Case Watch: Peeling Back Secrecy Around Rendition

In “Case Watch,” staff of the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions that relate to their work to advance human rights law around the world.

In a parliamentary hearing in 2005, Jack Straw, then British foreign secretary, described reports that the United Kingdom was involved in extraordinary rendition operations conducted by the United States as “in the realms of the fantastic.” Three years later, the British government was forced to acknowledge that it had indeed facilitated the transfer of detainees outside of legal means despite the risk of torture and abuse.

On April 18, 2011, with its decision in UK All Party Parliamentary Group on Extraordinary Rendition v. Ministry of Defense, a British court brought us one step closer to disclosure of the role the UK played in these detention and interrogation practices, as well as details of the agreements reached between the UK and other governments. In doing so, the court recognized that accountability for human rights violations is consistent with the government’s foreign relations and counterterrorism objectives.

The case stems from an appeal for information brought by the UK All-Party Parliamentary Group on Extraordinary Rendition, established in 2005 to examine allegations of UK involvement in the practice of extra-legal transfers. These transfers occur outside of legal mechanisms arguably with the intention of transferring detainees to contexts where abusive interrogations will take place. Among other things, the British parliamentarians sought information concerning the memoranda of understanding between the UK and the United States, Iraq, and Afghanistan, concerning the handling of detainees.

The UK Ministry of Defense cried foul, claiming that international relations would be harmed by the disclosure of these documents.

The court disagreed. In its judgment, it found that the disclosure of international agreements “designed to ensure compliance with human rights and similar legal obligations” with regard to transferred detainees is consistent with UK foreign policy interests. And that the protection of fundamental rights is a “core value” of the British government—and any “responsible government” would certainly not “take offense at open disclosure” of agreements designed to prevent illegal transfers or treatment.

The court went even further, stating that if a foreign government does have concerns about the transparency of these assurances, that is all the more reason for their disclosure. Assurances that must remain secret can be no assurance at all.

Unfortunately, transparency and accountability for past abuses in counterterror policies remains an aberration. In the United States, the antidotes to past abuses continue to be amnesia and impunity: look forward, don’t look back.

The US government has strongly resisted the disclosure of information concerning extraordinary rendition, abusive interrogation, and secret prisons. The Obama administration’s official policy opposes both criminal prosecutions and a truth commission into Bush era crimes, even as Bush himself acknowledged authorizing the waterboarding of detainees who had been subjected to extra-legal transfers to secret prisons. The Obama administration has successfully maintained a veil of secrecy on the extraordinary rendition operations, including through preventing victims from having their day in court to challenge those complicit in their transfers to torture.

The US must not continue to reject transparency and accountability for crimes committed in the name of national security.

It bears noting that the transfers to torture and abuse were not exclusively the product of US policies and actions. Other countries which collaborated with the United States, including Macedonia and Romania, remain in complete denial. In its recent decision, the British court recognized that transparency and accountability complement, and do not counter, international relations and counter-terrorism policies. The right to truth of the victims—and of the broader society—demands disclosure.

The Open Society Justice Initiative is seeking more information on the rendition and secret imprisonment of Khaled El-Masri. In 2004, the US rendered El-Masri from Macedonia to CIA secret detention in Kabul. A CIA internal investigation determined that its actions were illegal, yet the US has refused to allow El-Masri a day in court, hold anyone accountable, remedy the wrong done, or even disclose much about its actions.

In January 2009, El-Masri filed a lawsuit against the government of Macedonia for its role in his unlawful abduction and detention. Despite overwhelming evidence, Macedonia has denied that El-Masri was held illegally on its territory. Through freedom of information requests, a local lawyer and the Open Society Justice Initiative uncovered a flight log seemingly confirming the involvement of Macedonian authorities in El-Masri's illegal transfer to a secret prison. In September 2009, the Open Society Justice Initiative filed an action with the European Court of Human Rights against Macedonia, in connection with its role in El-Masri’s abduction and illegal transfer.

The United States continues to operate prisons outside the law and has not abandoned the practice of extraordinary rendition as a “tool” in its counterterrorism operations.

Transparency is only the first step towards accountability and an end to illegal practices now and in the future. But it is a first step that too many countries have been afraid to take. Now the British court’s decision can serve as a model for others to follow.