Countering Terrorism: Examining the Tactics of Rendition and Extraordinary Rendition of the US - Term Paper Example

Countering Terrorism: Examining the Tactics of Rendition and Extraordinary Rendition of the US Abstract: This essay aims to discuss the tactics of rendition, especially the extraordinary rendition of United States, in countering and combating terrorism. It analyses the pressing need of United States and other countries in dealing effectively with the growing threats and attacks of terrorism, both global and regional. It also examines the use of rendition by United States in trying to combating terrorism in conjunction with other foreign countries. In the course of such an analysis, the essay takes into account the issues against extraordinary rendition, and discusses on the debates raised today about the ethicality and justification of the use of extraordinary rendition by US. The essay also reviews and records the response of United States to the several debates against its methods used in the war against terrorism. 1.1 Introduction: Bombings, attacks, threats, and violence carried on by terrorists have become a commonplace activity in our world of today. Although statistics might indicate that there has been a reduction in the terrorist incidents, there is still a pressing need for countries to combat international as well as domestic terrorism and wage a war against global terrorism. Terrorism has been defined by Title 22 of the United States Code, Section 2656f(d) as ‘the term terrorism means premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents, usually intended to influence an audience… the term “terrorist group” means any group practising, or that has significant subgroups that practice, international terrorism…’ (National Memorial Institute for the Prevention of Terrorism, 1998). In order to deal effectively with terrorism and terrorists, who having mobility often frequent countries and cause havoc, different countries have developed techniques. The visitations of terrorists and their destruction in United States have further fuelled the fire in the country against terrorism. Research indicates that terrorism and terrorist groups have always been the focus of the departments of US, which include ‘executive branch agencies (for example, the State Department, CIA, and FBI) as well as Congressional bodies – including the Senate Select Committee on Intelligence and the Congressional Research Service’ (The National Security Archive, 2001). ‘The September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon and the abortive attack (possibly aimed at the White House or Camp David) that resulted in the crash of a jetliner in Pennsylvania has resulted in a new and extraordinary emphasis by the Bush administration on combating terrorism’ (The National Security Archive, 2001). Reports state that ‘during the last ten days key administration officials, particularly President Bush, Secretary of Defense Donald Rumsfeld, and Secretary of State Colin Powell, have repeatedly emphasized that their long-term objective is the destruction of terrorism – a goal to be achieved by the death or apprehension of terrorists, the destruction of their infrastructure and support base, and retaliation against states that aid or harbor terrorists’ (The National Security Archive, 2001). To investigate the roots of terrorism, United States has been implementing a practice known as ‘extraordinary rendition’. 1.2 Rendition and Extraordinary Rendition: What They Mean: Rendition, according to law, is a “surrender” or “handing over” of persons or property, particularly from one jurisdiction to another. For criminal suspects, extradition is the most common type of rendition. Rendition can also be seen as the act of handing over, after the request for extradition has taken place’ (Wikipedia). Extraordinary Rendition, according to Wikipedia, has not been yet defined by law and it is held by many critics to be a ‘euphemism’. ‘Bob Herbert of the New York Times wrote: "an American policy that is known as extraordinary rendition. That's a euphemism. What it means is that the United States seizes individuals, presumably terror suspects, and sends them off without even a nod in the direction of due process to countries known to practice torture”’(Wikipedia). However, Extraordinary Rendition can be defined as ‘an American extra-judicial procedure which involves the sending of criminal suspects, generally suspected terrorists or alleged supporters of groups which the US Government considers to be terrorist organizations, to countries other than the United States for imprisonment and interrogation’ (Wikipedia). 1.3 Extraordinary Rendition: A Strategy Favoured by United States: Extraordinary Rendition is a much controversial legal topic, which is highly favoured by the CIA of United States (Andrew Cohen). The origin of the practice of extraordinary rendition can be traced to the mid-1990s when it was first developed and implemented by Central Intelligence Agency officials who were ‘trying to track down and dismantle militant Islamic organizations in the Middle East, particularly Al Qaeda’ (Wikipedia). The main reason behind the emergence of such rendition was that ‘the agency was reluctant to grant suspended terrorists due process under American law, as it could potentially jeopardize its intelligence sources and methods. The solution the agency came up with, with the approval of the Clinton administration and a presidential directive, was to send suspects to Egypt, where they were turned over to the Egyptian mukhabarat, which has a reputation for brutality’ (Wikipedia). As stated by Center for Human Rights and Global Justice at NYU School of Law, ‘the press reports’ show that there have been ‘regular renditions – i.e. transfers made without recourse to the regular legal procedures of extradition, removal, or exclusion, but not involving allegations of involvement in torture – have been occurring for more than a dozen years, and have included numerous transfers in the years leading up to September 11, 2001’. Although extraordinary rendition was used as a ‘limited program’ following September 11, 2001, it has with time expanded into full-pledged practice followed as well as favoured by United States in dealing with international terrorism. According to American Civil Liberties Union, ‘the Central Intelligence Agency, together with other US government agencies, has utilized an intelligence-gathering program involving the transfer of foreign nationals suspected of involvement in terrorism to detention and interrogation in countries where – in the CIA’s view – federal and international legal safeguards do not apply… this program is commonly known as “extraordinary rendition”’ (2005). Today, according to Scott Horton, who is an expert on international law and further prepared a report on renditions issued by NYU Law School and the New York City Bar Association, ‘a hundred and fifty people have been rendered since 2001’ (Wikipedia; Mayer). Besides, research also shows that apart from rendition, the CIA is also ‘holding dozens of “high value” terrorist suspects outside of the territorial jurisdiction of the US, in addition to the estimated five hundred and fifty detainees in Guantanamo Bay, Cuba’ (Mayer). 1.4 Debates against Extraordinary Rendition: Is This A Form of Torture? 1.4.1 What International Law says: Human Rights Watch states that ‘Torture is illegal, criminal activity. It is practiced in secret, with the complicity of prison and detention facility staff and medical personnel, including physicians’ (2005). According to the Human Rights Watch, ‘International law is clear: torture and cruel, inhuman or degrading treatment or punishment (hereinafter “ill-treatment”) are prohibited absolutely, in all situations and at all times, as is the transfer of any person under any circumstances to a place where he or she would be at risk of such abuse’ (2005). Such transfers, practiced under extraordinary rendition, are banned and such ban ‘applies to every person, in times of armed conflict, disturbances, emergencies, or peace, no matter what past or current military or personal status obtains or what crimes or activities a person is suspected of having committed… states cannot derogate from or ‘opt out’ of this obligation’ (Human Rights Watch, 2005). Research shows that the prohibition against torture is ‘enshrined in numerous major international and regional human rights treaties’. Such treaties include the following: UN Convention Against Torture: Under the Convention, it is expressly prohibited to transfer a person to a country where he or she would be at risk of torture…the states cannot torture and cannot circumvent this obligation by sending people to governments that will; International Covenant on Civil and Political Rights: The ICCPR provides in article 7 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, which also includes the nonrefoulement obligation which states that State parties must not expose 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; 1951 Convention Relating to the Status of Refugees; International Humanitarian Law, which prohibits torture and ill-treatment of all combatants and civilians, in all circumstances and non-international armed conflict; Customary International Law, according to which the prohibition against torture and ill-treatment is considered part of the body of customary international law that binds all states, whether or not they have ratified the treaties in which the prohibition against torture is enshrined; Regional Human Rights Law, which says that the general prohibition against torture is enshrined in a number of regional human rights treaties, including… the American Convention on Human Rights (Human Rights Watch, 2005). Thus, ‘international and regional law uniformly provides that regardless of whether the transfer of a person occurs as a part of an extradition request and regardless of any exceptional circumstances such as efforts to combat terrorism or another threat against national security, the anti-torture and non-refoulement principles would be violated…’ (Center for Human Rights and Global Justice, 2005). 1.4.2 Use of Torture: A Criminal Activity According to Center for Human Rights and Global Justice, ‘the international law on criminal liability is relevant to extraordinary renditions’. It states, ‘reflecting the seriousness of the offense of torture, an evolving body of international law also requires criminalization and prosecution of ancillary acts, such as complicity to, and aiding and abetting, torture. This body of law is reflected in multilateral treaties that set out legal standards and a basis for criminal sanctions, and also in the norms of customary international law’ (2005). ‘CAT, The ICCPR and the Geneva Conventions have each been interpreted to require that States investigate and criminalize torture by their own officials and those acting at the officials’ direction’ (Center for Human Rights and Global Justice, 2005). Extraordinary rendition has been described a form of torture and which even includes disappearance of hundreds of people who are suspected of having links with any terrorist or suspicious organisations. Critics state that ‘the unstated purpose of such renditions is to subject the suspects to aggressive methods of persuasion that are illegal in America—including torture’ (Mayer). Research shows that this practice which had begun against ‘small, discrete set of suspects… has come to include a wide and ill-defined population… many of them have never been publicly charged with any crime’ (Mayer). Critics are also of the opinion ‘that the program has "spun out of control", and has been used against large numbers of individuals (Wikipedia). According to Center for Human Rights and Global Justice, ‘US officials reportedly are seeking opportunities to transfer terrorist suspects to locations where it is known that they may be tortured, hoping to gain useful information through the use of abusive interrogation tactics’ (2005). The usual places where suspects are detained and transported include Egypt, Jordan, Morocco, Saudi Arabia, Yemen, and even Syria, which have been implicated in using torture (Center for Human Rights and Global Justice, 2005; Wikipedia; Human Rights Watch). According to Amnesty International US, ‘the US Government has not offered a public definition of “extraordinary renditions” nor has it provided public disclosure about this practice’. Further, evidences also exist which reveal that extraordinary rendition practice is ‘cloaked in secrecy, making it difficult to know how many individuals are affected’ (Amnesty International US). With detainees denied of seeking proper legal recourse to ‘challenge their detention or prevent their transfer to a country where they may be tortured’ seriously violates compliance with US law and protection of basic human rights (Amnesty International US). ‘According to former CIA case officer Bob Baer, "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear - never to see them again - you send them to Egypt”’ (Wikipedia). Thus, it is quite clear that extraordinary rendition is in a way sending suspected victims to places where there can be the use of torture and other practices which are deemed to be criminal in eyes of International Law and other treaties. 1.4. 3 Some Case Stories: Some grim case stories include those of Mahar Ahar, a Canadian citizen of Syrian descent, who was rendered to Jordan where he was subjected to extreme torture and ill-treatment; and Khaled el-Masri, who was accused of having being in a terrorist training camp and was ‘allegedly beaten, stripped, shackled, blindfolded, and placed abroad a plane… he was also taken from a bus and allegedly abducted and ‘delivered to a prison in Afghanistan… and repeatedly interrogated, and photographed naked by individuals…’ (Center for Human Rights and Global Justice, 2005). ‘The US government has not explained why it send Arar to Syria rather than to Canada, where he resides, or why it believed Syrian assurances to be credible in light of the government’s well-documented record of torture, including designation as a country where torture is a serious abuse by the US Department of State’s 2001 County Reports on Human Rights Practices’ (Human Rights Watch, 2005). At present, Germany and Italy are also pursuing criminal investigations. Mahar Ahar as well as EL-Masri have filed law suits against the United States. 1.5 United States’ Response to Issues Raised By Critics: The Federal Law clearly upholds the principle of not expelling, extraditing, or affecting the involuntary return of any person to any country where he or she will be in danger of being subjected to torture, ‘regardless of whether the person is physically present in the United States’ (Cohen). In spite of the aforementioned law of the country, still the practice of extraordinary rendition is in vogue. 1.5.1 Rendition: ‘a vital tool’: Secretary of State Condoleezza Rice is of the opinion that ‘United States does not transport terrorism suspects “for the purpose of interrogation using torture” and “will not transport anyone to a country when we believe he will be tortured”’ (Kessler, 2005). According to her, the technique of rendition is a ‘vital tool’ which has ‘helped protect European countries from attack, helping save European lives’. It is a technique in which ‘suspects are secretly transferred from countries without formal extradition proceedings’. 1.5.2 Emotional Leverage: According to Arab and American intelligence chiefs, ‘what’s gained by transferring a prisoner to his home country for interrogation is emotional leverage…a hardened al Qaeda member often can’t be physically coerced into giving up information… but he may do so if confronted by, say, his mother, father, brother, or sister’ (Ignatius, 2005). 1.5.3 Reliance on Diplomatic Assurances: This happens as ‘United States law permits the use of assurances in immigration cases, and authorities have disclosed that it is US policy to seek them as well in so-called “extraordinary rendition” cases…’ (Human Rights Watch, 2005). United States maintains that it relies on ‘diplomatic assurances when transferring persons at risk of torture… it seeks and secures assurances against inhumane treatment before transferring detainees from Guantanamo Bay to their home countries or to third countries’ (Human Rights Watch, 2005). Further it has also been observed by the Human Rights Watch that there is ‘an absence of express provision… including any opportunity to challenge the credibility or reliability of diplomatic assurances before an independent judicial body’ (2005). Director of Central Intelligence Porter J. Goss states that ‘We have a responsibility of trying to ensure that they are properly treated, and we try do the best we can to guarantee that. But of course once they’re out of our control, there’s only so much we can do’ (Human Rights Watch, 2005). A very similar statement was also made by Secretary of State Condoleezza Rice in March 2005 clearly state that ‘there is no way to enforce diplomatic assurances or guarantee a returnee’s safety’ (Human Rights Watch, 2005). However, in spite of lack of reliability and opportunity in checking the diplomatic assurances, the Human Rights Watch report has observed that ‘the Bush administration, however, has continued to defend the practice of relying on assurances against torture, even from the government of Uzbekistan, a country in which torture is systematic’ (2005). Taking into account the practice of extraordinary rendition by United States, the Association of the Bar of the City of New York points out that, ‘the unfettered discretion the Executive Branch exercises in seeking diplomatic assurances and making the unilateral decision to transfer an individual pursuant to those assurances leaves the individual with no due process protection or the safeguard of judicial oversight. This procedural shortcoming likely violates international law’ (Human Rights Watch, 2005). 1.6 Remedial Measures: As a response to the criticisms levelled against the extraordinary rendition practice, there have been certain legislative initiatives in United States made by lawmakers ‘to address the prohibition against torture, including the absolute ban on returning a person to a place where he or she would be at risk of torture or ill-treatment’. Such initiatives include 9/11 Recommendations Implementation Act; Torture Outsourcing Prevention Act: Markey Bill; and Convention against Torture Implementation Act 2005: Leahy Bill (Human Rights Watch, 2005). 1.7 Discussion and Conclusion An analysis of the literature reviewed in this essay reveals that extraordinary rendition, which is favoured by United States as a measure against terrorism indirectly facilitates torture and ill-treatment of suspected victims, by rendering them to places where there is guarantee of their safety. Torture has been prohibited and banned by International Law and numerous other treaties. Under the laws formulated, torture should be avoided under all circumstances, even under extraordinary conditions, such as efforts to combat terrorism or another threat against national security. Although United States does not engage in torture of suspected terrorists, it follows extraordinary rendition, taking the diplomatic assurances from governments of countries where there has been use of torture and ill-treatment on individuals. Thus, studies show that extraordinary rendition violates international human rights law, IHL, and refugee law and the key instruments which are applicable to extraordinary rendition include: Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 1984 (CAT); ICCPR; 1951 Refugee Convention; and Geneva Convention related to treatment of prisoners or war and also protection of civilian persons (Center for Human Rights and Global Justice, 2005). Although ‘there should be a global effort to apprehend, interrogate, and prosecute persons suspected of involvement in terrorist activities’… countries should also remember that ‘it is also incumbent on them, however, to ensure that basic rights are upheld’ (Human Rights Watch). 1.8 References Kessler, Glenn, 2005, Rice Defends Tactics Used Against Suspects: Europe Aware of Operations, Washington Post.com, Available at http://www.washingtonpost.com/wp-dyn/content/article/2005/12/05/AR2005120500240.html American Civil Liberties Union, 2005, Extraordinary Rendition, Available at http://www.aclu.org/safefree/extraordinaryrendition/22203res20051206.html Amnesty International US, Available at http://takeaction.amnestyusa.org/site/c.goJTI0OvElH/b.1387629/k.F4A8/Extraordinary_Renditions__US_outsourcing_Torture.htm Cohen, Andrew, Extraordinary Rendition, CBS News, Available at http://www.cbsnews.com/stories/2005/02/18/opinion/courtwatch/main674973.shtml Ignatius, David, 2005, ‘Rendition’ Realities, Washington Post, Available at http://www.washingtonpost.com/wp-dyn/articles/A18709-2005Mar8.html Wikipedia: the free encyclopedia, Extraordinary Rendition, Available at http://en.wikipedia.org/wiki/Extraordinary_rendition Mayer, Jane, Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program, The New Yorker Fact, Available at http://www.newyorker.com/fact/content/?050214fa_fact6 Sklar, Morton, 2003, The Blood Doesn’t Wash Off, Globe & Mail/Canada, Available at http://www.commondreams.org/scriptfiles/views03/1110-10.htm Ross, Brian & Richard Esposito, CIA’s Harsh Interrogation Techniques Described, ABC News, Available at http://abcnews.go.com/WNT/Investigation/story?id=1322866 MSNBC, 2004, Committee Report on the Military: Panel Finds Clinton, Bush has Options, Available at http://www.msnbc.msn.com/id/4595501/ The National Security Archive, 2001, Volume 1: Terrorism and US Policy, Available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB55/index1.html Report of the National Commission on Terrorism, Countering the Changing Threat of International Terrorism, Available at http://www.fas.org/irp/threat/commission.html Ginsburg, Susan, 2006, Countering Terrorist Mobility: Shaping an Operational Strategy, Report on Independent Task Force on Immigration, Migration Policy Institute. National Memorial Institute for the Prevention of Terrorism: Preventing Terrorism or Mitigating its Effects, 1998, Patterns of Global Terrorism, US State Department, 1997. Human Rights Watch, April 2005, Still At Risk: Diplomatic Assurances no Safeguard against Torture, Vol. 17, No. 4 (D). United States General Accounting Office, May 2003, Report to Congressional Requesters, Combating Terrorism: Interagency Framework and Agency Programs to Address the Overseas Threat. All Party Parliamentary Group on Extraordinary Rendition, 2005, Torture by Proxy: International Law Applicable to ‘Extraordinary Renditions’ Centre for Human Rights and Global Justice, New York University School of Law. 1.9 Annexes Search Strategy: This essay has drawn on a mixture of materials published by newspapers, internet websites, and even by government authorities. Materials used include articles, essays, reports, and PDF files. The topic was first analysed and then the key themes were formulated which were used later as search key words in Google. The essay has relied on Internet searches for all the above materials by using key words on Google, such as ‘what is rendition?’, ‘ways to combat terrorism’, ‘extraordinary rendition’, ‘terrorism and US’, ‘countering terrorism’, ‘International Law and Terrorism’, and ‘Torture and Law’. Such searches provided a vast array of information, related to the topic which has been discussed in detail in this essay. Read More