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IV. The Role of the United States

While this report does not focus on the U.S. role in renditions to countries where the person transferred is at great risk of torture, the U.S. was deeply involved in several of these cases and thus some examination of US law and policy is in order.  As detailed in the next section of this report, the first U.S. renditions of Islamists to Egypt took place in 1995 and 1998 with the cases of Tal`at Fu’ad Qassim and the so-called “Tirana cell,” respectively.  U.S. CIA Director George Tenet has said that the CIA took part in over eighty renditions before September 1 1, 2001,³³ and press accounts suggest that the United States has flown 100 to 150 suspects to foreign countries, many of them to Egypt, since September 11.³⁴

The United States Congress has codified the U.S. obligations under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (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.”

Despite this clear prohibition in both international and U.S. law, there are indications that the U.S. government has followed a policy that runs counter to these key norms. About three months before Tal`at Fu’ad Qassim was “disappeared” in June 1995 (see below), then-President Clinton issued Presidential Decision Directive (PDD) 39, which explicitly authorized the “return of suspects by force”:

When terrorists wanted for violation of U.S. 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.³⁵

This policy was reiterated in May 1998 with a new directive, PDD 62, which outlined ten policy programs, the first of which was “apprehension, extradition, rendition, and prosecution.”³⁶ The document also created the National Coordinator for Counter-Terrorism within the National Security Council. Additional renditions to Egypt took place soon thereafter.

Since September 11, 2001, the United States has continued to play a direct role in transfers of Islamists accused of political violence to Egypt and other countries in the Middle East. There is increasing evidence that many such persons were tortured upon return. A number of cases have already been publicly reported. One of the most notorious involved Maher Arar, a Canadian citizen of Syrian origin who was detained at Kennedy Airport in New York in September 2002, held in detention for two weeks, flown to Jordan, and then driven to Syria, where he was detained for ten months and, he says, tortured repeatedly.³⁷ 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 2002.³⁸ All three were eventually released without ever being charged with a criminal offense.

Egypt, however, has been the country to which the greatest numbers of rendered suspects have been sent. Mamduh Habib, an Australian citizen originally from Egypt, says he was detained in Pakistan in October 2001 and interrogated there by American agents, sent to Egypt where he was tortured in prison for six months, and then to the U.S. naval base at Guantanamo for three years before he was released without charge.³⁹ Usually the suspects returned to Egypt were of Egyptian origin, but not always. In the months after the September 11^th attacks, Pakistan apprehended a ranking al-Qaeda leader, Ibn al-Shaikh al-Libi, a Libyan national, and transferred him to U.S. 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.”⁴⁰

In December 2001, the United States played a key role in executing the expulsion from Sweden of two asylum-seekers, Ahmad `Agiza and Muhammad al-Zari`, a case discussed in detail below. The Swedish foreign minister and her top aides took the decision at a noon meeting on December 18, 2001. Between 4 and 5 p.m. that afternoon, Sapo, the 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 U.S. 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.⁴¹ “They were very professional in their way of acting. They acted very deftly, swiftly and silently,” said Swedish police inspector Paul Forell.⁴² A few minutes before 10 p.m., the jet took off for Cairo, where `Agiza and al-Zari` were handed over to State Security Investigations (SSI) agents.⁴³ Mats Melin, the Swedish parliament’s chief ombudsman, in a March 2005 report ordered by the parliament, said that “the American security personnel took charge” and criticized the Swedish security police for “los[ing] control of the situation at the airport and during the transport to Egypt.”⁴⁴ A top Egyptian interior ministry official, interviewed by Swedish investigative reporters in 2004, 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.”⁴⁵ When U.S. State Department spokesperson Richard Boucher was queried about the case following publication of a Human Rights Watch report in April 2004, he stated that he knew nothing about it and “would see if there I anything we have to say on that.”⁴⁶ As of this writing, U.S. government officials have not commented on the reports of the U.S. role in these renditions.

In January 2002 Pakistani national Muhammad Sa`d Iqbal was arrested in Jakarta, reportedly at the request of the CIA, and flown to Egypt;<sup>47</sup> his present whereabouts are not known. Italian investigators are reportedly probing the U.S. 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 U.S. air base in Italy and then flown to Cairo.⁴⁸

Another case gained attention when the parents of Ahmad `Umar Abu `Ali, a U.S. citizen, alleged that their son was arrested by Saudi authorities in June 2003 while he was studying there, detained at the behest of the U.S., and tortured during his twenty months in Saudi custody. A U.S. court ruling forced the Bush administration to take Abu `Ali into U.S. custody in February 2005.⁴⁹

Egypt’s approach to counter-terrorism and its role in the larger U.S. campaign against groups like al-Qaeda appears to be 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,” one former senior U.S. government official with long experience on counter-terror issues in the Middle East told Human Rights Watch.⁵⁰

Because many exile 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 journalist Jane Mayer, “Egypt embraced the idea.”⁵¹ “If there is an al-Qaeda connection, then we will be very interested in the information they have,” the former senior U.S. government official told Human Rights Watch. Michael Scheuer, the former CIA official who acknowledges that he was deeply involved in setting up the renditions program, told Mayer, “It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated.”⁵²

U.S. 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)],” the former U.S. government official told Human Rights Watch. “There are some situations in which the host government can be more effective at getting information.”⁵³ Nabil `Uthman, at the time an advisor to President Mubarak and government spokesman, said the two governments shared information routinely. “We are providing them with a wealth of information,” he said.⁵⁴ According to Michael Scheuer, U.S. officials provided questions to Egyptian interrogators, but the Egyptians rebuffed an American request to question suspects directly. “We were never in the same room at the same time,” he said.⁵⁵

As already noted, militants were sent back to Egypt, sometimes with U.S. assistance, for years before the September 11, 2001 attacks, but 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.”⁵⁶

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 U.S. government to cooperate, and, in some cases, wanting to benefit from improved relations with the U.S., these governments have begun to cooperate with Egypt. “Some states wanted to create a rapprochement with the States,” said Hani al-Seba`i, an Egyptian Islamist in London who keeps tabs on returns to Egypt. “They wanted to be able to say, ‘we don’t have any Islamists here.’”⁵⁷

The number of individuals sent to a third country by or with the assistance of the U.S. is not known. The House-Senate Joint Inquiry into the September 11^th attacks claimed “dozens” of renditions before September 11, 2001, although it did not specify how many of those 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 11.⁵⁸

According to one recent account, the CIA “has rendered more than 100 people from one country to another without legal proceedings ….”⁵⁹ 

The policy change by some countries was not only about improving relations with the United States. Some states were also concerned that exile Islamists might pose more of a threat than was initially supposed:

September 11 created a suitable atmosphere for renditions. Many countries were afraid about being labeled as being part of the terror camp, and others were afraid for their own domestic security. They were worried that letting these people stay could backfire.⁶⁰