ON THE RADAR SCREEN: Renditions

There are times the news cycle is so full, it's easy to miss important announcements and events that pertain to human rights. Our "On the Radar Screen" posts are intended to alert our readers to such news to ensure you stay informed.

In the midst of recent announcements about the release of reports detailing CIA interrogations involving guns and drills and Attorney General Holder's decision to appoint a special prosecutor (and the reactions of various members of Congress thereto encouraging a broader investigation), you may have missed an important piece of news:

Yesterday, the Obama administration announced that it would, like the Bush administration, send terrorism suspects to other countries for interrogation and detention. This practice, known as "rendition," was widely condemned during the Bush administration for the simple fact that, in practice, it often meant buying someone a ticket back to torture.

Despite the Obama administration's promise to monitor the treatment of prisoners sent to other countries, many human rights advocates condemn the decision on the grounds it would still allow transfers to countries with a clear history of torture. We have seen in the past that so-called “diplomatic assurances” do not guarantee the prisoner will not be tortured.

Though we are encouraged by the administration's statement that the "Interrogation and Transfer Policy Task Force" will operate "more openly" and in greater cooperation with the State Department, ensuring that the United States meets all of its international legal obligations requires more than a newly-minted task force with an official-sounding name and assurances from our own government to ensure transferred detainees are not abused.

We will continue to monitor this matter and update you as it unfolds - how openly will the ITP Task Force actually operate? And what weight will "diplomatic assurances" from other countries be given? Has Obama learned from the mistakes of the past administration or must others suffer (while we as a country endure more embarrassment) before we change course?

"Diplomatic Assurances" and Deportation

Can the Executive branch trump a federal court’s decision to defer an immigrant’s removal by relying on a secret "diplomatic assurance" that the immigrant will not be tortured on his return from a country that is notorious for its use of torture and has violated such assurances in the past? The Court of Appeals for the Third Circuit will have the opportunity to answer this question in the case Khouzam v. Mukasey.

An immigration judge originally halted Mr. Khouzam’s deportation to Egypt after determining that it was more likely than not that he would be tortured if he were to be returned given his previous torture at the hands of Egyptian officials and his religious beliefs. The Department of Homeland Security (DHS) terminated Mr. Khouzam’s deferral and attempted to send him back to Egypt after the State Department obtained a diplomatic assurance from Egypt stating that he would not be tortured. Human Rights USA filed a habeas petition on Mr. Khouzam’s behalf with the United States District Court for the Middle District of Pennsylvania in order to protect Mr. Khouzam’s fundamental right to not be tortured and bring transparency to the diplomatic assurance process.

One might ask why DHS would rely on such an assurance from Egypt, especially since Egypt routinely violates its diplomatic assurances to not torture. But the more important question is, why won’t DHS show the court the diplomatic assurance and discuss how it was obtained. Why do the current regulations allow DHS and State Department officials to ignore an immigration judge’s decision to defer removal?

At the core of the Attorney General’s argument is the belief that immigration judges are not well suited to review diplomatic assurances. It appears that the government has forgotten that immigration judges already review country conditions and expert testimony to decide if it's likely the returned individual will be tortured. It's not a stretch to imagine that a judge would be able to review the process by which the diplomatic assurance was obtained, the monitoring process in the foreign country, and that country's history of respecting diplomatic assurances.

Mr. Khouzam’s attorneys, Lee Gelernt and Amrit Singh, deftly argued that a court should be given a chance to review the diplomatic assurance used to terminate their client’s deferral of removal, and anything less violated his right to due process as well as America’s Convention Against Torture (CAT) obligations. Mr. Gelernt and Ms. Singh offered the Court the narrow position that this particular secret diplomatic assurance was not sufficient to satisfy the government's CAT obligations because of Egypt's history of torturing Mr. Khouzam and violating diplomatic assurances, but noted that the Court could just as easily find diplomatic assurances unacceptable because they were only needed from countries with less-than-spectacular human rights records.

Mr. Khouzam's question before the Court, simply put, is whether the Court should allow the Department of Homeland Security to deport him based on a secret diplomatic assurance from a country that has already tortured Mr. Khouzam and has violated diplomatic assurances in the past. It is undoubtedly an important question that should be answered in the negative. But America's question before the Court is even more critical. Can the Executive get away with promulgating regulations that contradict the intent behind their implementing legislation and fly in the face of judicial decisions protecting fundamental rights? The Court of Appeals for the 3rd Circuit should take this opportunity to answer with a resounding "no".

By Ben Berlin, Human Rights USA Legal Intern

Maher Arar Testifies Before Congress

Yesterday, Maher Arar testified before a joint oversight committee of Congress. Arar is a Canadian citizen, a victim of "rendition to torture" carried out by the CIA, and survivor of 11 months of torture in a Syrian prison. The Canadian government has formally apologized for its role in his rendition and offered Arar and his family restitution. Arar's lawsuit against U.S. government officials responsible for his rendition and torture remains pending.

Since 2002, Human Rights USA has stood at the forefront of efforts to end rendition to torture. In November 2003, we were the first group to bring attention to the Maher Arar case in an op-ed written by our Executive Director, Morton Sklar, in the Toronto Globe and Mail. We were also the first – and, to date, only – group to successfully challenge the “rendition to torture” policy in U.S. courts. In Abu Ali v. Ashcroft, our lawsuit compelled the U.S. government to bring U.S. citizen Ahmed Abu Ali back from Saudi Arabia after 20 months of imprisonment and torture conducted there at the behest of the U.S. government. Abu Ali was returned to the United States within just three weeks after the D.C. District Court ordered the U.S. government to reveal the extent of its involvement in his arrest and imprisonment abroad.

Following our success in Abu Ali, Human Rights USA challenged the U.S. government’s use of diplomatic assurances to justify deportation to countries known for torture and other major human rights abuses. Recently, a federal judge held, in our case Khouzam v. Hogan, that “no showing has been made … that removal based upon diplomatic assurances by a country known to have engaged in torture is consistent with the [Convention Against Torture]....” Additionally, the court held that because the U.S. government had not given Khouzam an opportunity to challenge the reliability of diplomatic assurances, and because the government has failed to provide evidence to support its reliance on diplomatic assurances, the court would not bar Khouzam’s due process claims under the political question doctrine. Sameh Khouzam remains in detention in Pennsylvania pursuant to a stay of removal while his case remains pending before the court. Without this stay of removal, Sameh would be deported to Egypt, a country whose penchant for torturing detainees is well documented by the U.S. Department of State.

Human Rights USA secured an injunction against the refoulment (return) of a Guantanamo Bay detainee in the Feghoul case, and we are now building upon these and other successes to challenge the transfer to torture policy as it pertains to GTMO detainees. We are coordinating a collaborative and sustained effort with other law firms, law school clinics, and organizations to address the problems that attorneys are confronted with in securing protections against transfer to torture, including challenging the use of diplomatic assurances as a basis for transfer, the adequacy of the DTA status determination review process, and procedural issues that arise when pursuing DTA and habeas challenges contemporaneously. Human Rights USA continues to serve as a clearinghouse for advocates seeking to prevent rendition through litigation.