The torture continues

Observations on rendition

Those who campaign against torture and extraordinary rendition could hardly be more in need of a filip. The political momentum to get justice for thousands incarcerated without trial - and to bring the torturers to account - is looking pretty stalled.

They might get a boost from the 19 October countrywide release of Rendition, Hollywood's star-studded take on the CIA torture programme in which an evil-sounding CIA boss, played by Meryl Streep, gets to chant the mantra: "The United States does not condone or encourage torture."

Despite frequent hints about high-profile hearings and new legislation, the promises of the Democrat majority in the US Congress to outlaw rendition and torture and restore habeas corpus have yet to be delivered. As elections approach, they look less and less likely to be fulfilled.

In a significant decision, the US Supreme Court has just refused to hear the case of Khaled el-Masri, a German citizen who was rendered to a CIA jail in Afghanistan in 2004. The appeal court ruled that however appalling his case (he was held in solitary for four months and then dumped in the Albanian mountains), a hearing would involve exposing state secrets.

The upshot is that even the most unspeakable acts committed against innocent people can no longer be heard or judged by a US civil court if those who carried out the acts are a secret agency. Nor can the CIA be brought to account for rendition in the criminal courts. US law permits prosecutions of US officials for torture only if the US government is itself investigating.

In Europe, German prosecutors issued arrest warrants for 13 of the alleged CIA team that flew el-Masri to Afghanistan. But after overt threats of retaliation, the German government decided to pass the warrants to the US government.

As things stand, the only substantial public hearing into rendition likely anywhere in the world will be the trial in absentia in Italy of some 25 CIA agents who organised the rendition of an Egyptian asylum-seeker from Milan back to Cairo. Here, too, there is a hold-up. The addition to the indictment of five Italian intelligence officers meant the case had to be referred to Italy's constitutional court. There is little chance of an early decision.

In Britain, the House intelligence and security committee has now published its report on rendition and cleared the UK government of involvement. It has accused Washington of ignoring UK concerns about rendition. But, in a bizarre twist, the committee in effect defined the CIA rendition programme out of existence.

The MPs' logic went like this. Extraordinary rendition is deliberately sending someone to another country to be tortured. The US obtained assurances from these countries that the prisoners would not be tortured. Therefore there was no extraordinary rendition.

For British politicians, this is entirely self-serving. By sleight of hand, they justify the UK's policy of deportations back to Jordan, Libya and so on. But it is utterly naive to use a definition for rendition that relies on such assurances. Many involved in CIA rendition made clear to me that the promises of a torturer not to torture have always been a legal fig leaf. As Edward Walker, the former US ambassador to Egypt, said: "Everyone involved in rendition used to tell themselves 'Yeah, they've given us assurances', but they all know what it means."

Ultimately, torture continues because everyone involved gives a nod and a wink. They know it happens but they refuse to confront their own doubts.

On the silver screen, who more sympathetic than doe-eyed Reese Witherspoon to confront such apathy? In Rendition she plays the heavily pregnant wife of the innocent victim and an old friend of the Streep CIA character, whom she looks in the eye with the challenge (directed also at the audience): "Don't you be the one to turn away." If Witherspoon can't win sympathy for the cause, organisations like Amnesty might as well shut up shop.

Stephen Grey is the author of "Ghost Plane", published by C Hurst & Co (£16.95)

This article first appeared in the 22 October 2007 issue of the New Statesman, Who’s afraid of Michael Moore?

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