Extraordinary Rendition - In Depth

EUROPEAN PARLIAMENT REPORT FAULTS MEMBER NATIONS FOR ROLE IN CIA ACTIVITIES
The Bush Administration is systematically expanding its power to violate the law under the guise of protecting national security. In doing so, it is undermining the Constitution and America's values of freedom and fairness while denying Congress and the Courts authority to conduct required oversight. From illegal domestic wiretapping to kidnapping and torturing detainees abroad, the government is not only expanding – and abusing – its authority, it is attempting to do so under a veil of secrecy in order to avoid being held accountable to the law. Government secrecy is a concept completely at odds with the Constitution and the principle of government accountability.

In contrast to the U.S. government's extreme measures to maintain secrecy regarding its illegal activities, the European Parliament has undertaken a comprehensive review of its member nations' involvement in CIA-sponsored rendition and torture. A delegation from Europe travels to Washington, DC May 9-12 to report on its preliminary findings, which concluded that the CIA has, on several occasions, illegally kidnapped and detained individuals in European countries, then secretly transferred detainees to countries like Egypt and Afghanistan, which frequently use torture during interrogations. The ACLU is meeting with the delegation on Thursday, May 11th.

U.S. TRIES TO HIDE KIDNAPPING AND TORTURE PRACTICES BEHIND "STATE SECRETS" LEGAL PRIVILEGE
On Friday, May 12, U.S. District Court for the Eastern District of Virginia will hear testimony in the historic lawsuit El-Masri v. Tenet, in which Khaled El-Masri, an innocent German citizen victimized by the CIA's policy of "extraordinary rendition," challenges his abduction, detention and interrogation in a secret overseas prison at the hands of CIA operatives. The ACLU represents Mr. El-Masri.

The U.S. government seeks to dismiss the case in its entirety by arguing that the case cannot proceed without jeopardizing state secrets. It relies on the rarely invoked state secrets privilege, which was intended to protect only particular documents from disclosure if their release would harm national security. The government has recently expanded its use of the privilege to dismiss entire cases and to prevent victims of abuse from having their day in court. The ACLU argues that this expansion of the privilege is improper, and is being used by the government to cover up its own illegal actions and prevent further embarrassment rather than to protect national security. The government used the state secrets privilege to successfully urge dismissal of two previous cases at the outset – Sibel Edmonds v. Department of Justice (FBI whistleblower) and Maher Arar v. John Ashcroft, et al. (Canadian citizen illegally transferred to Syria where he was tortured). In both cases, the ACLU asserts, there was a range of information in the public record that confirmed the abuses without jeopardizing state secrets, and it was improper for courts to dismiss the cases. The ACLU appealed the Edmonds case to the Supreme Court, which declined to review the case last fall.

Similarly, in El-Masri v. Tenet, a great deal of information about El-Masri's illegal rendition is already in the public record due to extensive media coverage of his story. El-Masri, a 42-year-old German citizen and father of five young children, was mistaken for another person and forcibly abducted while on holiday in Macedonia. He was detained incommunicado, beaten, drugged, and transported to a secret CIA prison in Afghanistan, where he was subjected to inhumane conditions and coercive interrogation. El-Masri was forbidden from contacting a lawyer or his family. After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation, never having been charged with a crime.

Soon after El-Masri was flown to Afghanistan, CIA officers realized that they had abducted, detained, and interrogated an innocent man. Tenet, former director the CIA, was notified about the mistake, yet El-Masri remained in detention for two more months.

MEDIA COVERAGE ALERTS THE WORLD TO U.S. COVERT POLICY
The rendition and torture of El-Masri is one of the most widely reported examples of a publicly acknowledged covert program. As such, dismissal would be an inappropriate because the central facts of the case have been widely disseminated and are not state secrets.

Media coverage has included the nation's leading outlets and resulted in a Pulitzer Prize for exposing controversial features of the government's counterterrorism campaign:

• "Wrongful Imprisonment: Anatomy of a CIA Mistake," by Dana Priest; The Washington Post (December 4, 2005)
• "German's Claim of Kidnapping Brings Investigation of U.S. Link," by Don Van Natta, Jr. and Souad Mekhennet; The New York Times (January 9, 2005)
• "CIA Flying Suspects to Torture?" 60 Minutes (March 6, 2005)
• "Outsourcing Torture," by Jane Mayer; The New Yorker (February 14 and 21, 2005)
• "Aboard Air CIA," by Michael Hirsh, Mark Hosenball and John Barry; Newsweek (February 28, 2005)

U.S. GOVERNMENT OFFICIALS PUBLICLY CONFIRM RENDITION PROGRAM
Despite the widespread media coverage, the U.S. government claims in El-Masri v. Tenet that it can neither confirm nor deny the existence of a covert, clandestine operation. In fact, it has repeatedly confirmed the existence and parameters of the rendition program and denied that the program is an instrument of coercive interrogation. Government officials at the highest level have spoken publicly and repeatedly about the rendition program and the El-Masri case, including:

• Secretary of State Condoleezza Rice heralded the rendition program on December 5, 2005, as "a vital tool in combating transnational terrorism," to be employed when, "for some reason, the local government cannot detain or prosecute a suspect and traditional extradition is not a good option." The following day, Secretary Rice, responding to a press inquiry about El-Masri's allegations, said "When and if mistakes are made, we work very hard and as quickly as possibly to rectify them. Any policy will sometimes have mistakes and it is our promise to our partners that should that be the case, that we will do everything that we can to rectify those mistakes. I believe that this will be handled in the proper courts here in Germany and if necessary in American Courts as well." (emphasis added)
• Outgoing CIA Director Porter Goss, in testimony before the Senate Armed Services Committee, said "the idea of moving people around, transferring people for criminal and other reasons, by government agencies is not new. For us in the intelligence business, the idea of helping out dealing with terrorists has been around for about 20 years. And we do have policies and programs on how to do it. We also have liaison partners who make requests of us, and we try to respect not only the sovereign rights of other countries, but all of the conventions and our own laws and, of course, the Constitution. As far as I know, we do that."
• Former CIA Director George Tenet, in written testimony to the 9/11 Commission, described the CIA's role in some 70 pre-9/11 renditions, and elaborated on a number of specific examples of CIA involvement in renditions, including assisting "another foreign partner in the rendition of a senior Bin Laden associate."

With the entire world already aware of the details of El-Masri's abduction, the ACLU argues, it would be wrong for the CIA to avoid liability for its human rights abuses by invoking the state secrets privilege. The ACLU will argue in court that the CIA should be held accountable for violating numerous laws, among them the due process provisions of Fifth Amendment as well as the prohibition against cruel, inhuman or degrading treatment and prolonged arbitrary detention under the Alien Tort Statute.

By invoking the state secret privilege, the government is setting a dangerous precedent and expanding the original intent of the doctrine. The government has also indicated that it will move to dismiss cases challenging illegal wiretapping by the National Security Agency based on the state secrets privilege. The ACLU represents a group of prominent scholars, journalists and lawyers in a challenge to illegal NSA wiretapping pending in Detroit, Michigan.

The hearing in El-Masri v. Tenant will take place Friday, May 12 at 10:00 am in the U.S. District Court, Eastern District of Virginia before Judge T.S. Ellis III.

WHILE U.S. GOVERNMENT SUPPRESSES INFORMATION, EUROPEAN PARLIAMENT SEEKS TO GET TO THE BOTTOM OF CLAIMS MEMBER COUNTRIES SUPPORTED U.S. RENDITION AND TORTURE POLICY
In January 2006, following media reports that European nations may have assisted the CIA in its extraordinary rendition efforts, the European Parliament established a temporary committee to determine whether "the CIA or other US agents … have carried out abductions, ‘extraordinary rendition', detention at secret sites, detention incommunicado or torture or other cruel, inhuman or degrading treatment of prisoners on the territory of the European Union." Such actions would violate the Treaty on European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the UN Convention against Torture and EU-US agreements on extradition.

Delegates of the committee are in Washington, DC the week of May 8 to discuss with government officials and representatives of NGOs the findings contained in its draft report dated April 24, 2006. The draft report included the following pronouncements:

• "[S]erious and inadmissible violations of fundamental human rights have, since 11 September 2001 and as part of the essential action to combat terrorism, taken place on several occasions."
• "[T]he CIA has on several occasions been clearly responsible for the illegal abduction and detention of alleged terrorists on the territory of Member States and for extraordinary renditions and that, in a number of cases, this has concerned European nationals."
• "[The Committee c]onsiders it implausible, on the basis of the testimonies and documents received to date, that certain European governments were not aware of the extraordinary rendition activities taking place on their territory and in their airspace or airports."
• [The Committee s]tresses that the prohibition of torture, as the latter term is defined in Article 1 of the United Nations Convention against Torture, is absolute and allows no exceptions whether in times of war or threat of war, domestic political instability or any other emergency; recalls that cases of incommunicado detention, abduction or extraordinary rendition must also be considered violations of fundamental rights under international law and are therefore to be condemned as acts involving the use of torture or inhuman and degrading treatment.

THOUSANDS OF AMERICANS TELL SECRETARY RICE "TORTURE IS UN-AMERICAN"
On May 8, 2006 the ACLU presented a State Department delegation attending a meeting of the U.N. Committee Against Torture in Geneva with more than 51,000 signatures to a petition against torture: "When our leaders promote torture and fail to hold themselves accountable for illegal abuses, they no longer speak for me or for the America in which I believe." The petitions were addressed to Secretary of State Condoleezza Rice, and delivered to John Bellinger, a Department of State legal advisor who is heading the U.S. delegation. The ACLU has been monitoring the committee proceedings and providing information about U.S. sponsored policies and practices of torture and abuse at home and abroad. On May 5, the U.S. delegation denied that incidents of detainee abuse are systemic, prompting the ACLU to express its deep concern with many of the U.S. responses to questions posed by committee members.

The "Torture is Un-American" campaign marks the two year anniversary of the exposure of torture at Abu Ghraib prison. The ACLU continues to gather signatures on the petition.

CONGRESSIONAL OVERSIGHT – REQUIRED BY THE CONSTITUTION, RESISTED BY THE WHITE HOUSE
Despite growing public concern that President Bush is violating the Constitution and America's values of freedom and fairness by ordering kidnapping and torture abroad, and numerous inquiries in Europe, Congress has not voted to end this illegal practice. Senator Patrick Leahy (D-VT) and Congressman Ed Markey (D-MA) are sponsoring legislation to stop extraordinary renditions to countries that engage in torture. In addition, the ACLU is joining with human rights, religious, and civil rights groups in using a June Torture Awareness Month to focus grassroots attention on the need for federal legislation.

INDEX OF DOCUMENTS AVAILABLE ONLINE

• Legal filings and other background available at www.aclu.org/rendition
• European Parliament's Temporary Commission – documents available at www.europarl.europa.eu/comparl/tempcom/tdip/default_en.htm
• Torture is Un-American petition – www.aclu.org/intlhumanrights/gen/25488prs20060508.html
• Legislative Updates - www.aclu.org/legislative/index.html