Torture, Rendition and the CIA's Secret War on Terror

Allegations that the CIA used European countries for the secret detention of terrorist suspects, and as staging posts for their transfer to other countries where they might face torture, are credible, according to the investigator appointed by the Council of Europe.  In a preliminary report issued on December 13, the Swiss senator Dick Marty said his investigation had “reinforced the credibility of the allegations concerning the transfer and temporary detention of individuals, without any judicial involvement, in European countries.”

The role of the CIA in the war on terror and the extent to which its activities have been carried out on European soil have emerged as a major political issue between the United States and Europe.  There has been widespread concern among European populations and politicians at reports that the CIA held terrorist suspects at secret “black site” prisons in Eastern Europe, and at growing evidence that the CIA has used European airbases to transfer detainees secretly to third countries where they may have been subjected to torture.

However European anger at the United States has been complicated by a degree of embarrassment in European capitals over the degree to which government officials might have been aware of at least the broad outlines of what American agents were up to.  During a visit to Europe last week, U.S. Secretary of State Condoleezza Rice faced intensive questioning about the CIA’s treatment of detainees, but sought to deflect criticism by claiming that “the U.S. has respected and will continue to respect the sovereignty of other countries.”  The implication of her statement was that European countries knew – or chose not to know – about some American policies.

During her trip, Secretary Rice made a series of statements that were intended to allay concerns about US actions in the war on terror.  Before leaving for Europe, she had said that “with respect to detainees, the United States Government complies with its Constitution, its laws, and its treaty obligations.”  However this statement failed to end the controversy, because critics pointed out that the Bush administration has sometimes interpreted international laws in a way that gives them license to carry out actions that most other nations regard as unlawful. 

Answering questions in Ukraine, Rice went further, issuing what aides billed as a clarification of the U.S. position.  “As a matter of U.S. policy,” she said, “the United States’ obligations under the Convention Against Torture, which prohibits of course cruel and inhumane and degrading treatment, those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States.”

What are the legal implications of Rice’s statement – and how far do CIA actions, as revealed in recent press reports, seem compatible with international law?

The Dark Heart of the War on Terror

For some time now, it has been clear that the CIA’s treatment of terrorist suspects is the dark heart of the war on terror.  According to press reports, President Bush signed a finding six days after the attacks of September 11 that gave the CIA the authority to kill or capture and detain al-Qaeda members anywhere in the world.  Since then, the administration has fought to keep CIA operations shrouded in secrecy and free from any legal oversight.  The high priority that Bush and his team attached to giving the CIA free rein was evident in the early months of 2002, as the administration debated the legal framework that it would apply to people captured in counter-terrorist operations.  The CIA argued forcefully that it should not be subjected to any requirement to treat detainees humanely.  When the President issued a directive on February 7, 2002 about the treatment of detainees, it said only that “the United States armed forces shall continue to treat detainees humanely.”  Former White House counsel Alberto Gonzales confirmed in testimony before the Senate Judiciary Committee that the CIA was not covered by the president’s directive.

Press reports – notably those by Dana Priest of the Washington Post – have filled in several details about the CIA’s activities.  It is alleged that over 100 people have been picked up by the CIA.  Of these, around 30 – judged to be the most senior al-Qaeda operatives – have been held and interrogated by the CIA at secret sites around the world (prisoners have been kept out of the United States to prevent the American judicial system from gaining jurisdiction over them).  Some of these so-called “black sites” were apparently located in newly democratic countries in Eastern Europe – although a recent report on ABC News claimed that the sites in Eastern Europe were closed down after the Washington Post reported on their existence in early November, and the detainees held there transferred to North Africa.

CIA agents were authorized to use what are known as “enhanced interrogation techniques” against these detainees in March 2002, the month that al-Qaeda operations chief Abu Zubaida was captured.  Although the details of these techniques have never been made public, ABC News recently listed six of them: the Attention Grab (“the interrogator forcefully grabs the shirt front of the prisoner and shakes him”); the Attention Slap (“an open-handed slap aimed at causing pain and triggering fear”); the Belly Slap (“a hard open-handed slap on the stomach”); Long Time Standing (“prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours”; Cold Cell (“the prisoner is left to stand naked in a cell kept near 50 degrees” and repeatedly “doused with cold water”); and Water Boarding (“the prisoner is bound to an inclined board, feet raised…cellophane is wrapped over the prisoner’s face and water is poured over him,” leading to “a terrifying fear of drowning”).

Rendition For Questioning

Those detainees not judged important enough to be held by the CIA itself have been transferred to other countries like Egypt, Jordan, Morocco and Syria for interrogation by their security services.  In many cases, detainees who have later been released have claimed they were tortured during their captivity – claims that are readily believable given these countries’ records.  One much-publicised case was that of Maher Arar, a Canadian citizen of Syrian origin who was detained at Kennedy Airport in New York in September 2002 and sent to Syria, where he was repeatedly beaten.  Arar was released in October 2003 without charge.  In another case, CIA agents apparently seized an Egyptian cleric called Hassan Mustafa Osama Nasr off the street in Milan and transported him to Egypt. After being released under house arrest in the spring of 2004, Nasr made phone calls to family members claiming he had been tortured with electric shocks and kept in freezing conditions; after making these calls he was rearrested and apparently remains in Egyptian custody.

In the most recent case to attract attention, it has emerged that a German citizen named Khaled al-Masri was transported by American agents from Macedonia to Afghanistan in May 2004, and held for five months before it was determined that his arrest had been a mistake.

The president of the International Committee of the Red Cross, Jakob Kellenberger, has described the holding of detainees in undisclosed locations by the United States as a “major concern.”  On December 8, the U.S. State Department’s top legal official, John Bellinger, admitted that the ICRC had not been given access to all American detainees.  A State Department spokesman said the number of detainees involved was “very small” and that the only prisoners held incommunicado were “cases that pose unique threats to our security.”

Black Sites and Human Rights

What laws are applicable to the CIA’s secret detention and interrogation program?  Although the United States regards its campaign against al-Qaeda as an armed conflict, it says that al-Qaeda detainees are not entitled to protection under the laws of war.  Most other nations do not regard the campaign against al-Qaeda (as opposed to the limited wars in Afghanistan and Iraq) as an armed conflict at all, and therefore would not see the laws of war as relevant.

In some cases, CIA actions might be subject to domestic law in the countries where they took place.  For instance, the seizure of Hassan Nasr in Milan is being investigated by Italian prosecutors, who have issued 22 arrest warrants against alleged CIA agents for crimes including kidnapping.

The most important body of law applicable to CIA actions is international human rights law – particularly the Convention against Torture and fundamental protections in customary law.  The Convention against Torture, which the United States ratified in 1994, prohibits torture and cruel, inhuman or degrading treatment, as well as the transfer of anyone “to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”  When ratifying the Convention, the United States stated that it understood torture to mean “an act…specifically intended to inflict severe physical or mental pain or suffering.”  It also entered a reservation saying that it would only regard the ban on cruel and inhuman treatment as binding to the extent that it referred to conduct prohibited by the U.S. Constitution.

In order to argue that its “enhanced interrogation techniques” do not violate the Torture Convention, the Bush administration has resorted to a series of what seem like legalistic and convoluted arguments.  First, it claims that techniques such as “cold cell” and water boarding do not constitute torture (even though water boarding is said to induce a “terrifying fear of drowning”).  Secondly, it claims that the reservation that the United States entered on the subject of cruel and inhuman treatment means that it is not prohibited from using such techniques against foreign citizens outside the United States – since such citizens are not covered by the U.S. Constitution. 

A Debate over Interpretation

It is worth noting that this interpretation of the U.S. reservation has been rejected by the former State Department legal official Abraham Sofaer, who submitted the treaty to Congress under the first Bush administration.  He says that the reservation was intended only to define the forms of conduct that were prohibited, not to set a geographical limit to the reach of the ban.  Certainly this has been the way that the U.S. reservation has traditionally been understood.

It has also been alleged that a classified report completed in the spring of 2004 by the CIA’s own inspector general warned that some interrogation techniques – in particular water boarding – might violate provisions of the Torture Convention.  According to a report in the New York Times, the inspector general’s report raised concerns about whether some agents could face legal liability for their actions, and “expressed scepticism” about the Bush administration’s claims about the reach of the ban on inhuman and degrading treatment.

It was precisely this point that Condoleezza Rice’s clarification was intended to address.  However it is notable that she did not say that the United States now accepted that it was legally prohibited from using cruel and inhumane treatment against non-citizens overseas – only that it would extend these restrictions as a matter of policy to all American agents.  Thus she appeared to leave open the possibility that the policy could be reversed – if for example the United States were to capture another “high-value” suspect like Ayman al-Zawahiri or Abu Musab al-Zarqawi. 

The State Department spokesman Adam Ereli confirmed this impression, telling the Financial Times on December 9 that, "Both State and Justice believe that though there is no legal requirement to do so, it is our policy to abide by the requirements barring cruel, inhumane, and degrading treatment regardless of whether the detainee is in the United States or overseas."   And it was striking that even as Rice made this statement, the administration continued its attempts to water down the continuing efforts of Sen. John McCain to entrench an absolute ban on cruel, inhuman and degrading treatment in U.S. law.

It is being reported today – Thursday, December 15 – that the White House has agreed to accept Sen. McCain’s amendment.  If so, it seems likely that at least the most severe of the enhanced interrogation techniques will now be forbidden as a matter of law.  At the same time, the Senate appears poised to adopt a measure requiring the administration to provide a detailed accounting of the secret detention program to the House and Senate Intelligence Committees.

Other Laws that Might Apply

Beyond coercive interrogation by American agents, the Torture Convention also casts doubt on the legality of rendition to countries like Egypt, Syria, Jordan and Morocco.  In light of the records of these countries (which the State Department has itself drawn attention to), it is hard to see how the transfer of prisoners to these countries could be squared with the ban on sending people to countries where there are substantial grounds for believing there is a danger they would be tortured.

Apart from the question of torture or abusive treatment, there are also grounds for believing that incommunicado detention per se is a violation of international law.  The United States has traditionally certain fundamental human rights norms as part of binding international law – including prolonged arbitrary detention. 

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Torture

Related Links:

Alleged Existence of Secret Detention Centres in Council of Europe Member States

Statement by Dick Marty, Rapporteur of the Committee on Legal Affairs and Human Rights

December 13, 2005

CIA Holds Terror Suspects in Secret Prisons

By Dana Priest

The Washington Post, October 5, 2005

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