U.S. Rendition Practice since 9/11
Despite the limited information about pre 9/11 renditions, it is clear that the U.S. practice of rendition increased substantially after September 11, 2001.16Whereas there were over 80 such transfers in the years prior to this date, former government officials estimate that there have been 100 to 150 renditions of persons suspected of terrorist activities in just the three years since September 11, 2001.17 According to media reports, a few days following the 9/11 attacks, the White House issued a new directive, which is still classified, that gave the C.I.A. expansive new authority to carry out renditions without White House approval for each and every case.18
Renditions have taken place both from U.S. territory and from other countries, either by the direct seizure of foreign nationals on foreign territory by U.S. agents, or the transfer of foreign nationals to third countries by the host country authorities facilitated by the use of U.S. aircraft or personnel.19 While the complete list of receiving countries is not known, the cases that have come to light reveal a disturbing trend of rendering people to countries widely known for their human rights violations, such as Egypt, Syria, Morocco, Saudi Arabia, Jordan, Pakistan and Uzbekistan.20 Given the well-documented records of torture by these governments, there can be little doubt that suspects are being sent to places where they face a risk of torture and other ill-treatment.
The U.S. government is well aware of the poor human rights records of the states to which it is rendering suspects. In its annual Country Reports on Human Rights Practices, the U.S. Department of State has stated that in these countries torture is either routinely practiced, or specific groups are targeted for such abuse.21 In Syria, the country to which Maher Arar was transferred, the 2005 State Department report declares that there was credible evidence that security forces continued to use torture frequently. In Egypt, the report states, torture and abuse of detainees by police, security personnel, and prison guards remained common and persistent. According to the U.N. Committee Against Torture, a systematic pattern of torture by the security forces exists, and police torture resulted in deaths during the year.22
The practice of renditions has not only grown in scope since September 2001. The stated purpose of post 9/11extraordinary renditions has also shifted from delivering criminal suspects for prosecution to transferring suspects and detainees to other countries solely for detention or interrogation.23 Senior U.S. officials have publicly acknowledged that the U.S. government is transferring individuals to the custody of other governments to be held on behalf of the United States. The general counsel of the Department of Defense, William Haynes, in a letter to U.S. Senator Patrick Leahy in June 2003, described the U.S. policy as follows:
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. 24
Arars case appears to fit this new pattern. He was never charged with a crime by the Syrian government, which stated that it had no interest in him and had not requested his transfer to their custody for prosecution. On the contrary, senior Syrian officials stated that the U.S. government asked Syria to detain Arar on its behalf.25
U.S. officials appear for the most part to have relied on their counterparts to conduct interrogations and report any new information to them. If we are getting everything we need from the host government, then theres no need for us to [conduct interrogations], a former U.S. government official told Human Rights Watch. There are some situations in which the host government can be more effective at getting information.26
Because of the secretive nature of renditions, little is known about specific individuals who have been subjected to these transfers, and details of the cases remain murky. A small number of cases, however, have come to light, including that of Maher Arar. As human rights organizations, the media, international bodies, and some parliamentary and other officials have called attention to the problem of renditions, more information has been learned over the past year about specific cases. As a result, there is increasing evidence that people who have been transferred to countries such as Syria, Egypt and Uzbekistan were tortured upon their return.
One such case is that of Mamdouh Habib, an Australian citizen of Egyptian origin. As revealed in court documents filed in federal court in the United States, Habib was detained in Pakistan in October 2001 and interrogated there by American agents. He was then sent to Egypt where he was tortured in prison for six months, and then transferred to the U.S. naval base at Guantanamo.27 Habib was in Guantanamo for more than two and a half years before he was released without charge in January of this year.28 His allegations of torture in Egypt are supported by Rhuhel Ahmed, Asif Iqbal and Shafiq Rasul, British nationals who were in detention at Guantanamo at the time of Habibs transfer there. According to the three British ex-detainees, Habib was in "catastrophic shape" when he arrived at Guantanamo: most of his fingernails were missing, and while sleeping he regularly bled from his nose, mouth and ears.29
Another rendition case followed a similar trajectory. In the months after the September 11th attacks, Pakistan apprehended a ranking al-Qaeda leader, Ibn al-Shaikh al-Libi, a Libyan national, and transferred him to U.S. custody. After a period during which CIA and FBI officials interrogated him, the CIA transferred al-Libi to Egyptian custody, and the FBI lost track of him. After months in Egyptian detention, al-Libi was handed back to the United States, and remains in detention at Guantanamo Bay.30
In December 2001, Sweden expelled two Egyptian asylum seekers, Ahmed Agiza and Muhammad al-Zari, to Egypt, where they were held incommunicado for five weeks after their return.31 The United States played a key role in executing this expulsion, including transporting the men from Sweden to Egypt in a private Gulfstream jet leased to the CIA.32 Mats Melin, the Swedish parliaments chief ombudsman, stated in a March 2005 report that the American security personnel took charge of the operation and criticized the Swedish security police for los[ing] control of the situation at the airport and during the transport to Egypt.33 The report faulted the Swedish Security service and airport police for display[ing] a remarkable subordinance to the American officials.34
Despite monthly visits after their return to Egypt by Swedish diplomats, none of them in private, both men credibly alleged to their lawyers and family membersand, indeed, to Swedish diplomats as wellthat they had been tortured and ill-treated in detention.35 To date these allegations and the roles of all three governments Sweden, Egypt and the United States have not been fully investigated, and the Bush administration has not acknowledged its role in the transfer of these men to Egypt.
Other renditions facilitated by the United States have been effected from European soil. For example, an Italian prosecutor is investigating the U.S. role in the February 2003 abduction of Hassan Mustafa Usama Nasr, an Egyptian cleric also known as Abu Omar. Abu Omar disappeared from Milan in February 2003, when eyewitnesses reported that he was abducted while walking to a mosque for noon prayers. He was not heard from until Italian police recorded a phone call he made to his wife a year later saying that he had been taken to a U.S. air base in Italy and then flown to Cairo.36 During the call to his wife, Abu Omar claimed he had been tortured so badly by secret police in Cairo that he had lost hearing in one ear.37
Another variant of a rendition case gained attention when the parents of Ahmed Omar Abu Ali, a U.S. citizen, alleged that their son was arrested by Saudi authorities in June 2003 while he was studying there, detained at the behest of U.S. authorities, and tortured during his twenty months in Saudi custody. In December 2004, a U.S. court rejected the governments motion to dismiss Abu Alis petition for habeas corpus, ruling that it might have jurisdiction over Abu Alis detention in Saudi Arabia if it could be established that the U.S. government had played a role in his detention by Saudi authorities. The federal courts ruling forced the Bush administration to take Abu Ali into U.S. custody and to bring criminal charges against him in February 2005.38 More recently, Abu Ali filed court papers alleging that he had been interrogated by FBI agents while in Saudi custody, that he informed the FBI that he was being subjected to torture by the Saudi authorities, and that the FBI agents did not respond to his allegations.39
Maher Arars case sits alongside these and other known cases of renditions to risk of torture. As in these cases, Arar was transferred to the custody of a government with a well-documented record of torture one amply documented by the U.S. government in its annual State Department country reports on human rights. While his rendition occurred following expedited immigration proceedings, the end result was much the same. Notwithstanding the absolute prohibition on sending persons to places where they are at risk of torture or ill-treatment, the United States delivered Maher Arar to the custody of a government that President George W. Bush would later criticize for leaving its people a legacy of torture and oppression.40
These cases challenge the Bush Administrations contention that its rendition policy is lawful and does not expose people to a risk of torture. Despite the dearth of information about renditions, there is mounting evidence that suspects transferred to the custody of other governments have in fact suffered torture and ill-treatment at the hands of their jailers a result that was wholly predictable given the poor human rights records of the receiving governments. These transfers violate the legal obligation of the United States and of any government not to deliver a person to the custody of another state where he or she is at risk of torture or other ill-treatment.
 See Strasser, ed., The 9/11 Investigations, p. 463.
 See Jehl and Johnson, Rule Change , New York Times. Compare, Dana Priest, CIAs Assurances on Transferred Suspects Doubted; Prisoners Say Countries Break No-Torture Pledges, Washington Post, March 17, 2005, p. A1, reporting the CIA has rendered more than 100 people since September 11, 2001.
 Jehl and Johnson, Rule Change , New York Times.
 See CBS 60 Minutes, CIA Flying Suspects to Torture? March 6, 2005 [online] http://www.cbsnews.com/stories/2005/03/04/60minutes/main678155.shtml (retrieved March 7, 2005); Jehl and Johnson, Rule Change , New York Times; Channel 4 TV (U.K.), Torture: The Dirty Business, (Part 3 of series on the U.S. governments war on terror and the implications for the global ban on torture), March 1, 2005, post-production transcript on file with Human Rights Watch, [online] http://www.channel4.com/news/microsites/T/torture/cases.html (retrieved March 8, 2005); Mayer, Outsourcing Torture, The New Yorker; Stephen Grey, CIA Prisoners Tortured in Arab Jails, File on 4, BBC Radio, February 8, 2005 [online] http://news.bbc.co.uk/1/hi/programmes/file_on_4/4246089.stm (retrieved February 15, 2005); Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (New York: Harper-Collins), September 2004.
 See e.g. Don van Natta, Jr., U.S. Recruits A Rough Ally To Be a Jailer, New York Times, May 1, 2005; Human Rights Watch Report, Still at Risk: Diplomatic Assurances No Safeguard Against Torture (April 2005), [online] http://hrw.org/reports/2005/eca0405 (retrieved May 5, 2005); Mayer, Outsourcing Torture, The New Yorker. Ahmed Nazif, Prime Minister of Egypt, confirmed that the United States has transferred terror suspects to Egypt. See David Morgan, U.S. has sent 60-70 terror suspects to Egypt PM, Reuters, May 15, 2005. Mr. Nazif added that he does not know the exact number, [t]he numbers vary. I have heard the number 60 or 70. Ibid.
 See United States Department of State Country Reports on Human Rights Practices for 2004, published on February 28, 2005, [online] http://www.state.gov/g/drl/rls/hrrpt/2004/index.htm (retrieved May 3, 2005).
 State Department Reports on Human Rights Practices for 2004, ibid. The report included the following information on other reported receiving countries in rendition cases:
Morocco: some members of the security forces tortured or otherwise abused detainees.
Saudi Arabia: authorities reportedly at times abused detainees, both citizens and foreigners. Ministry of Interior officials were responsible for most incidents of abuse of prisoners.
Jordan: police and security forces sometimes abused detainees during detention and interrogation, and allegedly also used torture. Allegations of torture were difficult to verify because the police and security officials frequently denied detainees timely access to lawyers.
Pakistan: Security force personnel continued to torture persons in custody throughout the country.
Uzbekistan: police and the NSS routinely tortured, beat, and otherwise mistreated detainees to obtain confessions or incriminating information Torture was common in prisons, pretrial facilities, and local police and security service precincts. Defendants in trials often claimed that their confessions, on which the prosecution based its cases, were extracted by torture (see Section 1.e.). In February 2003, the U.N. Special Rapporteur on Torture issued a report that concluded that torture or similar ill-treatment was systematic.
 Jehl and Johnson, Rule Change , New York Times.
 Letter from William J. Haynes II to Senator Patrick Leahy, June 25, 2003, [online] http://hrw.org/press/2003/06/letter-to-leahy.pdf (retrieved May 5, 2005). See also Letter of William J. Haynes II to Kenneth Roth, Executive Director of Human Rights, April 2, 2003, [online] http://www.hrw.org/press/2003/04/dodltr040203.pdf (retrieved May 5, 2005).
 According to press reports, Imad Moustafa, the charge d'affaires at the Syrian Embassy in Washington, denied Arar was tortured. Dana Priest, Top Justice Aid Approved Sending Suspect to Syria, Washington Post, November 19, 2003, page A28. Priest quotes Moustafa as saying, Syria had no reason to imprison Arar. He said U.S. intelligence officials told their Syrian counterparts that Arar was an al-Qaeda member. Syria agreed to take him as a favor and to win goodwill of the United States, he said. Ibid.
 Human Rights Watch, Black Hole, p. 17 (Human Rights Watch telephone interview, name withheld on request, January 2005).
 Mamdouh Habib, et al. v. George W. Bush, et al., Petitioners Memorandum of Points and Authorities in Support of His Application for Injunctive Relief (2004).
 See, for example, Raymond Bonner, Australians Long Path in the U.S. Antiterrorism Maze, New York Times, January 29, 2005, p. A4; Dana Priest, Detainee Sent Home to Australia, Washington Post, January 29, 2005, page A21.
 Priest, Detainee Sent Home to Australia, Washington Post.
 See Mayer, Outsourcing Torture, The New Yorker; Human Rights Watch, The United States Disappeared: The CIAs Long-Term Ghost Detainees, [Briefing Paper], October 2004, Annex 1 [online] http://www.hrw.org/backgrounder/usa/us1004/7.htm#_Toc84652978 (retrieved May 6, 2005).
 SeeTim Reid, Flight to torture: where abuse is contracted out, The Times, March 26, 2005, page 43; Mattias Karen, Report: Security police broke law allowing Americans handle extradition of Egyptians, Associated Press, March 22, 2005 (retrieved March 22, 2005).
 See The Broken Promise (English Transcript), Kalla Fakta, Swedish TV4, May 17, 2004 [online] http://hrw.org/english/docs/2004/05/17/sweden8620.htm (retrieved March 3, 2005); The Broken Promise, Part II (English Transcript), May 24, 2004 [online] http://hrw.org/english/docs/2004/05/24/sweden9219.htm (retrieved March 3, 2005); The Broken Promise, Part IV, (English Transcript), November 22, 2004 [online] http://hrw.org/english/docs/2004/11/22/sweden10351.htm (retrieved April 1, 2005).
 Mattias Karen, Report: Security police broke law allowing Americans handle extradition of Egyptians, Associated Press, March 22, 2005 (retrieved March 22, 2005).
 Chefsjustitieombudsmannen Mats Melin, Avvisning till Egypten - en granskning av Säkerhetspolisens verkställighet av ett regeringsbeslut om avvisning av två egyptiska medborgare [Expulsion to Egypt: A review of the execution by the Security Police of a government decision to expel two Egyptian citizens], Reference Number: 2169-2004, March 22, 2005, section 3.2.2, copy on file with Human Rights Watch.
 Human Rights Watch Report, Still at Risk: Diplomatic Assurances No Safeguard against Torture, April 2005, p. 58, [online] http://www.hrw.org/reports/2005/eca0405/ (retrieved May 6, 2005). See generally,ibid, pages57-63.
 See Craig Witlock, Europeans Investigate CIA Role in Abductions, Washington Post (March 13, 2005), pp. A1 and A 18.
 Stephen Grey, U.S. Agents Kidnapped Militant for Torture in Egypt, The Sunday Times (London), Feb. 6, 2005.
 See Editorial, Shame on Bush for Rights Violation, Newsday, February 27, 2005; Michael Isikoff, A Tangled Web, Newsweek, March 7, 2005. On February 22, 2005, Abu Ali was arraigned in U.S. District Court in Alexandria, Virginia, on charges of conspiracy to commit terrorism. For a detailed account of the case, see Elaine Cassel, The Strange Case of Ahmed Omar Abu Ali: Troubling Questions about the Governments Motives and Tactics, FindLaws Legal Commentary (March 7, 2005), at http://writ.news.findlaw.com/cassel/20050307.html [retrieved April 1, 2005]. For more information, see World Organization for Human Rights USA website at http://www.humanrightsusa.org.
 See Jerry Markon, Terror Suspect's Attorneys Link FBI to Alleged Torture by Saudis, Washington Post, May 11, 2005.
 Remarks by President George W. Bush at the Twentieth Anniversary of the National Endowment of Democracy, November 6, 2003 [online], http://www.ned.org/events/anniversary/oct1603-Bush.html (retrieved May 12, 2005).