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Rendition at Risk in the War on Terror

Daniel Benjamin

Oscar Wilde’s maxim that “Every man kills the thing he loves,” has a corollary in the war on terror: The U.S. government seems bent on destroying the friendships and tools we need to protect ourselves. The most obvious case is the alienation of millions of the world’s Muslims through the invasion of Iraq. But there are other examples, such as the way we have put at risk key relationships with allies through misguided intelligence operations and endangered one of our most valuable tools, the practice of rendition.

The point was made again this week when a magistrate in Munich issued arrest warrants for 13 CIA officers in connection with the case of Khaled el-Masri, a German citizen of Lebanese descent, who was abducted in Macedonia in 2004. The German authorities’ move follows the lead of an Italian magistrate who is seeking indictments of 25 CIA operatives for the rendition from Milan of an Egyptian radical known as Abu Omar. Then there is Maher Arar, a Canadian citizen who was boosted while changing planes at Kennedy Airport and eventually sent to Syria, who tortured him before deciding he was not a terrorist.

As a recent BBC poll pointed out, most countries polled now view the United States as having a negative influence on world events. The rendition-related blunders are undoubtedly greasing that downward slide. They are also raising the specter of a disruption of the network of intelligence and law enforcement agencies currently cooperating on counterterrorism, as angry publics demand that their governments restrict cooperation with the United States. Especially in Europe, this fills senior officials with dread, because they know that the cooperation is the unsung success of the war on terror.

There has been a great deal of sloppy reporting on renditions, so it is worth setting straight what they are. The defining characteristic of a rendition is that it involves the movement of a suspect from one country to another outside of the formal and often legally complex process of extradition. (Today, these cases overwhelmingly involve terrorists, though in the past there have been other kinds, including some involving drug kingpins and their minions.)

There are two broad categories of rendition: those that are “extraordinary” and those that aren’t. What distinguishes one from the other is the role of the government of the country in which the rendition takes place. If the “host government” is not complicit in the rendition—that is, if the individual is essentially being abducted and spirited out of the country without cooperation—the rendition is extraordinary. In the press, renditions are almost always called extraordinary, but, at least before 9/11, extraordinary renditions were extraordinarily rare. (I am aware of only one, and that was in a drug case.) Had we managed to kidnap Osama Bin Laden and smuggle him out of Taliban-ruled Afghanistan in the late 1990s against the wishes of Mullah Omar and his men, it would have been an extraordinary rendition.

There appears to be no public information on the number of extraordinary renditions carried out during the Bush administration, but because the overwhelming majority of the intelligence services in the world are cooperating closely with the United States on counterterrorism, the relative frequency of extraordinary renditions is probably still very low. They are also incredibly hard to do.

Of the not-extraordinary renditions, there are also two types: The first brings a suspect from abroad into U.S. custody without going through a formal extradition. If someone is brought to the United States to stand trial for a crime for which U.S. courts have jurisdiction, that’s a good thing—it’s how we got Ramzi Yousef back from Pakistan after he bombed the World Trade Center in 1993 and then plotted to blow up a dozen U.S. passenger jets over the Pacific. The Pakistani authorities decided that Yousef was too hot to hold, because there would be a public outcry if he were incarcerated and held for extradition. So, after the joint operation to arrest him in an Islamabad guest house, they were only too happy to have the United States bundle him onto a plane bound for New York. In 2003, the Pakistanis did the same thing with Ramzi’s uncle, Khalid Sheikh Mohammed, the architect of the 9/11 attacks. One can disagree with the administration’s decision to shuttle KSM from one secret overseas detention center, or “black site,” to another while trying to extract more information from him, rather than bring him to trial. But that is a different question than whether grabbing him abroad is an acceptable practice. U.S. courts have ruled that such renditions are legal, whether they are done with the approval of the “host government” or not.

In the second type of rendition in this category—the kind that has attracted the most criticism—the United States helps arrange for the transfer of a suspect from the country he is located in to a third country, again without a formal legal process. In these operations before 9/11, the United States typically had intelligence that the individual was genuinely dangerous, but did not have an evidentiary basis for prosecution. The host government usually wants the person in question off its soil because he is involved terrorist activities. The United States, which has probably been in close contact with the host country’s intelligence officials, recognizes the problem and checks with the individual’s home country or others where he may have lived or whose citizens might have been targeted by his operations. If one of those countries has an arrest warrant or wants to indict, the United States helps arrange and perhaps carry out the transfer. The whole thing is done quietly because the host country officials don’t want to be seen by their public as cooperating with the United States. Quite often, those officials are unelected, hated by their country’s Islamist opposition, and fear an angry “street.”

In a perfect world, every country would have democratically elected officials and solid institutions, including a functioning judiciary, and renditions would not be necessary. But renditions reflect the reality that dangerous people turn up with some frequency in countries with inadequate legal systems that need to shield their cooperation with the United States from domestic opposition.

What has made renditions so unpalatable is that after 9/11, when “the gloves came off,” as some officials put it, so did the moral and legal standards that made rendition acceptable. In short, rendition has become a dirty word because it is now a shorthand for what some have called “the outsourcing of torture.” That was not the case before the Twin Towers were destroyed. Before 9/11, 70 suspected terrorists were rendered, according to former CIA Director George Tenet. These operations were overseen by a small army of lawyers at the CIA and the Defense Department (whose planes were sometimes used) as well as White House officials. A key requirement was that the countries that took custody of the suspects guaranteed to the United States that the individuals would be treated in accordance with international human rights norms. That meant they would not be tortured. U.S. officials also monitored the practices of these countries to ensure those assurances were met.

Evidently, those curbs were not in place for a time, as Arar’s transfer to Syria, a country notorious for torture, shows. There is no certainty that they are now. It is also not apparent that the United States still requires an indictment or warrant from the receiving country. According to CIA officials I’ve spoken with (as I discuss in my book, The Next Attack), the Arar rendition never would have happened before 9/11. (“We didn’t do business with those people—it was off the table,” was the way one former CIA lawyer put it.)

As the examples of Abu Omar, Khaled al-Masri, and Arar indicate, the government has also gone too far by rendering people who were located in countries with comprehensive, functioning legal systems. Rendition was meant to be a remedy for the inadequacies of states that haven’t achieved the rule of law, not a shortcut in those that have.

One can only hope the administration has learned its lesson and there won’t be any more bungling across the ocean in Europe. Some Democratic lawmakers have taken aim more broadly at the practice of rendition. With luck, they will recognize its value as a tool and limit their efforts to stopping the abuses, not rendition itself.

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