Thursday, February 10, 2005


The Onslaught Against Decency

Amid the current onslaught against freedom, decency, and responsibility by the current government here in the U.S., it's important for Americans to realize that we do not occupy a position of moral superiority over the rest of the World with regard to human rights. Indeed, the Bush Administration's enthusiastic embrace of torture is one of the most disquieting developments of the post-Democratic era in America for many people. Whether you disapprove of torture by your leaders or approve of it, it's important to be informed.

This week in The New Yorker magazine and online, Jane Mayer writes about the use by the United States of "extraordinary rendition," the practice of sending terrorism suspects to other countries, where they may be interrogated and tortured on America's behalf. Here she is talking about torture and the war on terror with Amy Davidson.

Amy Davidson: You begin your piece with something President Bush said recently—that “torture is never acceptable, nor do we hand over people to countries that do torture.”

Jane Mayer: President Bush, Secretary of State Condoleezza Rice, and Attorney General Alberto Gonzales all made similar statements last month, asserting that not only does the United States condemn torture, it also does not send U.S.-held suspects to other countries for torture. In reality, the record appears to be quite different. Beginning around 1995, the Central Intelligence Agency inaugurated a form of extradition sometimes referred to as "extraordinary rendition," in which captured foreign terrorism suspects have been transported by the U.S. to third countries for interrogation and prosecution. The former C.I.A. director George Tenet estimated that between the time the program started and 2001 there were some seventy renditions. Most experts suggest that since the Bush Administration launched the global war on terrorism after the attacks of September 11, 2001, that number has grown dramatically. Present and former officials involved in these renditions, including several whom I quote on the record in this week's New Yorker, suggest that, from the start, it was suspected that many of the rendered persons were tortured abroad. Certainly, in three cases where the suspects have emerged publicly to speak about their treatment—the cases of Maher Arar, Muhammed Zery, and Mamdouh Habib—they have alleged that they were tortured after the United States rendered them to other countries.

What are America's obligations under international law with regard to rendition? Is there a legal difference between torturing someone ourselves and handing him over to someone who will torture him?

The United Nations Convention Against Torture and U.S. law both have a blanket prohibition against torturing anyone either within the territorial boundaries of the U.S. or abroad. These laws also prohibit the U.S. government from extraditing non-nationals to third countries where there are “substantial grounds for believing” that they would be tortured. The imprecision of this clause, however, appears to have allowed for a fair amount of latitude, according to lawyers whom I interviewed for this piece. For instance, Martin Lederman, a former lawyer with the Justice Department's Office of Legal Counsel—who did not deal with the cases while he was in office but has studied them since—suggested that what looks at first like a complete prohibition actually is not. The legal standard allows U.S. officials to argue that they didn't know with any certainty that a suspect would be tortured, and so can't be held liable. U.S. officials have in fact often sought what is known as "assurances" from countries to which they have rendered suspects that the suspects would not be tortured. Even if these assurances are just a wink and a nod, they may provide legal cover. Finally, some lawyers believe that the U.S. may be finding protection by never formally taking legal custody of suspects it renders abroad—even if, for instance, the U.S. government transports such suspects. Such details are difficult to find out about, however, because the program is secret.

To read the rest of the interview, click on the title of this piece, which is a link. You can read Jane Mayer's article in this week's New Yorker.

The interview excerpt comes from Scott Ettin sent me the link.

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