By Arab News
By Fawaz Turki
Extraordinary rendition is back in the news. Last week Khaled Masri, a German citizen of Syrian descent, one of its victims, took his case for adjudication to the Grand Chamber of the European Court of Human Rights in Strasbourg.
Extraordinary rendition, as we all still remember, was that notorious program spearheaded soon after 9/11 by the CIA, whose agents would freely abduct “terror suspects” from around every corner of the globe, often thousands of miles from any battlefield, and send them for “enhanced interrogation techniques” in countries with richly deserved reputations for torture. There they would be abused, held indefinitely, incommunicado and in solitary confinement, without charge or access to counsel.
To be sure, the rendition program started before 9/11, when terrorists, including those accused of a role in the first World Trade Center bombing and in the explosions that ripped through the US embassies in Kenya and Tanzania, were always rendered to and tried in the US. There, these suspects enjoyed all the protections that the US legal system extended to criminal defendants, including the right to counsel and the presumption of innocence. In fact, the program was then called “rendition to justice.”
After 9/11, however, the program changed dramatically when the Bush Administration authorized its transformation to an ‘extraordinary’ version, where suspects were snatched “off the street” by CIA agents and sent either to black sites in unknown locations or to countries such as Syria, Egypt and Uzbekistan, countries renowned for their free-wheeling methods of extracting confessions under torture. Many of those rendered — too many, as it transpired later — were innocent victims of mistaken identity. One of these was Khaled Masri, whose case could not have acquired a more Kafkaesque hue had Franz Kafka himself invented it.
On New Year’s Eve in 2003, Masri, a father of five, who lived with his family in Ulm, Germany, had traveled by bus to Skope, capital of the Yugoslav Republic of Macedonia, after he and his wife had gotten into an argument and he needed time to cool off. Unfortunately for Khaled Masri, whose name is as common in the Mideast as Robert Williams is in the Midwest, was mistaken at the border for another Khaled Masri, an associate of a 9/11 hijacker.
The CIA then held and finally rendered the innocent German citizen to Bagram, in Afghanistan, where he endured the torment of his captors for five months before they determined that he was not guilty of a crime, his passport was genuine, and that he was indeed a German citizen,
Then in a “reverse rendition,” the CIA agents who had arranged for his initial arrest, thirteen in all, flew him to Albania (Macedonia refused to accept him back) where, according to a report by Joseph Margulies, an attorney with the MacArthur Justice Center in the US, who was involved in the case, he was “taken to a narrow country road at dusk and told to start walking without looking back.” Masri was eventually reunited with his family, who at the time had known nothing about his whereabouts. “The same month,” added Margulies, “the US ambassador to Germany, Daniel Coats, advised the German Interior Minister, Otto Schily, that the CIA had made a mistake. Coats, however, asked Germany not to reveal anything about the matter.”
Masri’s attempt later to sue the 13 CIA agents who had abducted him failed in US courts. He failed again in German courts when he sought to have the agents extradited to Germany. Now his case is being heard by the Grand Chamber of the European Court of Human Rights.
If the Masri case had been an exception to the rule, a fluke, one would let it slide. But there were literally dozens of other cases like it, that is, cases of innocent, law-abiding individuals who were victimized by an over-zealous American intelligence agency held back by few, or virtually no, legal constraints.
Consider briefly the case of Maher Arar, a Canadian citizen of Syrian ancestry, also like Masri a family man, who during a lay-over at JFK International Airport in September 2002 was about to change planes when he was nabbed by the CIA and rendered to Syria, where he was tortured within an inch of his life by his Syrian interrogators. He spent most of the next year in a tiny, dark, underground cell “the size of a grave,” as he later recounted. His release happened only after his wife in Montreal mounted a campaign on his behalf and the Canadian Embassy in Damascus finally made contact with him.
Again, like Masri, Arar filed suit in the US in January, 2005, but the Bush Administration moved to have his case dismissed on the grounds that going forward would’ve required the government “to reveal state secrets.”
Or consider, again picking at random, the case of Mamdouh Habib, an Australian citizen of Egyptian background and a father of four, who was rendered to Egypt soon after 9/11, where the agents who took him there undoubtedly knew what was in store for him, where beatings were only part of the abuse. He was later flown to and incarcerated in Guantanamo Bay till 2005. (And the less said about that detention facility the better.) After his release, the Australian government acknowledged that Habib “knew nothing about terrorism.”
Clearly one cannot speculate on the outcome of the proceedings that began last week at the European Court for Human Rights hearing the case of Khaled Masri. But one can speculate on a bewildering paradox at the heart of the American constitutional system, which is America’s gift to the theory, art and practice of just governance: The system can be subverted and, as the rush to render after 9/11 would attest, was indeed subverted — and subverted brazenly.