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The day after Barack Obama took office, he signed a series of executive orders mandating the closure of the prison at Guantanamo Bay, Cuba, as well as the global network of secret, CIA-run "black site" prisons. In addition, he committed the United States to observe the Geneva Conventions and the Convention Against Torture. The Bush administration had exempted U.S. interrogators from these two treaties, arguing that the Global War on Terror presented unprecedented intelligence-gathering challenges that had to be overcome by all means necessary.
Obama’s stated commitment to ban torture also extended to the outsourcing of interrogations to countries where torture could be employed without the legal barriers that exist within the U.S. military and civilian justice systems. He vowed to end the "extraordinary rendition" program whereby terror suspects were disappeared by U.S. agents, transferred into the custody of third-party intelligence services and tortured by foreign agents asking questions provided by the CIA. The European Parliament estimated that the CIA flew at least 1,245 rendition flights between 2001 and 2007, but all information on those flights, including who the passengers were and how many people were abducted, remains shrouded in secrecy. Such a policy contrasts with "rendition to justice," a transfer that takes place at least nominally within the legal system. This kind of rendition requires that the detainee be arraigned and tried in court on arrival in the United States ? without having been tortured during the capturing process.
More than two years later, the Obama administration has not followed through on most of these promises, even reversing several commitments. For one, the administration confirmed that Guantanamo not only remains open, but that it will even take in new "high-value" detainees in the event of their capture. Meanwhile, in Afghanistan, at least 20 secret prisons are still actively torturing "short-term transfer" detainees. The only change Obama has brought to these classified prisons is granting access to the facilities by the International Committee of the Red Cross (their reports, issued to the executive branch of the detaining power, are seldom released to the public or even to Congress). Instead of operating directly under CIA control, they are run by the Joint Special Operations Command (JSOC). Nevertheless, CIA personnel still participate in the interrogations held within their anonymous concrete walls.
This evidence alone is enough to raise serious questions about the Obama administration’s willingness and ability to reverse the Bush era’s use of kidnapping, extrajudicial detention and torture in the fight against terrorism. Granted, the administration has faced vocal and vehement opposition from congressional Republicans on many issues, including the closure of Guantanamo, and it is no secret that the military and intelligence services of the United States are slow to accept changes, to say the least. But Obama’s political about-face raises questions about the sincerity of the administration’s professed desire to wield American power in a more principled manner that conforms to international law. In order to find out more about the current administration’s re-branding of the so-called war on terror, it is necessary to delve deeper into what Dick Cheney famously called the "dark side." The culture of secrecy and impunity that has come to characterize the executive branch, which the Obama administration has continued to cultivate, poses a serious threat to democracy, pitting the state’s definition of security against the security of individuals.
Torture and Rendition
Before becoming president, Obama was a professor of constitutional law. Before that, he was president of the Harvard Law Review. He knew that the United States under Ronald Reagan had signed the UN Convention Against Torture. He had read the Geneva Conventions and knew the obligations warring powers face regarding the treatment of detainees.
Because of this background, the president had to know that the United States was violating international law with its policy of extraordinary rendition, more than ever under the Bush administration. Under the Convention Against Torture, a country may not knowingly pass a detainee into the custody of a country where the detainee will "more likely than not" face torture. If there is any doubt about the recipient country’s record on torture, the detaining country must receive assurance that the detainee will not be tortured. According to human rights attorney Scott Horton, the Bush administration "turned [the Convention's provisions] into a complete joke: people were being turned over to countries where they would be tortured, [constituting] a violation of both domestic and international law."
The agents who turned detainees over to foreign interrogators did obtain assurances from recipient countries like Egypt, Syria, Jordan, Morocco, Poland, Macedonia, Kosovo, Romania, Bulgaria, Ukraine, and even Libya, that detainees would not be abused. But in practice, these assurances were as empty and dishonest as George W. Bush’s repeated claims that the U.S. "government does not torture people." One rendition victim, Canadian-Syrian engineer Maher Arar, was rendered to Syria and imprisoned there for nearly a year where he was tortured regularly. After he was freed and cleared of all charges, the Canadian government lodged an official complaint against the United States for transferring a Canadian citizen into the custody of a country with a record of torture. Arar filed suit against former Attorney General John Ashcroft only to have the case thrown out due to the executive invocation of the "state secrets privilege," claiming that evidentiary information on the rendition program would endanger U.S. national security.
When the Obama administration came to power, it could have disclosed evidence necessary to bring justice for Maher Arar and other victims of the federal government’s rendition program. Instead Attorney General Eric Holder followed his predecessor’s lead, blocking Arar’s case all the way to the Supreme Court. And indeed it wasn’t long into the new administration’s term before the continued practice of rendition came to light.
In April 2009, a 45-year old Lebanese businessman named Raymond Azar went to Afghanistan on behalf of his employer, Lebanese-based defense contractor Sima Salazar Group. Previously, his underling Dinorah Cobos had made arrangements to give $100,000 to an FBI agent posing as a contracts officer in order to secure contracts for Sima. The FBI was thus luring the pair to Afghanistan as part of a sting operation. In Kabul, eight FBI agents seized the two contractors, stripping Azar naked, subjecting him to a cavity search and blindfolding and shackling him. He was first transported to Bagram air base in Afghanistan, and later taken to Virginia where he was arrested and charged with fraud.
U.S. agents inside Afghanistan are only authorized to detain and transfer suspects out of the country if the suspect is deemed to pose an imminent threat, which Azar most certainly did not. Officials from the Departments of Justice and State claim that they received the consent of the Afghan government to conduct the rendition, but Afghan officials deny having ever been informed of the operation.
Azar pleaded guilty to conspiracy to commit bribery, but his maximum five-year sentence was reduced to only six months due to the abusive treatment he received in U.S. custody. More than anything, the rendition of Raymond Azar was an embarrassment for the Obama administration. According to Scott Horton, the unwanted controversy surrounding the Azar will push the administration to proceed with caution with the kind of renditions that the Bush administration pursued. "I can’t find any evidence of extraordinary renditions under Obama," Horton told me, "but there’s really no problem with normal extradition."
Rendition ? particularly extraordinary rendition ? turned out to be a public relations nightmare for the Bush administration, and despite the media’s lack of attention to the Azar case, it doesn’t seem to be gaining any fans during the Obama administration either. Thus to avoid negative publicity, the Obama administration has pursued a different strategy toward suspected terrorists (and whoever else happens to be in their vicinity): killing them.
Kill More, Imprison Less
Despite the rhetorical shift that Obama heralded, and the promises made by executive order, the president chose not to dismantle some of the most legally questionable tactics that the Bush administration employed in the conduct of the so-called War on Terror. Perhaps most importantly, Obama has maintained the government’s right to kill foreign nationals and American citizens alike, anywhere in the world, whom the president deems "a continuing and imminent threat to U.S. persons and interests," evidence of guilt and constitutional rights notwithstanding.
The government’s claim was recently challenged on behalf of one of the targets on the executive hit list, Anwar al-Awlaki. The Yemeni-American Muslim cleric has for some time been a celebrity lecturer amongst extremists and has a large online following. Allegedly, he inspired the Fort Hood shooter, as well as the failed Times Square and "underwear" bombers. His father, with the Center for Constitutional Rights (CCR), filed a lawsuit against the government arguing that he did not pose an imminent threat. The judge threw out the case at the request of the executive. According to his lawyer, Maria Lahood, Judge John Bates called the issue of extrajudicial targeted killing "a political question which could not be adjudicated by the court. It was essentially up to the executive to decide if someone they’d identified as a terrorist should be killed and the court didn’t have any place to review that." The judge also denied that al-Awlaki’s father had legal standing to argue the case on behalf of his son.
More recently, the government and media alike have revived the policy of targeted killing to justify the murder of an unarmed Osama bin Laden in Pakistan by U.S. Special Forces. But even bin Laden’s supposed guilt does not confer any legal legitimacy on his assassination.
Where the use of Special Forces is deemed impracticable, the CIA has a large fleet of Unmanned Aerial Vehicles ? drones ? to rain down Hellfire missiles on targeted suspects in various countries ? by remote control from fortified bases thousands of miles away. Indeed, just days after bin Laden’s death, a drone strike targeting al-Awlaki missed its mark, killing two bystanders instead.
As reported by the Los Angeles Times last month, the Obama administration has killed more alleged terrorists than it has imprisoned. Indeed, the Obama administration launched more drone strikes in two years than the Bush administration did during its entire eight years. In 2010 Agence France Presse reported a total of more than 100 drone strikes that killed over 670 people. With a rate of civilian casualties estimated to be as high as 90 percent, drone strikes have fueled anti-American sentiment in Pakistan, Afghanistan and Yemen.
Africa: Exporting Torture
The practice of extraordinary rendition has not disappeared completely. When the practice of kidnapping people and sending them to unknown locations to be tortured struck a sour note with the American voting public, the White House stepped away from the policy. But, like lead paint, DDT and asbestos, domestic regulations haven’t stopped the export of extraordinary rendition to poorer countries.
Washington has been fighting the war on terror in East Africa since the 1998 U.S. Embassy bombings and it believes a significant network of al-Qaeda militants have been in league with local jihadist groups. The CIA presence in the region has ballooned, and much-needed humanitarian aid became linked to military cooperation with the Pentagon. And U.S. allies practiced what Washington preached in terms of fighting terrorism.
In 2007, U.S.-backed Kenyan security forces abducted more than 150 men, women, and children, mostly Somali Muslims, near the border between Somalia and Kenya. Racial profiling such as this has become all too common under regimes that oppress ethnic minorities to maintain power, and it has received the seal of approval from the United States and its allies under the auspices of counter-terrorism.
The arbitrariness of the 2007 mass arrests is evident. Only one detainee was charged in Kenya, and the rest were either deported back to their home countries or illegally rendered to Ethiopia via Somalia. Ethiopian forces subjected detainees to numerous human rights abuses, torturing several of them. FBI and British agents also interrogated the suspects, looking for terrorist connections, but just one more detainee was charged in Ethiopia, bringing the grand total to two out of hundreds. About half of the rendition victims were later released without charge, dumped at the Somali border untreated for medical issues resulting from torture. But some were held for years with no access to lawyers or their families ? disappeared indefinitely. Many have been released thanks to the tireless efforts of human rights advocates in Kenya, but 22 are not accounted for according to the most recent Human Rights Watch report on the issue.
Last year, Kenyan authorities rendered several Kenyan Muslims to Uganda in connection with a suicide bombing in Kampala. In Uganda, the notorious Rapid Response Unit tortured the suspects in between interrogations by U.S. and British agents. One of the initial rendition victims, Omar Awadh Omar, is a prominent Kenyan human rights activist and an outspoken critic of the clampdown of repression in East Africa. Later, the U.S.-backed Ugandan dictatorship targeted Al-Amin Kimanthi, the leader of Kenya’s Muslim Human Rights Forum and the loudest voice in the East African struggle against illegal rendition and torture. Even his colleague Clara Gutteridge, a British human rights lawyer with whom I communicated in researching this article, was detained and deported from Kenya for attempting to investigate matters further.
Increased U.S. military involvement in East Africa and the export of extraordinary rendition to that region have clear strategic motivations. The U.S. military has long kept a major base in Djibouti, where naval cruisers can monitor and secure oil shipments through the Red Sea and the Gulf of Aden. Moreover, the Horn of Africa is home to untapped oil reserves.
What’s Next in the Search for Justice?
The Obama administration’s approach to torture and rendition has been challenged, though the most meaningful dissenting voices come from outside the country. The U.S. Congress has failed to challenge the state secrets doctrine and the concomitant executive impunity it implies, and has actively sought to keep Guantanamo active. Despite the efforts of Congresspersons like Ed Markey (D-MA) to ban renditions, the legislative branch is not likely to effectively challenge the Obama administration. The Judiciary has similarly recused itself from checking the executive. Last month, in rejecting a case brought by five innocent torture victims against the CIA contractor that flew them to black-site prisons, the Supreme Court upheld an appeals court ruling affirming the president’s right to kill any case he pleased if he felt that evidence would reveal state secrets.
However, in Britain, Germany, Poland, Spain, Italy, and Australia, investigations into the global kidnapping ring known as extraordinary rendition have been set in motion. The Italian case is perhaps the most notable, as Italian prosecutors were able to overcome intense pressure from both the U.S. and Italian governments in their pursuit of 26 conspirators involved in the kidnapping of Muslim cleric Abu Omar in Milan, who was tortured by the notorious Egyptian Mukhabarat. The Italian case blew the covers of 21 CIA agents, who were each sentenced in absentia to five years in prison. Robert Lady, the former CIA station chief in Milan, received an eight-year prison sentence. Although the judge granted diplomatic immunity to other defendants, including the ringleader of the operation, Rome station chief Jeff Castelli, prosecutors plan to challenge the merits of the designation. Meanwhile, the United States has refused to cooperate with the prosecutors of the case, and the Italian government, under U.S. pressure, is not seeking to extradite those convicted. But the European Union issued arrest warrants for the conspirators, which translates into an effective travel ban to Europe.
Elsewhere, as documented by WikiLeaks, the U.S. diplomatic corps under both the Bush and Obama administrations has worked hard to kill foreign investigations into CIA renditions. In Germany, U.S. arm-twisting succeeded in stifling the prosecution of 13 CIA agents involved in the rendition of German citizen Khaled al-Masri from Macedonia to Afghanistan, where he was tortured. In Spain, U.S. diplomats threatened Spanish politicians and political appointees with Uncle Sam’s cold shoulder if they failed to prevent prosecutors from investigating allegations of illegal rendition and torture of Spanish citizens, but those cases remain open. Even the family of drone victims in Pakistan have filed suit against the United States for the wrongful deaths of two loved ones. The odds of success may seem nil, but the desire for justice is enormous.
The WikiLeaks revelations may empower foreign governments and judiciaries, with broad popular support, to continue to challenge Washington on its illicit record of kidnapping and torturing foreign nationals. But the United States won’t give up the fight easily, whether the continued expansion of the renditions program in the Horn of Africa or the heavy-handed meddling in European jurisprudence.
V. Noah Gimbel is a contributor to Foreign Policy In Focus.