, Spain, Sweden and the United Kingdom. 41 Rendition and secret detention: A global system of human rights violations. Questions and Answers, Amnesty International, AMR 51/108/2005, 3 August 2005, at www.amnesty.org/en/library/info/amr51/108/2005 (last viewed 4 April 2008). 42 Indistinct non-musical sounds. 60 Extraordinary renditions background paper November 2008

positions; extreme sensory deprivation or overload; shaking; striking; prolonged sleep deprivation; and isolation. 43 ABC News reported that CIA officers who subjected themselves to the waterboarding technique lasted an average of 14 seconds before submitting. They reported that al-qaeda s toughest prisoner, Khalid Sheik Mohammed, won the admiration of interrogators when he was able to last between two and two-and-a-half minutes before breaking. 44 1.27 The reliability of information obtained from Khalid Sheikh Mohammed during his three-year incarceration in the CIA-run secret detention is questionable. Notably, he was subjected to waterboarding, and his two sons, aged seven and nine, were detained as a psychological lever. 45 According to the record of Khalid Sheikh Mohammed s Combat Status Review Tribunal, he has confessed to an extraordinary amount of crimes. 46 The crimes to which Khalid Sheikh Mohammed has confessed: 47 The 1993 World Trade Centre bombing; 9/11 from A to Z; The decapitation of American journalist Daniel Pearl; The shoe bomber operation to bring down two American airplanes; The Filka Island operation in Kuwait; The Bali nightclub bombings; and The planning and organisation of a least 38 other terrorist plots. The countries in which the attacks and plots were to be carried out include: Pakistan; Kuwait; Indonesia; Singapore; Panama; Thailand; Israel; Australia; Japan; Azerbaijan; the Philippines; Kenya; South Korea; Turkey; Belgium; the United Kingdom; and various cities in the United States. Khalid Sheikh Mohammed also confessed to the planned assassinations of: Former US President Carter; Former US President Clinton; Former Pakistani President Musharraf; and The late Pope John Paul II. 43 Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, Human Rights First and Physicians for Human Rights, July 2007, at www.humanrightsfirst.org/us_law/etn/nomarks/exec-summary.asp (last viewed 4 April 2008). 44 Ross and Esposito, Supra note 13. 45 Off the Record, supra note 18. 46 Transcript of the Combat Status Review Tribunal Hearing of ISN 10024, at www.defenselink.mil/news/transcript_isn10024.pdf (last viewed 9 April 2008). 47 Ibid. Extraordinary renditions background paper November 2008 61

1.28 Yosri Fouda, a journalist who interviewed Khalid Sheikh Mohammed in April 2002 states that hardly anyone, even in al-qaeda, will believe he was responsible for all these operations. 48 Fouda highlights that at least one crime, for which he is sure Khalid Sheikh Mohammed is responsible, is absent from this list. That crime was the Djerba operation in Tunisia where a tanker drove into a synagogue in 2002 killing 21 people. Although Mohammed is likely to have engaged in terrorist activities, his confessions reflect the inherent lack of reliable information obtained through torture. Furthermore, even if Mohammed s confessions were credible, they could not be used in a fair trial given the circumstances under which they were obtained. 1.29 It is worth noting that the American Psychological Association has ruled that its psychologists could no longer be associated with such interrogation techniques because the methods are immoral, psychologically damaging and counterproductive in eliciting useful information. 49 1.30 The Human Rights Committee (HRC) has stated that enhanced interrogation techniques are violations of the prohibition of torture, cruel, inhuman and degrading treatment. 50 Furthermore, the Committee has highlighted that while it is now clear that US military personnel cannot legally employ such techniques, intelligence services such as the CIA may still be able to do so. The legality of extraordinary renditions 1.31 The HRC has noted its concern about the United States practice of transferring terror suspects to third countries where the detainees are subjected to gross violations of the prohibition on torture, and has recommended that this practice cease immediately. The Committee Against Torture has also taken this position. 51 1.32 The Committee Against Torture has also stated that enforced disappearances and secret detentions are automatic violations of the Convention Against Torture (CAT). 52 It has called for the United States to disclose the locations of any secret detention facilities and publicly condemn any practices of secret detention. Furthermore, the Committee has recommended that the United States prosecutes and punishes any individuals involved in such practices. These recommendations have been echoed by the HRC in relation to the United States legal obligations under the International Covenant on Civil and Political Rights (ICCPR). 53 1.33 However, the act of extraordinary rendition might not, in itself, constitute a breach of international law. States other than the United States have asserted their right to apprehend terror suspects on foreign territory on rare occasions in order to bring them to justice. The 48 Unravelling the confessions of the 9/11 chief, The Times Online, 18 March 2007, at www.timesonline.co.uk/tol/news/world/us_and_ americas/article1529879.ece (last viewed 9 April 2008). 49 Reaffirmation of the American Psychological Association Position Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as Enemy Combatants, 19 August 2007, at www.apa.org/governance/resolutions/notorture0807.html (last viewed 4 April 2008). 50 Concluding Observations of the Human Rights Committee: The United States of America, CCPR/C/USA/CO/3/Rev.1, 18 December 2006, at http://daccessdds.un.org/doc/undoc/gen/g06/459/61/pdf/g0645961.pdf?openelement (last viewed 11 April 2008). 51 Ibid. 52 Concluding Observations of the Committee Against Torture: The United States of America, CAT/C/USA/CO/2, 25 July 2006, at http://daccessdds.un.org/doc/undoc/gen/g06/432/25/pdf/g0643225.pdf?openelement (last viewed 11 April 2008). 53 Concluding Observations of the Human Rights Committee: The United States of America, supra note 50. 62 Extraordinary renditions background paper November 2008

Director of the CIA, General Hayden, cited the examples of the renditions of Carlos the Jackal (also known as Ilich Ramírez Sánchez) to France and Abdullah Öcalan to Turkey as being analogous to the CIA s system. 54 However, the analogy does not apply. According to General Hayden the purpose of the CIA extraordinary rendition programme is to remove terrorists from operation and to gain intelligence on those still at large. 55 The purpose is clearly not to bring suspects to face criminal trials. 1.34 The European cases which General Haden cites were undertaken for a different purpose; that is, to bring the suspect to face trial for their crimes. Both of these cases were scrutinised by the European Court of Human Rights. 56 The Court found that there had been no violation of the European Convention of Human Rights and, in particular, that neither of the men had been subjected to torture or inhuman or degrading treatment under Article 3 of the Convention. 1.35 The conditions of detention and interrogation techniques carried out as part of the CIA s extraordinary renditions programme, whether described as coercion, enhanced interrogation techniques, inhuman treatment or torture, would almost certainly fail judicial scrutiny for human rights abuses. Furthermore, they breach the international requirements for a fair trial. The utility of extraordinary renditions 1.36 The US Administration and CIA officials maintain that the CIA s extraordinary renditions programme is an essential tool for information gathering in the United States war on terror. 57 According to President Bush, the use of an alternative set of interrogation techniques is necessary because terrorists are trained in how to resist interrogations. In support of this assertion, President Bush has stated that using the alternative set of interrogation techniques against Abu Zubaydah led to the capture of Ramzi bin al Shibh; whose capture led to Khalid Sheikh Mohammed; who led to the further captures of Zubair and Hambali. 58 He asserted that these captures led to the dismantling of a Southeast Asian al-qaeda cell which was being groomed for further attacks on the United States. 1.37 A cursory examination of the example given above reveals two concerns with President Bush s claim. The first concern is that there was a gap of approximately six months between each capture (except for Zubair and Hambali who were seized around the same time). 59 Consequently, it took approximately 18 months of CIA interrogations to neutralise the Southeast Asian al-qaeda cell. This prolonged time period suggests the information obtained by the CIA was of only limited use. The second concern relates to President Bush s claim that the Southeast Asian cell was being groomed. This language suggests that the members of the cell were not actually aware of any 54 Transcript of Remarks by Central Intelligence Agency Director, General Michael V Hayden, supra note 19. 55 Ibid. 56 Case of Ramírez Sánchez v France, Case No: 59450/00, Decided: 4 Jul 2006, for decision see http://cmiskp.echr.coe.int/tkp197/view. asp?item=2&portal=hbkm&action=html&highlight=ram%edrez%20%7c%20s%e1nchez&sessionid=7210067&skin=hudoc-en (last viewed 23 April 2008). Case of Öcalan v Turkey, Case No: 46221/99, Decided: 12 May 2005, for decision see http://cmiskp.echr.coe. int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=ocalan&sessionid=7210067&skin=hudoc-en (last viewed 23 April 2008). Note only the Öcalan decision assessed the legality of extraordinary rendition. 57 White House Press Release, Myth/Fact: The Administration s Legislation to Create Military Commissions, 6 September 2006, at www.whitehouse.gov/news/releases/2006/09/20060906-5.html (last viewed 29 March 2008). 58 Ibid. 59 Abu Zubaydah is reported to have been captured on 28 March 2002, Ramzi bin al Shibh on 11 September 2002, Khalid Sheikh Mohammed on 1 March 2003, Zubair at some point in 2003 and Hambali on 11 August 2003. Extraordinary renditions background paper November 2008 63

specific plans for terrorist attacks. 1.38 A major concern of the CIA extraordinary rendition programme is that it produces misinformation which costs lives. The case of Ibn Sheikh al-libi is a case in point. Al-Libi, a Libyan, has been identified as the primary source of misinformation which connected al-qaeda and Iraq, thereby justifying the invasion of Iraq. Specifically, he told interrogators that Iraq provided training to al-qaeda in the area of weapons of mass destruction. 60 1.39 Newsweek reported that al-libi was at the forefront of the debate about interrogations post 9/11. 61 On one side of the debate was the Federal Bureau of Investigation (FBI), which originally took control of al-libi. They read him his rights and intended to interrogate him in a manner that would ensure that he could be prosecuted and used as a prosecution witness in the trial of Zacarias Moussaoui for his participation in the 11 September 2001 terrorist attacks. According to the FBI, their rapport-building-based approach was working and al-libi was cooperating. On the other side of the debate was the CIA, which wanted to take control of al-libi and interrogate him, using force. The CIA s priority was gaining information but not preserving that information for use in criminal trials. According to the Newsweek report, the confrontation between the CIA and the FBI went all the way to the White House, who allocated the questioning of al-libi to the CIA. 1.40 Former Director of the CIA, George Tenet, stated that the CIA believed that al-libi was withholding critical threat information at the time of his arrest, so he was transferred to a third country for further questioning. 62 According to other reports al-libi was transferred to Egypt where he was tortured. 63 All of al-libi s claims regarding al-qaeda s connection to Iraq were recanted by him in January 2004. 64 His current whereabouts are unknown. His name was conspicuously absent on the list of high value detainees transferred to Guantánamo Bay to face military tribunals in September 2006. It is suspected that he has been returned to Libya and remains imprisoned there. 65 The consequences of his interrogation cannot be underestimated, as it appears that the US Administration justified the invasion of Iraq based largely on the unreliable evidence obtained from al-libi. 1.41 This example highlights the implications of relying on information obtained under torture, which is inherently unreliable. Victims of torture will say what they believe their interrogators want to hear. The example of al-libi s case also demonstrates that resorting to torture is not necessary. Al-Libi was cooperating with the FBI and there is no evidence to suggest that this would not have continued. The US Administration has failed to demonstrate the utility and necessity of the CIA s extraordinary renditions programme. 60 Evan Thomas and Michael Hirsh, The Debate over Torture, Newsweek, 21 November 2005, at www.newsweek.com/id/51198/page/1 (last viewed 9 April 2008). 61 Michael Hirsh, John Barry and Daniel Klaidman, A Tortured Debate, Newsweek, 21 June 2004, at www.newsweek.com/id/54093 (last viewed 16 April 2008). 62 George Tenet, At the Center of the Storm: My years at the CIA (HarperCollins, 2007) p 353. 63 The United States Disappeared: The CIA s Long-Term Ghost Detainees, Human Rights Watch, October 2004, at www.hrw.org/backgrounder/usa/us1004/index.htm (last viewed 9 April 2008). 64 Thomas and Hirsh, supra note 60. 65 Noman Benotman, a former Afghan jihad fighter who knew al Libi and who is now a London-based Libyan political opposition leader, told Newsweek that during a recent trip to Tripoli, he met with a senior Libyan Government official who confirmed to him that Libi had been quietly returned to Libya and is now in prison there. 64 Extraordinary renditions background paper November 2008

Erroneous extraordinary renditions 1.42 In December 2005, The Washington Post reported that the CIA was investigating a number of erroneous renditions, where the detainees were innocent. 66 The article notes that it is difficult to know how many cases are being investigated for being erroneous. Some sources put the figure as high as three dozen. 67 Despite the investigations, not all victims of erroneous renditions have been released. 68 A number have been transferred by the military and are being held at Guantánamo Bay. One former senior official is quoted as saying that Guantánamo Bay is a dumping ground for CIA mistakes. 1.43 The Washington Post has provided a number of examples of erroneous extraordinary renditions. 69 Mamdouh Habib, an Egyptian-born Australian citizen, was rendered to Egypt for six months where he was hung by his arms from hooks, repeatedly shocked, nearly drowned and brutally beaten. 70 Afterwards, he was rendered to Guantánamo Bay and then released without charge in 2005. Mohamedou Oulad Slahi, a Mauritian and former Canadian resident, was rendered to Jordan for eight months before being taken to Guantánamo Bay. Details are scarce of his treatment in Jordan but they have begun to emerge regarding his treatment in Guantánamo Bay. An article in The Nation reports that aside from the beatings, water-boarding, stress positions and sexual degradation that have been the norm at Guantánamo Bay, Slahi was taunted with details of his mother s incarceration and rape in an elaborate hoax by an officer who claimed to be representing the White House. 71 Slahi s torture was so extreme that his military prosecutor at Guantánamo Bay refused to continue with the prosecution. 72 Conclusion 1.44 It is difficult to understand why the CIA s extraordinary renditions programme is required when it essentially has the same aim as Guantánamo Bay. Both programmes are aimed at removing terrorist suspects from circulation and to gather information on those still at large. The only difference appears to be the extent of torture and ill-treatment applied to terror suspects, which is apparently more extreme in the extraordinary renditions programme, whether carried out by CIA officials at secret locations or by non-american interrogators in other countries subject to CIA control. 1.45 Aside from the numerous breaches of international law made through the extraordinary renditions programme, the US Administration s claim that it produces useful and reliable information has yet to be supported by any evidence. 66 Dana Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake, The Washington Post, 4 December 2005, at www.washingtonpost.com/wpdyn/content/article/2005/12/03/ar2005120301476.html (last viewed 9 April 2008). 67 Ibid. 68 Ibid. 69 Ibid. 70 Dana Priest and Dan Eggen, Terror Suspect Alleges Torture, The Washington Post, 6 January 2005, at www.washingtonpost.com/ac2/ wp-dyn/a51726-2005jan5?language=printer (last viewed 17 April 2008). 71 Robert Scheer, Leave your morals at the border, The Nation, 4 April 2007, at www.thenation.com/doc/20070416/scheer (last viewed 17 April 2008). 72 Jess Braven, The Conscious of the Colonel, The Washington Post, 31 March 2007, at http://www.libertypost.org/cgi-bin/readart. cgi?artnum=182257 (last viewed 17 April 2008). Extraordinary renditions background paper November 2008 65

66 Extraordinary renditions background paper November 2008