CHAPTER 5 :
Rendition as Torture
This chapter discusses how renditions, as practiced by the CIA using Aero Contractors’ aircraft, constituted torture or cruel, inhuman or degrading treatment. Extraordinary or secret, forcible renditions were explicitly designed as integral parts of the RDI program. Their function was to instill “learned helplessness” in detainees as a prelude to their coercive interrogation.
The treatment victims experienced on these flights clearly violated federal and international law against torture and abuse. It also violated the ban on enforced disappearance as well as the non-refoulement ban.500 The latter prohibits transfer of individuals to situations in which they are at risk of torture and cruel, inhuman or degrading treatment or punishment, enforced disappearance, or arbitrary or proxy detention.
Furthermore, by not providing redress for rendition victims, the United States is in violation of its obligation to ensure a right to remedy under international human rights law. The U.S. government also bears responsibility for the subsequent treatment of individuals that it rendered to foreign custody. This report considers those obligations in more detail in Chapter 9.
As testimony before the Commission emphasized, violations of binding international legal obligations occurred at all stages of the RDI program, including victims’ “initial apprehension and treatment on tarmacs of foreign airports by CIA Rendition Teams, on rendition flights, in secret detention, through interrogation using brutal tactics referred to as “enhanced interrogation techniques”, and in the failure to get justice.”501
RENDITION IN THE RDI PROGRAM: AN INTEGRAL PIECE, DESIGNED TO CREATE PSYCHOLOGICAL AND PHYSICAL HELPLESSNESS
As noted in Chapter 1, the first step in the RDI program was extraordinary rendition, the covert extralegal transfer of an individual between States or legal jurisdictions. These renditions were conducted with the authorization, facilitation, and participation of the U.S. government, foreign states, and private actors.
The U.S. government authorized and coordinated renditions through arrangements with local authorities to seize individuals and hand them over to a U.S. “Rendition Team,” which assaulted detainees both before and during flights. The team included a medical officer to monitor individuals throughout the rendition, complete a preliminary medical examination and cavity search, and administer sedatives.502 The presence of a medical officer raises questions about possible violations of medical ethics during renditions. This topic deserves further investigation.
In addition to simply acting as a mode of transportation, the renditions themselves were integral to the control and dehumanization of detainees. In documents from the period of the RDI program, the CIA identified rendition as a key component to interrogation on the basis that “[e]ffective interrogation is based on the concept of using both physical and psychological pressures in a comprehensive, systematic, and cumulative manner to influence [detainee] behavior, to overcome a detainee’s resistance posture. The goal of interrogation is to create a state of learned helplessness and dependence conducive to the collection of intelligence in a predictable, reliable, and sustainable manner.”503 Experienced military intelligence officials testified to the Commission about the flaws in this reasoning and the ineffectiveness, as well as illegality and immorality, of abusive interrogation methods.504
Khadija Anna Pighizzini, wife of RDI survivor Abou ElKassim Britel, described to the Commission her husband’s experience of his rendition, as it had been relayed to her: “The protocol is precise and designed to induce terror in the victim, with the horrible fear that he is about to be killed. Kassim is no exception: he [was] terrified, he [did] not understand, [and thought[ maybe his life [would] end there.”505
THE RENDITION EXPERIENCE AND HOW IT VIOLATED THE PROHIBITION ON TORTURE
Rendition as developed by the CIA and its partners and experienced by affected individuals violates U.S. obligations to prohibit torture and cruel, inhuman or degrading treatment or punishment.506 This section draws on survivor testimony, official documents from the RDI program, and expert witnesses to the Commission. Together, they afford insight into the experience of being prepared for rendition; the experience on board rendition flights, of which some prisoners had several; and the ongoing psychological effects of rendition.
It is important to recall the definition of torture under international law: “any act by which severe pain and suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.”507 Consistent with that definition, the U.S. government has acknowledged that rendition was an intentional and key component of a three-phase interrogation process -- rendition, reception and detention at the “black site,” and interrogation itself -- that began with controlling the “[i]nitial [c]onditions” of the individual.508 This report thus builds on the SSCI Report, which focused on detention and interrogation, by examining the key role of rendition in the program.
I was driven for about thirty minutes to the airport. At the airport I was pulled from the car and placed in a room. I was seated on a chair with my hands still in cuffs and my blindfold still on. Very shortly thereafter, I was taken violently to another room where my clothing was rapidly cut off until I was entirely naked. My blindfold was taken off and strong light beams were directed at my face while someone put their hand over my eyes. I was not able to see clearly because of this, but I could see some things in the room by peeking through the fingers of the hand over my face. There were at least three people there. One of them was the one holding me from behind and covering my eyes with his hand. I didn’t see the person holding me, but the other two that I did see were dressed head to toe in black, with black masks covering their faces and surgical gloves on their hands. They beat me and kicked me, roughing me up badly. Another person took pictures of me, and then one of them forcefully stuck his finger into my anus. I was in severe pain and began to faint.
After this ordeal I was put in a diaper like a baby and dressed in a blue shirt and pants that came below the knee, to about the mid-shin. Both the shirt and the pants had been cut to be about three-quarters length and were made of sweatshirt material. I was forced to go without shoes. They stuffed my ears with spongy material and taped all around that before putting headphones on. They blindfolded me by putting dressing, like you would on a wound, over my eyes and then taping over it. Later this tape was painfully removed, and with it clumps of my hair. They tied my legs together and chained them to my waist. Then they tied my hands together and also chained them to my waist. I was also hooded. I was in a lot of pain at this time, but I was mostly worried about my mother and wife because I did not know what was happening to them.
I was taken up six or seven steps to get on board a plane where I was forced to lie on my back. I was then strapped across the chest and legs to a metallic board, which was like a hospital gurney. This plane traveled for about four hours before landing. During the flight, I suffered pain in my head, sides, and knees from blows and kicks from the men who prepared me for the transfer and forced me onto the plane.
PROTOCOLS OF SEIZURE AND TRANSPORT
The Rendition Project has compiled direct testimony of former detainees as well as information released during court proceedings by detainees testifying against their captors in European courts. Dr. Sam Raphael’s presentation of these findings before the Commission revealed a common set of protocols of seizure and transport experienced by detainees.509 These findings are consistent with the protocol for renditions described in CIA documents stipulating the treatment of individuals in preparation for and during their transfers (discussed below).
Abduction teams operated in silence and anonymity, hiding their faces under black masks and communicating solely with hand gestures. Detainees report that abducting agents failed to disclose their authorization and refused to provide the reason for abduction, where detainees would be taken, or how long they would be held. In other words, the abductions constituted forced disappearance.510
Individuals have described violent treatment upon being seized, even before being rendered on flights operated by Aero Contractors. Mohammed Bashmilah’s account of the forced removal of his clothing followed by his diapering, blindfolding, earphones, and forcible restraint corresponds to other detainee narratives.
Jamil el-Banna stated that “he was stripped, his captors cut his clothing off, and he was restrained down from feet, torso, and chest on a stretcher while completely immobilizing him to be taken aboard an aircraft.”512 These experiences match that of Mohamedou Ould Slahi, who testified regarding his rendition experience at the Commission hearings. Mr. Slahi detailed being prepared for his second rendition by being blindfolded, stripped of his clothes, diapered, dragged onto a plane, and finally shackled onto that plane.513 In addition to the fear and absence of any personal control he experienced,514 Mr. Slahi characterized his rendition as “the boundary between death and life.”515
Photo courtesy: ACLU via Youtube video
Detainees reported that they were given injections or had pellets (presumably suppositories) forced into their rectum, in some instances multiple times. Notwithstanding the presence of medical personnel and because these procedures took place without consent, detainee accounts also describe that they experienced the removal of their clothes, cavity searches, diapering, painful restraints, beatings, and the forcible insertion of rectal suppositories “as sexual assault.”516
Violent treatment continued during the Aero Contractors-operated flights. Khaled El-Masri explained that “[i]n the airplane, he was thrown to the floor with his arms and legs secured to the sides of the plane in a spread-eagled position,” and later he received “two injections, one in the left arm and one in the right arm, at different times during the flight. Eventually, the men guarding him put something over his nose that made him feel light-headed and lose consciousness.”517
A 2004 CIA memorandum on the treatment of detainees during rendition also describes the procedures, although some of the information has been redacted: “the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, ear muffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for the periodic, discreet assessments by the on-board medical officer.”518 In sum, according to detainee testimony, U.S. rendition teams used the following techniques: 519
THE EFFECTS OF SEIZURE AND TRANSPORT ON DETAINEES
Dr. Katherine Porterfield, psychologist and expert on the effects of torture on individuals, described to the Commission the severe pain and suffering, in many cases both physical and mental, as follows: “[b]eing rendered was an experience, as I have heard it described, that involved total and complete physical, psychological and spiritual coercion and control.”520 Dr. Porterfield further testified that “the experience on the flights was, in some situations, as terrifying, degrading, and painful as torture that took place in other locations. It is almost meaningless to delineate between the transport experiences and the detention experiences of many of the individuals.”521
The federal statute prohibiting torture includes in its definition of severe mental pain and suffering that which results from the “threat of imminent death” or from “the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.”522 Rendition Teams appear to have violated both of these prohibitions in some cases.
“The experience on the flights was, in some situations, as terrifying, degrading, and painful as torture that took place in other locations. It is almost meaningless to delineate between the transport experiences and the detention experiences of many of the individuals.”
The violence continued after rendition flights landed at their destination. For example, Mr. el-Banna described being dragged from the plane and thrown into a waiting vehicle. He was later forcefully thrown on the ground.523 Regarding his post-rendition treatment, Mr. Bashmilah described, “The maltreatment I suffered during my first three months in Afghanistan had a serious impact on my mental state, which was already extremely bad following my torture in Jordan and rendition to Afghanistan. [ . . . ] I became so depressed that I tried to take my life three separate times during the first few months that I was in detention.”524
The testimony of Dr. Porterfield further supports the conclusion that the renditions themselves were a form of torture and abuse, with ongoing mental injury for affected individuals. Dr. Porterfield testified that:
individuals with multiple transports experienced these flights as highly anxiety-provoking because, having been moved by airplane before to a place where they were tortured, each subsequent flight presented a recapitulation of the path towards pain, humiliation and loss of bodily control. Thus, for some, the airplanes became a starting point — in fact, merely being told that they would be transported became a starting point for the fear and arousal cascade that I mentioned earlier. I will paraphrase, but I was told that the planes were ‘a torture chamber in the sky.’ One individual believed he would be executed on or when he left the plane, a thought that I believe clinically led this man to have long standing symptoms long after he had been flown.525
RENDITION AND ENFORCED DISAPPEARANCE
Although the United States is not a signatory to the International Convention for the Protection of All Persons Against Enforced Disappearance (2006), it is worth noting that extraordinary renditions meet the definition of enforced disappearance stipulated by the Convention. Detainees were abducted and transferred by “agents of the State” or “persons acting with the authorization, support, acquiescence of the state”; rendition and receiving teams deprived detainees of their liberty and concealed their fate; and rendition placed detainees “outside the protection of the law.”526
Both the European Court of Human Rights and UN Working Group on Arbitrary Detention have also issued rulings and opinions, respectively, that extraordinary rendition and the captivity that followed constituted “forced disappearance.”527 In its Opinion regarding Mr. Ibn Al-Shaykh al-Libi et al, the UN Working Group on Arbitrary Detention “found that the secrecy surrounding the detention and inter-State transfer of suspected terrorists could expose the persons affected to torture, forced disappearance, and extrajudicial killing.”528
RENDITION AND VIOLATIONS OF THE PROHIBITION ON TRANSFER OR REFOULEMENT
Rendition to foreign custody also infringed the international law requirement of non-refoulement. Under international law, States are prohibited from surrendering or transferring individuals to another State or another State’s authority when there are substantial grounds for believing that an individual is at risk of torture, egregious abuse, or other serious human rights violations.
The United States is bound by the obligation of non-refoulement derived from the International Covenant on Civil and Political Rights (ICCPR)529 and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As a party to CAT, the United States is explicitly bound not to transfer to torture under article 3(1) as follows: “[n]o State Party shall 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.”530 Under ICCPR Article 2 — in conjunction with Articles 6 (right to life) and 7 (prohibition on cruel, inhuman or degrading treatment or punishment) — the United States also has “an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant.”531
Additionally, international human rights law proscribes refoulement to enforced disappearances,532 as well as to proxy detention, “where persons are transferred from one State to another outside the realm of any international or national legal procedure [. . .] for the specific purpose of secretly detaining them, or to exclude the possibility of review by the domestic courts of the State having custody of the detainee.”533 The prohibition of refoulement has also been interpreted to apply to a range of serious human rights violations that are implicated by the RDI program, including flagrant denial of the right to a fair trial,534 risks of violations to the rights to life,535 or prolonged solitary confinement.536
Further “[a]s an inherent element of the prohibition of torture and other forms of ill-treatment, the principle of non-refoulement is characterized by its absolute nature without any exception.”537 Under international human rights law, States “must apply the principle of non-refoulement in any territory under its jurisdiction or any area under its control or authority, or on board a ship or aircraft registered in the State party.”538
International law prohibiting refoulement requires that when an individual is transferred, both the transfer and any detention must be in accordance with basic procedural safeguards, including “an opportunity for effective, independent, and impartial review of the decision to expel or remove”539 and “clear and transparent procedures with adequate judicial mechanisms for review before individuals are deported.”540 In the absence of such safeguards, as well as being a violation of non-refoulement, “the removal of a person outside legally prescribed procedures amounts to an unlawful detention in violation of article 9 (1) of the ICCPR, and raises other human rights concerns if a detainee is not given a chance to challenge the transfer.”541
Rendition under the CIA RDI program constituted violations of the U.S.’s non-refoulement obligations because no detainee was granted access to these procedural or substantive guarantees before being transferred to foreign custody.542 Indeed, international and regional bodies have repeatedly determined the extraordinary rendition component of the CIA’s program to infringe international human rights law. For example, the U.N. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has determined that the “United States practice of ‘extraordinary rendition’ constitutes a violation of article 3 of the Convention against Torture and article 7 of ICCPR.”543 And the European Court of Human Rights has similarly held that Macedonia violated Article 3 of the European Convention on Human Rights544by handing over Khaled El-Masri to the U.S. government and subjecting El-Masri to “extraordinary rendition,” defined as “an extra-judicial transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, where there was a real risk of torture or cruel, inhuman or degrading treatment.”545 Other cases have also determined that countries that allowed rendition of individuals to U.S. secret detention facilities were in breach of human rights law.546
RENDITION AND U.S. RESPONSIBILITY FOR THE FATE AND TREATMENT OF INDIVIDUALS TO FOREIGN CUSTODY
Under international law, the United States is also liable for the treatment of individuals after they were rendered to foreign custody. For example, in the Case of El-Masri v. The Former Yugoslav Republic of Macedonia, the European Court of Human Rights noted that Macedonian authorities “actively facilitated” the detention of El-Masri in Afghanistan by the United States “by handing him over to the CIA, despite the fact that they were aware or ought to have been aware of the risk of that transfer.”547 As a result, the Court “considers [. . . ] that the responsibility of the respondent State is also engaged in respect of the applicant’s detention between 23 January and 28 May 2004,”548 which are the dates corresponding to El-Masri’s transport to Skopje Airport, flight to Afghanistan, and subsequent detention and interrogation there.549 With respect to the time period over which a State’s liability extends, the Court concluded that “in the case of a series of wrongful acts or omissions, the breach extends over the entire period starting with the first of the acts and continuing for as long as the acts or omissions are repeated and remain at variance with the international obligation concerned.”550
The Commission heard testimony about the subsequent treatment of detainees who had been rendered on Aero-operated flights, including the treatment of Sharqawi Abdu Ali Al Hajj. His treatment included “continuous torture and interrogation” at the hands of the Jordanian General Intelligence Department – an agency “known to routinely violate human rights.”551 Al Hajj was later rendered again to Bagram Airbase in Afghanistan which was “a location known to host horrendous torture atrocities during the Global War on Terror.”552 Because its practice of refoulement was “part of a series of wrongful acts or omissions,”553 the U.S. government violated the prohibition on refoulement.554
Renditions conducted within the RDI program were much more than transport. They were intentionally designed to constitute the first phase of coercive interrogation and, as such, to be terrorizing and dehumanizing in and of themselves. Without any legal remedy, explanation, or recourse, detainees were subject to physical and mental pain and suffering. Detainees were deprived of their liberty and knowledge of their fates and were placed outside the protection of the law. When they transported individuals to foreign custody, where detainees faced the clear risk of torture and abuse, those who designed and operated rendition flights also violated the prohibition against refoulement. Whether the targeted individuals were rendered to CIA “black sites,” DoD facilities, or foreign custody, the U.S. government maintains legal responsibility for detainees’ treatment prior to and aboard rendition flights, and at the site of reception.