In September 2002, Maher Arar, a Canadian citizen of Syrian origin, was transiting through New York's Kennedy Airport on his way back to his home in Montreal. Instead of boarding a plane for Canada, however, Arar was held in the New York area for two weeks on the basis of allegations that he had links to terrorist organizations. Then, his Canadian citizenship notwithstanding, US intelligence agents flew him to Jordan whence he was driven to Syria, despite his vigorous protests that he would be likely to face torture in Syrian custody. Arar was detained in Damascus prisons for ten months and, he now says, tortured repeatedly. The US has refused, on national security grounds, to cooperate with an official Canadian inquiry into the circumstances of his arrest and rendition.

It appears that Arar had been named by two other Canadians, Abdullah al-Malki of Syrian origin and Ahmad al-Maati of Egyptian origin, whom Syrian intelligence agents reportedly interrogated and tortured earlier in 2002. All three were eventually released without ever being charged with a criminal offence.

Mamduh Habib, an Australian citizen of Egyptian origin, was captured while travelling in Pakistan in October 2001. US authorities then transferred him to Egyptian custody. There, for six months, according to a court affidavit filed by his US lawyer, "he was subjected to unspeakable brutality" including severe beatings for hours at a time and electric shock treatment of "ingenious cruelty". Habib was subsequently transferred to the US detention facility at Guantanamo Bay in Cuba via Bagram air base in Afghanistan and held at Guantanamo for three years. It appears that Habib was initially sent to Egypt for interrogation.

Habib's case illustrates the dilemma the US now faces as it tries to figure out what to do with many of those being held in "offshore" detention: his case came to light after he filed his suit in the US courts when US authorities, having determined he had no further "intelligence value", proposed to return him again to Egypt. Once the ensuing publicity made this impossible, in January 2005 the US flew him to Australia, where he now resides, out of custody and facing no criminal charges.

The practice of rendering or extraditing wanted persons to countries in the Middle East, despite the high risk that they will be subjected to torture, dates back to the mid-1990s. In a number of cases, such as those of Arar and Habib, the US has played a direct role in the transfer. In most cases there is no indication that any form of judicial procedure, such as a formal extradition request and hearing, was used; even where warrants may have been issued, in the face of Egypt's and Syria's terrible record on torture the state holding the suspect should have declined the request in accordance with the international prohibition against sending someone to a country, including his or her country of origin, where he or she is likely to be tortured.

The obligation to avoid the transfer – refoulement – of individuals back to countries that practise torture is a customary norm of international law. It is also codified in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under Article 3 of CAT, states must not "expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture...

The US Congress has codified US obligations under Article 3 of CAT into law. Under Section 2242 of the Foreign Affairs Reform and Restructuring Act, Congress declared that "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States."

The torture practices of Syria and Egypt are well known, and documented in the annual human rights reports of the US State Department, among other places. Despite the clear prohibition in both international and US law, the US government has followed a policy that runs counter to these key norms.

The first US renditions of Islamists to Egypt took place in 1995 and 1998 with the cases of Talat Fu'ad Qassim and the so-called "Tirana cell" respectively. US CIA director George Tenet has said that the CIA took part in more than 80 renditions before 9/11 2001, and press accounts suggest that the US has flown 100 to 150 suspects to foreign countries, many of them to Egypt, since September 11. About three months before Talat Fu'ad Qassim was "disappeared" in June 1995 (see below), then-President Bill Clinton issued Presidential Decision Directive (PDD) 39. This explicitly authorised the "return of suspects by force":

When terrorists wanted for violation of US law are at large overseas, their return for prosecution shall be a matter of the highest priority ... If we do not receive adequate cooperation from a state that harbors a terrorist whose extradition we are seeking, we shall take appropriate measures to induce cooperation. Return of suspects by force may be effected without the cooperation of the host government, consistent with the procedures outlined in NSD-77, which shall remain in effect.

This policy was reiterated in May 1998 with a new directive: PDD 62 outlined ten policy programmes, the first of which was "apprehension, extradition, rendition, and prosecution". The document also created the National Coordinator for Counter-Terrorism within the National Security Council. Additional renditions to Egypt took place soon thereafter.

The number of individuals sent to a third country by or with the assistance of the US is not known. The House-Senate Joint Inquiry into the September 11 attacks claimed "dozens" of renditions before September 11 2001, but did not specify how many involved the transfer of a person to a third country:

Working with a wide array of foreign governments, CIA and FBI have helped deliver dozens of suspected terrorists to justice. CTC [Counterterrorist Center] officers responsible for the renditions program told the Joint Inquiry that, from 1987 to September 11, 2001, CTC was involved in the rendition of several dozen terrorists, a number that increased substantially after September 11.

According to one recent account, the CIA "has rendered more than 100 people from one country to another without legal proceedings". Egypt has been the country to which the greatest numbers of rendered suspects have been sent. Usually, the suspects returned to Egypt were of Egyptian origin, but not always. In the months after September 11, Pakistan apprehended a ranking al-Qaeda leader, Ibn al-Shaikh al-Libi, a Libyan national, and transferred him to US custody; after a period during which CIA and FBI officials interrogated him, the CIA transferred al-Libi to Egyptian custody, and the FBI "lost track of him". Al-Libi was eventually sent to Guantanamo, but not before his false confession under torture provided the basis for US allegations in early 2003 of links between the Iraqi government of Saddam Hussein and al-Qaeda.

In December 2001, the US played a key role in executing the expulsion from Sweden of two Egyptian asylum-seekers, Ahmad Agiza and Muhammad al-Zari. The Swedish foreign minister and her top aides took the decision at a noon meeting on 18 December 2001. Between 4pm and 5pm that afternoon, Swedish security police picked up Agiza and al-Zari in Stockholm. Late that night, they were taken to the airport at Bromma, where they were placed on an executive jet that was on long-term lease to the US government. According to a Swedish investigative television report, ten men from the just-arrived jet, eight of them hooded, took Agiza and al-Zari to a small room, their hands and feet chained in a harness. There they cut their clothes from their bodies, inserted suppositories in their rectums, dressed them in diapers and dark overalls, and brought them to the plane. "They were very professional in their way of acting. They acted very deftly, swiftly and silently," said Swedish police inspector Paul Forell. A few minutes before 10pm, the jet took off for Cairo, where Agiza and al-Zari were handed over to Egyptian State Security Investigations (SSI) agents.

Mats Melin, the Swedish parliament's chief ombudsman, in a March 2005 report ordered by parliament, said that "the American security personnel took charge" and criticised the Swedish security police for "los[ing] control of the situation at the airport and during the transport to Egypt". A top Egyptian interior ministry official interviewed by Swedish investigative reporters in 2004 for the same TV programme, The Broken Promise, said, "It certainly is considered in high appreciation and it is a model. We consider it a model that can be copied and taken as a guide on the level of international cooperation. There is considerable evidence that SSI agents tortured the two men during their detention. When US State Department spokesperson Richard Boucher was asked about the case in April 2004, he stated that he knew nothing about it and "would see if there is anything we have to say on that". More than a year later, US government officials have yet to comment on the reports of the US role in these renditions.

In January 2002, Pakistani national Muhammad Saad Iqbal was arrested in Jakarta, reportedly at the request of the CIA, and flown to Egypt; his present whereabouts are not known. Italian investigators are reportedly probing the US role in the February 2003 abduction of Hassan Mustafa Usama Nasr, a radical Egyptian cleric also known as Abu Umar; the abducted man was not heard from until Italian police recorded a phone call he made to his wife a year later saying that he had been taken to a US air base in Italy and then flown to Cairo.

Egypt's approach to counter-terrorism and its role in the larger US campaign against groups like al-Qaeda, is not the exception in the Middle East but the norm: "If there is a terror connection, then our policy is to be supportive of cooperation," said one former senior US government official with long experience on counter-terror issues in the Middle East.

Because many exiled Egyptian militants were former associates of top al- Qaeda leader Ayman al-Zawahiri, himself Egyptian, the United States has been particularly interested in intelligence from Egyptian nationals, and reportedly proposed the renditions project to Egypt; according to New Yorker journalist Jane Mayer, "Egypt embraced the idea". "If there is an al-Qaeda connection, then we will be very interested in the information they have," a former senior US government official told Human Rights Watch. Michael Scheuer, the former CIA official who acknowledges that he was deeply involved in setting up the renditions programme, told Mayer, "It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated."

US officials appear for the most part to have relied on their Egyptian counterparts to conduct interrogations and report any new information to them. "If we are getting everything we need from the host government, then there's no need for us to [conduct interrogations]," a former US government official told Human Rights Watch. "There are some situations in which the host government can be more effective at getting information." Nabil Uthman, at the time an advisor to President Hosni Mubarak and a government spokesman, said the two governments shared information routinely: "We are providing them with a wealth of information... Any terrorist will claim torture – that's the easiest thing. Claims of torture are universal. Human rights organizations make their living on these claims. Their job is not to talk about the human rights of the victim but of the human rights of the terrorist or those in jail." According to Michael Scheuer, US officials provided questions for Egyptian interrogators, but the Egyptians rebuffed a US request to question suspects directly. "We were never in the same room at the same time," he said.

As noted, militants have been sent back to Egypt for years, sometimes with US assistance, but before 9/11 many countries refused Egyptian extradition requests because of concerns about torture. President Mubarak reportedly complained frequently to Western leaders that their asylum policies afforded safe haven to Egyptian "terrorists." Just days after September 11, presidential adviser Nabil Uthman said, "We are calling on the international community to act now to deny asylum to these terrorists."

One important change since September 11 appears to be the increased willingness of other countries, including Sudan, Iran, Saudi Arabia and Yemen, to return alleged militants living inside their borders to their countries of origin, usually without any form of due process and in spite of the international prohibition against sending persons involuntarily to countries where they face torture and ill-treatment. Under increased pressure from the US government to cooperate and, in some cases, wanting to benefit from improved relations with the US, these governments have begun to cooperate with Egypt. Most of the persons known to have been transferred involuntarily to Egypt have been Egyptians sent from other Arab countries.

In one case that recently came to light, six Egyptians, alleged militants who had spent several years in exile in Yemen, the last several in official custody there, were surreptitiously ferried from Sanaa to Cairo at the end of February 2004, very much against their will. Save for a brief article in the state-run al-Gumhuriyya newspaper, the Egyptian government has yet to even acknowledge their detention in the country. Like most such transfers of wanted Islamists to Egypt, these renditions occurred with no due process protections, such as an extradition hearing before a judicial authority. Once in Egypt, most of the rendered individuals were held in prolonged incommunicado detention and in several cases were "disappeared" – that is, the government refused to acknowledge their whereabouts or even the fact that they were in its custody. In the handful of cases in which information eventually does surface, such as those of Mahmoud Habib and Ahmad Agiza, it very much appears that the suspects have been tortured.

This article is drawn from the Middle East and North Africa division of Human Rights Watch's May 2005 report, Black Hole: The Fate of Islamists rendered to Egypt.

Published 2005-10-25

Original in English
First published in Index on Censorship 3/2005

Contributed by Index on Censorship
© Joe Stork/Index on Censorship
© Eurozine