June 27, 2006

Ask Amnesty: Outsourcing Torture

Khaled El-Masri, a German national, was abducted on a trip to Macedonia. He was detained and interrogated by Macedonian agents, then handed over to U.S. officials and secretly flown to Afghanistan where he was locked-up in a U.S.-run prison for four months. After el-Masri’s captors realized they had mistaken him for someone else, he was then shuttled to somewhere in the Balkans, driven for hours in a car and finally left by the side of a road in Albania.

U.S. authorities detained Maher Arar, a Canadian citizen of Syrian descent, at New York’s JFK airport while he was in transit on his way home to Canada. He was interrogated for several days and denied access to counsel and family. He was flown against his will to Jordan where he reports being beaten during detention. Arar was then forcibly transferred to Syria where he was held for ten months and reportedly tortured. Canadian officials secured his release and he’s now back with his family in Canada. The Syrian government acknowledged that they took Arar as a favor to the Americans and that during his detention shared information with them.

Both Arar and El-Masri filed law suits in the United States pertaining to their rendition. Both cases were thrown out on national security grounds. The number of people like Arar and El-Masri who have been rendered over the past five years by the U.S. government could be in the hundreds.

Please join us for a discussion today from 2:00-3:00 p.m. EDT with Steven Watt, senior staff attorney with the American Civil Liberties Union Human Rights Program, who has worked on both El-Masri and Arar’s cases to discuss the U.S. government program of outsourcing torture.

Featured Guest: Steven Watt

From our featured guest: "I look forward to speaking to you on June 27."

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Question Submitted by kathy:

What can the average US citizen do about this?

Steven Watt answers:

First, become aware of the issue and U.S. involvement and how the practice violates the fundamental right to be free from torture. Many organizations such as the ACLU, Amnesty, Human Rights Watch have produced reports on "extraordinary rendition." In addition, inter-governmental bodies such as the Council of Europe have conducted investigations into complicity of European states and the CIA in the practice. in the Second, some grass root advocacy groups are already taking direct action against the aviation corporations involvede in renditions. These corporations are based here in the United States and these groups e.g. North Carolina Stop Torture Now have been protesting outside the offices and lobbying state legislatures to take effective action to halt the operation of torture flights from airports within the state. Third, a number of legislative measures aimed at outlawing the practice are currently before the House and Senate, members of the public should become familiar with these initiatives and lobby their members of Congress and Senate to support them.
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Question Submitted by Ravindera:

How we stop this type of activities of the state? What we (lawyers) do at the national level?

Steven Watt answers:

The practice of "extraordinary rendition" violates key provisions of domestic and international law, importantly the absolute prohibition on torture protected by the Fifth Amendment of the Constitution and numerous international treaties to which the U.S. is a party. As lawyers we can tackle these issues in the federal courts usining inovative but sound legal theories, such as those advanced in the Arar and El Masri cases to hold to account those government agencies and corporations involved in the practice. In addition, alternative international fora should be considered aimed at shining an international spotlight on the problem e.g. U.N. bodies such as the Human Rights Committee, the Committee Against Torture and the Working Group on Enforced Disappearances or Regional Human Rights bodies such as the Inter-American Commission.
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Question Submitted by Karl:

Could these two men not file suit in the World Court in the Hague?

Steven Watt answers:

Unfortunately the United States has not ratified the Treaty of Rome establishing the International Criminal Court, so it has no jurisdiction over U.S. officials involved in the practice.
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Question Submitted by Sherri:

In both the Arar and El Masri suits, both cases were thrown out on national security grounds. What were the specific reasons?

Steven Watt answers:

In the Arar case the district court determined that if U.S. courts became involved in the issue of whether or not U.S. officials were involved in decisions which resulted in Arar's transfer to torture in Syria this may uncover the fact that foreign officials were engaged in a cover-up and this may adversely impact upon U.S. foreign relations. In the circumstances, the court considered it imprudent to afford Arar a remedy under the U.S. constitution. The court also did not consider that he had a claim under the Torture Victims Protection Act, because, essentially, U.S. officials could never be found to have acted under color of Syrian law in aiding torture by Syrian authorities. In the El Masri case, the United States (who were not sued) intervened to assert a state secrets defense, essentially claiming that to confirm or deny U.S. involvement in El Masri's abduction, prolonged arbitrary detention and torture would undermine U.S. national security.
Both cases are on appeal.

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Question Submitted by Michael:

By what legal authority does the Bush administration justify what amounts to kidnapping in these cases.

Steven Watt answers:

The Administration in many public statements claims a right to render persons it suspects of being involved in terrorist activities. These same officials, including Rice, Bush and Gonzales, have justified rendering persons to countries where there is a likelihood of torture by stating that they obtain diplomatic assurances i.e. promises, either oral or in writing from the receiving state that the individual rendered will not be tortured. Many of these states e.g. Egypt, Syria and Jordan are states which the U.S. own Department of State has documented, routinely resort to the use of torture. Human Rights Watch has published a number of reports that demonstrate that diplomatic assurances are not effective in preventing torture.
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Question Submitted by Elleana McCants:

What did Masri and Arar do that made The United States Officials, think that they were a threat to National Security?

Steven Watt answers:

This is the whole problem of the "extraordinary rendition" process; there is no transparency. Both Arar and El Masri were rendered without a showing by the U.S. of any involvement in terorist related activity and the government never afforded them an opportunity to challenge any evidence that they might have had proving this fact.
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Question Submitted by cecelia:

Is this barbaric treatment specific to the war on terror? If not, when did we first begin such inhuman acts, which undermine everything this nation was based on?

Steven Watt answers:

Rendition is not a new phenomenon. It has been around for decades. The roots of the current "extraordinary rendition" program can be traced back to the Clinton administration (arguably before). However, until September 11, rendition was about rendering persons to justice i.e. to stand trial. In the post 9/11 era, the parameters of the program appear to have changed significantly, now the program has its primary objectives, the long term detention and/or interrogation of persons suspected of involvement in terrorism either in U.S. run detention facilities or facilities run by foreign governments.
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Question Submitted by Sheila:

Hello Steven Watt Thanks for giving us the opportunity to ask questions. It seems to me that any Muslim is fair game to the CIA and indeed to the US government and I should like to know what can be done within the law to stop this dreadful, inhumane practice of outsourcing torture. I would imagine that it is a very difficult task to undertake in challenging some of the most powerful people in the world. I wish you all the best of luck for the future.

Steven Watt answers:

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Question Submitted by Veda:

Steven, Since it is a widely known Fact that this country is and has been "into' renditioning people from this country... [to another country to be held incognito and without counsel of any sort... Disappeared into the nethers ) And that there are Such black-hole holding facilities build right here on our Land....Why in the name of God has this Practice not been Broadcast to the Heavens here in the USA ..And A Stop Put on this..Aren`t there enough Good Citizens in this country, collectively, who are capable of that ? It has to be brought to a halt. Don`t you agree that too many of these prisons that we Do know about...are holding thousands of our people for years on minor charges...and even when let out...these same ones are hounded everywhere they go.. until they are hounded right back there. Prison systems represent BIG Money to the states ( And in turn, to the Guvmt.) Oh ! Excuse me. I think I might have asked TWO Questions in One >>> Thank you. Veda

Steven Watt answers:

Use of rendition as a counter-terrorism tool by the U.S. government in the post 9/11 era is now well documented. Senior officials within the Bush administration have spoken publicly about its use and its parameters, so it is not a secret. Both the domestic and international media have reported on the current practice since at least March 2002, so it is now incumbent upon people here in the U.S. and elsewhere to get informed and to take action along the lines suggested earlier.
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Question Submitted by Kari:

It seems to me that this administration uses the term "national security" to shield all of their human/civil rights violations. Do you think there will ever be a time when a case like this will make it to the Supreme Court and justice will be delivered to these victims of the Bush Administration's war policies? Do you think perhaps the ICC will indict Bush one day or is that wishful thinking?

Steven Watt answers:

The Arar and El Masri case will be fought hard in the courts of this country and lawyers will appeal the national security all the way to the U.S. Supreme Court. While it is not certain that the Supreme Court will entertain either of these two cases, eventually, one of the many cases in which the Bush administration has asserted state secrets defense will be reviewed and hopefully, the Court will clarify the boundaries of the defense. To date the Court has only considered the defense on one occasion, Reynolds v. U.S. (1953)
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Question Submitted by Jake:

Hey man thanks for answering my question. WHat i was wondering is that most of the people who are detained and torture, have they been convicted of any crime, or caught doing anything such as that? Or are they just random muslim people?

Steven Watt answers:

In this conversation, I will only speak for Arar and El Masri. According to the Syrian Ambassador to Washington D.C. Arar was released from Syrian custody after 10 months investigation during which every lead that the U.S. gave to the Syrian intelligence services as to Arar's alleged involvement in terrorist related activities was examined. The Syrians could not find a shred of evidence supportive of the U.S. allegations and released him to Canada as a consequence. The Canadian government has never charged him with any crime and has said it will not as it has no evidence to suggest he was so involved. Similarly, the U.S. released El MASRI from its custody in Afghanistan because they had nothing on him. If this was the case, in these two examples of rendition, one can only imagine it has happened in other cases.


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Question Submitted by Tita:

In addition to the Geneva Conventions, is there any specific law or regulation in the United Nations against outsourcing torture - one that could be used as grounds for stopping the US or any other nation from sending prisoners to nations that can torture in secret?

Steven Watt answers:

Article 3 of the Convention Against Torture (CAT) specifically prohibits sending persons to a country where there is a substantial likelihood that that person will be subjected to torture. The United States ratified the CAT and incorporated this particular provision in its own domestic law, the Foreign Affairs Reform and Restructuring Act (FARRA). FARRA, encapsulates Article 3 of CAT as domestic policy.
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Question Submitted by . Eleanor:

Since all the research on torture that I have read(I read a lot)indicates that torture does not work, why would our government that undoubtedly know this, pursue this destructive policy both destructive to our country's image and the emotional and financial costsinvolved?

Steven Watt answers:

According to media reports based on interviews with former officials in the U.S. administration, as well as documents produced to the ACLU under a freedom of access to information act request, torture and inhumane treatment was resorted too because of demands for more intelligence to prevent another terrorist attack and to bring to account those responsible for the 9/11 attacks. This thirst for intelligence opened the door for senior officials in the administration to sign off on the use of techniques long outlawed by U.S. Constitution, laws and military rules and regulations. They clearly believed, despite a wealth of information to the contrary, that these techniques would produce useful intelligence, but clearly it hasn't.
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Question Submitted by Claudia:

What can a single U.S. citizen do to put a stop to this horrendous behavior by our government? Our senators and congressman know full well what is going on, complaints have been made, lawsuits filed, yet this injustice continues.

Steven Watt answers:

It is important on the issue of rendition to keep persevering on legislative fixes to this problem as it seems that legal challenges are futile. There are currently a number of measures before both the House and Senate and members of Congress and Senate should be urged to consider and support them.
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Question Submitted by Marilyn:

Is it possible to file lawsuits outside of the United States for these renditions or through the United Nations? Lawsuits appear to be the only way to pursue these injustices.

Steven Watt answers:

Organizations are presently contemplating litigation in Europe to address the issue of European states complicity in the CIA rendition program through the use of airports and by assisting in the abduction process, so law suits outside the United States are a possibility. However, such suits are difficult so it is important too that advocates look elsewhere to international bodies such as the UN Human Rights Committee and the Committee Against Torture to hold the US to account for violating its international treaty obligations.
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Question Submitted by Steve:

Now that the administration has played the "national security" card once again, are there any legal avenues available to expose such a program and bring restitution to the affected individuals?

Steven Watt answers:

As Judge Ellis stated in the district court in the El Masri case, successful invocation of the state secrets privilege deprives a plaintiff of any judicial remedy. As Judge Ellis explained the only recourse for compensation is through the Executive or Legislative branch of government.
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Question Submitted by Kathryn:

as a member of Amnesty International who has written & signed letters and petitions about Guantanamo and the renditions, what else can I do to act on my opposition to these acts by my government?

Steven Watt answers:

Organizing and engaging in direct action against the aviation corporations involved in the rendition process is one very concrete way of addressing the issue locally. These corporations are based in the United States and all have registered offices. Some groups in North Carolina have already taken such action.
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Question Submitted by robert:

Can Rasul and Arar sue the US in the International Court or in Canadian courts at least in order to bring their cases to world attention?

Steven Watt answers:

Arar tried to sue the Canadian government in Canada for its complicity in his rendition to torture. The case is pending conclusion of the public inquiry. However, it is unlikely that his case will succeed in Canadian courts.


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Question Submitted by Archie:

What UN and/or international laws have been violated by the Bush administratiion in its sending these two men to foreign jails for holding for further interrrogation without their attorneys' presence?

Steven Watt answers:

The "extraordinary rendition" process to which both Arar and El Masri were subjected violates the U.S. Constitution (Fifth Amendment), federal statute (Torture Victim Protection Act) and international laws including, the prohibition on the use of torture and other cruel, inhuman or degrading treatment, sending someone to a country where there is a real risk of torture and prolonged arbitrary detention.
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Question Submitted by R:

Kidnapping Kidnapped/detained at the hands of U.S., Khaled El-Masri a German national and Maher Arar a Canadian Citizen are lucky they were released. Alive? The U.S. Government could have instead ordered them murdered since their families/friends did not know they were being illegally detained at the request of the "Bush Government." Americans should at least wonder or investigate to learn how many "U.S. Citizens" have disappeared in the states in this manner at the hands of the U.S. Government, because the government repetitively demonstrates overseas and by rendition in America and Canada no qualms about injuring people, even torturing people to death when there is no evidence to believe their interrogated victim has done anything wrong. Any one with brains would be afraid of such a government: Historically, leaders of cruel and sadistic governments have turned their military and police power against their own people. Bush has the Patriot Act to do so, subsequently for any reason... R

Steven Watt answers:

You pick up on an interesting point; the rendition program is one which effects enforced disappearances, another discrete violation of international human rights law. The ACLU has recently requested the Chairman of the Working Group on Enforced Disappearances to investigate the program as part of his U.N. mandate. A copy of this request is accessible at www.aclu.org/rendition .
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Question Submitted by Daniel:

I understand that courts have often handled cases involving security matters by ahving parts of proceedings take place in closed sessions. Since the government objects to even this being done, I wonder if it might be useful for some judges to receive high security clearances, making them safer to share information with in the government's eyes?

Steven Watt answers:

Before judges take office their backgrounds are thoroughly scrutinized, their oath of office obligate them to abide by the Constitution and laws of the United States so there is no need for additional security clearances for federal judges dealing with litigation that may implicate national security. Judges have shown them quite adept at handling such matters. For example, judges in the district court in D.C. have routinely handled Guantánamo cases.
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Question Submitted by Mary Ellen:

What legal arguments will the ACLU use when appealing suits that are dismissed on the grounds of "national security"?

Steven Watt answers:

This is a difficult question to answer because it depends on the context in which such claims are raised; different arguments are available for different contexts.


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Question Submitted by Gregory:

This shocks and appalls me, not only on the grounds of human rights, but in respect to constitutional rights as well. Any individual who directly opposes these rights should be arrested and prosecuted to the fullest extent of the law. In the case that such an individual should be a politician, they should be immediately impeached and charges should be levied against them. I am an American national (born and raised) living abroad in Germany. Due to the indictment of the german government in regards to the secret CIA-abductions and flights to holding centers, I am no stranger to such stories. However, these particular cases warrant even more dismay than the others. These men were detained without any reason, suspect or proven. Although the perceived threat from terrorists in the United States cannot be fully nullified at the present time, the voracity at which it is defended against is completely unfounded. No matter how vulnerable one individual, or nation of individuals, may be, there is never a validation for the infringement of the rights of others. I think that both these men have taken the correct first step in filing charges against the U.S. government, but I believe it should be taken further. It would behoove the governments of both these men to file charges as well against the U.S. My question is, why hasn't this been done yet? Is this a diplomatic impossibility, or are there political pressures resisting it?

Steven Watt answers:

Charges were filed against the CIA officials allegedly involved in the abduction and rendition of an Italian citizen Abu Omar from the streets of Milan. Indictments were served by the prosecuting magistrate but to date the United State has refused to cooperate. In Arar's case it is likely that Canadian officials were also involved in his abduction and torture in Syria. Similarly, in El Masri's rendition, German officials were involved, so it seems unlikely that either Canada or Germany would file charges against the United States. Moreover, under the U.S. criminal justice system neither Arar nor El Masri could file criminal chares; that process must be initiated by the justice department.
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Question Submitted by Bill:

Is there any further legal action that can be taken on these cases? And what about the British subject who is suing the US? (A man of Pakistani descent, kidnapped with his family in Afghanistan?)

Steven Watt answers:

Both cases are on appeal; Arar to the Second Circuit Court of Appeals and El Masri to the Fourth Circuit Court of Appeals.

Four British citizens, formerly detained at Guantánamo sued U.S. officials involved in their torture and inhumane treatment. The district court dismissed their case on immunity grounds, finding in relation to claims of torture under the Alien Tort Statute that torture fell within the scope of their federal employment. This case is on appeal to the D.C. Circuit Court of Appeals.

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Question Submitted by Monica Clark:

What is the best, and strongest action, that we as activists but also normal americans can do to fight this extreme attack on human rights and civil liberties, the 2 things that had always made me so proud to be american?

Steven Watt answers:

In addition to my earlier suggestions on how the American public might address the issue of "extraordinary rendition" i.e. acquire knowledge, direct action and lobby members of Congress and Senate, calling for an inquiry into the use of extraordinary rendition, along the lines of those commenced in Canada, Germany and the rest of Europe might prove a useful initiative.


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Question Submitted by Linda:

Who is in charge of this rendition program? Who's the person "at the top" who should be held accountable? How can that person (or persons) be held accountable?

Steven Watt answers:

Based on media reports, the principle agency involved in the rendition program is the CIA, so the person ultimately responsible for its implementation is the current head of the CIA. However, all persons involved in the program, including the aviation corporations, are accountable for what happens to the program's victims.
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Question Submitted by Sónia:

How does the US authorities explain these situations? Even if it is advocated as a matter of national security, should not the detainees have the right of contradiction (defense) and legal counselling?

Steven Watt answers:

Everyone under the effective jurisdiction and control of the United States is entitled to certain fundamental rights including the rights to due process, including the right to attorney and to effectively challenge the basis of their detention. They are also entitled to the right to be free from torture and inhumane treatment. The "extraordinary rendition" program violates all these core rights.
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Question Submitted by Greg:

What can you tell us about legislative activity that is aimed at renditions, such as Sen. Leahy's “Convention Against Torture Implementation Act”?

Steven Watt answers:

There are 2 draft bills aimed at outlawing "extraordinary renditions"; the Leahy bill before Senate and the Markey bill before the House; both address the issue of transfers of individuals from US custody to a foreign power. Neither however addresses the El MASRI situation where a foreign national was transfered to U.S. custody outside U.S. territory. Neither bill, I understand, has made much headway.
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Question Submitted by Leah Merker:

Do you believe that, as in previous presidencies, the executive power has used its power in excess to overwhelm human rights, or does national security take precedence, in your opinion?

Steven Watt answers:

History shows that in time of national crisis the Executive overreaches in the name of national security and the judiciary and the public tend to defer to such claims. When the crisis subsides, the Executive and judiciary have expressed regret about the over-reaching and the judicial deference which have had lasting impact on the rights of Americans. E.g. The Palmer raids in the 1920s, the internment of Japanese Americans during World War II. This post 9/11 era I have no doubt will be looked upon with the same regret.
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Question Submitted by Charles:

Has the judge in either of your cases issued an order that would prevent you from testifying before Congress? If so, do you think you could testify in general terms only concerning the rendition process? Thanks for what you're doing.

Steven Watt answers:

Nothing in either opinion would prevent us testifying before Congress on these two cases. The information on which we based our cases is all a matter of public record, this is what makes the assertion of the state secrets privilege, so perverse.
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Question Submitted by stanley:

Is there any public record regarding the specific criteria for the detaining of individuals? If not, why not? Is there such criteria? If not, why not? If so, was it adopted and/or standardized in a democratic and public fashion? If not, why not?

Steven Watt answers:

Although the U.S. administration openly admits the existence of the rendition program, its intimate workings are still very much shrouded in secrecy, so it is impossible for me to answer your question with any degree of accuracy.
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Question Submitted by Fred:

How strong is the evidence that these renditions are really happening? Whenever I tell people about them they often look at me like I'm a crackpot conspiracy theorist. What can I point to to help convince the average person of the truth of this horrible practice?

Steven Watt answers:

The extraordinary rendition process has been investigated by human rights groups such as the ACLU, Amnesty International and Human Rights Watch to name but a few. The research for these reports is based upon publicly available records including Federal Aviation Administration flight records, public statements from the administration and interviews with many victims of the program who narrate almost identical stories of their renditions. Most recently the Council of Europe compiled a comprehensive report documenting the practice. The Council of Europe found that there was overwhelming evidence for the existence of the program.
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Question Submitted by Sujan Sapkota:

Dear Steven, Would you please highlight the international law that transcends any national boundary to punish anybody who traffics the victims for secret torture?

Steven Watt answers:

All human rights protections transcend national boundaries. Human rights protections including the right to be free from arbitrary detention and torture, inhere in everyone by virtue of their being human. These rights extend to everyone under the effective control of a state, and if they are violated the state having custody is responsible. Some of the international laws implicated in the "extraordinary rendition" process include Art. 7 and 9 ICCPR, Art 2 and 3, CAT.
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Question Submitted by Tobey:

Where is the U.N. in all of this and why is it a lapdog of the U.S.?

Steven Watt answers:

In its general recommendations handed down in response to the United States submission to the UN Committee Against Torture, the UN CAT condemned the U.S. for its use of the program and its failure to provide redress to victims of the program such as Maher Arar. The U.S. response was simply to deny that the practice takes place and in any event, that the UN CAT has no jurisdiction over the U.S. for actions taken outside the United States.


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Question Submitted by Janet:

What is the criteria that is used to select whom will be detained and sent for torture? Do they just select anyone who looks Arab?

Steven Watt answers:

Not a great deal is known about the process but according to an article in the Washington Post December 2005, two levels of suspect are identified; low level suspects who are transfered to detention centers run by foreign agents and higher level suspects who are detained in detention facilities run by the U.S. overseas.
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