Globalizing Torture: CIA Secret Detention and Extraordinary Rendition

[The following report was issued by the Open Society Foundations on 5 February 2013.] 

Globalizing Torture: CIA Secret Detention and Extraordinary Rendition 

Executive Summary

Following the terrorist attacks of September 11, 2001, the U.S. Central Intelligence Agency (CIA) commenced a secret detention program under which suspected terrorists were held in CIA prisons, also known as “black sites,” outside the United States, where they were subjected to “enhanced interrogation techniques” that involved torture and other abuse. At about the same time, the CIA gained expansive authority to engage in “extraordinary rendition,” defined here as the transfer—without legal process—of a detainee to the custody of a foreign government for purposes of detention and interrogation. Both the secret detention program and the extraordinary rendition program were highly classified, conducted outside the United States, and designed to place detainee interrogations beyond the reach of the law. Torture was a hallmark of both. The two programs entailed the abduction and disappearance of detainees and their extra-legal transfer on secret flights to undisclosed locations around the world, followed by their incommunicado detention, interrogation, torture, and abuse. The administration of President George W. Bush embraced the “dark side,” a new paradigm for countering terrorism with little regard for the constraints of domestic and international law.

Today, more than a decade after September 11, there is no doubt that highranking Bush administration officials bear responsibility for authorizing human rights violations associated with secret detention and extraordinary rendition, and the impunity that they have enjoyed to date remains a matter of significant concern. But responsibility for these violations does not end with the United States. Secret detention and extraordinary rendition operations, designed to be conducted outside the United States under cover of secrecy, could not have been implemented without the active participation of foreign governments. These governments too must be held accountable.

However, to date, the full scale and scope of foreign government participation—as well as the number of victims—remains unknown, largely because of the extreme secrecy maintained by the United States and its partner governments. The U.S. government has refused to publicly and meaningfully acknowledge its involvement in any particular case of extraordinary rendition or disclose the locations of secret overseas CIA detention facilities. While President Bush acknowledged that the CIA had secretly detained about 100 prisoners, the U.S. government has only identified 16 “high value detainees” as individuals who were secretly held in CIA detention prior to being transferred to U.S. Defense Department custody in Guantánamo Bay. The United States also has refused to disclose the identities of the foreign governments that participated in secret detention or extraordinary rendition, and few of these governments have admitted to their roles.

This report provides for the first time the number of known victims of secret detention and extraordinary rendition operations and the number of governments that were complicit. Based on credible public sources and information provided by reputable human rights organizations, this report is the most comprehensive catalogue of the treatment of 136 individuals reportedly subjected to these operations. There may be many more such individuals, but the total number will remain unknown until the United States and its partners make this information publicly available.

The report also shows that as many as 54 foreign governments reportedly participated in these operations in various ways, including by hosting CIA prisons on their territories; detaining, interrogating, torturing, and abusing individuals; assisting in the capture and transport of detainees; permitting the use of domestic airspace and airports for secret flights transporting detainees; providing intelligence leading to the secret detention and extraordinary rendition of individuals; and interrogating individuals who were secretly being held in the custody of other governments. Foreign governments also failed to protect detainees from secret detention and extraordinary rendition on their territories and to conduct effective investigations into agencies and officials who participated in these operations. The 54 governments identified in this report span the continents of Africa, Asia, Australia, Europe, and North America, and include: Afghanistan, Albania, Algeria, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, the Czech Republic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Gambia, Georgia, Germany, Greece, Hong Kong, Iceland, Indonesia, Iran, Ireland, Italy, Jordan, Kenya, Libya, Lithuania, Macedonia, Malawi, Malaysia, Mauritania, Morocco, Pakistan, Poland, Portugal, Romania, Saudi Arabia, Somalia, South Africa, Spain, Sri Lanka, Sweden, Syria, Thailand, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Yemen, and Zimbabwe.

By engaging in torture and other abuses associated with secret detention and extraordinary rendition, the U.S. government violated domestic and international law, thereby diminishing its moral standing and eroding support for its counterterrorism efforts worldwide as these abuses came to light. By enlisting the participation of dozens of foreign governments in these violations, the United States further undermined longstanding human rights protections enshrined in international law—including, in particular, the norm against torture. As this report shows, responsibility for this damage does not lie solely with the United States, but also with the numerous foreign governments without whose participation secret detention and extraordinary rendition operations could not have been carried out. By participating in these operations, these governments too violated domestic and international laws and further undermined the norm against torture.

Torture is not only illegal and immoral, but also ineffective for producing reliable intelligence. Indeed, numerous professional U.S. interrogators have confirmed that torture does not produce reliable intelligence, and that rapport-building techniques are far more effective at eliciting such intelligence. A telling example of the disastrous consequences of extraordinary rendition operations can be seen in the case of Ibn al-Sheikh al-Libi, documented in this report. After being extraordinarily rendered by the United States to Egypt in 2002, al-Libi, under threat of torture at the hands of Egyptian officials, fabricated information relating to Iraq’s provision of chemical and biological weapons training to Al Qaeda. In 2003, then Secretary of State Colin Powell relied on this fabricated information in his speech to the United Nations that made the case for war against Iraq.

In December 2012, the U.S. Senate Select Committee on Intelligence voted to approve a comprehensive report on CIA detention and interrogation. Although the report is classified, and was not publicly available at the time of this writing, the committee chairman, Senator Dianne Feinstein, stated that she and a majority of the committee believed that the creation of long-term, clandestine black sites and the use of so-called enhanced interrogation techniques were “terrible mistakes.” She added that the report would “settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques such as those detailed in the report.”

Despite the scale of torture and other human rights violations associated with secret detention and extraordinary rendition operations, the United States and most of its partner governments have failed to conduct effective investigations into secret detention and extraordinary rendition. The U.S. Justice Department’s investigation into detainee abuse was limited to ill-treatment that went beyond what its Office of Legal Counsel had previously authorized, and concluded without bringing any criminal charges, despite ample evidence of CIA torture and abuse. Italy is the only country where a court has criminally convicted officials for their involvement in extraordinary rendition operations. Canada is the only country to issue an apology to an extraordinary rendition victim, Maher Arar, who was extraordinarily rendered to, and tortured in, Syria. Only three countries in addition to Canada—Sweden, Australia, and the United Kingdom—have issued compensation to extraordinary rendition victims, the latter two in the context of confidential settlements that sought to avoid litigation relating to the associated human rights violations.

Moreover, it appears that the Obama administration did not end extraordinary rendition, choosing to rely on anti-torture diplomatic assurances from recipient countries and post-transfer monitoring of detainee treatment. As demonstrated in the cases of Maher Arar, who was tortured in Syria, and Ahmed Agiza and Muhammed al-Zery, who were tortured in Egypt, diplomatic assurances and posttransfer monitoring are not effective safeguards against torture. Soon after taking office in 2009, President Obama did issue an executive order that disavowed torture, ordered the closure of secret CIA detention facilities, and established an interagency task force to review interrogation and transfer policies and issue recommendations on “the practices of transferring individuals to other nations.” But the executive order did not repudiate extraordinary rendition, and was crafted to preserve the CIA’s authority to detain terrorist suspects on a shortterm transitory basis prior to rendering them to another country for interrogation or trial. Moreover, the interagency task force report, which was issued in 2009, continues to be withheld from the public. The administration also continues to withhold documents relating to CIA Office of Inspector General investigations into extraordinary rendition and secret detention.

In addition, recent reports of secret detention by or with the involvement of the CIA or other U.S. agencies remain a source of significant concern. These include reports of a secret prison in Somalia run with CIA involvement, secret Defense Department detention facilities in Afghanistan where detainees were abused, and the twomonth long secret detention of a terrorist suspect aboard a U.S. Navy ship.

Despite the efforts of the United States and its partner governments to withhold the truth about past and ongoing abuses, information relating to these abuses will continue to find its way into the public domain. At the same time, while U.S. courts have closed their doors to victims of secret detention and extraordinary rendition operations, legal challenges to foreign government participation in these operations are being heard in courts around the world. Maher Arar’s U.S. lawsuit was dismissed on grounds that judicial intervention was inappropriate in a case that raised sensitive national security and foreign policy questions. Similarly, U.S. courts dismissed on state secrets grounds Khaled El-Masri’s lawsuit challenging his abduction, torture, and secret detention by the CIA. In contrast, the European Court of Human Rights recently held that Macedonia’s participation in that operation violated El-Masri’s rights under the European Convention on Human Rights, and that his ill-treatment by the CIA amounted to torture. In addition, Italy’s highest court recently upheld the convictions of U.S. and Italian officials for their role in the extraordinary rendition of Abu Omar to Egypt. Moreover, at the time of this writing, other legal challenges to secret detention and extraordinary rendition are pending before the European Court of Human Rights against Poland, Lithuania, Romania, and Italy; against Djibouti before the African Commission on Human and Peoples’ Rights; and against domestic authorities or officials in Egypt, Hong Kong, Italy, and the United Kingdom.

In the face of this trend, the time has come for the United States and its partner governments to own up to their responsibility for secret detention and extraordinary rendition operations. If they do not seize this opportunity, chances are that the truth will emerge by other means to embarrass them. The taint of torture associated with secret detention and extraordinary rendition operations will continue to cling to the United States and its partner governments as long as they fail to air the truth and hold their officials accountable. The impunity currently enjoyed by responsible parties also paves the way for future abuses in counterterrorism operations.

There can be no doubt that in today’s world, intergovernmental cooperation is necessary for combating terrorism. But such cooperation must be effected in a manner that is consistent with the rule of law. As recognized in the Global CounterTerrorism Strategy adopted by the United Nations General Assembly in 2006, “effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.” Consistent with this principle, it is incumbent on the United States and its partner governments to repudiate secret detention and extraordinary rendition, secure accountability for human rights violations associated with these operations, and ensure that future counterterrorism operations do not violate human rights standards.

Recommendations: 

To the United States Government: 

1. Repudiate the CIA’s practice of extraordinary rendition.
2. Cease reliance on “diplomatic assurances” against torture or cruel, inhuman or degrading treatment or punishment, as a basis for transferring individuals to foreign countries.
3. Reaffirm and extend the commitment set forth in Executive Order 13491 to close secret CIA detention facilities by prohibiting secret detention—including short-term secret detention—by or with the involvement of any U.S. federal agency.
4. Disclose information relating to human rights violations associated with secret detention and extraordinary rendition operations, including but not limited to the identities of all individuals subjected to these operations, along with available information on their detention and treatment, current whereabouts, and diplomatic assurances secured in particular cases. The U.S. administration and senate should work to declassify, to the maximum extent possible, the Senate Select Committee on Intelligence report on CIA detention and interrogation.
5. Conduct an effective and thorough criminal investigation into human rights abuses associated with CIA secret detention and extraordinary rendition operations (including into abuses that had been authorized by the Office of Legal Counsel of the U.S. Department of Justice), with a view to examining the role of, and holding legally accountable, officials who authorized, ordered, assisted, or otherwise participated in these abuses.
6. Create an independent, non-partisan commission (with authority to access all relevant documents, subpoena witnesses, and make its concluding report public) to investigate human rights abuses associated with CIA secret detention and extraordinary rendition operations (including into abuses that had been authorized by the Office of Legal Counsel), with a view to examining, and publicly disclosing, the role of officials who authorized, ordered, assisted, or otherwise participated in these abuses.
7. Create an independent, non-partisan board to review compensation claims and provide just compensation to all individuals subjected to human rights abuses associated with CIA secret detention and extraordinary rendition operations.
8. Publicly disclose the report and recommendations of the Special Task Force on Interrogations and Transfer Policies (created pursuant to Executive Order 13491 in January 2009 to issue recommendations for ensuring that these policies comply with U.S. domestic laws and international obligations) along with descriptions of measures taken to implement the recommendations, so that the public may be able to assess whether policies were revised and adequate safeguards instituted against torture and other abuses associated with CIA secret detention and extraordinary rendition operations.
9. Institute safeguards for ensuring that future joint counterterrorism operations do not run afoul of human rights standards, including by making participation in such operations contingent on compliance of all participating governments with human rights standards.

To Other Governments That Participated in CIA Secret Detention and Extraordinary Rendition Operations:

1. Refuse to participate in CIA extraordinary rendition.
2. Refuse to participate in secret detention, including at the behest, or with the involvement, of any U.S. agency or any other government.
3. Disclose information relating to human rights violations associated with CIA secret detention and extraordinary rendition operations, including but not limited to the identities of all individuals subjected to secret detention and extraordinary rendition operations along with available information on their detention and treatment, current whereabouts, and diplomatic assurances secured in particular cases.
4. Conduct effective and thorough investigations (including, where appropriate, criminal investigations) into the full range of human rights abuses associated with CIA secret detention and extraordinary rendition operations, with a view to examining and publicly disclosing the role of, and holding legally accountable, officials who authorized, ordered, assisted, or otherwise participated in these abuses.
5. Provide appropriate compensation to all individuals subjected to secret detention and extraordinary rendition operations in which the particular government participated.
6. Institute safeguards for ensuring that future joint counterterrorism operations do not violate human rights standards, including by making participation in such operations contingent on compliance of all participating governments with human rights standards.

[Click here to download the full report.]