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Upon taking office, President Obama issued an Executive Order regarding interrogations that included the creation of a special task force to “study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture.”
However, in August, the Department of Justice announced that these new policy recommendations include procedures for ongoing forced transfers of prisoners to third countries for detention and interrogation, and that they permit reliance on diplomatic “assurances” from other countries that transferred prisoners will not be tortured. A portion of the recommendations regarding intelligence-community transfers remains classified.
It is unconscionable for the United States to arbitrarily arrest individuals in any country and then move them to a third country for the purpose of continued detention and interrogation without any legal procedure. This practice amounts to kidnapping and detention by proxy. Anyone in U.S. custody anywhere in the world must be afforded basic due process—including the right to challenge their detention, and any proposed extradition or international transfer, before a competent independent adjudicator.
The Convention Against Torture prohibits the transfer of an individual to a country where there are substantial grounds to believe they would be in danger of being tortured. As the case of CCR's client Maher Arar has so vividly demonstrated, neither assurances from a foreign nation nor attempts to monitor a detainee’s treatment in a foreign nation can prevent torture. Mr. Arar was rendered to Syria, which purportedly provided some sort of assurance, yet he was tortured; and he was threatened with worse if he disclosed to Canadian officials how he was being treated. It wasn’t until ten months into his ordeal that he broke down and told a consular official that he was being tortured. The Obama administration must not rely on so-called “assurances” and “monitoring,” which have proven to fail in the past.
President Obama began his administration with promises to end torture and to bring U.S. detention policy in line with the law. However, the hope inspired by those positive first steps has faded as the Obama administration has embraced a detention policy that is far too similar to that of the Bush administration.