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Rendition and democracy: civil society's role

Aziz Huq
6 December 2006

It was the worst kept secret in the world. The "extraordinary rendition" system, established by the United States, is a web of agreements with countries in Europe, north Africa, the middle east, and Asia to host secret prisons or to hold "outsourced" detainees for indefinite lock-up and torture. It is a system that allows the US to conduct its "war on terror" outside regular channels, without democratic or judicial oversight. Partially acknowledged by President Bush on 6 September 2006, "extraordinary rendition" is the most bizarre and dangerous example of a new kind of post-cold-war globalisation.

There is an urgent need to find intellectual and organising resources to counter extraordinary rendition. But where do those resources come from?

For sound reasons, extraordinary rendition till now has been viewed through the lens of human rights. This is hardly surprising. The world learned of "extraordinary rendition" when news emerged of people snatched off the streets of Pakistan and Bosnia and Tanzania, disappearing without a trace, and then appearing months later in a US detention facility such as Bagram (in Afghanistan) or Guantánamo Bay. Often, detainees would have been held and tortured by some third country, such as Egypt or Syria, in the interim.

Extraordinary rendition implicates the sinister practice of "disappearances" so notoriously common in Latin America of the 1970s. It bypasses judicial procedures long established to sift the innocent from the likely culpable. And it facilitates institutional torture. As political scientist Darius Rejali argues in a forthcoming book, torture has its own metastasing logic once introduced into an organisation. It spreads from one context to another, breeding hideous innovations, and burrowing its way into the DNA of a bureaucracy.

Aziz Huq is director of the liberty and national security project at the Brennan Center for Justice at New York University School of Law. He is author of Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press, March 2007), and a 2006 Carnegie Scholars Fellow

A nexus of institutions

In the United States, the surly wall of Bush administration silence has been assailed by two lawsuits filed by human-rights groups. One was brought by Canadian Maher Arar, the other by German national Khaled el-Masri, both rendition victims. In each case, first-instance courts denied any remedy, in effect allowing the government to place overseas detention operations beyond scrutiny. (On 28 November 2006, el-Masri's case was re-argued to a court of appeals. Given the increasing conservatism of the American bench, though, el-Masri faces an uphill challenge).

In Europe and Canada, mounting evidence shows the involvement of domestic intelligence services in rendition, sparking multiple public inquiries. Most important have been a Canadian commission of inquiry into the Arar case, and an inquiry by a committee of the parliamentary assembly of the Council of Europe. These reports have been inordinately valuable, documenting the "collateral damage" to innocent lives of feckless and reckless counter-terrorism policies. But they are largely focused on the rights aspects of the problem.

Without doubt, Arar, el-Masri and the other victims of rendition merit more than mere acknowledgement of the injustice done to them. They deserve apologies and full restitution. And it is unlikely that all cases of "erroneous rendition" are publicly known. Countries in the rendition web, and their citizens, need to know the full scope and harm of the rendition system: we need a list of all the innocents "rendered", and lost. Names, those obdurate markers of individuality, have tremendous power. Just leaf through Jean-Michel Palmier's Weimar in Exile: The Anti-Fascist Emigration in Europe and America, a cataloguing of the famous, the unknown, the lavishly remembered and those forgotten in the riptides of the second world war.

Yet even mere remembrance, or individual human-rights work, is not enough. The evocative memorial to the Vietnam war in Washington, DC - another listing of names - did not stop the foolish march to war in Iraq. Instead, we need to consider what institutional mechanisms can contain the harms from the rendition system.

At its core, the rendition system is a network of interstate agreements reached between intelligence agencies. It is a network of bureaucracies that operate according to standardised procedures negotiated in advance. In this respect, it is no different from the global trading system that culminates in the World Trade Organisation (WTO), or the network of treaties that facilitate global aviation. Unlike other areas of public policy, however, the rendition system is the work of secretive and often anti-democratic elements of government - elements that are difficult to hold to account, even in a formal democracy.

To be sure, transnational networks of state actors such as the WTO are frequently unresponsive to demands for equity and justice. But their transparency means they can at least be targeted and criticised. It means that transnational networks of non-state actors can organise and resist incursions on basic entitlements by the global market. No such detailed critique or organised resistance can be mounted against transnational networks that function in secret.

Today, there is an oft-heard argument that we cannot talk of the links between intelligence services without disclosing state secrets. The Pakistani or Syrian intelligence service, the argument goes, cannot say it is cooperating with the United States for fear of public backlash.

Largely, this is rot. It's generally perfectly known that the United States and the United Kingdom collaborate with Pakistan and Syria, even as each side's leaders excoriate the other country. These are "public secrets" (to borrow a term anthropologist Michael Taussig uses well) hidden because apex politicians cannot acknowledge them without confessing their own deep hypocrisy.

Also in openDemocracy on justice in the "war on terror":

David Rose, "Guantánamo: America’s war on human rights"
(23 September 2004)

Clive Stafford Smith, "Torture: an idea for our time"
(11 August 2005)

Isabel Hilton, "America’s secret prisons: Alvaro Gil-Robles interviewed"
(24 November 2005)

Jane Kinninmont, "Guantánamo and back: Moazzam Begg interviewed"
(6 March 2006)

Transnationalism and transparency

What is needed today is a push for openness about the terms of cooperation between different states's intelligence agencies. We need to know the contours - and limits - of such cooperation, especially when human liberty is at stake. Intelligence cooperation across borders (no less than any other form of transnational regime) ought to be a subject for vigorous public debate. While the details of such cooperation might on occasion warrant classification, the sheer fact of cooperation and its goals should be in the public domain.

The Arar Commission provides a useful starting-point. In addition into investigating the facts of Arar's rendition, the commission's mandate requires it to consider new oversight mechanisms for the Royal Canadian Mounted Police. Although this is hardly exhaustive, it is an important effort to focus on the institutional dimensions of extraordinary rendition.

At the same time, we need a global public to engage in debate. Just as transnational civil society has flowered around environmental and social justice issues, so too a transnational movement is needed to push for limits on the coercive power of our states when they act in unison. Amnesty and its ilk are a beginning. More needed today is a global civil society fighting for the rule of law, including a network of lawyers and activists able to share information and coordinate strategies to rein in the secret global government.

As global interconnections have deepened, states have taken the opportunity to deepen their coercive resources. Civil society to date has been a step behind, both in terms of organisation and in terms of understanding. For some it is too late to catch up; they must be mourned. But for those still languishing in secret jails around the world, for those who might be seized one future day, it is never too late to start.

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