- The Washington Times - Wednesday, August 26, 2009

A day after it unveiled new recommendations on handling terrorism suspects, the Obama administration struggled to explain how it would be able to send detainees to countries with poor human rights records and prevent them from being tortured.

State Department spokesman Ian Kelly told reporters Tuesday that the department would “establish a kind of monitoring mechanism that allows us to be able to make sure, after the prisoner has been transferred, that he or she is not being abused.”

However, Mr. Kelly said “the details of this will have to be worked out.” He said U.S. embassies might undertake the task or that it might be done by “a third party” such as a private contractor.

None of that was any comfort to the American Civil Liberties Union, which argues that the Obama administration should not be sending suspects to such countries at all.

“The United States should not be transferring detainees to countries that have an established record of torture,” ACLU lawyer Jonathan Hafetz told The Washington Times. He said “this is a legal requirement” under the U.N. Convention Against Torture, “not a policy choice.”

On Monday, the Obama administration announced the outlines of recommendations from a special task force on detention and interrogation of terrorism suspects. They included a broad range of authorities under which U.S. agencies can send detainees to other countries, among them deportation, repatriation of Guantanamo inmates and the practice known as rendition.

Rendition, under which the U.S. captures a suspect and sends him to a third country for incarceration and interrogation without formal judicial proceedings, began in the 1980s but expanded under the Clinton administration and rose dramatically after the Sept. 11, 2001, attacks.

Human rights advocates harshly criticized previous administrations for transferring detainees to countries such as Egypt, Saudi Arabia and Syria, which are known to practice torture, and expressed disappointment that the Obama administration appears to be continuing the policy.

U.S. officials say they will insist on assurances that no torture will take place. However, Mr. Hafetz said such promises “have not proved adequate in the past to prevent abuse.”

Aziz Huq, a lawyer who represented several terrorist detainees and is now an assistant professor at the University of Chicago, was more blunt.

“These assurances, as a matter of law and fact, are worth slightly less than the paper they are written on,” he said.

Mr. Huq noted that European nations have grappled with similar issues and found such promises hard to enforce. “There have been transfers to Russia, for example,” he said. “The fact is, once these people are transferred, there is no way to prevent them being tortured. They are out of your jurisdiction; you cannot get access to them.”

Tom Malinowski, Washington advocacy director for Human Rights Watch, said the key to preventing abuse was “having continuous access to the detainee … consistent private access.”

Mr. Kelly said it was a “fair comment” to point out that, without private, secure access to detainees once they were out of U.S. hands, it would be impossible to ensure they weren’t being abused.

“We want to make sure that the mechanism works and that we receive real, credible assurances that they’re not being abused,” he said, “So I would not exclude that we would … get some kind of agreement from the receiving country that consular officers or other monitors would be able to actually go in and verify that they’re not being abused.”

Rights groups have noted that such monitoring mechanisms were ineffective in the case of Maher Arar, a Syrian-born Canadian erroneously identified as a terrorism suspect while transiting the United States in 2002. Mr. Arar was deported to Syria, which provided assurances that he would not be tortured, but kept him in a cell the size of a coffin and beat him with electric cables.

Canadian consular officials visited Mr. Arar several times while he was detained in Syria, but he was too scared to report the abuse, according to a Canadian government investigation of the case.

Rendition and other forms of transfer are “clearly going to be the most complicated issue for this task force,” said Mr. Malinowski, partly because “you can’t have a black list and a white list based on a country’s record.”

The key, he said, is how countries had “treated people we have rendered in the past. We do have a track record with some of these countries. We know the Egyptians have given assurances they have ignored; therefore, an assurance from Egypt isn’t worth much.”

Egypt denies that it tortures prisoners.

Eli Lake contributed to this report.

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