Congressional Record: February 10, 2004 (Senate)
Page S781-S785
THE CASE OF MAHER ARAR
Mr. LEAHY. Mr. President, I rise to speak about a very troubling case
of rendition and alleged torture that became public last fall. This is
the case of Maher Arar, a Canadian and Syrian citizen, who was deported
from the United States to Syria last year, who was held and
interrogated for months by the Syrians at the Bush administration's
request, and who claims to have suffered torture while in custody
there.
Mr. Arar was stopped by immigration officers at John F. Kennedy
International Airport in September 2002 as he attempted to change
planes on his way home to Canada from Tunisia. He claims that he was
interrogated by an FBI agent and a New York City police officer, and
that he was denied access to a lawyer. He further claims that he
repeatedly told U.S. officials that he feared he would be tortured if
deported to Syria. After being held for nearly two weeks in a federal
detention center in New York, Mr. Arar was transferred by U.S.
authorities to Syria. Arar claims that he was physically tortured
during the first two weeks of his detention in Syria, and that he was
subjected to severe psychological abuse over the following ten months,
including being held in a grave-like cell and being forced to undergo
interrogation while hearing the screams of other prisoners.
Syria has a well-documented history of state-sponsored torture. In
fact, President Bush stated on November 7, 2003, that Syria has left
``a legacy of torture, oppression, misery, and ruin'' to its people.
Stories like Mr. Arar's are appalling and, if true, seriously
[[Page S782]]
damage our credibility as a responsible member of the international
community.
When unrelated allegations of rendition and possible breaches of the
Convention Against Torture (``Torture Convention'') surfaced in the
summer of 2003, I wrote to administration officials asking for
guarantees that the United States is complying with its obligations
under this Convention. I received a response from the General Counsel
of the Department of Defense, William J. Haynes. His letter contained a
welcome commitment by the administration that it is the policy of the
United States to comply with all of its legal obligations under the
Torture Convention. I wrote to Mr. Haynes again for clarification on a
number of points, such as how the administration reconciled this
statement of policy with reported acts of rendition and accusations of
the use of interrogation techniques rising to or near the level of
torture. After 2 months with no response, another letter, this one not
from Haynes himself but from a subordinate, was delivered late at night
on the eve of Mr. Haynes' November 19, 2003 confirmation hearing for a
seat on the Fourth Circuit Court of Appeals. That letter was totally
unresponsive to my questions.
Because Mr. Arar claims that he was interrogated by an FBI agent, I
wrote to FBI Director Mueller on November 17, 2003 for more information
on the case. Later that week, when press accounts indicated that the
deportation of Mr. Arar was approved by the Department of Justice
(``DOJ''), I wrote to Attorney General Ashcroft to ask a number of
additional questions. Neither of these letters has been answered.
Administration officials claim that the CIA received assurances from
Syria that it would not torture Mr. Arar, and yet, spokesmen for DOJ
have not explained why they believed the Syrian assurances to be
credible. Nor have they explained inconsistencies in statements coming
from officials at different agencies. Although the administration has
officially welcomed statements by the Syrian government that Mr. Arar
was not tortured, other unnamed officials have been quoted in the press
as saying that, while in captivity in Syria, Mr. Arar confessed under
torture that he had gone to Afghanistan for terrorist training. I have
asked DOJ to address that shocking contradiction and also to explain
whether the United States has investigated Syria's alleged non-
compliance with any assurances it provided to the U.S. government.
Whether or not Mr. Arar had ties to terrorist organizations, as is
alleged by U.S. officials, or whether his confession was a false one
produced by coercion, as he claims, he was subject to the legal
protections provided by the Torture Convention, which the United States
has ratified.
Recently, the Canadian government announced a full inquiry into the
deportation of Mr. Arar to Syria and his alleged torture there. This
inquiry will also examine the role played by Canadian officials in the
case to determine whether the Canadian government was complicit in the
rendition of Mr. Arar. And just weeks ago, a non-profit organization,
the Center for Constitutional Rights, filed a constitutional and human
rights case on behalf of Mr. Arar with the U.S. District Court for the
Eastern District of New York challenging the decision by federal
officials to deport him to Syria. As the Washington Post editorialized
on February 2, 2004, ``The government should be obliged to spell out
how this decision came to be made and why.''
I urge my colleagues to follow this Federal court case the Canadian
inquiry closely. If the allegations by Mr. Arar are true, then our
government has much to answer for. The case has already damaged our
standing with foreign governments, many of which we have criticized in
the past for relying on torture in interrogations. If the U.S. is
``subcontracting'' interrogation of terrorism suspects to nations that
bend the rules on torture, it undermines our reputation as a Nation of
laws, it hurts our credibility in seeking to uphold human rights, and
it invites others to use the same tactics.
I ask unanimous consent to print the letters I mentioned and the
Washington Post editorial in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, February 2, 2004]
Mr. Arar's Lawsuit
The Federal lawsuit filed last week by Maher Arar--the
Syrian-born Canadian whom the federal government deported to
Syria--offers a good opportunity to shed some light on one of
the more peculiar civil liberties cases to arise during the
war on terrorism. Mr. Arar and the U.S. government agree on
the barest outlines of his story: He was flying home from
Tunisia to Canada in the fall of 2002 on a path that took him
through New York. He had, however, been placed on the
terrorist watch list. When he presented his Canadian
passport, he was detained for more than a week and--despite
his pleas to be sent to Canada--was sent to Syria. There he
was held for 10 months until intervention by the Canadian
government secured his release.
That is where agreement ends. Mr. Arar denies any
connection to al Qaeda. He claims to have been savagely
tortured in his country of birth. And he alleges that he was
sent to Syria, rather than to Canada, precisely so that he
would be tortured--to be precise, ``so that Syrian
authorities would interrogate him in ways that [American
officials] believed themselves unable to do directly.'' All
of which, if true, would violate this country's international
treaty obligations, which prohibit turning someone over to a
government likely to mistreat that person. In Canada, Mr.
Arar's case has become a cause, cited as an example of
American arrogance and contempt for Canada's interests and
citizens.
The American government firmly--if vaguely--denies any
wrongdoing. It still claims that its information on Mr. Arar
was solid, though it refuses to release any of what it terms
``sensitive national security information.'' Mr. Arar is a
member of al Qaeda, the Justice Department alleged in a
recent statement. Anonymous officials have been quoted in
press accounts saying that he was carrying a list of al Qaeda
operatives and that then-Deputy Attorney General Larry D.
Thompson signed an order certifying that returning Mr. Arar
to Canada would be ``prejudicial to the interests of the
United States.'' The department says that Mr. Arar's
deportation to Syria was ``fully within the law and
applicable international treaties and conventions.'' Far from
intending that Syria would torture him, in fact, the
department claims that it was ``provided with reliable
assurances that Mr. Arar would be treated humanely.''
There are two questions that we hope this litigation would
shed light upon. The first is whether Mr. Arar was, in fact,
a would-be-terrorist. The second is why he was sent to a
country known for abusing human rights, instead of being sent
to Canada or detained here as an enemy combatant. What was
the goal, if not to delegate to the Syrians torture that
American authorities cannot engage in? At the least, the
government should be obliged to spell out how this decision
came to be made and why.
____
U.S. Senate,
Washington, DC, June 2, 2003.
Hon. Condoleezza Rice,
National Security Adviser, The White House,
Washington, DC.
Dear Dr. Rice: Over the past several months, unnamed
Administration officials have suggested in several press
accounts that detainees held by the United States in the war
on terrorism have been subjected to ``stress and duress''
interrogation techniques, including beatings, lengthy sleep
and food deprivation, and being shackled in painful positions
for extended periods of time. Our understanding is that these
statements pertain in particular to interrogations conducted
by the Central Intelligence Agency in Afghanistan and other
locations outside the United States. Officials have also
stated that detainees have been transferred for interrogation
to governments that routinely torture prisoners.
These assertions have been reported extensively in the
international media in ways that could undermine the
credibility of American efforts to combat torture and promote
the rule of law, particularly in the Islamic world.
I appreciate President Bush's statement, during his recent
meeting with U.N. High Commissioner for Human Rights Sergio
De Mello, that the United States does not, as a matter of
policy, practice torture. I also commend the Administration
for its willingness to meet with and respond to the concerns
of leading human rights organizations about reports of
mistreatment of detainees. At the same time, I believe the
Administration's response thus far, including in a recent
letter to Human Rights Watch from Department of Defense
General Counsel William Haynes, while helpful, leaves
important questions unanswered.
The Administration understandably does not wish to
catalogue the interrogation techniques used by U.S. personnel
in fighting international terrorism. But it should affirm
with clarity that America upholds in practice the laws that
prohibit the specific forms of mistreatment reported in
recent months. The need for a clear and thorough response
from the Administration is all the greater because reports of
mistreatment initially arose not from outside complaints, but
from statements made by administration officials themselves.
With that in mind, I would appreciate your answers to the
following questions:
[[Page S783]]
First, Mr. Haynes' letter states that when questioning
enemy combatants, U.S. personnel are required to follow
``applicable laws prohibiting torture.'' What are those laws?
Given that the United States has ratified the Convention
Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), is this Convention
one of those laws, and does it bind U.S. personnel both
inside and outside the United States?
Second, does the Administration accept that the United
States has a specific obligation under the CAT not to engage
in cruel, inhuman and degrading treatment?
Third, when the United States ratified the CAT, it entered
a reservation regarding its prohibition on cruel, inhuman and
degrading treatment, stating that it interprets this term to
mean ``the cruel, unusual and inhumane treatment or
punishment prohibited by the 5th, 8th, and/or 14th amendments
to the Constitution.'' Are all U.S. interrogations of enemy
combatants conducted in a manner consistent with this
reservation?
Fourth, in its annual Country Reports on Human Rights
Practices, the State Department has repeatedly condemned many
of the same ``stress and duress'' interrogation techniques
that U.S. personnel are alleged to have used in Afghanistan.
Can you confirm that the United States is not employing the
specific methods of interrogation that the State Department
has condemned in countries such as Egypt, Iran, Eritrea,
Libya, Jordan and Burma?
Fifth, the Defense Department acknowledged in March that it
was investigating the deaths from blunt force injury of two
detainees who were held at a Bagram air base in Afghanistan.
What is the status of that investigation and when do you
expect it to be completed? Has the Defense Department or the
CIA investigated any other allegations of torture or
mistreatment of detainees, and if so, with what result? What
steps would be taken if any U.S. personnel were found to have
engaged in unlawful conduct?
Finally, Mr. Haynes' letter offers a welcome clarification
that when detainees are transferred to other countries,
``U.S. Government instructions are to seek and obtain
appropriate assurances that such enemy combatants are not
tortured.'' How does the administration follow up to
determine if these pledges of humane treatment are honored in
practice, particularly when the governments in question are
known to practice torture?
I believe these questions can be answered without revealing
sensitive information or in any way undermining the fight
against international terrorism. Defeating terrorism is a
national security priority, and no one questions the
imperative of subjecting captured terrorists to thorough and
aggressive interrogations consistent with the law.
The challenge is to carry on this fight while upholding the
values and laws that distinguish us from the enemy we are
fighting. As President Bush has said, America is not merely
struggling to defeat a terrible evil, but to uphold ``the
permanent rights and the hopes of mankind.'' I hope you agree
that clarity on this fundamental question of human rights and
human dignity is vital to that larger struggle.
Thank you for your assistance.
Sincerely,
Patrick Leahy,
U.S. Senator.
____
General Counsel of the
Department of Defense,
Washington, DC, June 25, 2003.
Hon. Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: I am writing in response to your June
2, 2003, letter to Dr. Rice raising a number of legal
questions regarding the treatment of detainees held by the
United States in the wake of the September 11, 2001, attacks
on the United States and in this Nation's war on terrorists
of global reach. We appreciate and fully share your concern
for ensuring that in the conduct of this war against a
ruthless and unprincipled foe, the United States does not
compromise its commitment to human rights in accordance with
the law.
In response to your specific inquiries, we can assure you
that it is the policy of the United States to comply with all
of its legal obligations in its treatment of detainees, and
in particular with legal obligations prohibiting torture. Its
obligations include conducting interrogations in a manner
that is consistent with the Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment
(``CAT'') as ratified by the United States in 1994. And it
includes compliance with the Federal anti-torture statute, 18
U.S.C.. Sec. Sec. 2340-2340A, which Congress enacted to
fulfill U.S. obligations under the CAT. The United States
does not permit, tolerate or condone any such torture by its
employees under any circumstances.
Under Article 16 of the CAT, the United States also has an
obligation to ``undertake . . . to prevent other acts of
cruel, inhuman, or degrading treatment or punishment which do
not amount to torture.'' As you noted, because the terms in
Article 16 are not defined, the United States ratified the
CAT with a reservation to this provision. This reservation
supplies an important definition for the term ``cruel,
inhuman, or degrading treatment or punishment.''
Specifically, this reservation provides that ``the United
States considers itself bound by the obligation under article
16 to prevent, `cruel, inhuman or degrading treatment or
punishment' only in so far as the term `cruel, inhuman or
degrading treatment or punishment' means the cruel, unusual
and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and/or Fourteenth Amendments to the Constitution of
the United States.'' United States policy is to treat all
detainees and conduct all interrogations, wherever they may
occur, in a manner consistent with this commitment.
As your letter stated, it would not be appropriate to
catalogue the interrogation techniques used by U.S. personnel
in fighting international terrorism, and thus we cannot
comment on specific cases or practices. We can assure you,
however, that credible allegations of illegal conduct by U.S.
personnel will be investigated and, as appropriate, reported
to proper authorities. In this connection, the Department of
Defense investigation into the deaths at Bagram, Afghanistan,
is still in progress. Should any investigation indicate that
illegal conduct has occurred, the appropriate authorities
would have a duty to take action to ensure that any
individuals responsible are held accountable in accordance
with the law.
With respect to Article 3 of the CAT, the United States
does not ``expel, return (`refouler') or extradite''
individuals to other countries where the U.S. believes it is
``more likely than not'' that they will be tortured. Should
an individual be transferred to another country to be held on
behalf of the United States, or should we otherwise deem it
appropriate, United States policy is to obtain specific
assurances from the receiving country that it will not
torture the individual being transferred to that country. We
can assure you that the United States would take steps to
investigate credible allegations of torture and take
appropriate action if there were reason to believe that those
assurances were not being honored.
In closing, I want to express my appreciation for your
thoughtful questions. We are committed to protecting the
people of this Nation as well as to upholding its fundamental
values under the law.
Sincerely,
William J. Haynes II.
____
U.S. Senate,
Washington, DC, September 9, 2003.
William J. Haynes II,
General Counsel, Department of Defense,
Defense Pentagon, Washington, DC.
Dear Mr. Haynes: Thank you for your June 25, 2003, letter
concerning U.S. policy with regard to the treatment of
detainees held by the United States.
I very much appreciate your clear statement that it is the
policy of the United States to comply with all of its legal
obligations under the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). I
also welcome your statement that it is United States policy
to treat all detainees and conduct all interrogations,
wherever they may occur, in a manner consistent with our
government's obligation, under Article 16 of the CAT, ``to
prevent other acts of cruel, inhuman, or degrading treatment
or punishment'' as prohibited under the Fifth, Eighth, and
Fourteenth Amendments to the U.S. Constitution.
This statement of policy rules out the use of many of the
``stress and duress'' interrogation techniques that have been
alleged in press reports over the last several months,
including beatings, lengthy sleep and food deprivation, and
shackling detainees in painful positions for extended periods
of time. It should also go a long way towards answering
concerns that have been expressed by our friends overseas
about the treatment of detainees in U.S. custody. It should
strengthen our nation's ability to lead by example in the
protection of human rights around the world, and our ability
to protect Americans, including our service members, should
they be detained abroad.
At the same time, the ultimate credibility of this policy
will depend on its implementation by U.S. personnel around
the world. In that spirit, I would appreciate it if you could
clarify how the administration's policy to comply with the
CAT is communicated to those personnel directly involved in
detention and interrogation? As you note in your letter, the
U.S. obligation under Article 16 of the CAT is to ``undertake
. . . to prevent'' cruel, inhuman or degrading treatment or
punishment. What is the administration doing to prevent
violations? Have any recent directives regulations or general
orders been issued to implement the policy your June 25
letter describes? If so, I would appreciate receiving a copy.
I understand that interrogations conducted by the U.S.
military are governed at least in part by Field Manual 34-52,
which prohibits ``the use of force, mental torture, threats,
insults, or exposure to unpleasant and inhumane treatment of
any kind.'' This field manual rightly stresses that ``the use
of force is a poor technique, as it yields unreliable
results, may damage subsequent collection efforts, and can
induce the source to say whatever he thinks the interrogator
wants to hear.'' Are there further guidelines that in any way
add to, define, or limit the prohibitions contained in this
field manual? What mechanisms exist for ensuring compliance
with these guidelines?
Most important, I hope you can assure me that
interrogators working for other agencies, including the CIA,
operate from the same guidelines as the Department of
Defense. If CIA or other interrogation guidelines in use by
any person working for or on behalf of the U.S. government
differ, could you clarify how, and why?
[[Page S784]]
I am pleased that before handing over detainees for
interrogation to third countries, the United States obtains
specific assurances that they will not be tortured. I remain
concerned, however, that mere assurances from countries that
are known to practice torture systematically are not
sufficient. While you state that the United States would
follow up on any credible information that such detainees
have been mistreated, how would such information emerge if no
outsiders have access to these detainees? Has the
administration considered seeking assurances that an
organization such as the International Committee for the Red
Cross have access to detainees after they have been turned
over? If not, I urge you to do so.
Finally, has the administration followed up on specific
allegations reported in the press that such detainees may
have been tortured, including claims regarding a German
citizen sent to Syria in 2001, and statements by former CIA
official Vincent Cannistrano concerning an al-Qaeda detainee
sent from Guantanamo to Egypt (see enclosed articles)?
Thank you again for your response to my last letter.
With best regards,
Patrick Leahy,
U.S. Senator.
____
Department of Defense,
Office of General Counsel,
Washington, DC, November 18, 2003.
Hon. Patrick J. Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: I am responding to your September 9,
2003 letter, which follows up on the June 25, 2003 letter
from Mr. Haynes concerning U.S. policy on the treatment of
detainees held by the United States in the war on terrorism.
The earlier letter to you and an April 2, 2003 letter to the
Executive Director of Human Rights Watch (enclosed) contain
precise statements of U.S. policy. As statements of U.S.
policy, they reflect the policy applicable to the Executive
Branch.
Your letter inquired about Department of Defense (DoD)
implementation of the policy described in the June 25 letter.
The Department takes its compliance with U.S. obligations
very seriously. For that reason, the Department has a Law of
War Program, which is governed by DoD directive 5100.77
(December 9, 1998), a copy of which is enclosed. That
Directive, among other things, provides that it is DoD policy
to ensure that DoD components observe the law of war
obligations of the United States, and that those components
implement an effective program to prevent violations of the
law of war. Through the Law of War Program, the Department
seeks to prevent law of war violations through training and
by instructing DoD personnel about U.S. obligations, and
ensuring that qualified legal advisers are available at all
levels of command to provide advice on compliance with the
law of war.
Moreover, DoD personnel are instructed to report
allegations of mistreatment of or injuries to detained enemy
combatants through normal command channels for ultimate
transmission to appropriate authorities. Individual military
personnel bear a responsibility to ensure their compliance.
Commanding officers carry the additional responsibility to be
aware of and to direct the conduct of the men and women under
their command in order to, among other things, ensure their
compliance with U.S. obligations in matters such as the
treatment of those detained in an armed conflict. Although
our principal institutional focus is, as it should be, on
compliance with the law of war and avoiding and preventing
violations of it, DoD also has an effective military criminal
justice system for detecting, investigating, prosecuting, and
punishing misconduct by military personnel should it occur.
Your letter also asked whether follow-up had occurred
regarding allegations appearing in stories in the Washington
Post on January 31, 2003, in Newsday on February 6, 2003, and
in the Los Angeles Times on March 3, 2003. With respect to
the first story, it does not allege unlawful activity by any
U.S. official because participation in questioning abroad and
knowledge of transfers to third countries, without more, do
not contravene the law. With respect to the second story, the
allegations of improper treatment it contains are by an
individual who has not been a Central Intelligence Agency
employee since well before 2001. With respect to the final
story, the unnamed sources are quoted as saying that they did
not know details, but they nevertheless then speculated about
what was happening. To the extent that it might be possible
to construe the latter two stories as containing allegations
about the treatment of individuals while outside military
control, I understand that the Office of the Director of
Central Intelligence (DCI) has copies of these articles and
is responsible for appropriate action.
Please allow me to emphasize that press stories often
contain allegations that are untrue, and that my mention of
the office of the DCI indicates nothing concerning the merits
of those allegations and it does not express a view
concerning what action might be appropriate.
I appreciate very much the opportunity to address your
concerns. The Administration is committed to carrying out the
law as we continue our dedicated efforts to protect Americans
from terrorism.
Sincerely,
Daniel J. Dell'Orto,
Principal Deputy General Counsel.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, November 17, 2003.
Hon. Robert S. Mueller,
Director, Federal Bureau of Investigation,
Washington, DC.
Dear Director Mueller: I am writing to inquire about the
role the FBI may have played in the extraordinary rendition
of Maher Arar, a Canadian and Syrian citizen, from the United
States to Syria last year.
Press reports indicate that Mr. Arar was stopped by
immigration officers at John F. Kennedy International Airport
as he attempted to change planes on his way home to Canada
from Tunisia. Mr. Arar claims that he was then interrogated
by an FBI agent and a New York City police officer. He
further claims that, ``They told me I had no right to a
lawyer because I was not an American citizen,'' and that he
repeatedly told U.S. officials that he feared he would be
tortured if returned to Syria. ``Deported Terror Suspect
Details Torture in Syria,'' Washington Post, November 5,
2003. After being held for nearly two weeks in a federal
detention center, Mr. Arar alleges that he was then handed
over to U.S. intelligence officials who flew him to Jordan
and turned him over to Jordanian authorities, who beat him.
He was then taken to Syria, where he was detained and
allegedly tortured over a period of ten months.
While the Bush administration officially denies engaging in
extraordinary renditions of this sort, numerous unnamed
intelligence officials have admitted to the press that
renditions have occurred, purportedly under a ``secret
rendition policy.'' Id. This policy was described as ``a
secret presidential `finding' authorizing the CIA to place
suspects in foreign hands without due process.'' Id.
I find Mr. Arar's claims and the underlying rendition
policy deeply troubling and would like information on the
role of the FBI, if any, in this case.
1. Under what specific authority was Mr. Arar detained,
first at the airport and then at the federal detention center
in Brooklyn?
2. Is it true that one or more FBI agents interrogated Mr.
Arar after he was detained by immigration officers at JFK
airport?
3. If so, is it true that Mr. Arar was denied access to
counsel?
4. Did the FBI participate in any manner in the transfer of
Mr. Arar to Washington, D.C., Jordan, Syria, or to any other
location?
5. An intelligence official is quoted in the Washington
Post story as saying, ``The Justice Department did not have
enough evidence to detain him when he landed in the United
States.'' If this is true and if, as has also been reported
in the press, U.S. officials were in contact with Canadian
authorities, why did the FBI and/or other officials choose
not to turn Arar over to Canadian authorities?
6. In a June 25, 2003, letter to me on the subject of
rendition and other matters, the U.S. Defense Department
General Counsel, William Haynes, stated that the ``United
States policy is to obtain specific assurances from the
receiving country that it will not torture the individual
being transferred to that country.'' Did the United States
seek assurances from Jordan and/or Syria that Mr. Arar would
not be subject to torture, or to cruel, or inhuman, or
degrading treatment or punishment while in the custody of
either nation? If so, what steps did the United States take
after his rendition to assess compliance with such assurances
in this case? Were the assurances provided in writing? If so,
please provide a copy to the Committee. If such a document is
classified, please arrange for cleared staff to view it. If
no assurances were obtained, please explain why not.
7. Under U.S. law, non-citizens who express concerns about
torture if removed are entitled to an evaluation of their
claim before being removed. Under the specific regulations
that were likely applied to Mr. Arar's removal, there is an
explicit prohibition against returning someone to a country
where there are substantial grounds for believing he would be
subjected to torture. What process was used, if any, to
evaluate the likelihood that Mr. Arar would be subjected to
torture before removing him to Syria?
8. Are you aware of a ``secret presidential 'finding'
authorizing the CIA to place suspects in foreign hands
without due process''? If so, please provide a copy to the
Committee. If such a document is classified, please arrange
for cleared staff to view it.
9. Has the FBI participated in any other alleged
renditions, including interviewing and then handing suspects
over to intelligence officers for transfer to another
country?
Thank you for your prompt answers to these questions.
Sincerely,
Patrick Leahy,
U.S. Senator.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, November 21, 2003.
Hon. John Ashcroft,
Attorney General, Department of Justice,
Washington, DC.
Dear Attorney General Ashcroft: I am writing to inquire
about the rendition of Maher Arar, a Canadian and Syrian
citizen, from the United States to Syria last year.
I wrote to FBI Director Robert Mueller about this case on
Monday, November 17. (See attached). Since that time,
additional
[[Page S785]]
information on this case has been provided to the press,
mainly in statements by unnamed administration officials, but
also by Department of Justice (DOJ) spokespersons.
Washington Post articles indicate that the deportation of
Mr. Arar was approved on October 7, 2002, by then-Deputy
Attorney General Larry Thompson, who signed the order in his
capacity as Acting Attorney General. ``Man Was Deported After
Syrian Assurances,'' Washington Post, November 20, 2003
[hereinafter Washington Post, Nov. 20, 2003]; ``Top Justice
Aide Approved Sending Suspect to Syria,'' Washington Post,
November 19, 2003. The same story states that U.S. officials
``decided to send [Arar] to Syria last year only after the
CIA received assurances from Syria that it would not torture
the man.'' Washington Post, Nov. 20, 2003. And yet,
``spokesmen at the Department of Justice declined to comment
on why they believed the Syrian assurances to be credible.''
Id.
Mr. Arar claims that he was, in fact, tortured while in
Syrian custody. The Syrian government has denied that Arar
was subjected to torture, but statements from U.S. officials
contradict that assertion. In a November 15 New York Times
article, ``American officials who spoke on condition of
anonymity,'' were quoted as saying that Arar ``confessed
under torture in Syria that he had gone to Afghanistan for
terrorist training, named his instructors and gave other
intimate details.'' ``Qaeda Pawn, U.S. Calls Him. Victim, He
Calls Himself,'' New York Times, November 15, 2003 (emphasis
added). I find this statement to be shocking in light of the
administration's assertions that it acted within the scope of
its international treaty obligations.
Mr. Arar claims to have stated repeatedly to his U.S.
interrogators that he feared torture at the hands of the
Syrian government. Whether or not Mr. Arar had ties to
terrorist organizations, as is alleged by U.S. officials, or
whether his confession was a false one produced by coercion,
as he claims, he was subject to the legal protections
provided by the Convention Against Torture, which the United
States has ratified.
The statements by Mr. Arar and the unnamed sources in the
New York Times article cited above beg the question of
whether the United States has investigated Syria's alleged
non-compliance with any assurances it provided to the U.S.
government. This question is especially critical in light of
President Bush's statement on November 7, 2003, that Syria
has left ``a legacy of torture, oppression, misery, and
ruin'' to its people.
In light of the above facts and assertions, I request that
you provide detailed answers to the following questions:
1. Under what specific authority was Mr. Arar detained,
first at John F. Kennedy Airport and then at the federal
detention center in Brooklyn, New York?
2. Is it true that Mr. Arar was denied access to counsel,
as he claims?
3. An intelligence official is quoted in a November 5
Washington Post story as saying, ``The Justice Department did
not have enough evidence to detain him when he landed in the
United States.'' ``Deported Terror Suspect Details Torture in
Syria,'' Washington Post, November 5, 2003. It has also been
reported that U.S. officials were in contact with Canadian
authorities regarding this case. Given that Mr. Arar, a
Canadian citizen, resides in Canada and was traveling home to
Canada when he was detained at the airport, why did the
officials choose not to turn Arar over to Canadian
authorities?
4. Did you become aware of Mr. Arar's case at any point
between his detention on September 26, 2002, and October 7,
2002, the date the deportation order was signed by Mr.
Thompson? Did Mr. Thompson, who was serving as Acting
Attorney General when he signed the order, consult with you
before signing the order? Did you approve this action?
5. In a June 25, 2003, letter to me on the subject of
rendition and other matters, the U.S. Defense Department
General Counsel, William Haynes, stated that the ``United
States policy is to obtain specific assurances from the
receiving country that it will not torture the individual
being transferred to that country.'' The November 20
Washington Post article cited above confirms that assurances
were obtained from Syria. What was the scope of such
assurances? Were they provided to the U.S. government in
writing? If so, please provide a copy to the Committee. If
such a document is classified, please arrange for cleared
staff to view it. If the assurances were not provided in
writing, please explain why written assurances were not
sought or provided.
6. What steps did the United States after Arar's rendition
to assess compliance with the assurances provided by Syria in
this case?
7. Is the statement of an unnamed official above that Arar
``confessed under torture'' accurate? If so, then Syria's
actions violated the assurances provided to the U.S. before
Arar's rendition. What has the U.S. done (a) to investigate
such non-compliance and (b) to hold Syria accountable for
such violations.
8. Under U.S. law, non-citizens who express concerns about
torture if removed are entitled to an evaluation of their
claim before being removed. Under the specific regulations
that were likely applied to Mr. Arar's removal, there is an
explicit prohibition against returning someone to a country
where there are substantial grounds for believing he would be
subject to torture. What process was used, if any, to
evaluate the likelihood that Mr. Arar would be subjected to
torture before removing him to Syria?
9. According to the November 5 Washington Post article
cited in question 3, numerous unnamed intelligence officials
have admitted to the press that renditions have occurred,
purportedly under a ``secret rendition policy.'' This policy
was described as ``a secret presidential `finding'
authorizing the CIA to place suspects in foreign hands
without due process.'' Are you aware of a ``secret
presidential `finding' authorizing the CIA to place suspects
in foreign hands without due process''? If so, please provide
a copy to the Committee. If such a document is classified,
please arrange for cleared staff to view it.
10. Has the FBI or DOJ authorized or participated in any
other alleged renditions, including interviewing and then
handing suspects over to intelligence officers for transfer
to another country?
11. In its effort to fight terrorism, the administration
has focused on individuals who have connections to Al Qaeda
that need to be further explored, and has argued that it has
the right to detain and interrogate prisoners in Guantanamo
Bay, perhaps as unlawful combatants or enemy combatants, as
long ``as it is necessary to help win the war against the Al
Qaeda network and its allies.'' Washington Post, ```High
Court Will Hear Appeals From Guantanamo Prisoners,'' November
11, 2003. Notwithstanding my concerns about the legal status
of those detained at Guantanamo, and the administration's
treatment of enemy combatants in general, it would seem that
Mr. Arar fit the classic administration profile for someone
who should be detained in Guantanamo. Presumably, Mr. Arar
would have been safer in detention at Guantanamo Bay than in
Syria.
a. Was the option to detain Arar as an enemy combatant in
Guantanamo Bay considered and rejected in favor of rendition
to Syria? If so, on what basis was the decision made to send
him to Syria?
b. Where there is more than one destination country to
which detainees may be rendered, do you believe there should
be a policy to render detainees to the country where torture
is least likely (e.g., a country that does not have a history
of documented humanitarian abuses)?
c. What is the standard applied by the administration in
determining whether to deport an individual, transfer the
individual to custody at Guantanamo Bay, or to charge the
individual with a crime?
Thank you for your prompt answers to these questions.
Sincerely,
Patrick Leahy,
U.S. Senator.
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