raporti i komitetit kunder tortures

7/29/2019 Raporti i komitetit kunder tortures

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ENDNOTES

GLOBALIZING TORTURECIA SECRET DETENTION

AND EXTRAORDINARY RENDITION


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GLOBALIZING TORTURECIA SECRET DETENTION

AND EXTRAORDINARY RENDITION


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Copyright 2013 Open Society Foundations.

This publication is available as a pd on the Open SocietyFoundations website under a Creative Commons licensethat allows copying and distributing the publication,only in its entirety, as long as it is attributed to theOpen Society Foundations and used or noncommercialeducational or public policy purposes. Photographs maynot be used separately rom the publication.

ISBN: 978-1-936133-75-8

Published by:

Opn soct Fonaton

400 West 59th StreetNew York, New York 10019 USAwww.opensocietyoundations.org

FOR MORe iNFORMATiON CONTACT:

Amrt sng

Senior Legal Ofcer

National Security and [email protected]

desiGN ANd lAyOuT by:

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PRiNTed by:

GhP Ma, inc.

PhOTOGRAPhy:

Covr poto Ron havv/Vii


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CONTENTS

ACKNOWledGMeNTs ANd MeThOdOlOGy 4

eXeCuTiVe suMMARy 5

ReCOMMeNdATiONs 9

seCTiON i: iNTROduCTiON 11

seCTiON ii: The eVOluTiON OF CiA seCReT deTeNTiON ANd 13

eXTRAORdiNARy ReNdiTiON OPeRATiONs

extraornar Rnton 13

scrt dtnton an enanc intrrogaton Tcnq 15

Crrnt Poc an Practc 19

seCTiON iii: iNTeRNATiONAl leGAl sTANdARds APPliCAble TO 22

CiA seCReT deTeNTiON ANd eXTRAORdiNARy ReNdiTiON

Tortr an Cr, inman, an dgrang Tratmnt 23

Tranr to Tortr or Cr, inman, or dgrang Tratmnt 25

Artrar dtnton an enorc dapparanc 26

Partcpaton n scrt dtnton an extraornar Rnton Opraton 27

seCTiON iV: deTAiNees subJeCTed TO POsT-sePTeMbeR 11, 2001, 29


seCTiON V: FOReiGN GOVeRNMeNT PARTiCiPATiON iN 61


seCTiON Vi: CONClusiON 119

eNdNOTes 120


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GlObAliZiNG TORTuRe: CIA SECRET DETENTION AND EXTRAORDINARY RENDITION

ACKNOWledGMeNTs

This report was written by Amrit Singh, Senior Legal Ocer or the OpenSociety Justice Initiatives National Security and Counterterrorism program, andedited by David Berry. It received valuable comments rom Betsy Apple, JamesGoldston, Morton Halperin, Jonathan Horowitz, Emi Maclean, Mia Nitchun,Wendy Patten, Stephen Rickard, and Robert Varenik. The report also beneted

rom discussions with Julia Hall and Meg Satterthwaite. Research assistance romStacy Cammarano, Tim Kertland, James Tager, and Cole Taylor is also grateullyacknowledged. Special thanks are due to Joanne Mariner, Director o the HumanRights Program at Hunter College, or sharing her research.

MeThOdOlOGy

This report ocuses primarily on human rights abuses associated with theCIAs post-September 11, 2001, secret detention and extraordinary renditionoperations. The report does not document extra-legal overseas transers orsecret detention o detainees by agencies other than the CIA. Thus, the U.S.Deense Departments detention practices and its transer o detainees to androm Guantnamo Bay or other military detention acilities are not the ocus othis report.

The actual contents o this report are derived rom credible public sources andinormation provided by reputable human rights organizations. Sources or theactual assertions are provided in accompanying endnotes. While every sourcehas been careully reviewed or indicia o credibility, it is ultimately impossible tocorroborate every actual assertion due to the extraordinary level o government

secrecy associated with secret detention and extraordinary rendition operations.


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EXECUTIVE SUMMARY

Wealsohavetowork,through,sortofthedarkside,ifyouwill.

Wevegottospendtimeintheshadowsintheintelligenceworld.

Alotofwhatneedstobedoneherewillhavetobedonequietly,withoutany

discussion,usingsourcesandmethodsthatareavailabletoourintelligence

agencies,ifweregoingtobesuccessful.Thatstheworldthesefolksoperate

in,andsoitsgoingtobevitalforustouseanymeansat

ourdisposal,basically,toachieveourobjective.

u.s. ViCe PResideNT diCK CheNey, sePTeMbeR 16, 20011

Following the terrorist attacks o September 11, 2001, the U.S. Central IntelligenceAgency (CIA) commenced a secret detention program under which suspectedterrorists were held in CIA prisons, also known as black sites, outside the UnitedStates, where they were subjected to enhanced interrogation techniques thatinvolved torture and other abuse. At about the same time, the CIA gained expansiveauthority to engage in extraordinary rendition, dened here as the transerwithout legal processo a detainee to the custody o a oreign government orpurposes o detention and interrogation.2 Both the secret detention program andthe extraordinary rendition program were highly classied, conducted outsidethe United States, and designed to place detainee interrogations beyond thereach o the law. Torture was a hallmark o both. The two programs entailed theabduction and disappearance o detainees and their extra-legal transer on secretfights to undisclosed locations around the world, ollowed by their incommunicadodetention, interrogation, torture, and abuse. The administration o President GeorgeW. Bush embraced the dark side, a new paradigm or countering terrorism withlittle regard or the constraints o domestic and international law.

Today, more than a decade ater September 11, there is no doubt that high-ranking Bush administration ocials bear responsibility or authorizing humanrights violations associated with secret detention and extraordinary rendition,and the impunity that they have enjoyed to date remains a matter o signicantconcern. But responsibility or these violations does not end with the UnitedStates. Secret detention and extraordinary rendition operations, designed to beconducted outside the United States under cover o secrecy, could not have beenimplemented without the active participation o oreign governments. Thesegovernments too must be held accountable.

However, to date, the ull scale and scope o oreign government participationaswell as the number o victimsremains unknown, largely because o the extremesecrecy maintained by the United States and its partner governments. The U.S.

EXECUTIVESUMMARY


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government has reused to publicly and meaningully acknowledge its involvementin any particular case o extraordinary rendition or disclose the locations o secretoverseas CIA detention acilities. While President Bush acknowledged that theCIA had secretly detained about 100 prisoners, the U.S. government has onlyidentied 16 high value detainees as individuals who were secretly held inCIA detention prior to being transerred to U.S. Deense Department custody inGuantnamo Bay. The United States also has reused to disclose the identities othe oreign governments that participated in secret detention or extraordinaryrendition, and ew o these governments have admitted to their roles.

This report provides or the rst time the number o known victims o secret detentionand extraordinary rendition operations and the number o governments that werecomplicit. Based on credible public sources and inormation provided by reputablehuman rights organizations, this report is the most comprehensive catalogue o thetreatment o 136 individuals reportedly subjected to these operations. There may

be many more such individuals, but the total number will remain unknown until theUnited States and its partners make this inormation publicly available.

The report also shows that as many as 54 oreign governments reportedlyparticipated in these operations in various ways, including by hosting CIA prisons ontheir territories; detaining, interrogating, torturing, and abusing individuals; assistingin the capture and transport o detainees; permitting the use o domestic airspaceand airports or secret fights transporting detainees; providing intelligence leadingto the secret detention and extraordinary rendition o individuals; and interrogatingindividuals who were secretly being held in the custody o other governments.Foreign governments also ailed to protect detainees rom secret detention and

extraordinary rendition on their territories and to conduct eective investigationsinto agencies and ocials who participated in these operations. The 54 governmentsidentied in this report span the continents o Arica, Asia, Australia, Europe, andNorth America, and include: Aghanistan3, Albania, Algeria, Australia, Austria,Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, the CzechRepublic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Gambia, Georgia, Germany,Greece, Hong Kong,4 Iceland, Indonesia, Iran, Ireland, Italy, Jordan, Kenya, Libya,Lithuania, Macedonia, Malawi, Malaysia, Mauritania, Morocco, Pakistan, Poland,Portugal, Romania, Saudi Arabia, Somalia, South Arica, Spain, Sri Lanka, Sweden,Syria, Thailand, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Yemen,

and Zimbabwe.5

By engaging in torture and other abuses associated with secret detention andextraordinary rendition, the U.S. government violated domestic and internationallaw, thereby diminishing its moral standing and eroding support or itscounterterrorism eorts worldwide as these abuses came to light. By enlistingthe participation o dozens o oreign governments in these violations, the UnitedStates urther undermined longstanding human rights protections enshrined ininternational lawincluding, in particular, the norm against torture. As this reportshows, responsibility or this damage does not lie solely with the United States,but also with the numerous oreign governments without whose participation

secret detention and extraordinary rendition operations could not have beencarried out. By participating in these operations, these governments too violateddomestic and international laws and urther undermined the norm against torture.


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EXECUTIVE SUMMARY

Torture is not only illegal and immoral, but also ineective or producing reliableintelligence. Indeed, numerous proessional U.S. interrogators have confrmedthat torture does not produce reliable intelligence, and that rapport-buildingtechniques are ar more eective at eliciting such intelligence. A telling example

o the disastrous consequences o extraordinary rendition operations can beseen in the case o Ibn al-Sheikh al-Libi, documented in this report. Ater beingextraordinarily rendered by the United States to Egypt in 2002, al-Libi, underthreat o torture at the hands o Egyptian ofcials, abricated inormation relatingto Iraqs provision o chemical and biological weapons training to Al Qaeda. In2003, then Secretary o State Colin Powell relied on this abricated inormation inhis speech to the United Nations that made the case or war against Iraq.

In December 2012, the U.S. Senate Select Committee on Intelligence voted to approvea comprehensive report on CIA detention and interrogation. Although the report isclassifed, and was not publicly available at the time o this writing, the committee

chairman, Senator Dianne Feinstein, stated that she and a majority o the committeebelieved that the creation o long-term, clandestine black sites and the use o so-calledenhanced interrogation techniques were terrible mistakes. She added that the reportwould settle the debate once and or all over whether our nation should ever employcoercive interrogation techniques such as those detailed in the report.

Despite the scale o torture and other human rights violations associated with secretdetention and extraordinary rendition operations, the United States and most oits partner governments have ailed to conduct eective investigations into secretdetention and extraordinary rendition. The U.S. Justice Departments investigationinto detainee abuse was limited to ill-treatment that went beyond what its Ofce

o Legal Counsel had previously authorized, and concluded without bringing anycriminal charges, despite ample evidence o CIA torture and abuse. Italy is theonly country where a court has criminally convicted ofcials or their involvement inextraordinary rendition operations. Canada is the only country to issue an apologyto an extraordinary rendition victim, Maher Arar, who was extraordinarily renderedto, and tortured in, Syria. Only three countries in addition to CanadaSweden,Australia, and the United Kingdomhave issued compensation to extraordinaryrendition victims, the latter two in the context o confdential settlements thatsought to avoid litigation relating to the associated human rights violations.

Moreover, it appears that the Obama administration did not end extraordinaryrendition, choosing to rely on anti-torture diplomatic assurances rom recipientcountries and post-transer monitoring o detainee treatment. As demonstratedin the cases o Maher Arar, who was tortured in Syria, and Ahmed Agiza andMuhammed al-Zery, who were tortured in Egypt, diplomatic assurances and post-transer monitoring are not eective saeguards against torture. Soon ater takingofce in 2009, President Obama did issue an executive order that disavowedtorture, ordered the closure o secret CIA detention acilities, and establishedan interagency task orce to review interrogation and transer policies and issuerecommendations on the practices o transerring individuals to other nations.But the executive order did not repudiate extraordinary rendition, and was

crated to preserve the CIAs authority to detain terrorist suspects on a short-term transitory basis prior to rendering them to another country or interrogationor trial. Moreover, the interagency task orce report, which was issued in 2009,


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continues to be withheld rom the public. The administration also continues towithhold documents relating to CIA Oce o Inspector General investigationsinto extraordinary rendition and secret detention.

In addition, recent reports o secret detention by or with the involvement o the CIA

or other U.S. agencies remain a source o signicant concern. These include reportso a secret prison in Somalia run with CIA involvement, secret Deense Departmentdetention acilities in Aghanistan where detainees were abused, and the two-month long secret detention o a terrorist suspect aboard a U.S. Navy ship.

Despite the eorts o the United States and its partner governments to withholdthe truth about past and ongoing abuses, inormation relating to these abuseswill continue to nd its way into the public domain. At the same time, while U.S.courts have closed their doors to victims o secret detention and extraordinaryrendition operations, legal challenges to oreign government participation in these

operations are being heard in courts around the world. Maher Arars U.S. lawsuitwas dismissed on grounds that judicial intervention was inappropriate in a casethat raised sensitive national security and oreign policy questions. Similarly, U.S.courts dismissed on state secrets grounds Khaled El-Masris lawsuit challenginghis abduction, torture, and secret detention by the CIA. In contrast, the EuropeanCourt o Human Rights recently held that Macedonias participation in thatoperation violated El-Masris rights under the European Convention on HumanRights, and that his ill-treatment by the CIA amounted to torture. In addition,Italys highest court recently upheld the convictions o U.S. and Italian ocials ortheir role in the extraordinary rendition o Abu Omar to Egypt. Moreover, at thetime o this writing, other legal challenges to secret detention and extraordinary

rendition are pending beore the European Court o Human Rights against Poland,Lithuania, Romania, and Italy; against Djibouti beore the Arican Commission onHuman and Peoples Rights; and against domestic authorities or ocials in Egypt,Hong Kong, Italy, and the United Kingdom.

In the ace o this trend, the time has come or the United States and its partnergovernments to own up to their responsibility or secret detention and extraordinaryrendition operations. I they do not seize this opportunity, chances are that the truthwill emerge by other means to embarrass them. The taint o torture associated withsecret detention and extraordinary rendition operations will continue to cling to

the United States and its partner governments as long as they ail to air the truthand hold their ocials accountable. The impunity currently enjoyed by responsibleparties also paves the way or uture abuses in counterterrorism operations.

There can be no doubt that in todays world, intergovernmental cooperation isnecessary or combating terrorism. But such cooperation must be eected in amanner that is consistent with the rule o law. As recognized in the Global Counter-Terrorism Strategy adopted by the United Nations General Assembly in 2006,eective counter-terrorism measures and the protection o human rights are notconficting goals, but complementary and mutually reinorcing. Consistent withthis principle, it is incumbent on the United States and its partner governments to

repudiate secret detention and extraordinary rendition, secure accountability orhuman rights violations associated with these operations, and ensure that uturecounterterrorism operations do not violate human rights standards.


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RECOMMENDATIONS

To The UniTed STaTeS governmenT:

1. Repudiate the CIAs practice o extraordinary rendition.

2. Cease reliance on diplomatic assurances against torture or cruel,inhuman or degrading treatment or punishment, as a basis or transerringindividuals to oreign countries.

3. Rearm and extend the commitment set orth in Executive Order 13491to close secret CIA detention acilities by prohibiting secret detention

including short-term secret detentionby or with the involvement o anyU.S. ederal agency.

4. Disclose inormation relating to human rights violations associated withsecret detention and extraordinary rendition operations, including but notlimited to the identities o all individuals subjected to these operations,along with available inormation on their detention and treatment, currentwhereabouts, and diplomatic assurances secured in particular cases. TheU.S. administration and senate should work to declassiy, to the maximumextent possible, the Senate Select Committee on Intelligence report onCIA detention and interrogation.

5. Conduct an eective and thorough criminal investigation into humanrights abuses associated with CIA secret detention and extraordinaryrendition operations (including into abuses that had been authorized bythe Oce o Legal Counsel o the U.S. Department o Justice), with a viewto examining the role o, and holding legally accountable, ocials whoauthorized, ordered, assisted, or otherwise participated in these abuses.

6. Create an independent, non-partisan commission (with authority to accessall relevant documents, subpoena witnesses, and make its concludingreport public) to investigate human rights abuses associated with CIA

secret detention and extraordinary rendition operations (including intoabuses that had been authorized by the Oce o Legal Counsel), witha view to examining, and publicly disclosing, the role o ocials whoauthorized, ordered, assisted, or otherwise participated in these abuses.

7. Create an independent, non-partisan board to review compensation claimsand provide just compensation to all individuals subjected to human rightsabuses associated with CIA secret detention and extraordinary renditionoperations.

8. Publicly disclose the report and recommendations o the Special TaskForce on Interrogations and Transer Policies (created pursuant toExecutive Order 13491 in January 2009 to issue recommendations

RECOMMENDATIONS


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or ensuring that these policies comply with U.S. domestic laws andinternational obligations) along with descriptions o measures taken toimplement the recommendations, so that the public may be able toassess whether policies were revised and adequate saeguards instituted

against torture and other abuses associated with CIA secret detention andextraordinary rendition operations.

9. Institute saeguards or ensuring that uture joint counterterrorismoperations do not run aoul o human rights standards, including bymaking participation in such operations contingent on compliance o allparticipating governments with human rights standards.

To oTher governmenTS ThaT ParTiCiPaTed in Cia SeCreT

deTenTion and eXTraordinarY rendiTion oPeraTionS:

1. Reuse to participate in CIA extraordinary rendition.

2. Reuse to participate in secret detention, including at the behest, or withthe involvement, o any U.S. agency or any other government.

3. Disclose inormation relating to human rights violations associated withCIA secret detention and extraordinary rendition operations, including butnot limited to the identities o all individuals subjected to secret detentionand extraordinary rendition operations along with available inormationon their detention and treatment, current whereabouts, and diplomatic

assurances secured in particular cases.

4. Conduct eective and thorough investigations (including, whereappropriate, criminal investigations) into the ull range o human rightsabuses associated with CIA secret detention and extraordinary renditionoperations, with a view to examining and publicly disclosing the roleo, and holding legally accountable, ocials who authorized, ordered,assisted, or otherwise participated in these abuses.

5. Provide appropriate compensation to all individuals subjected to secretdetention and extraordinary rendition operations in which the particular

government participated.

6. Institute saeguards or ensuring that uture joint counterterrorismoperations do not violate human rights standards, including by makingparticipation in such operations contingent on compliance o allparticipating governments with human rights standards.


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INTRODUCTION

Following the September 11, 2001, terrorist attacks, President George W. Bushauthorized the Central Intelligence Agency (CIA) to commence a secret detentionprogram under which suspected terrorists were held in CIA prisons (also known asblack sites) outside the United States, where they were subjected to interroga-tion methods that involved torture and other abuses. At about the same time, healso granted the CIA expansive authority to engage in extraordinary rendition,

dened here as the transerwithout legal processo a detainee to the custodyo a oreign government or purposes o detention and interrogation.6

Both programs, highly classied and conducted outside the United States, weredesigned to place detainee interrogations beyond the reach o law. Torture wasemblematic o both. Coer Black, who was director o the CIAs CounterterrorismCenter on September 11, said in subsequent Congressional testimony: Therewas beore 9/11 and ater 9/11. Ater 9/11 the gloves come o.7 Under thesecret detention program, the CIA subjected its detainees to enhanced interro-gation methods involving torture and abuse in secret prisons in ar-o countries,removed rom public and judicial scrutiny. Extraordinary rendition was intendedto outsource abusive interrogations. As one U.S. ocial directly involved in ren-dering captives into oreign hands told the Washington Post: We dont kickthe [expletive] out o them. We send them to other countries so they can kick the[expletive] out o them.8

Secret detention placed detainees in CIA custody, whereas extraordinary rendi-tion eventually placed detainees in oreign government custody. But the two pro-grams had similar modalities and entailed the same kinds o human rights viola-tionsthe abduction and disappearance o detainees, their extra-legal transer onsecret fights to undisclosed locations around the world, ollowed by their incom-

municado detention, interrogation, torture, and abuse. Moreover, extraordinaryrendition typically involved secret detention by the United States i only or thetime it took to transer the person to the custody o another government. In someinstances, the same detainee was subjected both to prolonged secret detentionin CIA custody and extraordinary rendition to a country where the detainee was atreal risk o torture. Consequently, this report ocuses on both operations.

Today, more than a decade ater September 11, 2001, it is well-established thathigh-ranking Bush administration ocials are responsible or torture and otherhuman rights violations associated with the CIAs secret detention and extraor-dinary rendition operations. The ailure o U.S. authorities to hold these ocials

accountable remains a matter o signicant concern. But responsibility or theseviolations does not end with the United States. Secret detention and extraordi-

Section I

INTRODUCTION


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nary rendition would not have been possible without the active participation onumerous oreign governments. These participating governments must also beheld accountable.

However, the extraordinary secrecy maintained by the United States and its part-

ner governments with respect to these operations presents a barrier to account-ability. The U.S. government has reused to publicly and meaningully acknowl-edge its role in any case o extraordinary rendition or to disclose the locationso its secret overseas CIA prisons. Although President Bush acknowledged thatabout 100 individuals were secretly detained by the CIA, the U.S. governmenthas only disclosed the identities o 16. It has also reused to identiy cooperat-ing governments, and ew o those governments have admitted to their role.Consequently, no comprehensive ocial account exists o oreign governmentparticipation in these operations. Nor is there a comprehensive ocial record othe victims o human rights abuses associated with secret detention and extraor-

dinary rendition.

This report seeks to ll that gap. Based on credible public sources and inormationprovided by reputable human rights organizations, it provides the most compre-hensive possible account o both the victims subjected to, and the participation ooreign governments in, these operations. The extraordinary level o governmentsecrecy associated with these operations means that it is impossible to corrobo-rate every actual assertion in this report. Nonetheless, the inormation presentedhere demonstrates that the human rights abuses associated with secret detentionand extraordinary rendition were signicant and systemic, and the scale o oreigngovernment participation in these operations was substantial and ar greater than

previously realized.

Section II below traces the evolution o CIA secret detention and extraordinary ren-dition operations until the present day. Section III provides an overview o interna-tional legal standards applicable to these operations. Section IV describes the caseso 136 individuals reportedly subjected to CIA secret detention and/or extraordi-nary rendition operations. Section V describes the roles o 54 oreign governmentsthat reportedly participated in various ways in CIA secret detention and/or extraor-dinary rendition operations. Section VI oers concluding observations.


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THE EVOLUTION OF CIA SECRET DETENTION AND EXTRAORDINARY RENDITION OPERATIONS

Section II

ThE EVOlUTIONOf CIA SECRETDETENTION ANDEXTRAORDINARYRENDITIONOpERATIONSExtraordinary Rendition

There is no publicly available ocial U.S. government denition o extraordinaryrendition. It is dened here as the transerwithout legal processo a detainee tothe custody o a oreign government or purposes o detention and interrogation.9

Although extraordinary rendition is generally regarded as a practice that began a-ter September 11, 2001,10 the United States government has engaged in rendition(dened here as the transerwithout legal processo a detainee or purposes ocriminal prosecution either into the United States or to the custody o a oreign gov-ernment) or a considerably longer period o time.11

Indeed, the practice o rendering a criminal suspect into the United States was spe-cically addressed by the U.S. Supreme Court as early as 1886. In Ker v. Illinois, thecourt held that the abduction and orcible transportation o a man rom Peru to acelarceny charges in the United States without availing o the extradition treaty thenin existence between the two countries did not violate the U.S. Constitution, nor

did the extradition treaty coner on him a right to asylum in Peru that would bar hisorcible return to the United States.12 The Supreme Court held that or mere irregu-larities in the manner in which he may be brought into the custody o the law, wedo not think he is entitled to say that he should not be tried at all or the crime withwhich he is charged in a regular indictment.13 The court did, however, add that itsdecision did not leave the detainee or the government o Peru without remedyor his unauthorized seizure within its territory since the messenger who abductedthe detainee could be surrendered and tried or violations o Peruvian laws, andcould also be sued by the detainee or trespass and alse imprisonment.14 In Frisbiev. Collins, the Supreme Court upheld the Kerrule that the power o a court to trya person or crime is not impaired by the act that he had been brought within thecourts jurisdiction by reason o a orcible abduction.15 Subsequently, in UnitedStates v. Alvarez Machain, the court held that an individuals orcible abduction rom


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Mexico despite the existence o a valid extradition treaty did not prohibit his trial ina court in the United States or violations o the criminal laws o the United States.16

In 1986, in National Security Decision Directive 207, President Ronald Reagan re-portedly authorized renditions to justice into the United States or suspects to

ace criminal charges, but only rom locations where the U.S. government could notsecure custody through extradition procedures, or example in countries where nogovernment exercised eective control; countries known to plan and support inter-national terrorism; and international waters or airspace.17 In 1993, President GeorgeH.W. Bush reportedly authorized specic procedures or renditions into the UnitedStates through National Security Directive 77, which remains classied.18

The Clinton administration continued to render terrorist suspects into the UnitedStates or criminal prosecution: the State Departments report, Patterns o GlobalTerrorism 2001, listed ten such renditions into the United States between March1993 and September 2001.19 In addition, President Clinton signed a number opresidential directives relating to renditions, including PDD-3920 and PDD-62,21and under his presidency, in the late summer o 1995, the CIA began renderingdetainees to oreign governments or prosecution.22 The National Commission onTerrorist Attacks Upon the United States (also known as the 9-11 Commission) stastatement on diplomacy described this shit: I extradition procedures were un-available or put aside, the United States could seek the local countrys assistancein a rendition, secretly putting the ugitive in a plane back to America or somethird country or trial.23 In 1995, U.S. agents reportedly approached Egypt aboutbecoming a partner in this rendition program, and Egypt accepted because itwanted access to Egyptian Al Qaeda suspects while availing o U.S. resources to

track, capture, and transport suspects across the world.24

These early renditions to third countries or prosecution were conned to a smallnumber o cases. According to Michael Scheuer, ormer chie o the CIA unit chargedwith tracking Osama bin Laden, every target had been convicted in absentia; beorea suspect was captured, a dossier was prepared containing the equivalent o a rapsheet, and the CIAs general counsel approved every operation.25 Nonetheless, in-dividuals subjected to these early renditions allege they were tortured, and some othem were subjected to the death penalty ater unair trials.26 In September 1995,the United States helped kidnap Talaat Fouad Qassem (an Egyptian who had beensentenced to death in absentia or the assassination o Anwar Sadat) in Croatia,and rendered him to Egypt; he disappeared ater being brought to Egypt, and isbelieved to have been executed.27 In the summer o 1998, the CIA assisted theAlbanian police in the capture o ve suspected militants, including Shawki SalamaAttiya, who were bound, blindolded, taken to a deserted airbase, and thereaterfown to Cairo.28 Attiya alleged he was tortured in Egyptian custody by being sub-jected to electric shocks, hung rom his limbs, and imprisoned in a cell ull o knee-deep lthy water, and two o the other suspects, who had been sentenced to deathin absentia, were hanged.29 According to ormer CIA Director George Tenet, theCIA took part in over 80 renditions beore September 11, 2001.30

Ater the September 11, 2001, terrorist attacks, renditions vastly expanded in num-ber and scope to encompass transers to third countries solely or the purpose odetention and interrogation, where there was no prospect o criminal prosecution,


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and where detainees were at risk o torture.31 Within days o the September 11attacks, President Bush reportedly issued a directive authorizing the CIA to con-duct these extraordinary renditions without any advance approval rom eitherthe White House or the Departments o Justice or State.32 The CIA gained broadauthority to secretly transer terrorist suspects to be detained and interrogated inthe custody o oreign governments, including those known to employ torture.33The Washington Postreported that according to a U.S. ocial who was directlyinvolved in rendering captives to oreign governments, the understanding was:We dont kick the [expletive] out o them. We send them to other countries sothey can kick the [expletive] out o them.34

By 2005, the United States had reportedly extraordinarily rendered 100 to 150 sus-pects to oreign countries.35 Condoleezza Rice, secretary o state at the time, de-ended rendition as a vital tool in combating terrorism.36 She did not mentionthat ater September 11, 2001, the rendition program was radically expanded to

allow transers o detainees to oreign governments solely or the purpose o deten-tion and interrogation, including to governments known to employ torture. She didstate that where appropriate, the United States seeks assurances that transerredpersons will not be tortured.37 However, CIA Director Porter Goss virtually admit-ted in congressional testimony that such assurances were o little use, observingthat [w]e have a responsibility o trying to ensure that they are properly treated,and we try and do the best we can to guarantee that. But o course once theyre outo our control, theres only so much we can do.38 Extraordinary rendition victimswere tortured despite assurances provided by recipient governments. As set orthbelow, Maher Arar was imprisoned or more than ten months in a tiny grave-likecell, beaten with cables, and threatened with electric shocks by the Syrian govern-ment, despite its assurances to the U.S. government that it would not torture himand despite post-transer consular visits by Canadian ocials.39 Ahmed Agiza andMuhammed al-Zery reported being subjected to electric shocks in Egyptian cus-tody, despite Egypts assurances to the Swedish government that they would not betortured, and despite a post-transer monitoring mechanism that involved Swedishdiplomats visiting the men while they were held in Egyptian custody.40

The CIAs Oce o Inspector General has reportedly investigated a number o er-roneous renditions in which the CIA abducted and detained the wrong people. 41A CIA ocer told the Washington Post: They picked up the wrong people, who

had no inormation. In many, many cases there was only some vague associationwith terrorism.42 However, the U.S. administration continues to withhold documentsrelating to these investigations, despite specic requests or their disclosure.43

Secret Detention and EnancedInterroation Tecniques

On September 17, 2001, President Bush authorized the CIA to operate a secret

detention program under which suspected terrorists were secretly transported tobe held incommunicado in CIA prisons (known as black sites) outside the UnitedStates, where they were subjected to enhanced interrogation techniques that in-


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volved torture and abuse.44 As noted above, although there is a conceptual distinc-tion between secret detention and extraordinary rendition operations, there is littlepractical dierence: both entailed the abduction and disappearance o detainees,their extra-legal transer on secret fights to undisclosed locations around the world,ollowed by their incommunicado detention, interrogation, torture, and abuse.45

President Bush rst publicly acknowledged the secret detention program on Sep-tember 6, 2006, when he announced that the CIA had detained and interrogateddetainees in secret locations outside the United States beore transerring our-teen o them to Guantnamo Bay.46 He added that, [t]he current transers meanthat there are now no terrorists in the CIA program. But as more high-rankingterrorists are captured, the need to obtain intelligence rom them will remain criti-caland having a CIA program or questioning terrorists will continue to be cru-cial to getting lie-saving inormation.47

The CIA secretly held its detainees in Aghanistan, Lithuania, Morocco, Poland,Romania, Thailand, and Guantnamo Bay.48 President Bush has stated that abouta hundred detainees were held under the CIA secret detention program, abouta third o whom were questioned using enhanced interrogation techniques.49These techniques included abusive methods such as walling (quickly pullingthe detainee orward and then thrusting him against a fexible alse wall), waterdousing, stress positions (orcing the detainee to remain in body positionsdesigned to induce physical discomort), wall standing (orcing the detaineeto remain standing with his arms outstretched in ront o him so that his ngerstouch a wall our to ve eet away and support his entire body weight), crampedconnement in a box, insult slaps, (slapping the detainee on the ace with n-

gers spread), acial hold (holding a detainees head temporarily immobile dur-ing interrogation with palms on either side o the ace), attention grasp (grasp-ing the detainee with both hands, one hand on each side o the collar opening,and quickly drawing him toward the interrogator), orced nudity, sleep deprivationwhile being vertically shackled, and dietary manipulation.50

President Bush stated that he authorized waterboarding, which was applied onthree detainees.51 Michael Hayden, ormer CIA director, conrmed in congres-sional testimony in 2008 that these three detainees were Khaled Shaikh Moham-med, Abd al Rahim al Nashiri, and Abu Zubyadah.52 Used in its early incarnationsduring the Spanish Inquisition,53 waterboarding is described in U.S. governmentdocuments as a technique which involves binding the detainee to a bench withhis eet elevated above his head, immobilizing his head, and plac[ing] a clothover his mouth and nose while pouring water onto the cloth in a controlled man-ner. Airfow is restricted or 20 to 40 seconds and the technique produces thesensation o drowning and suocation.54 The United States prosecuted Japaneseinterrogators or waterboarding U.S. prisoners during World War II.55

Waterboarding and other torture methods applied on CIA detainees were speci-cally authorized by the Justice Departments Oce o Legal Counsel (OLC) in a serieso legal opinions. In a memorandum dated August 1, 2002, then Assistant Attorney

General Jay Bybee opined that physical abuse would not amount to torture unlessit inficted pain o a level associated with organ ailure, impairment o bodily unc-tion, or even death.56 In any event, the memorandum ound, even i an interrogation


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conducted at the behest o the president did amount to torture under the domesticcriminal anti-torture statute, in the circumstances o the current war against al Qaedaand its allies, criminal prosecution under the U.S. anti-torture statute would repre-sent an unconstitutional inringement o the Presidents authority to conduct war,and moreover, necessity or sel-deense could also justiy interrogation methodsthat violated the statute.57 A second August 1, 2002, memorandum, also signed byBybee, authorized the CIA to use on its detainee Abu Zubaydah 10 specic interroga-tion methods, including waterboarding, placing him in a cramped connement boxwith an insect in light o his apparent ear o insects, cramped connement in a darkspace to restrict his movement, walling, stress positions, wall standing, sleep depriva-tion, attention grasp, acial hold, and acial slap (insult slap).58

On December 30, 2004, ollowing public outcry over the rst Bybee memo de-scribed above which was leaked to the public earlier that year, the OLC issued areplacement memorandum (the December 30, 2004, memorandum) that dis-

avowed torture and appeared on the surace to distance itsel rom the rst Bybeememorandum, but stated in a ootnote that the conclusions o that memorandumwould not have been dierent under the standards o the December 30, 2004,memorandum.59 On May 10, 2005, the OLC issued two more memos relating tothe application o the ederal anti-torture statute to interrogation methods. Thememos authorized virtually all o the methods that had previously been autho-rized by the second Bybee memo described above.60 On May 30, 2005, the OLCissued yet another memo concluding that the same interrogation methods werealso lawul under the ban against cruel, inhuman, and degrading treatment underArticle 16 o the Convention against Torture.61 The latter memorandum was issuedin advance o the enactment later that year o the Detainee Treatment Act, whicharmed that the prohibition against cruel, inhuman, and degrading treatment ap-plied to all detainees in U.S. custody, including oreigners held overseas.62

According to a report by the International Committee or the Red Cross (ICRC),which interviewed 14 high value detainees in September 2006 ater they weretranserred rom secret CIA detention to Guantnamo Bay, the detainees were sub-jected to various orms o ill-treatment during their detention in secret locations,including suocation by water poured over a cloth placed over the nose and mouth,prolonged stress positions such as standing naked with arms held extended andchained above the head, beatings by use o a collar held around the detainees

neck and used to orceully bang the head and body against a wall, beating andkicking, connement in a box, prolonged nudity, sleep deprivation, exposure tocold temperature, prolonged shackling, threats o ill-treatment, orced shaving, anddeprivation/restricted provision o solid ood or up to one month.63

On July 20, 2007, President Bush issued an executive order reauthorizing deten-tion and interrogation by the CIA.64 According to an OLC memorandum issuedthe same day, the CIA propose[d] a limited detention and interrogation programpursuant to the authority granted by the President that intended or personsto be detained only so long as is necessary to obtain the vital intelligence theymay possess ater which the CIA would transer them to the custody o other

entities, including in some cases, the Deense Department.65 Indeed, the memo-randum noted that this ormula had already been ollowed with regard to onepersonAbd al-Hadi al-Iraqiheld in CIA custody since the presidents Septem-


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ber 6, 2006, remarks during which he announced that the CIA secret detentionprogram was empty at that time.66 Al-Iraqi had been questioned by CIA ocials,ollowing which, on April 26, 2007, the CIA placed him in the custody o the De-ense Department.67

The memorandum also made clear that at the time o its writing, the CIA expect[ed]to detain urther high value detainees who meet requirements or the program,and it propos[ed] to have six interrogation techniques available or use, as appro-priate.68 These methods included dietary manipulation (eeding the detainee abland, liquid meal), extended sleep deprivation up to 96 hours while shackling thedetainee in a standing position with his hands positioned below his chin and abovehis heart to keep him awake, and the techniques known as acial hold, attentiongrasp, and insult or acial slap.69 The OLC concluded that these methods were law-ul, including under Common Article 3 o the Geneva Conventions (which the U.S.Supreme Court had concluded in June 2006 was applicable to the confict with Al

Qaeda70

) and under the Detainee Treatment Act, signed into law by President Bushhimsel on December 30, 2005, which specically barred the imposition o the cru-el, unusual, [or] inhumane treatment or punishment prohibited by the Fith, Eighthand Fourteenth Amendments to the United States Constitution on anyone in thecustody o the United States government, regardless o location or nationality.71

The enhanced interrogation techniques authorized by the OLC and applied bythe CIA on its detainees violated U.S. and international law (as examined urther inSection III, below). Numerous experts have conrmed thatin addition to beingillegalthese techniques are ineective in eliciting reliable inormation. FBI inter-rogator Ali Souan, who successully elicited actionable intelligence rom terrorist

suspects without the use o such methods, testied beore congress that thesetechniques rom an operational perspective, are ineective, slow and unreliable,and as a result harmul to our eorts to deeat al Qaeda, in addition to beingun-American and harmul to our reputation and cause, and ailing to producereliable intelligence, in contrast to rapport-building techniques [that] are armore eective at eliciting such intelligence.72 Souan testied beore congressthat his non-abusive interrogation o Abu Zubaydah yielded important action-able intelligence, and that once the CIA started subjecting Zubaydah to harshinterrogation methods, he shut down and stopped talking until Souan was ableto re-engage him using non-abusive methods.73

Career military intelligence ocer Col. Steven Kleinman similarly testied beore con-gress that coercion is decidedly ineective.74 Former FBI special agent and coun-terterrorism expert Jack Cloonan testied that he believed based on a 27-year ca-reer as a special agent and interviews with hundreds o subjects in custodial settings,including members o al Qaeda, that the use o coercive interrogation techniques isnot eective, and that rapport-building methods are more eective, ecient andreliable.75 Matthew Alexander, who led the interrogations team that located AbuMusab Al Zarqawi, the ormer leader o Al Qaeda in Iraq, testied beore congressthat in his experience when interrogators used harsh methods that t the denitiono abuse, in every instance, that method served only to harden the resolve o the

detainee and made them more resistant to interrogation.76 In contrast, he observed,[d]etainees are more likely to cooperate when they see us live up to our principles.77Kleinman, Cloonan, and Alexander inormed congress that U.S. interrogation policy


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came with heavy costs and that [k]ey allies, in some instances, reused to shareneeded intelligence, terrorists attacks increased world wide, and Al Qaeda and like-minded groups recruited a new generation o Jihadists.78

In December 2012, the U.S. Senate Select Committee on Intelligence voted to ap-

prove its 6,000-page report entitled Study o the Central Intelligence Agencys De-tention and Interrogation.79 Although the report is classied, and was not publiclyavailable at the time o this writing, the committee chairman, Senator Dianne Fein-stein, stated that she strongly believed that the creation o long-term, clandestineblack sites and the use o enhanced-interrogation techniques were terrible mis-takes, and that the majority o the committee agreed.80 She also stated that thereport would settle the debate once and or all over whether our nation should everemploy coercive interrogation techniques such as those detailed in the report.81

Current Policies and Practices

On January 22, 2009, President Barack Obama issued an executive order direct-ing that all detainees in U.S. custody or control during armed conficts be treatedhumanely and all interrogations o such individuals conorm to techniques au-thorized by Army Field Manual 2-22.3.82 The executive order urther directed theCIA to close any detention acilities it was operating at that time and not to op-erate any such acilities in the uture.83 It also established an interagency taskorce to study, evaluate, and issue a report including recommendations on thepractices o transerring individuals to other nations in order to ensure that suchpractices comply with the domestic laws, international obligations, and policies othe United States and do not result in the transer o individuals to other nationsto ace torture or otherwise or the purpose, or with the eect o undermining orcircumventing the commitments or obligations o the United States to ensure thehumane treatment o individuals in its custody or control.84

Although the task orce report authorized by the executive order was issued in 2009,it was not made public.85 A Justice Department press release conrmed that the taskorce had made policy recommendations with respect to seven dierent kinds otransers conducted by the U.S. government, including transer pursuant to intelli-

gence authorities.86

The press release stated that [w]hen the United States transersindividuals to other countries, it may rely on assurances rom the receiving country.87 Itadded that the task orce had made several recommendations aimed at clariying andstrengthening U.S. procedures or obtaining and evaluating those assurances, includ-ing a recommendation that the State Department be involved in evaluating assurancesin all cases, and a recommendation that the inspectors general o the Departments orState, Deense, and Homeland Security prepare annually a coordinated report on trans-ers conducted by each o their agencies in reliance on assurances.88 According to therelease, the task orce also made several recommendations aimed at improving theUnited States ability to monitor the treatment o individuals transerred to other coun-tries, including a recommendation that agencies obtaining assurances rom oreigngovernments insist on a monitoring mechanism, or otherwise establish a monitoringmechanism, to ensure consistent, private access to the individual who has been trans-erred, with minimal advance notice to the detaining government.89


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The Obama administration has not stated that it intends to end extraordinary rendi-tion or disclosed its policies and practices with respect to intelligence transers. Ithas been reported that President Obamas January 2009 executive order was spe-cically crated to preserve the CIAs authority to detain terrorist suspects or shortperiods prior to rendering them to another country or interrogation or trial.90Thus, while that executive order required the CIA to close its detention acilities,it stated that the term did not reer to acilities used only to hold people on ashort-term, transitory basis.91 The administration reportedly intends to continuethe Bush administrations practice o sending terrorist suspects to oreign countriesor detention and interrogation while relying on assurances o humane treatmentrom recipient countries as well as the post-transer monitoring o detainee treat-ment.92 However, as demonstrated below in the cases o extraordinary renditionvictims Maher Arar, Ahmed Agiza, and Muhammed al-Zery, diplomatic assurancesand post-transer monitoring are not eective saeguards against torture.

In addition, the United States has not conducted an eective criminal investiga-tion into the CIAs secret detention and extraordinary rendition practices. Shortlybeore taking oce, then President-elect Obama dismissed the possibility o ap-pointing a special prosecutor to investigate torture under the Bush administration,stating that we need to look orward as opposed to looking backwards.93 In Au-gust 2009, Attorney General Eric Holder appointed Assistant U.S. Attorney JohnDurham to conduct a preliminary review into whether ederal laws were violatedin connection with the interrogation o specic detainees at overseas locations.94The investigation was, however, undamentally fawed rom the start because itwas restricted to unauthorized interrogation methods applied by the CIA. Holdermade clear that the Department o Justice will not prosecute anyone who actedin good aith and within the scope o the legal guidance given by the Oce o Le-gal Counsel regarding the interrogation o detainees.95 Acts o torture, includingwaterboarding, that had previously been authorized by the OLC and applied ondetainees by the CIA, did not, thereore, all within the scope o the investigation.

On June 30, 2011, the Justice Department announced that it had accepted Dur-hams recommendation to open a ull criminal investigation into the deaths o onlytwo terrorism suspects in CIA custody overseas, and that the department wouldclose inquiries into CIA involvement in the treatment o 99 other detainees.96 Thetwo cases put orward or investigation were reportedly those o an Aghan, Gul

Rahman, who died in 2002 at a prison known as the Salt Pit in Aghanistan, andan Iraqi, Manadel al-Jamadi, who was interrogated by three CIA ocers at AbuGhraib in 2003.97 In August 2012, Attorney General Holder summarily announcedthat the Justice Department would not pursue criminal charges in the two casesbecause the admissible evidence would not be sucient to obtain and sustain aconviction beyond a reasonable doubt.98

To make matters worse, U.S. courts have ailed to hold the executive branch account-able or abuses associated with CIA secret detention and extraordinary rendition opera-tions. They have accepted successive administrations argumentsbased on the statesecrets privilege and an asserted lack o judicial competence to address national secu-

rity and oreign policy issuesor dismissing lawsuits brought on behal o extraordinaryrendition victims.99 To date, not a single case brought by an extraordinary renditionvictim has reached the merits stage in a U.S. court.


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Meanwhile, reports o secret detentions by or with the involvement o the CIA orother U.S. agencies remain a source o signicant concern. In April 2011, the As-sociated Press reported that suspected terrorists in Aghanistan were being secretlydetained and interrogated or weeks at 20 temporary sites including one run bythe militarys elite counterterrorism unit, the Joint Special Operations Command(JSOC), at Bagram Air Base.100 More than a dozen ormer detainees reported thatthey were held or weeks at the JSOC site in 2010, orced to strip naked and kept insolitary connement in windowless, oten cold cells with lights on 24 hours a day.101A 2010 Open Society Foundations report based on interviews with over 20 ormerdetainees reportedly held at a secret JSOC acility at Bagram Air Base conrmedthat the detainees were subjected to nudity upon arrival, excessive cold, excessivelighting, and sleep deprivation due to accumulation o circumstances, among otherorms o ill-treatment.102 U.S. military ocials reportedly conrmed that the deten-tion centers did exist but described them as temporary holding pens whose primarypurpose is to gather intelligence, and denied the allegations o abuse.103

In July 2011, it was reported that the Obama administration had secretly detainedand interrogated Ahmed Abdulkadir Warsame, a Somali national, or two monthsaboard a U.S. Navy ship, ater seizing him on international waters between Yemenand Somalia.104 He was reportedly interrogated by the High-Value InterrogationGroup, made up o FBI, CIA, and Deense Department personnel, but U.S. ocialssaid his interrogation was in accordance with the U.S. Army Field Manual, and thatCIA ocers did not directly question Warsame.105

In addition, The Nation reported in July 2011 that the CIA was using a secret pris-on in the basement o Somalias National Security Agency (NSA) headquarters,

where detainees suspected o having links to Al Shabaab (a Somali militant group)are held incommunicado in small, lthy, windowless cells.106 The article stated thatwhile the underground prison is ocially run by the Somali NSA, U.S. intelligencepersonnel pay the salaries o intelligence agents and also directly interrogate de-tainees there.107 In addition, U.S. ocials reportedly provided intelligence thatled to Kenyas kidnapping and extraordinary rendition o Kenyan citizen AhmedAbdullahi Hassan to Somalia or interrogation and detention without charge ortrial.108 Subsequently, the New York Timesreported that the CIA has nanced andprovided training or Somali intelligence operations in addition to joining Somalioperatives in interrogating detainees, including Ahmed Abdullahi Hassan.109

The Washington Posthas also reported that in August 2012, three European menwith Somali roots were arrested by local authorities in Djibouti, where they weredetained and interrogated or monthsincluding by U.S. interrogatorseventhough no charges were pending against them.110 Two months ater their arrest,the three prisoners were secretly indicted by a ederal grand jury in New York,then clandestinely taken into custody by the FBI and fown to the United States toace trial.111 The Washington Posturther reported that Eritrean citizen MohamedIbrahim Ahmed was held by Nigerian authorities in a Nigerian jail or our monthsunder pressure rom U.S. ocials.112 He was rst interrogated by a dirty teamo U.S. agents who ignored the suspects right to remain silent or have a lawyer,

and then by a clean team o U.S. agents who notied him o his rights, beorehe was ultimately transported to ace terrorism charges in U.S. ederal court.113


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Section III

INTERNATIONAllEgAl STANDARDSApplICAblE TOCIA SECRETDETENTION ANDEXTRAORDINARYRENDITION

Numerous human rights bodies have condemned the CIAs secret detention andextraordinary rendition operations. In 2006, the U.N. Committee against Torturecalled on the United States to cease the rendition o suspects and ensure that

no one is detained in any secret detention acility under its de acto eectivecontrol, observing that detaining persons in such conditions constitutes, perse, a violation o the Convention [against Torture].114 Similarly, the Human RightsCommittee urged the United States to immediately cease its practice o secretdetention and close all secret detention acilities and take all necessary mea-sures to ensure that individuals, including those it detains outside its own territory,are not returned to another country by way o, inter alia, their transer, rendition,extradition, expulsion or reoulement i there are substantial reasons or believingthat they would be in danger o being subjected to torture or cruel, inhuman ordegrading treatment or punishment.115

Indeed, the CIAs secret detention and extraordinary rendition operations in-volved torture; cruel, inhuman, and degrading treatment; transer to torture andcruel, inhuman, and degrading treatment; arbitrary and secret detention; andenorced disappearance. As set orth below, each o these elements violatedinternational human rights law. Moreover, responsibility or these violations ex-tends not only to the United States but also to governments that participated inthese operations in various ways.


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INTERNATIONAL LEGAL STANDARDS APPLICABLE TO CIA SECRET DETENTION AND EXTRAORDINARY RENDITION

Torture and Crue, Inuman, andDeradin Treatment

International law unequivocally prohibits torture. The norm against torture is ajus cogensnorm rom which no derogation is permitted.116 The U.N. Conventionagainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(CAT), to which the United States and 152 other countries are party,117 expresslystates that [n]o exceptional circumstances whatsoever, whether a state o war ora threat o war, internal political instability or any other public emergency, maybe invoked as a justication o torture.118 In ulllment o its obligation underArticles 4 and 5 o CAT to criminalize torture, the United States enacted 18 U.S.C.2340A, a ederal criminal statute that provides criminal penalties or acts o tor-tureincluding attempts and conspiracy to commit such actscommitted out-

side the United States. The statute recognizes ederal extraterritorial jurisdictionover such acts whenever the perpetrator is a national o the United States or thealleged oender is ound within the United States, irrespective o the nationalityo the victim or o the alleged oender.119

Article 16 o CAT also requires states to prevent other acts o cruel, inhuman ordegrading treatment or punishment which do not amount to torturewhen suchacts are committed by or at the instigation o or with the consent or acquiescenceo a public ocial or other person acting in an ocial capacity.120 Numerous oth-er human rights treaties and instrumentsincluding the International Covenanton Civil and Political Rights (ICCPR), the Arican Charter on Human and Peoples

Rights, the American Convention on Human Rights, and the European Conven-tion on Human Rightssimilarly prohibit torture and cruel, inhuman, or degradingtreatment.121 In addition, the prohibitions against torture and ill-treatment con-tinue to apply during international and non-international armed conficts underArticle 3 common to the our Geneva Conventions o 1949.122

CAT and the ICCPR also require states to eectively investigate allegations otorture and cruel, inhuman, or degrading treatment.123 Article 4 o CAT requiresstates to criminalize torture (including the attempt to commit torture or participa-tion and complicity in torture) and to provide or appropriate penalties.124 Article12 o CAT urther provides that states must conduct a prompt and impartialinvestigation where there are reasonable grounds to believe that torture hasoccurred.125 The Committee against Torture has elaborated that the investigationmust be conducted by qualied individuals, must be eective, and must attemptto determine both what happened and who is responsible.126 States party to the1949 Geneva Conventions are similarly obligated to enact the domestic legisla-tion necessary to prosecute grave breaches o the conventions (which includethe torture or inhuman treatment o persons protected by the conventions); tosearch or those accused o committing grave breaches; and to either prosecutesuch individuals or turn them over to another state or trial.127 Thus, none o theaorementioned instruments aord states any discretion regarding whether to in-

vestigate allegations o torture or inhuman treatment.


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In the case o Muhammed al-Zery, who was abused at Bromma airport in Swedenprior to being extraordinarily rendered to Egypt by the Swedish government (act-ing in concert with the United States), the Human Rights Committee observedthat the State party is under an obligation to ensure that its investigative appara-tus is organized in a manner which preserves the capacity to investigate, as ar aspossible the criminal responsibility o all relevant ocials, domestic and oreign,or conduct in breach o article 7 committed within its jurisdiction and to bring ap-propriate charges in consequence.128 The committee ound that Swedens ailureto conduct an eective investigation in this case violated its obligations underArticle 7 o the ICCPR, read in conjunction with Article 2 o the covenant.129 TheEuropean Court o Human Rights has similarly ound, with respect to breaches oArticle 3 o the European Convention on Human Rights,130 that contracting statesare required to conduct eective investigations capable o leading to the identi-cation and punishment o those responsible.131

Finally, states have an obligation to provide an eective remedy and reparationsor torture victims. Article 14 o CAT requires states to ensure that a victim otorture obtains redress and has an enorceable right to air and adequate com-pensation, including the means or as ull rehabilitation as possible.132 The Com-mittee against Torture considers that Article 14 is applicable to all victims o tor-ture and acts o cruel, inhuman, or degrading treatment or punishment withoutdiscrimination o any kind.133 Moreover, states parties have procedural and sub-stantive obligations under Article 14. Their procedural obligations are to enactlegislation and establish complaints mechanisms, investigation bodies and insti-tutions, including independent judicial bodies, capable o determining the rightto and awarding redress or a victim o torture and ill-treatment, and ensure thatsuch mechanisms and bodies are eective and accessible to all victims.134 Theirsubstantive obligations include ensur[ing] that victims o torture or ill-treatmentobtain ull and eective redress and reparation, including compensation and themeans or as ull rehabilitation as possible.135 Article 2(3) o the ICCPR also recog-nizes the right to an eective remedy or victims o human rights violations, whichthe Human Rights Committee denes to include the right to compensation.136

Thus, the United States violated international law by subjecting detainees held insecret CIA detention to enhanced interrogation techniques that involved tor-ture and/or cruel, inhuman, and degrading treatment. Foreign governments that

subjected extraordinarily rendered detainees to torture and/or cruel, inhuman,and degrading treatment also violated international law. The United States andmost o its partner governments urther violated international legal standards byailing to eectively investigate allegations o such mistreatment and provide re-dress to victims.


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Transer to Torture or Crue, Inuman,or Deradin Treatment

International law prohibits states rom transerring individuals to countries wherethere is a real risk o torture or ill-treatment. Article 3 o CAT provides that noState Party shall expel, return (reouler) or extradite a person to another Statewhere there are substantial grounds or believing that he would be in danger obeing subjected to torture.137 The United States implemented this non-reoule-ment obligation in domestic law pursuant to the Foreign Aairs Reorm and Re-structuring Act o 1998.138 The ICCPR139 and the European Convention on HumanRights140 similarly prohibit the transer o an individual to another country in theace o a real risk o torture or cruel, inhuman, or degrading treatment. The Com-mittee against Torture ound in the case o extraordinary rendition victim Ahmed

Agiza that Sweden violated Article 3 o CAT by expelling him to Egypt in theace o a real risk o torture there.141 The committee urther ound that Swedensprocurement o anti-torture diplomatic assurances rom Egypt did not suceto protect against this maniest risk.142 Similarly, the Human Rights Committeeound in the case o extraordinary rendition victim Muhammed al-Zery that Swe-den violated Article 7 o the ICCPR by expelling him to Egypt despite the real risko torture or other ill-treatment there.143 The committee urther ound that Swedenhad not demonstrated that the diplomatic assurances it procured rom Egypt toguard against his torture were sucient to eliminate the risk o ill-treatment.144

The principle o non-reoulement urther entails the right to eective, independent,

and impartial review o the decision to transer an individual to another country.Thus, the Committee Against Torture has specically held in the case o Ahmed Agi-za that the right to an eective remedy contained in Article 3 [o CAT] requiresan opportunity or eective, independent and impartial review o the decision toexpel or remove, once that decision is made, when there is a plausible allegationthat Article 3 issues arise.145 The committee ound that Sweden violated its pro-cedural obligations under Article 3 by transerring Agiza to Egypt without any suchreview.146 Similarly, the Human Rights Committee ound in Muhammed al-Zeryscase that Article 2 o the ICCPR, read in conjunction with Article 7, requires an op-portunity or eective, independent review o a decision to expel to an arguable

risk o torture.147

The committee concluded that Sweden breached that obligationby ailing to provide al-Zery with such review prior to his expulsion to Egypt.148

Thus, the practice o extraordinary rendition violated international legal standardsbecause it entailed transerring individuals to the custody o oreign governmentsdespite a real risk o torture or cruel, inhuman, or degrading treatment, and be-cause it deprived individuals o eective, independent, and impartial review othe transer decision. Where rendition (i.e. transerwithout legal processo adetainee either into the United States or to the custody o oreign governmentsor purposes o criminal prosecution rather than or purposes o detention andinterrogation) occurred in the ace o such risk, it too violated the same legal

standards. As noted in Section II above, many individuals rendered by the UnitedStates to oreign governments or criminal prosecution alleged that they weretortured ater being transerred.


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Aritrary Detention and EnorcedDisaearance

The ICCPR provides that [e]veryone has the right to liberty and security o per-son. No one shall be subjected to arbitrary arrest or detention. No one shall bedeprived o his liberty except on such grounds and in accordance with such pro-cedure as are established by law.149 Other human rights treaties and instrumentscontain similar provisions.150 The Working Group on Arbitrary Detention has ruledthat secret detention is per se arbitrary.151 It has urther ound, with respect to26 individuals secretly detained by the CIA in association with the war on ter-ror, that these detentions were arbitrary, being in contravention o article 9 othe International Covenant on Civil and Political Rights, and that they ell undercategory I o the categories applicable to the consideration o cases submitted to

the Working Group,152

a category which applies [w]hen it is clearly impossible toinvoke any legal basis justiying the deprivation o liberty.153

Furthermore, every instance o secret detention also amounts to a case o an en-orced disappearance which is prohibited under the International Convention orthe Protection o All Persons rom Enorced Disappearances.154 That convention de-nes enorced disappearance as [t]he arrest, detention, abduction or any otherorm o deprivation o liberty by agents o the state or by persons or groups o per-sons acting with the authorization, support or acquiescence o the state, ollowedby a reusal to acknowledge the deprivation o liberty or by concealment o the ateor whereabouts o the disappeared person, which place such a person outside the

protection o the law.155 The Working Group on Enorced or Involuntary Disap-pearances has conrmed that [u]nder no circumstances, including states o war orpublic emergency, can any State interests be invoked to justiy or legitimize secretcentres or places o detention which, by denition would violate the Declaration[on the Protection o All Persons rom Enorced Disappearance], without excep-tion.156 Similarly, the U.N. Human Rights Committee has ound that [t]he prohibi-tions against taking o hostages, abductions or unacknowledged detention are notsubject to derogation. The absolute nature o these prohibitions, even in times oemergency, is justied by their status as norms o general international law.157

In addition, international humanitarian law, applicable only to situations o armedconfict, prohibits secret detention. Indeed, the Geneva Conventions are pre-mised on the notion that detainees in armed confictsbe they prisoners o waror civiliansmust be registered and held in ocially recognized places o deten-tion.158 The prohibition against enorced disappearance is also a rule o custom-ary international humanitarian law applicable in all situations o armed confict.159In situations o occupation, Article 49 o the Fourth Geneva Convention, whichprotects civilians during armed confict, urther provides that [i]ndividual or masstransers, as well as deportation o protected persons rom occupied territory othe Occupying Power or to that o any other country, occupied or not, are prohib-ited, regardless o their motive.160


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Thus, CIA secret detention and extraordinary rendition operations violated inter-national law because they entailed the arbitrary detention and enorced disap-pearance o individuals. As described in Section II above, renditions (i.e. trans-erwithout legal processo detainees into the United States or to the custodyo oreign governments or purposes o criminal prosecution rather than or de-tention and interrogation) also typically involved abductions, enorced disappear-ances, and/or arbitrary detention prior to subjecting the detainee to criminal pro-cess, and thereore also violated international legal standards even where therewas no risk o post-transer ill-treatment.161

particiation in Secret Detention andExtraordinary Rendition Oerations

While primary responsibility or the human rights violations associated with theCIAs secret detention and extraordinary rendition operations no doubt lies withthe United States, countries that participated or assisted in these operations alsobear responsibility or these violations. International human rights law not onlybars states rom directly committing the violations associated with the extraor-dinary rendition and secret detention programs, but also obligates them not totranser individuals to states where they are at real risk o torture or to otherwisecooperate with or acilitate the commission o those violations. The InternationalLaw Commissions Articles on Responsibility o States or Internationally WrongulActs provide that [a] State which aids or assists another State in the commission

o an internationally wrongul act by the latter is internationally responsible ordoing so i: (a) that State does so with knowledge o the circumstances o theinternationally wrongul act; and (b) the act would be internationally wrongul icommitted by that State.162 Signicantly, examples o impermissible aid or as-sistance include knowingly providing an essential acility or the commission othe wrongul act, acilitating the abduction o persons on oreign soil, and theact o a State in placing its own territory at the disposal o another State in orderto acilitate the commission o an unlawul act.163

As noted above, the Convention against Torture specically prohibits and requiresstates to criminalize complicity or participation in acts o torture.164 The Com-mittee against Torture has interpreted that prohibition as covering any acts thatamount to directly committing, instigating, inciting, encouraging, acquiescing inor otherwise participating or being complicit in acts o torture.165 Furthermore,the European Court o Human Rights has observed that extraordinary rendition,by its deliberate circumvention o due process, is anathema to the rule o law andthe values protected by the [European] Convention. It would be incompatiblewith a Contracting States obligations under the Convention i it were to extraditeor otherwise remove an individual rom its territory in circumstances where that in-dividual was at real risk o extraordinary rendition. To do so would be to collude inthe violation o the most basic rights guaranteed by the Convention.166 The Ven-

ice Commission, the Council o Europes advisory body on constitutional matters,has observed that []or a State knowingly to provide transit acilities to another


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State may amount to providing assistance to the latter in committing a wrongulact, i the ormer State is aware o the wrongul character o the act concerned.167

Under international law, responsibility or an internationally wrongul act may alsoarise rom the ailure to prevent wrongul acts by another state.168 More speci-

cally, the prohibition against torture under international law includes a positiveobligation to prevent torture.169 The Convention against Torture expressly requiresstates to take eective legislative, administrative, judicial or other measures toprevent acts o torture in any territory under its jurisdiction,170 as well as to alsopreventother acts o cruel, inhuman or degrading treatment or punishmentcommitted by or at the instigation o or with the consent or acquiescence o apublic ocial or other person acting in an ocial capacity.171 The ICCPR alsoentails a positive obligation to prevent torture and cruel, inhuman, and degradingtreatment.172 Accordingly, states that knew or should have known o human rightsviolations associated with the CIAs secret detention and extraordinary rendition

operations bear responsibility under international human rights law or assistingin operations that entailed such violations. Especially in light o the widespreadreporting on the secret detention and torture associated with the United Statespost-September 11, 2001, counterterrorism eorts,173 states were aware o thehuman rights violations associated with these eorts. In addition, because secretdetention and extraordinary rendition operations depended on elaborate plansinvolving the high-level cooperation o other governments in securing the secretcapture, detention, and transer o detainees, it is extremely unlikely that thesegovernments did not know o the potential human rights violations associatedwith such operations.


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DETAINEES SUBJECTED TO POST-SEPTEMBER 11, 2001, CIA SECRET DETENTION AND EXTRAORDINARY RENDITION

Section IV

DETAINEESSUbjECTED TO pOST-SEpTEMbER 11, 2001,CIA SECRETDETENTION ANDEXTRAORDINARYRENDITION

To date, owing to the extraordinary secrecy surrounding CIA secret detention andextraordinary rendition operations, there is no precise estimate o the total number odetainees subjected to these operations. By 2005, the United States had reportedlyextraordinarily rendered 100 to 150 suspects to oreign countries.174 Ahmed Nazi,then Prime Minister o Egypt, stated in 2005 that Egypt alone had received 60 or 70terrorist suspects rom the United States since September 11, 2001.175 President Bushhas stated that about a hundred detainees were held under the CIAs secret deten-tion program, about a third o whom were questioned using enhanced interrogationtechniques, which, as shown above, involved torture and other abuse.176

Previous attempts at identiying individuals subjected to CIA detention and ex-traordinary rendition operations include a February 2007 Human Rights Watchreport, which published a list o 16 people Human Rights Watch believed wereonce held in CIA prisons and whose whereabouts were unknown at the time,

as well as a separate list o 22 missing people who were possibly once held inCIA prisons and whose whereabouts were unknown at the time;177 a June 2007report by six human rights organizations (Amnesty International, Cage Prisoners,the Center or Constitutional Rights, the Center or Human Rights and Global Jus-tice at NYU School o Law, Human Rights Watch, and Reprieve), which identied39 individuals missing at the time and believed to have been held in secret sitesrun by the United States government overseas;178 a 2008 article by Peter Bergenand Katherine Tiedemann, which identied 67 rendition victims, 53 o whom hadbeen rendered ater September 11, 2001;179 a 2009 article (based on inormationprovided by Human Rights Watch) by Dana Linzer, which identied 35 missingdetainees believed to have been held in CIA custody;180 and a 2010 United Na-tions report on the secret detention practices o various countries in the contexto countering terrorism.181


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Provided below is a list o 136 named detainees who reportedly were subjected toCIA secret detention and/or extraordinary rendition operations. Although there maybe many more individuals who were subjected to these operations, this is the mostcomprehensive list o these individuals assembled to date.182 The acts in this list arederived rom credible public sources and inormation provided by reputable humanrights organizations, as specied in the accompanying endnotes. The list revises andsupplements the inormation contained in the aorementioned lists. Unlike some othe aorementioned lists, this list does not ocus solely on individuals who are currentlymissing, but rather on all known individuals reported to have been subjected to secretdetention and extraordinary rendition at some point in time, even i they are no longermissing. It combines secret detention and extraordinary rendition operations becausethe two programs had similar modalities, and torture, enorced disappearance, arbi-trary detention, and other abuses were common to both.

1 sakr Aamr, a Saudi national and British resident, was reportedly cap-

tured in Aghanistan ater September 11, 2001.183

Bounty hunters sold Aam-er twice to dierent groups o soldiers beore the Northern Alliance trans-erred him to U.S. custody at Bagram Air Base in December 2001 where hewas severely abused.184 He was also held in CIA custody at the Dark Prisonin Kabul, where he was tortured.185 He was transerred to Guantnamo Bay inFebruary 2002, where he has been detained without charge or trial since.186

2 Moamm Omar A-Raman, an Egyptian national, was captured bythe CIA in Quetta, Pakistan in February 2003 and secretly detained in U.S.custody (including in Bagram, Aghanistan) or about six months to a year.187He was subsequently transerred to a secret prison in Egypt where he was

held or about a year beore being transerred to Tora prison in Egypt.188 Hewas released rom Egyptian custody in late 2010.189

3 Mamma Ram a-Agan, an Aghan national, was captured in Lahore,Pakistan in August 2007,190 and, according to a U.S. Department o Deensepress release, was transerred to Guantnamo Bay on March 14, 2008, as ahigh value detainee.191 The Department o Deense release described himas a close associate o Usama bin Ladin [who] had ties to Al Qaeda orga-nizations throughout the Middle East. He became one o bin Ladins mosttrusted acilitators and procurement specialists prior to his detention.192 Therelease stated that, prior to his arrival at Guantnamo Bay, he was held inCIA custody.193 Al-Aghanis capture and detention coincided with the Jus-tice Departments issuance o memoranda authorizing the CIA to use severesleep deprivation tactics on a specic detainee in 2007.194 (The detaineesname is redacted in the memoranda.) Since al-Aghani was the only detaineeknown to be held in CIA custody at that time, it is likely that he was the de-tainee subjected to these tactics.195

4 Am Agza, an Egyptian national, was living in Sweden with his wie andve young children, waiting or a determination on their political asylum ap-plication, when, on December 18, 2001, he was secretly apprehended by

Swedish Security Police who took him to Bromma airport on the outskirts oStockholm.196 Agiza was then handed over to CIA agents, who stripped him,dressed him in overalls, and chained and shackled him beore transport-


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ing him in a Gulstream V aircrat (N379P) to Egypt, where he was severelytortured.197 Agiza was subjected to electric shocks in Egyptian custody, de-spite Egypts assurances to the Swedish government that he would not betortured, and despite a post-transer monitoring mechanism that involvedSwedish diplomats visiting him while he was held in Egyptian custody.198 Ac-cording to Agiza, he was imprisoned and tortured or a year in the State Se-curity prison in Nasr City, while being temporarily transerred to Tora prisononly or the Swedish ambassadors visits.199 Ater that, Agiza says he was heldin Tora prison or two years, ater which he was transerred to the Scorpionprison.200 In April 2004, ater a six-hour military trial, Agiza was sentenced to25 years imprisonment or membership in a banned Islamic organization.201The court, without explanation, denied his requests or a orensic medicalexamination to prove his allegations o torture; according to Human RightsWatch, which acted as an independent trial monitor, the proceedings did notulll internationally recognized due process requirements.202 In June 2004,

Agizas prison sentence was reduced to 15 years, again without explana-tion.203 Agiza was released rom prison in August 2011.204 In July 2012, Swe-den granted him permanent residency.205

5 Qar saa Aktar (Amir Harkat-ul-Ansar Qari Saiullah), a Pakistani na-tional, was transerred rom the United Arab Emirates to Pakistan in August2004,206 and may have been held in secret CIA custody.207 Akhtar was al-leged to have led the terrorist-designated group Harkat-ul Jihad al-Islami, tobe connected to a plot to assassinate Pakistani President Pervez Musharra,and to have run a terrorist training camp in Rishkor, Aghanistan. 208 The Unit-ed States was reportedly interested in questioning Akhtar and on July 19,2006, his name was included in the Terrorists No Longer a Threat list

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