Reckoning Renditions to America's Allies

Much of the discussion over how the Obama administration will re-make US counterterrorism strategy had focused on closing the Guantanamo detention facility and devising an effective justice process for alleged terrorists. While it's true that Guantanamo has been a blow to US prestige and moral leadership, the policy of rendition--essentially disappearing or kidnapping suspected terrorists from foreign countries--has unnecessarily complicated relations between the US and long-time allies.

The legal mess resulting from two US terrorist rendition cases have been in the news in recent weeks, emphasizing the need for the incoming Obama administration to reverse rendition policy and start undoing the damage these high-profile, botch-prone intelligence operations have caused for US prestige.

Last week, the case of Maher Arar, a Syrian-born Canadian with no connections to terrorists who was arrested in the US and handed over to Syrian security forces in 2003, was again in Federal appeals court. A twelve-judge panel will decide whether Federal lawyers can again evoke the "state secret" privilege to keep Arar's lawsuit for violating his due process rights.

Public outcry in Canada over the US rendition to Syria and subsequent torture of Canadian citizen Maher Arar led to the resignation of the chief of the Royal Canadian Mounted Police (roughly equivalent to the Director of the FBI) in 2006 and dampened relations between Ottawa and Washington. Resentment lingers because Arar is still on the US terrorist watchlist, despite Arar's exoneration by a high-level public inquiry in Canada. Middle eastern-born Canadians I know are still fearful of crossing into the US.

Two weeks ago, an Italian trial into the alleged 2003 CIA kidnapping of an Egyptian cleric from the streets of Milan was halted because prosecutors and defense attorneys are in dispute over Italian government claims to secrecy privileges. Italian intelligence officials and 26 US government employees--mostly CIA officers, on trial in absentia--stand accused of kidnapping Muslim cleric Hassan Mustafa Omar Nasr (AKA "Abu Omar"), and spiriting him back to his home country of Egypt, where he was very likely tortured.

The Italian supreme court is expected to rule on the secrecy dispute this spring, with the CIA kidnapping trial expected to resume in March.

That timetable ought to put the Abu Omar case back in the headlines in Europe--and maybe even the US--right at the end of the new Obama administration's honeymoon.

The so-called Abu Omar case will test whether the Obama administration can successfully unravel the tangled web of ineptitude, cowardice, and naïve wish-thinking that have permeated the Bush administration's campaign against Al Qaeda.

At every level, the Abu Omar case has been an international embarrassment to the US. Senior national security officials were in disagreement over the plan to abduct Abu Omar, wrote investigative reporter Matt Cole in a 2007 GQ article, as were CIA officers on the ground in Milan. Behind the scenes, CIA officials in Italy failed to fully coordinate the operation with the Italian government--CIA obtained permission for the kidnapping from SISMI, Italy's national intelligence service, but not from counterterrorism police in Milan.

When the operation finally took place, Italian court records show, CIA officers left a breathtaking trail of amateurish clues, including cell phone calls back to Northern Virginia (the location of CIA headquarters), records of credit card transactions in true names, lavish hotel bills, and private jet flight records.

The official US response to the Abu Omar case has been to pretend that Italy's request for extradition of the 26 US government employees doesn't exist. Wishfully hoping that foreign justice would just go way is more or less standard operating procedure for US intelligence.

Unfortunately, so is leaving loyal, dutiful officers out in the cold: Jeff Stein of Congressional Quarterly reported earlier this year that CIA has all but turned its back on one of the accused in the Abu Omar case, Bob Lady, who was the senior CIA man in Milan at the time of the incident. Presumably, others named in the case have fared as poorly.

Other alled countries have similarly pursued legal actions or are experiencing political fallout because of US terrorist rendition operations.

Germany sought arrests of 13 US CIA officers in 2007 for the kidnapping of German national Khaled El-Masri, but later backed down because Washington indicated that it would ignore German extradition requests. In a case of mistaken identity, El-Masri was erroneously taken into US custody in 2003 in Macedonia and held in Afghanistan for five months. He had no known terrorist connections.

Spain opened a criminal case into terrorist rendition flights in 2005, (although there is no evidence that actual renditions have taken place in Spain or against Spanish nationals) and recently uncovered documentary evidence that senior Spanish officials knowingly granted landing permission to US aircraft associated with terrorist renditions has been handed over to a National Court inquiry. France and Portugal have launched similar probes.

With repair of neglected and damaged allied relations high on the list of Obama administration foreign policy priorities, tying up the loose ends left by ill-conceived and poorly executed rendition operations will be especially tricky.

Patching up allied relations and retiring these rendition cases will require that incoming Secretary of State Clinton, incoming Attorney General Holder, and whoever makes it through the gauntlet to run our intelligence agencies to do something that chickenhawk Bush officials haven't had the courage to do: eat some crow, with a double helping of humble pie.

The popularity of and warm feelings for Obama and his team in foreign capitals will undoubtedly help the reconciliation process. However, Secretary of State-designate Clinton will have much work to do in regaining trust in allied capitals.

The toughest tasks for repairing the damage from renditions fall to Attorney General-designate Holder and the new intelligence community leadership. They must be prepared to craft a meaningful strategy for addressing the prerogatives of foreign justice while not ravaging the spy ranks. It will not suffice to throw some mid- and low-level intelligence officers (or contractors) under the bus for political or diplomatic expediency, as the Bush administration did with low-ranking part-time soldiers in response to the Abu Graib atrocities.

Rogue or careless intelligence officers could not carry out a rendition on their own initiative--any of us who have worked in intelligence know that even simple intelligence operations are subject to a dizzying queue of review and second guessing that rivals the credit roll at the end of a Pixar movie. Senior management, legal counsel, and echelons of other bureaucrats all had a hand in the planning and execution of these high-stakes renditions.

Ignoring allied complaints about heavy-handed renditions is not an option--senior career and appointed officials who greenlighted these operations should step forward for the inevitable reckoning on behalf of their country, and on behalf of the brave men and women whose intelligence careers and personal lives have been turned inside out by foreign indictments.

It's the right thing to do, and it's what makes us better than terrorists.