There’s a new sheriff in town–and it’s neither the U.S. nor a U.S.-sponsored surrogate “invited” by the U.S. It’s another of those pesky international conventions the administration loves to hate and refuses to join–but still cannot stop from taking effect. Fifteen years in the making, the pact outlaws state terrorism of a type frequently practiced by the United States: “extraordinary rendition.”
On this topic, February was a month of unwelcome revelations (from the administration’s perspective) and long overdue (from the people’s perspective) media attention on the policies and programs the White House created and justified for incarcerating “known” or suspected terrorists in the extensive acknowledged and unacknowledged Defense Department and CIA prison systems created nearly 5 years ago.
This is an interesting juxtaposition of dates. Work on the treaty started some nine years before 9/11. This suggests at least two possibilities: the French (the chief UN Security Council sponsor of the treaty) were prescient about the flow of events to come, or they were aware that some governments (e.g., the United States), unknown to their people, were systematically and on a large scale violating (or at least were preparing to violate) fundamental human rights of individuals alleged to pose a dire threat to a country’s “national security.”
We may never know just how extensive these prison systems were prior to 9/11 anymore than after that date. Some numbers but few exact locations have come to light because of the abuses perpetrated in Guantanamo Bay, Abu Ghraib, the CIA’s 14 (or more) “black sites” in Europe and other locations abroad. There are also a few U.S. legal residents and even citizens that have been incarcerated for aiding and abetting or providing “material support” for terror activities. Nonetheless, enough is known to suggest that the Bush administration has gravely over-reached itself in its claims that it is only exercising the inherent “right of self-defense” which absolves it of all counterclaims that its actions constitute international crimes. What does the record of the last few months show?
Exposing Overreach Abroad
The 2007 record chronologically opens on January 31 when German prosecutors issued warrants for 13 CIA agents suspected of engineering the “extraordinary rendition” of Khaled al-Masri, a German citizen of Lebanese heritage, who was “disappeared” at the Serbian-Macedonian border in December 2003. Khaled says he was flown to a CIA prison in Afghanistan where he says–as do many others who were caught up in the CIA’s global “black prison” complex–that he suffered abusive treatment for a number of months before being turned over to Lebanese security personnel.
As February opened, in Brussels, the European Parliament approved the findings of an internal European Union investigation ordered by the Council of Europe into the complicity of European nations in the CIA’s “extraordinary rendition” program in violation of EU policy–citing Britain, Germany, and Italy in particular but also noting that others knew of but ignored CIA flights carrying drugged and kidnapped victims such as al-Masri through their national airspace.
While these two threads evolved, Italian courts were proceeding with preliminary enquiries in a criminal complaint against 26 CIA agents (in absentia) and five Italian security agents (present in court) accused of kidnapping and transporting from Milan to Cairo the Egyptian cleric and U.S. terror “suspect” Osama Mustafa Hassan Nasr (also known as Abu Omar). Nasr, who entered Italy seeking asylum, claims in an eleven-page letter that he was tortured repeatedly by Egyptian security personnel.
By February’s midpoint, the Swiss government (the Federal Council) had given a green light to the country’s courts to begin criminal prosecution of anyone involved in transporting Nasr through Swiss air space. (Allegedly, the CIA flew Nasr from Aviano Airbase in Italy to Ramstein Airbase in Germany and thence to Egypt.)
Three weeks later, on March 6, Representative Ed Markey (MA) introduced “reciprocal” legislation intended to halt arbitrary kidnappings by the CIA. Entitled the “Torture Outsourcing Prevention Act,” the legislation (H.R. 1352) “prohibits the return or other transfer of persons by the United States, for the purpose of detention, interrogation, trial, or otherwise, to countries where torture or other inhuman treatment of prisons occurs.”
And to ensure no misunderstandings occur as to who is covered by the proposed legislation, it singles out “the intelligence communitythe Departments of State, Defense, Homeland Security, and Justice, the United States Secret Service, the United States Marshals Service, and any other law enforcement, national security, intelligence, or homeland security agency that imprisons, detains, or transfers prisoners or detainees.”
Countering Overreach At Home
Although their majorities in both Houses of Congress empowered Democrats to set the legislative agenda in the 110th Congress, they seemed less than decisive in demanding an accounting for alleged illegal acts. For example, on February 16, Representative David Wu (OR) introduced H.R. 1189, the Habeas Corpus Preservation Act. This bill, consisting of one operative paragraph of 52 words, reads:
Nothing in the Military Commissions Act of 2006 or any amendment made by that Act shall affect the right of any resident of the United States of America to habeas corpus. The preceding sentence shall be construed in accordance with the 5th and 14th Amendments to the Constitution of the United States.
Legally, this proposed legislation only reaffirms that nothing in the 2006 Military Commissions Act (Public Law 109-366), whose provisions are directed toward detainees being held at the U.S. Naval base at Guantanamo Bay, Cuba, shall be construed to restrict, deny, or in any manner diminish the rights of legal U.S. residents (as distinct from U.S. citizens) to the protections of the two constitutional amendments cited. But the proposal served to help resurrect the whole business of how hundreds of detainees consigned to Guantanamo Bay were first apprehended, treated, and brought to Cuba–including the high-profile 14 “disappeared” that President Bush acknowledged had been held in secret.
Six days later, in an opinion piece for the Washington Post, Jeffrey H. Smith, a former CIA General Counsel, called for congressional action to heavily amend if not repeal the 2006 Military Commissions Act. Among other provisions, this law:
– purports to strip an “unlawful enemy combatant” of the protection of the Geneva Conventions (albeit proclaiming that the accused is accorded treatment consonant with Common Article 3 of the Geneva Conventions);
– denies unlawful enemy combatants imprisoned at Guantanamo Bay, Cuba, the right to appeal to federal district courts for a writ of habeas corpus;
– ratifies by fiat the President’s position as prosecutor-in-chief, judge, jury, and court-of-last-appeal in determining whether a detainee is an unlawful enemy combatant through the mechanism of the “Combatant Status Review Commission”;
– circumscribes the right of appeal to a Military Commissions Review Court and thence to the Circuit Court of Appeals for the District of Columbia, perhaps the most powerful of all the circuit courts since appeals against administrative rulings by government bureaucracies fall within its jurisdiction; and
– creates a dual set of minimum standards for allowable interrogation techniques and general treatment of detainees–the Army Field Manual for the military and a separate set of rules and prohibitions for the CIA and other non-military personnel.
Jose Padilla: What is the Administration Hiding?
The following day, February 22, a federal district judge heard opening arguments in a competency hearing for the “terror” suspect Jose Padilla, a U.S. citizen held as an “enemy combatant” in a Navy brig in South Carolina between June 2002 and November 2005. Arrested as he entered the U.S., Padilla was declared an “enemy combatant” by President Bush and, in an attempt to prevent a habeas corpus proceeding in federal court, moved from federal prison to military control, eventually being incarcerated in the military brig. In last month’s hearing, Padilla’s lawyers argued that their client was subjected to such lengthy and systematic sensory deprivation, isolation, and other intentionally inhumane callousness while in military custody that he could not participate in preparing for his defense.
Unable to prevent the hearing, prosecutors took the position that the hearing should consider Padilla’s current ability to assist in his defense. At most, the government said, the enquiry should go back no further than November 2005 when Padilla was transferred to the Miami Federal Detention Center.
In the end, the judge found Padilla competent to stand trial and reaffirmed the trial date (April 16). Left unexplored is just why the government fought so hard to restrict the scope of the hearing. Some suggest a cover-up–the time frame mirrors that of the worst abuses at Abu Ghraib, only in this instance the abuses, if any, would have occurred on U.S. soil. Others believe that the government simply did not want to concede anything connected with interrogation techniques or the detention conditions. But what is perhaps more disturbing is that after almost 3_ years, the government rescinded Padilla’s designation as an “enemy combatant,” leaving the single charge against him of conspiracy to provide material support for Islamic extremism abroad.
One cannot say Jose Padilla was among the “fortunate”–after all, he was held in solitary confinement for 40 months. Yet he never became one of the completely “disappeared” like so many tens and hundreds of thousands in Chile during Augusto Pinoche’s reign; in Cambodia under the Khmer Rouge; in Guatemala, El Salvador, Nicaragua, and Honduras during the 1980s; in Bosnia and Chechnya in the 1990s; Darfur, Iraq Colombia, and myriad other locations worldwide–and now, shamefully, the “extraordinary renditions” of the CIA in the 2000s.
Still, the question remains: what happened in the brig that the government is trying to conceal? Is there some common “technique” with what the CIA may have tolerated abroad in its “extraordinary renditions” program?
Legal, Shadowy, and Illegal Renditions
Now it is important to maintain a clear distinction among extradition, rendition, and extraordinary rendition. Extradition is an important judicial procedure by which an individual who stands accused of a crime in one jurisdiction but has been apprehended in another can be transferred to the first jurisdiction for trial. But the transfer requires a hearing before a judge in open court. A critical element of such a transfer, should a judge find the government’s case compelling or the accused waives the right to an extradition hearing, is the “chain of custody,” both of the individual’s person and all evidence for and against the accused.
Rendition, at its foundation, is a quasi-extradition procedure that is carried out by mutual agreement or with the permission of governments. However, there is no judicial proceeding and no protective chain of custody for either the person or evidence.
Since 9/11, there has been a significant increase in what are nothing more than U.S.-directed abductions of individuals in foreign countries, with or without the consent, let alone the knowledge, of the government on whose territory the kidnapping occurs. (Lacking permission of the foreign government makes a difference only in terms of that country’s laws, not international law.) What is as worrying as the increased use of this tactic is the greater tolerance for and justification of its use against “terrorists” by apologists for centralized government power. In this context, extraordinary rendition becomes a “time-honored” practice for seizing and transporting a terror suspect without following normal extradition agreements or treaties.
Once pulled into this highly secretive system that remains unaccountable to any national or international body other than itself, the “victim” is simply “lost” to the world. And with every person swept up and “lost” in this extra-judicial process, lost also are the rule of law, human rights, and civil liberties–principles that inspired enough British colonists in 1775 to take up arms against a king when “the people” thought they could not obtain redress of their grievances by any other means.
Regaining and Retaining Constitutional Rights
Considering the above, it seems more and more likely that the opening three words of the U.S. Constitution–“We the people”–are no accident. They are and were intended by the drafters of the Constitution to be an unambiguous statement of the source of power by which a new social compact and form of governance came into being. They represent repudiation of the practice of that era by which the ruling monarch could and did assert powers through proclamation. And to reinforce the people’s power, the Constitution’s last two amendments in the Bill of Rights reserved unenumerated rights “to the people” and all undelegated powers “to the states or to the people” (Amendments IX and X to the U.S. Constitution).
The key to safeguarding the “power of the people” against the tendency of governmental “mission creep” lies in giving effect to the prohibitions on governmental activities by a watchful citizenry. In the U.S. Constitution, accountability of power is achieved through the First Amendment which reads, in part, “Congress shall make no lawabridgingthe right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
This is both a right and a responsibility, ones that too many Americans have simply abdicated to Washington’s siren song of “security” since 9/11. Yet it is precisely at such times that the people should be demanding an accounting, a full disclosure of the purported threat and the proposed response. For more than five years, Congress has been a willing accomplice of the administration by enacting legislation that has infringed on every category of rights–enumerated, unenumerated, and undelegated–the Constitution gives or leaves “to the people.” An accounting is also due on congressional attempts, in the 2006 Military Commissions Act, to exclude the right of Guantanamo Bay detainees to petition federal district courts for a writ of habeas corpus and on why Congress ceded so abjectly to the White House its constitutional responsibilities in the conduct of foreign policy, war, and peace.
Similarly, “We the people” need to direct the power of the First Amendment’s “right of redress” to the White House. The whole point of the War of Independence in terms of the social compact and the restrictions on the authority to govern was to prevent the centralization in a single person or branch of government both the right and the means to arbitrarily impose restrictions on the rights of the people.
It is not an exaggeration to suggest that, from the very beginning of the Republic, the tendency for government to re-centralize power has been at work. And while much of the mischief has been the result of executive overreach, much harm has also accrued by Congress’ abdication to the president of its responsibilities.
No longer, it seems, can “We the people” await elections every two or four years to obtain redress of grievances. Too much can happen too quickly that becomes almost impossible to reverse. We have a right and responsibility to future generations to demand an accounting for what has been done and continues to be done in the name of “We the people.”
The International Convention Against Renditions
Most welcome in this struggle against over-centralization of power with the accompanying hubris that so often justifies law-breaking by government entities is the advent of a new international treaty banning the practice of “disappearing.” The International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly just before the end of 2006, defines “enforced disappearance” as the
arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
The treaty further outlaws undeclared secret detention facilities and empowers families to demand information about the fate of missing relatives and to pursue reparations against state violators.
The treaty opened for signature February 6, 2007 in Paris. Fifty-seven countries signed. Among those not signing were the UK, Germany, Italy, and Spain–all implicated in the Council of Europe investigation into the secret CIA rendition and prison system operating around the world since at least 9/11. The U.S., of course, also refused to sign, with a State Department representative commenting only that the treaty “did not meet our expectations.”
Conclusion
The International Convention for the Protection of All Persons from Enforced Disappearance is but another instance in which a significant number of countries are not waiting for the people of the “world’s greatest democracy” to wake up to the fact that they are sacrificing liberty for a sense of false security. These are extraordinary times, as the Bush administration often declares. But extraordinary times demand extraordinary vigilance against extraordinary efforts by government to accumulate power.
The international community has seen the danger; the U.S. courts have seen the danger. Now “We the People” must do our part and demand the administration both sign the International Convention and roll-back the Military Commissions Act of 2006.
Col. DAN SMITH is a military affairs analyst for Foreign Policy In Focus , a retired U.S. Army colonel, and a senior fellow on military affairs at the Friends Committee on National Legislation. Email at dan@fcnl.org.