by Jeremy Leaming
Federal courts have avoided legal challenges against President George W. Bush’s construction of counterterrorism policies that included extraordinary rendition where terrorism suspects were secretly shipped to countries well-known for employing torture. The Bush and Obama administrations urged the federal courts to dismiss legal challenges to extraordinary rendition and secret detention sites arguing that they would expose “state secrets.”
But an exhaustive report from the Open Society Foundations’ Justice Initiative reveals the policies marketed as a way to protect Americans from terrorism, trampled human rights and produced fatally flawed information. Rendition, in particular, “stripped people of their most basic rights, facilitated gruesome forms of torture, at time captured the wrong people, and debased the United States’ human rights reputation world-wide,” write OSF’s Jonathan Horowitz and Stacy Cammarano about the report.
The federal government has refused to acknowledge participation in rendition and according to Horowitz and Cammarano more than 50 other governments were also involved though have refused to admit it. The initiative’s report details the brutality and senselessness of secret prisons and rendition.
In "Globalizing Torture: CIA Secret Detention and Extraordinary Rendition," Amrit Singh, a senior legal officer of OSF’s Justice Initiative, states that “more than a decade after September 11, there is no doubt that high-ranking administration officials bear responsibility for authorizing human rights violations associated with secret detention and extraordinary rendition, and the impunity that they have enjoyed to date remains a matter of significant concern.”
But because the government has used the so-called state-secrets privilege to scuttle lawsuits challenging the constitutionality of its counterterrorism work, it has until now been difficult to discern the scope of rendition, its number of victims and other government involvement.
In the report’s executive summary, it is noted that “based on credible public sources and information provided by reputable human rights organizations, this report is the most comprehensive catalogue of the treatment of 136 individuals reportedly subjected to these operations. There may be many more such individuals, but the total number will remain unknown until the United States and its partners make the information publicly available.”
The report also says that “as many as 54 foreign governments reportedly participated in these operations in various ways, including hosting CIA prisons on their territories; detaining, interrogating, torturing, and abusing individuals, assisting in the capture and transport of detainees; providing intelligence leading to the secret detention and extraordinary rendition of individuals; and interrogating individuals who were secretly being held in the custody of other governments.”
Because of its involvement in torture and “other abuses associated with secret rendition and extraordinary rendition, the U.S. government violated domestic and international law, thereby diminishing its moral standing eroding support for its counterterrorism efforts worldwide as these abuses came to light,” the report continues.
The so-called “enhanced interrogation” methods employed by the Bush administration were advanced by senior White House attorneys, such as John Yoo, now a professor at Berkeley law. An infamous torture memo produced by the Office of Legal Counsel (OLC), which is charged with providing legal advice to the president, provided numerous arguments for skirting a federal statute intended to enforce the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
In an ACS Issue Brief, constitutional law scholar Dawn Johnsen explained that the OLC’s torture memo crafted “creative defenses to ‘eliminate criminal liability’ in the event that an interrogation method … might arguably cross the line [into an act of torture] … and application of the statute was not held to be an unconstitutional infringement of the President’s Commander-in-Chief authority.’ A defense of ‘necessity’ would argue that torture – notwithstanding the statute’s prohibition – was necessary to gain information to prevent a future terrorist attack. Similarly, the Opinion argues that a torturer could claim he or she acted in self-defense: not the traditional defense of one’s self, but an extension, to defense of one’s nation.”
As the OSF report devastatingly shows the treatment of suspects was not only savage and illegal it largely produced fatally erroneous information. For example, the report notes that after “being extraordinarily rendered by the United States to Egypt in 2002, Ibn al-Shaykh al-Libi, under threat of torture at the hands of Egyptian officials, fabricated information relating to Iraq’s provision of chemical and biological weapons training to Al Qaeda. In 2003, then Secretary of State of Colin Powell relied on this fabricated information in his speech to the United Nationals that made the case for war against Iraq.”