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World Policy Journal
Volume XXIII, No 1, Spring 2006
Extraordinary Rendition and the Wages of Hypocrisy
By Aziz Z. Huq
"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. 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." 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. That same year, the Central Intelligence Agency (CIA) captured Talaat Fouad Qassem, a key leader and spokesman of al- Gamaa al-Islamiya, an Egyptian armed Islamist group, in Croatia. Later, Qassem disappeared into Egyptian custody.
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.
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." 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.
Endnotes* Aziz Z. Huq is associate counsel at the Brennan Center for Justice at the New York University School of Law.