Extraordinary Rendition:

Apologies Are Not Enough

By Hank Edson

After Two Years, It’s Still Business As Usual

The Bush administration’s determined and diseased compulsion to torture ought to be reason enough to impeach George W. Bush and Dick Cheney, but sadly, it is far from the only reason for taking such politically responsible, humanitarian action. The White House has claimed itself justified in the exercise of a totalitarian brutality that begins with unprovoked shock and awe mass murder of innocent populations, and then swiftly proceeds past torture into the worst nightmares of Joseph Kafka or George Orwell. We are all hopefully aware by now that the depravi ty of the war on terror extends well beyond heinous torture and involves something the administration refers to as: “extraordinary rendition.”

Extraordinary rendition consists of the seizing of foreign individuals in the midst of their daily lives, refusing them any communication with the outside world, even to spouse or family, and transport ing them to various “black sites ” around the world, secret prisons where they are to be beaten, tortured, drugged, and left like brute animals, naked in tiny c ells for months and even years. All this is done, often without the CIA taking even the most minimal efforts to ascertain whether the innocence of the seized individual can be easily and conclusively determined. Unbelievable as all this is, it is not fiction.

And although the administration’s practice of extraordinary rendition has been known for almost two years, still the White House maintains its rhetoric about spreading democracy and freedom with their war on terror. And still, the rest of American society goes about its business as usual. Meanwhile, on October 10, the United States Supreme Court ruled against the innocent victims of American barbarity, agreeing with the government that were one such victim, Khaled El-Masri, allowed to sue the government, vital state secrets would be revealed that would undermine our national security. [i] While the Bush administration has remained entrenched in its authoritarian commitments, members of congress are beginning to feel the indictment of their own conscience, though not so strongly as to demand the impeachment so obviously called for.

Instead, last Friday members of a congressional committee heard testimony by video link from an innocent victim of extraordinary rendition who could not testify in person because he is still not allowed in the country. After hearing Canadian Maher Arar testify, the members of the committee gave Mr. Arar an apology, which the Bush administration still refuses to offer. [ii] Although these congressional representatives are to be praised for providing any sign of remorse for the inhumane and criminal conduct of our government, their apology is a failure of world diplomacy because it fails to redress the harm in the manner that is clearly called for: impeachment.

When apologies fall so far short of appropriate action, their sincerity is undermined, and their effect is more harmful than good. In effect, an apology without a demand for impeachment is an insult to the gravest of injuries our dystopian novelists have been able to imagine, injuries that are the shockingly real product of our current American administration.

The congressional apology thus presents the American people the opportunity to give congress more feedback about our values, our humanity, and our moral priorities. Following this apology, congress should hear from the American people that their apology has not been accepted—that their apology is not enough. Only the members of the House of Representatives can impeach the president and vice president and only the Senate can convict them. We depend on our legislatures to properly employ this political process when the president and vice president have committed high crimes. We cannot get justice without them. Neither can the world. Neither can Mr. Arar. Neither can Mr. El-Masri. Neither can any of the other victims of extraordinary rendition.

In authorizing the totalitarian brutality of extraordinary rendition, Bush and Cheney have committed crimes that can carry the death penalty and certainly warrant the initiation of impeachment proceedings. In order to refresh our memory regarding the full extent of these crimes, I thought I would offer a brief overview of what has been learned about them.

A Traffic In Disappearing

Consider the story of the above mentioned Khaled El-Masri, reported on by The Washington Post on December 4, 2005. El-Masri had the misfortune of having a name similar to an associate of one of the al-Qaeda hijackers. A German citizen of Arab descent, El-Masri lived with his wife and five children in Ulm, Germany. On the day of his seizure, he was traveling by bus through Macedonia when he was detained at a border crossing. The police took him to a motel room with darkened windows in Skopje, Macedonia’s capital, and waited for instructions from the CIA whom they had contacted upon detaining El-Masri. When El-Masri insisted on being allowed to leave, the police brandished their guns. They kept him in the hotel for 23 days. On the last day, they videotaped, bundled, handcuffed and blindfolded him. Then they took him to a building at the Skopje airport that was closed off from the outside. They cut off his clothes, drugged him, and loaded him onto a plane. In the brief interval in which his blindfold was changed, he saw “seven or eight men with black clothing, wearing masks.” [iii]

Michael Ratner of the Center for Constitutional Rights reports that 467 flights such as the one El-Masri was put on have been counted by observers leaving Germany to other black sites around the world. [iv] Amy Goodman reports that the “CIA, working with other intelligence agencies, has captured an estimated 3,000 people since 9/11. There is no tribunal or judge or check the evidence against those picked up by the agency.” [v] According to the Post, the “extraordinary rendition” unit set up in the basement of the CIA employed 1,200 people, and members of the group employ the same standard: “Dressed head to toe in black, including masks, they blindfold and cut the clothes off their new captives, then administer an enema and sleeping drugs. They outfit detainees in a diaper and jumpsuit for what can be a day-long trip. Their destinations: either a detention facility operated by cooperative countries in the Middle East and Central Asia, including Afghanistan, or one of the CIA’s own covert prisons—referred to in classified documents as "black sites," which at various times have been operated in eight countries, including several in Eastern Europe.” [vi] Journalist James Risen reports that the most important al Qaeda detainees are sent to a black site called “Bright Light,” and quotes a CIA specialist as saying, “the word is that once you get sent to Bright Light, you never come back.” [vii]

This is consistent with what Major General Geoffrey Miller’s JAG officer told General Janis Karpinski about the prisoners kept at Guantanamo Bay. Karpinski would later be made the scapegoat for the techniques Miller orchestrated at Abu Ghraib. Miller’s JAG officer told Karpinski when she asked about prisoner releases at Guantanamo: “Ma’am, we’re not releasing prisoners. Most of those prisoners are going to spend every last day of their lives at Guantanamo Bay.” [viii] Extraordinary rendition is thus the perfect storm of war crimes suffered by an individual: kidnapping, disappearance, torture, and denial of habeas corpus, which is essentially the denial of the all due process rights when arrested by the state, including the right to have one’s innocence or guilt determined.

Expanding the Authoritarian Net

Importantly, there are many victims of the War on Terror, who, though not disappeared, have been tortured and denied habeas corpus. And as we have already seen, there are many American citizens and residents who have been denied habeas corpus as well. By May of 2007, after significant controversy in the press, and large reductions in the numbers of prisoners at the Guantanamo Bay detention facility, there were still approximately four hundred individuals being detained without charge or due process there. [ix] Journalist Jonathan Hafetz reports that ”according to the government’s own data, only 18 percent of the detainees at Guantanamo have any definitive affiliation with al-Qaida or the Taliban, and yet they are being held under “enemy combatant status.” [x]

The enemy combatant status is a legal distinction the Bush White House has used to suspend the due process rights of prisoners in the War on Terror. The term, “enemy combatant,” however, was carefully defined by the Supreme Court in 2004 to apply, as Hafetz says, only to “an enemy soldier who engages in combat against American troops on an actual battlefield.” Nonetheless, the administration has disregarded the Supreme Court’s definition in favor of a definition that would include giving unknowing aid to someone secretly using that aid in support of a terrorist organization.

According to Hafetz, “only 5 percent of the detainees at Guantanamo were captured by U.S. forces; 86 percent were taken into custody by Pakistani or Afghan forces at a time when the U.S. was offering large financial bounties for the capture of any Arab terrorist.” Thus, the likelihood of innocent people being mistaken as enemy combatant is serious indeed under the Bush administration’s broad definition and its ill advised use of bounty rewards. Here, the denial of habeas corpus becomes especially outrageous. The Geneva Conventions and the U.S. military’s regulations require that prisoners taken on the battlefield receive a prompt hearing in order to ensure that aid workers and innocent civilians are not mistakenly held as enemy combatants. In 2006, however, congress passed the Military Commissions Act that weakened regulations prohibiting illegal detention and torture and eliminated habeas corpus altogether. [xi]

The Bush administration’s negligent and indiscriminate sweep of large numbers of innocent people and its high propensity for error in labeling people as enemy combatants is well illustrated by its abduction of El-Masri in Macedonia. The reason that El-Masri had been kept at the hotel in Skopje for 23 days was that there was disagreement in the unit over whether they should wait until they had checked the validity of his passport to take him to a black site. The al-Qaeda unit chief wanted to ship El-Masri to a black site immediately, but other agents were not convinced El-Masri wasn’t innocent. Of course, one extremely practical option would have been to send an agent to Ulm to determine whether El-Masri’s story was the truth. Short of that, bothering to check the apparently valid passport to see if it conclusively demonstrated El-Masri’s innocence should have seemed only fair. The CIA finally opted to do neither.

The Criminal Madness of the Interrogators

Instead, they flew him, bound and drugged, to Afghanistan, where he was put in a small, cold and dirty room in a cellar with no light. Every night, El-Masri was interrogated by men who spoke American-accented English. His first night there, an interrogator kicked and beat him, hissing, “You are here in a country where no one knows about you, in a country where there is no law. If you die, we will bury you, and no one will know.” In fact, El Masri was being held in a bizarre world called “George Bush and Dick Cheney Country.” It is not my country and I’m willing to bet it’s not yours. Yet the government we supposedly control controls it.

It was not until March, three months later, that the analysis of El-Masri’s passport reported that it was valid: the CIA was brutalizing an innocent man. The last time El-Masri had seen his wife, the couple had had a bad fight. When El-Masri did not come home, his wife believed he had left her. She eventually took her children and moved back to Lebanon where she was born. [xii] The CIA could have easily confirmed they had the wrong man, but instead they took him on a five month journey to hell, and put his family through a similar experience as well.

Meanwhile, the CIA was debating what to do with their innocent torture victim. One option was simply to release him in Macedonia free of any trace of what had happened to him. On this theory, the CIA would be counting on no one believing his insane story of being kidnapped by men in black and tortured in a secret dungeon in Afghanistan. That the CIA contemplated this option is a self-indictment of the insanity of the Bush administration. What they have been doing is insane. No one would believe it. But, horribly, it’s not fiction. The CIA eventually opted to telling the German government the whole truth and asking them to keep it quiet, even if El-Masri went public with the kidnapping. El-Masri was released in May of 2004, but the story did not become public until December 2005. Germany did a good job of keeping quiet. [xiii]

But there was more than one innocent man to tell stories of what Amy Goodman describes as “the Kafkaesque netherworld of detentions, kidnappings, torture and show trials that is now, internationally, the shameful signature of the Bush administration.” [xiv] A 2006 report by Human Rights Watch, entitled, “Ghost Prisoner: Two Years in Secret CIA Detention,” reported on the CIA practice of disappearing people from society in the name of the War on Terror. The report discussed the case of Marwan Jabour who was arrested by Pakistani police and held at a black site in Islamabad. While captive in Islamabad, Jabour was severely tortured by both U.S. and Pakistani staff. A month later he was moved to Afghanistan, where the guards, interrogators, doctors and other officials were nearly all American.

Jabour remained completely naked for the next month and a half, during which time he was routinely questioned and filmed by female interrogators. In his cell, he was chained to the wall in a manner that prevented him from standing and that was specifically designed to make breathing difficult. His captors repeatedly threatened that they would put him in an even more suffocating “dog box” if he did not cooperate. Jabour lived for over two years in his windowless cell. During this time, the mental anguish Jabour suffered was extreme. His wife and three daughters had no knowledge of what had happened and was happening to him. He desperately wanted to write to them to say that he was at least alive, but was not allowed to do so. [xv]

While he was held in this secret captivity, Jabour encountered another disappeared individual Algerian terrorism suspect Yassir al-Jazeeri, whom he saw in CIA custody in July 2006. Human Rights Watch has compiled a list of 16 such people who it believes were disappeared by the CIA to its secret prisons and whose current whereabouts are unknown. Human Rights Watch says it has a list of an additional 22 people who were possibly once held in CIA secret prisons whose whereabouts are unknown. [xvi]

Like the cases of El-Masri and Jabour, The Center for Constitutional Rights has been handling the case of Maher Arar, the extraordinary rendition victim who received an apology from a congressional committee last Friday. Arar is a Canadian citizen who was seized at Kennedy airport and then sent to a prison in Syria where he was tortured. Arar told legislators last Friday: “I was interrogated and physically tortured. I was beaten with an electrical cable and threatened with a metal chair. When I was not being beaten, I was put in a waiting room so that I could hear the screams of other prisoners. The cries of the women still haunt me the most.” [xvii] The Center also cites cases in Sweden where men were disappeared to Egypt for torture and the case of Abu Omar, who was abducted in Milan, Italy and also sent to Egypt for torture in 2003. As a result of the Milan abduction, Italian prosecutors and law enforcement authorities have issued 22 arrest warrants for current and former CIA operatives. [xviii]

Admissions of Criminal Culpability from the Very Top

Italy is not the only place where the criminal conduct of the Bush administration is beginning to get legal attention. A Freedom of Information Act (FOIA) request to the CIA submitted by the ACLU turned up evidence in late 2006 that President Bush’s ultimate responsibility for his administration’s criminal conduct. One specific FOIA request was for a “directive signed by President Bush that grants CIA the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against detainees.” [xix] The CIA’s response identified [a single responsive] document as ‘a memorandum from President Bush to the Director of the CIA,’ but did not release the document, claiming exemptions under the NSA Act of 1947 and the CIA Act of 1949 and citing ‘presidential communications, deliberative process, and attorney-client privileges.’” [xx] Journalist Matthew Rothschild writes that even without seeing it, the mere existence of a document “authorizing kidnapping, disappearing, and perhaps even the torturing of detainees” constitutes a violation of the Geneva Conventions and the Treaty Against Torture. [xxi]

On June 29, 2006, in Hamdan v. Rumsfeld, the US Supreme Court essentially agreed, ruling that Donald Rumsfeld and the Bush Administration had violated the Geneva Convention and other international treaties by its illegal treatment and prosecution of detainees in the so-called ‘war on terror.’ Author Thom Hartmann explains that “the logic of the decision could subject Bush, Cheney, Gonzales, and Rumsfeld—along with those down the chain of command who followed their orders—to prosecution as war criminals both in the United States and internationally. If they violated Common Article 3 and others of the Geneva Conventions, they could be subject to lengthy imprisonment in the U.S. for violating U.S. laws, as well as being brought before the United Nation’s International Court of Justice at The Hague, the same as Slobodan Milosevic.” [xxii]

As a result of this decision and the arrest warrants for 28 CIA operatives in Italy, the administration has begun to show concern that the legal protections it created for itself before the war would not hold up in court. The famous “torture memos” of David Aldrich, John You, and Alberto Gonzales, and President Bush’s signing statement to the McCain amendment, were proving as legally flawed as everyone outside the administration had long been saying they were. In a desperate and self-incriminating attempt to protect itself, the White House boldly inserted a war crimes pardon provision in a bill addressing the lack of appropriate process in military tribunals handing al-Qaeda enemy combatants. As Elizabeth Holtzman explained: “The ‘pardon’ provision has nothing to do with tribunals. Instead, it guts the War Crimes act of 1996, a federal law that makes it a crime, in some cases punishable by death, to mistreat detainees in violation of the Geneva Conventions and makes the new, weaker terms of the War Crimes Act retroactive to 9/11.” [xxiii] Although the press described the provision as immunizing CIA interrogators, the provision’s terms apply to the president and other responsible government leaders because the act applies to any U.S. national.

In short, the Bush administration’s own conduct is itself an admission that it has committed war crimes. The Supreme Court of the United States has essentially ruled that the Bush administration may be prosecuted for war crimes where it has violated the Geneva Conventions. Calling the Geneva Conventions “quaint,” Former Attorney General Alberto Gonzales wrote in his January 25, 2002 memo to the president: “ It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 (of the US code, the War Crimes Act). Your determination [to bypass the Geneva Conventions] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.” The evidentiary record of extraordinary rendition, denial of habeas corpus, and torture clearly document violations of the Geneva Conventions and indicate that these war crimes were conceived, authorized, and directed from the offices of the President, Vice President, and Secretary of Defense on down. And the public statements by our leaders clearly indicate, as well, that the Bush administration has knowingly and determinedly committed war crimes for which it should be held accountable.

As the Center for Constitutional Rights’ Michael Ratner exclaimed at the time the extraordinary rendition story broke in the press in December 2005, “And Condoleezza Rice … has to go now to Germany and say to them—She’s not saying, ‘We didn’t do this.’ Let’s understand this. She’s not saying, ‘We don’t have these detention facilities.’ She’s not saying, ‘We’re not torturing people.’ She is trying to make the argument, ‘Look at Europe. We’re all in this together. We stand or we die together…this is all our fight.’ So, it’s incredible to see a Secretary of State now going out and saying, ‘U.S. can set up secret detention facilities, black sites, a gulag around the world,’ and try and justify it as saying, ‘We’re all involved in the fight on terror.’” [xxiv] Thus, from whatever approach one views the Bush administration’s pursuit of the War on Terror, the administration is culpable of some of the most despicable classes of war crimes, crimes that can carry the death penalty. [xxv]

Ladies and Gentlemen of the Jury

My fellow Americans, Ladies and Gentlemen of the jury, we are not asked to impose the death penalty. We are not even asked to put our leaders in prison. The crimes of George Bush and Dick Cheney are grounds for a prosecution that carries far less severe, but all to important consequences: impeachment.

Not only does impeachment carry less severe consequences, but it also requires less evidence. The burden of proof in this process is not based on criminal law, but political judgment. Removing the Bush administration from office only requires that once impeached, two thirds of the Senate vote to convict based on their belief that the evidence presented to them indicates that Bush, Cheney and their colleagues are guilty of the high criminal conduct which extraordinary rendition clearly constitutes.

Additionally, impeachment is the one type of prosecution that enables the American people to repair its relationship to the nations of the world, by taking away the Bush administration’s power, by demanding justice for the world.

Just try to imagine the global celebrations that will occur on the day Bush and Cheney are convicted by impeachment! If we miss our chance to impeach, by contrast, we will always have to look the rest of the world in the eye and say, “It’s true. We let him do it.” Call your congressional representative and demand more than an apology for extraordinary impeachment. Let your government know where your values, your humanity, and your political priorities make their ultimate stand.

Copyright (c) Hank Edson 2007

[i] Linda Greenhouse, “Supreme court Refuses to Hear Torture Appeal,” The New York Times, October 10, 2007, http://www.nytimes.com/2007/10/10/washington/10scotus.html.

[ii] “Congress Apologizes for Rendition and Torture of Innocent Man,” CNN’s American Morning, October 19, 2007, see http://rawstory.com/news/2007/Congress_apologizes_for_rendition_and_torture_1019.html

[iii] Amy Goodman, “Extraordinary Rendition Scandal Reaches New Heights: Rice on the Offensive in Europe Over Bush Administration’s Use of ‘Torture Flights,’” Democracy Now!, December 5, 2005, http://www.democracynow.org/article.pl?sid=05/12/05/1455239.

[iv] Ibid.

[v] Ibid.

[vi] Dana Priest, “Wrongful Imprisonment: Anatomy of a CIA Mistake,” The Washington Post, December 4, 2005, p. A01, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476_pf.html.

[vii] Thomas Powers, “The Biggest Secret,” TomDispatch.com, February 1, 2006, http://www.commondreams.org/cgi-bin/print.cgi?file=/views06/0201-20.htm.

[viii] Amy Goodman, “Col. Janis Karpinski, the Former Head of Abu Ghraib, Admits She Broke the Geneva Conventions But Says the Blame ‘Goes All the Way to the Top,” Democracy Now!, October 26, 2005, http://www.democracynow.org/article.pl?sid=05/10-/26/1423248.

[ix] Jonathan Hafetz, “Perils of An Unchecked Executive,” The Providence Journal, May 8, 2007.

[x] Ibid.

[xi] Ibid.

[xii] Amy Goodman, “Extraordinary Rendition Scandal Reaches New Heights: Rice on the Offensive in Europe Over Bush Administration’s Use of ‘Torture Flights,’” Democracy Now!, December 5, 2005, http://www.democracynow.org/article.pl?sid=05/12/05/1455239.

[xiii] Ibid.

[xiv] Amy Goodman, “American Kagaroo Court Claims Its First Victim,” March 28, 2007, http://www.commondreams.org/archive/2007/03/28/138/.

[xv] Eli Clifton, “Fate of Many ‘Ghost Prisoners’ Still Unknown,” Inter Press Service, March 1, 2007, http://www.commondreams.org/headlines07/0301-03.htm.

[xvi] Ibid.

[xvii] “Congress Apologizes for Rendition and Torture of Innocent Man,” CNN’s American Morning, October 19, 2007, see http://rawstory.com/news/2007/Congress_apologizes_for_rendition_and_torture_1019.html

[xviii] Amy Goodman, “Extraordinary Rendition Scandal Reaches New Heights: Rice on the Offensive in Europe Over Bush Administration’s Use of ‘Torture Flights,’” Democracy Now!, December 5, 2005, http://www.democracynow.org/article.pl?sid=05/12/05/1455239.

[xix] Matthew Rothschild, “Bush’s CIA Order Another Impeachable Offense,” The Progressive, November 17, 2006, http://www.commondreams.org/views/06/1117-22.htm.

[xx] Ibid.

[xxi] Ibid.

[xxii] Thom Hartmann, “Reclaiming The Issues: ‘Keep George Out of Jail,” CommonDreams.org., September 21, 2006, http://www.commondreams.org/views06/0921-28.htm.

[xxiii] Elizabeth Holtzman, “Bush Seeks Immunity for Violating War Crimes Act,” Chicago Sun-Times, September 23, 2006.

[xxiv] Amy Goodman, “Extraordinary Rendition Scandal Reaches New Heights: Rice on the Offensive in Europe Over Bush Administration’s Use of ‘Torture Flights,’” Democracy Now!, December 5, 2005, http://www.democracynow.org/article.pl?sid=05/12/05/1455239.

[xxv] Rosa Brooks, “Did Bush Commit War Crimes,” The Los Angeles Times, June 30, 2006, http://www.commondreams.org/views06/0630-27.htm.