[Congressional Record Volume 150, Number 16 (Tuesday, February 10, 2004)]
[Senate]
[Pages S781-S785]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         THE CASE OF MAHER ARAR

  Mr. LEAHY. Mr. President, I rise to speak about a very troubling case 
of rendition and alleged torture that became public last fall. This is 
the case of Maher Arar, a Canadian and Syrian citizen, who was deported 
from the United States to Syria last year, who was held and 
interrogated for months by the Syrians at the Bush administration's 
request, and who claims to have suffered torture while in custody 
there.
  Mr. Arar was stopped by immigration officers at John F. Kennedy 
International Airport in September 2002 as he attempted to change 
planes on his way home to Canada from Tunisia. He claims that he was 
interrogated by an FBI agent and a New York City police officer, and 
that he was denied access to a lawyer. He further claims that he 
repeatedly told U.S. officials that he feared he would be tortured if 
deported to Syria. After being held for nearly two weeks in a federal 
detention center in New York, Mr. Arar was transferred by U.S. 
authorities to Syria. Arar claims that he was physically tortured 
during the first two weeks of his detention in Syria, and that he was 
subjected to severe psychological abuse over the following ten months, 
including being held in a grave-like cell and being forced to undergo 
interrogation while hearing the screams of other prisoners.
  Syria has a well-documented history of state-sponsored torture. In 
fact, President Bush stated on November 7, 2003, that Syria has left 
``a legacy of torture, oppression, misery, and ruin'' to its people. 
Stories like Mr. Arar's are appalling and, if true, seriously

[[Page S782]]

damage our credibility as a responsible member of the international 
community.
  When unrelated allegations of rendition and possible breaches of the 
Convention Against Torture (``Torture Convention'') surfaced in the 
summer of 2003, I wrote to administration officials asking for 
guarantees that the United States is complying with its obligations 
under this Convention. I received a response from the General Counsel 
of the Department of Defense, William J. Haynes. His letter contained a 
welcome commitment by the administration that it is the policy of the 
United States to comply with all of its legal obligations under the 
Torture Convention. I wrote to Mr. Haynes again for clarification on a 
number of points, such as how the administration reconciled this 
statement of policy with reported acts of rendition and accusations of 
the use of interrogation techniques rising to or near the level of 
torture. After 2 months with no response, another letter, this one not 
from Haynes himself but from a subordinate, was delivered late at night 
on the eve of Mr. Haynes' November 19, 2003 confirmation hearing for a 
seat on the Fourth Circuit Court of Appeals. That letter was totally 
unresponsive to my questions.
  Because Mr. Arar claims that he was interrogated by an FBI agent, I 
wrote to FBI Director Mueller on November 17, 2003 for more information 
on the case. Later that week, when press accounts indicated that the 
deportation of Mr. Arar was approved by the Department of Justice 
(``DOJ''), I wrote to Attorney General Ashcroft to ask a number of 
additional questions. Neither of these letters has been answered.
  Administration officials claim that the CIA received assurances from 
Syria that it would not torture Mr. Arar, and yet, spokesmen for DOJ 
have not explained why they believed the Syrian assurances to be 
credible. Nor have they explained inconsistencies in statements coming 
from officials at different agencies. Although the administration has 
officially welcomed statements by the Syrian government that Mr. Arar 
was not tortured, other unnamed officials have been quoted in the press 
as saying that, while in captivity in Syria, Mr. Arar confessed under 
torture that he had gone to Afghanistan for terrorist training. I have 
asked DOJ to address that shocking contradiction and also to explain 
whether the United States has investigated Syria's alleged non-
compliance with any assurances it provided to the U.S. government.
  Whether or not Mr. Arar had ties to terrorist organizations, as is 
alleged by U.S. officials, or whether his confession was a false one 
produced by coercion, as he claims, he was subject to the legal 
protections provided by the Torture Convention, which the United States 
has ratified.
  Recently, the Canadian government announced a full inquiry into the 
deportation of Mr. Arar to Syria and his alleged torture there. This 
inquiry will also examine the role played by Canadian officials in the 
case to determine whether the Canadian government was complicit in the 
rendition of Mr. Arar. And just weeks ago, a non-profit organization, 
the Center for Constitutional Rights, filed a constitutional and human 
rights case on behalf of Mr. Arar with the U.S. District Court for the 
Eastern District of New York challenging the decision by federal 
officials to deport him to Syria. As the Washington Post editorialized 
on February 2, 2004, ``The government should be obliged to spell out 
how this decision came to be made and why.''
  I urge my colleagues to follow this Federal court case the Canadian 
inquiry closely. If the allegations by Mr. Arar are true, then our 
government has much to answer for. The case has already damaged our 
standing with foreign governments, many of which we have criticized in 
the past for relying on torture in interrogations. If the U.S. is 
``subcontracting'' interrogation of terrorism suspects to nations that 
bend the rules on torture, it undermines our reputation as a Nation of 
laws, it hurts our credibility in seeking to uphold human rights, and 
it invites others to use the same tactics.
  I ask unanimous consent to print the letters I mentioned and the 
Washington Post editorial in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Washington Post, February 2, 2004]

                           Mr. Arar's Lawsuit

       The Federal lawsuit filed last week by Maher Arar--the 
     Syrian-born Canadian whom the federal government deported to 
     Syria--offers a good opportunity to shed some light on one of 
     the more peculiar civil liberties cases to arise during the 
     war on terrorism. Mr. Arar and the U.S. government agree on 
     the barest outlines of his story: He was flying home from 
     Tunisia to Canada in the fall of 2002 on a path that took him 
     through New York. He had, however, been placed on the 
     terrorist watch list. When he presented his Canadian 
     passport, he was detained for more than a week and--despite 
     his pleas to be sent to Canada--was sent to Syria. There he 
     was held for 10 months until intervention by the Canadian 
     government secured his release.
       That is where agreement ends. Mr. Arar denies any 
     connection to al Qaeda. He claims to have been savagely 
     tortured in his country of birth. And he alleges that he was 
     sent to Syria, rather than to Canada, precisely so that he 
     would be tortured--to be precise, ``so that Syrian 
     authorities would interrogate him in ways that [American 
     officials] believed themselves unable to do directly.'' All 
     of which, if true, would violate this country's international 
     treaty obligations, which prohibit turning someone over to a 
     government likely to mistreat that person. In Canada, Mr. 
     Arar's case has become a cause, cited as an example of 
     American arrogance and contempt for Canada's interests and 
     citizens.
       The American government firmly--if vaguely--denies any 
     wrongdoing. It still claims that its information on Mr. Arar 
     was solid, though it refuses to release any of what it terms 
     ``sensitive national security information.'' Mr. Arar is a 
     member of al Qaeda, the Justice Department alleged in a 
     recent statement. Anonymous officials have been quoted in 
     press accounts saying that he was carrying a list of al Qaeda 
     operatives and that then-Deputy Attorney General Larry D. 
     Thompson signed an order certifying that returning Mr. Arar 
     to Canada would be ``prejudicial to the interests of the 
     United States.'' The department says that Mr. Arar's 
     deportation to Syria was ``fully within the law and 
     applicable international treaties and conventions.'' Far from 
     intending that Syria would torture him, in fact, the 
     department claims that it was ``provided with reliable 
     assurances that Mr. Arar would be treated humanely.''
       There are two questions that we hope this litigation would 
     shed light upon. The first is whether Mr. Arar was, in fact, 
     a would-be-terrorist. The second is why he was sent to a 
     country known for abusing human rights, instead of being sent 
     to Canada or detained here as an enemy combatant. What was 
     the goal, if not to delegate to the Syrians torture that 
     American authorities cannot engage in? At the least, the 
     government should be obliged to spell out how this decision 
     came to be made and why.
                                  ____



                                                  U.S. Senate,

                                     Washington, DC, June 2, 2003.
     Hon. Condoleezza Rice,
     National Security Adviser, The White House,
     Washington, DC.
       Dear Dr. Rice: Over the past several months, unnamed 
     Administration officials have suggested in several press 
     accounts that detainees held by the United States in the war 
     on terrorism have been subjected to ``stress and duress'' 
     interrogation techniques, including beatings, lengthy sleep 
     and food deprivation, and being shackled in painful positions 
     for extended periods of time. Our understanding is that these 
     statements pertain in particular to interrogations conducted 
     by the Central Intelligence Agency in Afghanistan and other 
     locations outside the United States. Officials have also 
     stated that detainees have been transferred for interrogation 
     to governments that routinely torture prisoners.
       These assertions have been reported extensively in the 
     international media in ways that could undermine the 
     credibility of American efforts to combat torture and promote 
     the rule of law, particularly in the Islamic world.
       I appreciate President Bush's statement, during his recent 
     meeting with U.N. High Commissioner for Human Rights Sergio 
     De Mello, that the United States does not, as a matter of 
     policy, practice torture. I also commend the Administration 
     for its willingness to meet with and respond to the concerns 
     of leading human rights organizations about reports of 
     mistreatment of detainees. At the same time, I believe the 
     Administration's response thus far, including in a recent 
     letter to Human Rights Watch from Department of Defense 
     General Counsel William Haynes, while helpful, leaves 
     important questions unanswered.
       The Administration understandably does not wish to 
     catalogue the interrogation techniques used by U.S. personnel 
     in fighting international terrorism. But it should affirm 
     with clarity that America upholds in practice the laws that 
     prohibit the specific forms of mistreatment reported in 
     recent months. The need for a clear and thorough response 
     from the Administration is all the greater because reports of 
     mistreatment initially arose not from outside complaints, but 
     from statements made by administration officials themselves.
       With that in mind, I would appreciate your answers to the 
     following questions:

[[Page S783]]

       First, Mr. Haynes' letter states that when questioning 
     enemy combatants, U.S. personnel are required to follow 
     ``applicable laws prohibiting torture.'' What are those laws? 
     Given that the United States has ratified the Convention 
     Against Torture and Other Forms of Cruel, Inhuman or 
     Degrading Treatment or Punishment (CAT), is this Convention 
     one of those laws, and does it bind U.S. personnel both 
     inside and outside the United States?
       Second, does the Administration accept that the United 
     States has a specific obligation under the CAT not to engage 
     in cruel, inhuman and degrading treatment?
       Third, when the United States ratified the CAT, it entered 
     a reservation regarding its prohibition on cruel, inhuman and 
     degrading treatment, stating that it interprets this term to 
     mean ``the cruel, unusual and inhumane treatment or 
     punishment prohibited by the 5th, 8th, and/or 14th amendments 
     to the Constitution.'' Are all U.S. interrogations of enemy 
     combatants conducted in a manner consistent with this 
     reservation?
       Fourth, in its annual Country Reports on Human Rights 
     Practices, the State Department has repeatedly condemned many 
     of the same ``stress and duress'' interrogation techniques 
     that U.S. personnel are alleged to have used in Afghanistan. 
     Can you confirm that the United States is not employing the 
     specific methods of interrogation that the State Department 
     has condemned in countries such as Egypt, Iran, Eritrea, 
     Libya, Jordan and Burma?
       Fifth, the Defense Department acknowledged in March that it 
     was investigating the deaths from blunt force injury of two 
     detainees who were held at a Bagram air base in Afghanistan. 
     What is the status of that investigation and when do you 
     expect it to be completed? Has the Defense Department or the 
     CIA investigated any other allegations of torture or 
     mistreatment of detainees, and if so, with what result? What 
     steps would be taken if any U.S. personnel were found to have 
     engaged in unlawful conduct?
       Finally, Mr. Haynes' letter offers a welcome clarification 
     that when detainees are transferred to other countries, 
     ``U.S. Government instructions are to seek and obtain 
     appropriate assurances that such enemy combatants are not 
     tortured.'' How does the administration follow up to 
     determine if these pledges of humane treatment are honored in 
     practice, particularly when the governments in question are 
     known to practice torture?
       I believe these questions can be answered without revealing 
     sensitive information or in any way undermining the fight 
     against international terrorism. Defeating terrorism is a 
     national security priority, and no one questions the 
     imperative of subjecting captured terrorists to thorough and 
     aggressive interrogations consistent with the law.
       The challenge is to carry on this fight while upholding the 
     values and laws that distinguish us from the enemy we are 
     fighting. As President Bush has said, America is not merely 
     struggling to defeat a terrible evil, but to uphold ``the 
     permanent rights and the hopes of mankind.'' I hope you agree 
     that clarity on this fundamental question of human rights and 
     human dignity is vital to that larger struggle.
       Thank you for your assistance.
           Sincerely,
                                                    Patrick Leahy,
     U.S. Senator.
                                  ____

                                            General Counsel of the


                                        Department of Defense,

                                    Washington, DC, June 25, 2003.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: I am writing in response to your June 
     2, 2003, letter to Dr. Rice raising a number of legal 
     questions regarding the treatment of detainees held by the 
     United States in the wake of the September 11, 2001, attacks 
     on the United States and in this Nation's war on terrorists 
     of global reach. We appreciate and fully share your concern 
     for ensuring that in the conduct of this war against a 
     ruthless and unprincipled foe, the United States does not 
     compromise its commitment to human rights in accordance with 
     the law.
       In response to your specific inquiries, we can assure you 
     that it is the policy of the United States to comply with all 
     of its legal obligations in its treatment of detainees, and 
     in particular with legal obligations prohibiting torture. Its 
     obligations include conducting interrogations in a manner 
     that is consistent with the Convention Against Torture and 
     Other Cruel, Inhuman, or Degrading Treatment or Punishment 
     (``CAT'') as ratified by the United States in 1994. And it 
     includes compliance with the Federal anti-torture statute, 18 
     U.S.C.. Sec. Sec. 2340-2340A, which Congress enacted to 
     fulfill U.S. obligations under the CAT. The United States 
     does not permit, tolerate or condone any such torture by its 
     employees under any circumstances.
       Under Article 16 of the CAT, the United States also has an 
     obligation to ``undertake . . . to prevent other acts of 
     cruel, inhuman, or degrading treatment or punishment which do 
     not amount to torture.'' As you noted, because the terms in 
     Article 16 are not defined, the United States ratified the 
     CAT with a reservation to this provision. This reservation 
     supplies an important definition for the term ``cruel, 
     inhuman, or degrading treatment or punishment.'' 
     Specifically, this reservation provides that ``the United 
     States considers itself bound by the obligation under article 
     16 to prevent, `cruel, inhuman or degrading treatment or 
     punishment' only in so far as the term `cruel, inhuman or 
     degrading treatment or punishment' means the cruel, unusual 
     and inhumane treatment or punishment prohibited by the Fifth, 
     Eighth, and/or Fourteenth Amendments to the Constitution of 
     the United States.'' United States policy is to treat all 
     detainees and conduct all interrogations, wherever they may 
     occur, in a manner consistent with this commitment.
       As your letter stated, it would not be appropriate to 
     catalogue the interrogation techniques used by U.S. personnel 
     in fighting international terrorism, and thus we cannot 
     comment on specific cases or practices. We can assure you, 
     however, that credible allegations of illegal conduct by U.S. 
     personnel will be investigated and, as appropriate, reported 
     to proper authorities. In this connection, the Department of 
     Defense investigation into the deaths at Bagram, Afghanistan, 
     is still in progress. Should any investigation indicate that 
     illegal conduct has occurred, the appropriate authorities 
     would have a duty to take action to ensure that any 
     individuals responsible are held accountable in accordance 
     with the law.
       With respect to Article 3 of the CAT, the United States 
     does not ``expel, return (`refouler') or extradite'' 
     individuals to other countries where the U.S. believes it is 
     ``more likely than not'' that they will be tortured. 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. We 
     can assure you that the United States would take steps to 
     investigate credible allegations of torture and take 
     appropriate action if there were reason to believe that those 
     assurances were not being honored.
       In closing, I want to express my appreciation for your 
     thoughtful questions. We are committed to protecting the 
     people of this Nation as well as to upholding its fundamental 
     values under the law.
           Sincerely,
     William J. Haynes II.
                                  ____



                                                  U.S. Senate,

                                Washington, DC, September 9, 2003.
     William J. Haynes II,
     General Counsel, Department of Defense,
     Defense Pentagon, Washington, DC.
       Dear Mr. Haynes: Thank you for your June 25, 2003, letter 
     concerning U.S. policy with regard to the treatment of 
     detainees held by the United States.
        I very much appreciate your clear statement that it is the 
     policy of the United States to comply with all of its legal 
     obligations under the Convention Against Torture and Other 
     Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). I 
     also welcome your statement that it is United States policy 
     to treat all detainees and conduct all interrogations, 
     wherever they may occur, in a manner consistent with our 
     government's obligation, under Article 16 of the CAT, ``to 
     prevent other acts of cruel, inhuman, or degrading treatment 
     or punishment'' as prohibited under the Fifth, Eighth, and 
     Fourteenth Amendments to the U.S. Constitution.
        This statement of policy rules out the use of many of the 
     ``stress and duress'' interrogation techniques that have been 
     alleged in press reports over the last several months, 
     including beatings, lengthy sleep and food deprivation, and 
     shackling detainees in painful positions for extended periods 
     of time. It should also go a long way towards answering 
     concerns that have been expressed by our friends overseas 
     about the treatment of detainees in U.S. custody. It should 
     strengthen our nation's ability to lead by example in the 
     protection of human rights around the world, and our ability 
     to protect Americans, including our service members, should 
     they be detained abroad.
        At the same time, the ultimate credibility of this policy 
     will depend on its implementation by U.S. personnel around 
     the world. In that spirit, I would appreciate it if you could 
     clarify how the administration's policy to comply with the 
     CAT is communicated to those personnel directly involved in 
     detention and interrogation? As you note in your letter, the 
     U.S. obligation under Article 16 of the CAT is to ``undertake 
     . . . to prevent'' cruel, inhuman or degrading treatment or 
     punishment. What is the administration doing to prevent 
     violations? Have any recent directives regulations or general 
     orders been issued to implement the policy your June 25 
     letter describes? If so, I would appreciate receiving a copy.
       I understand that interrogations conducted by the U.S. 
     military are governed at least in part by Field Manual 34-52, 
     which prohibits ``the use of force, mental torture, threats, 
     insults, or exposure to unpleasant and inhumane treatment of 
     any kind.'' This field manual rightly stresses that ``the use 
     of force is a poor technique, as it yields unreliable 
     results, may damage subsequent collection efforts, and can 
     induce the source to say whatever he thinks the interrogator 
     wants to hear.'' Are there further guidelines that in any way 
     add to, define, or limit the prohibitions contained in this 
     field manual? What mechanisms exist for ensuring compliance 
     with these guidelines?
        Most important, I hope you can assure me that 
     interrogators working for other agencies, including the CIA, 
     operate from the same guidelines as the Department of 
     Defense. If CIA or other interrogation guidelines in use by 
     any person working for or on behalf of the U.S. government 
     differ, could you clarify how, and why?

[[Page S784]]

        I am pleased that before handing over detainees for 
     interrogation to third countries, the United States obtains 
     specific assurances that they will not be tortured. I remain 
     concerned, however, that mere assurances from countries that 
     are known to practice torture systematically are not 
     sufficient. While you state that the United States would 
     follow up on any credible information that such detainees 
     have been mistreated, how would such information emerge if no 
     outsiders have access to these detainees? Has the 
     administration considered seeking assurances that an 
     organization such as the International Committee for the Red 
     Cross have access to detainees after they have been turned 
     over? If not, I urge you to do so.
        Finally, has the administration followed up on specific 
     allegations reported in the press that such detainees may 
     have been tortured, including claims regarding a German 
     citizen sent to Syria in 2001, and statements by former CIA 
     official Vincent Cannistrano concerning an al-Qaeda detainee 
     sent from Guantanamo to Egypt (see enclosed articles)?
        Thank you again for your response to my last letter.
           With best regards,
                                                    Patrick Leahy,
     U.S. Senator.
                                  ____

                                            Department of Defense,


                                    Office of General Counsel,

                                Washington, DC, November 18, 2003.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: I am responding to your September 9, 
     2003 letter, which follows up on the June 25, 2003 letter 
     from Mr. Haynes concerning U.S. policy on the treatment of 
     detainees held by the United States in the war on terrorism. 
     The earlier letter to you and an April 2, 2003 letter to the 
     Executive Director of Human Rights Watch (enclosed) contain 
     precise statements of U.S. policy. As statements of U.S. 
     policy, they reflect the policy applicable to the Executive 
     Branch.
       Your letter inquired about Department of Defense (DoD) 
     implementation of the policy described in the June 25 letter. 
     The Department takes its compliance with U.S. obligations 
     very seriously. For that reason, the Department has a Law of 
     War Program, which is governed by DoD directive 5100.77 
     (December 9, 1998), a copy of which is enclosed. That 
     Directive, among other things, provides that it is DoD policy 
     to ensure that DoD components observe the law of war 
     obligations of the United States, and that those components 
     implement an effective program to prevent violations of the 
     law of war. Through the Law of War Program, the Department 
     seeks to prevent law of war violations through training and 
     by instructing DoD personnel about U.S. obligations, and 
     ensuring that qualified legal advisers are available at all 
     levels of command to provide advice on compliance with the 
     law of war.
       Moreover, DoD personnel are instructed to report 
     allegations of mistreatment of or injuries to detained enemy 
     combatants through normal command channels for ultimate 
     transmission to appropriate authorities. Individual military 
     personnel bear a responsibility to ensure their compliance. 
     Commanding officers carry the additional responsibility to be 
     aware of and to direct the conduct of the men and women under 
     their command in order to, among other things, ensure their 
     compliance with U.S. obligations in matters such as the 
     treatment of those detained in an armed conflict. Although 
     our principal institutional focus is, as it should be, on 
     compliance with the law of war and avoiding and preventing 
     violations of it, DoD also has an effective military criminal 
     justice system for detecting, investigating, prosecuting, and 
     punishing misconduct by military personnel should it occur.
       Your letter also asked whether follow-up had occurred 
     regarding allegations appearing in stories in the Washington 
     Post on January 31, 2003, in Newsday on February 6, 2003, and 
     in the Los Angeles Times on March 3, 2003. With respect to 
     the first story, it does not allege unlawful activity by any 
     U.S. official because participation in questioning abroad and 
     knowledge of transfers to third countries, without more, do 
     not contravene the law. With respect to the second story, the 
     allegations of improper treatment it contains are by an 
     individual who has not been a Central Intelligence Agency 
     employee since well before 2001. With respect to the final 
     story, the unnamed sources are quoted as saying that they did 
     not know details, but they nevertheless then speculated about 
     what was happening. To the extent that it might be possible 
     to construe the latter two stories as containing allegations 
     about the treatment of individuals while outside military 
     control, I understand that the Office of the Director of 
     Central Intelligence (DCI) has copies of these articles and 
     is responsible for appropriate action.
       Please allow me to emphasize that press stories often 
     contain allegations that are untrue, and that my mention of 
     the office of the DCI indicates nothing concerning the merits 
     of those allegations and it does not express a view 
     concerning what action might be appropriate.
       I appreciate very much the opportunity to address your 
     concerns. The Administration is committed to carrying out the 
     law as we continue our dedicated efforts to protect Americans 
     from terrorism.
           Sincerely,
                                              Daniel J. Dell'Orto,
     Principal Deputy General Counsel.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, November 17, 2003.
     Hon. Robert S. Mueller,
     Director, Federal Bureau of Investigation,
     Washington, DC.
       Dear Director Mueller: I am writing to inquire about the 
     role the FBI may have played in the extraordinary rendition 
     of Maher Arar, a Canadian and Syrian citizen, from the United 
     States to Syria last year.
       Press reports indicate that Mr. Arar was stopped by 
     immigration officers at John F. Kennedy International Airport 
     as he attempted to change planes on his way home to Canada 
     from Tunisia. Mr. Arar claims that he was then interrogated 
     by an FBI agent and a New York City police officer. He 
     further claims that, ``They told me I had no right to a 
     lawyer because I was not an American citizen,'' and that he 
     repeatedly told U.S. officials that he feared he would be 
     tortured if returned to Syria. ``Deported Terror Suspect 
     Details Torture in Syria,'' Washington Post, November 5, 
     2003. After being held for nearly two weeks in a federal 
     detention center, Mr. Arar alleges that he was then handed 
     over to U.S. intelligence officials who flew him to Jordan 
     and turned him over to Jordanian authorities, who beat him. 
     He was then taken to Syria, where he was detained and 
     allegedly tortured over a period of ten months.
       While the Bush administration officially denies engaging in 
     extraordinary renditions of this sort, numerous unnamed 
     intelligence officials have admitted to the press that 
     renditions have occurred, purportedly under a ``secret 
     rendition policy.'' Id. This policy was described as ``a 
     secret presidential `finding' authorizing the CIA to place 
     suspects in foreign hands without due process.'' Id.
       I find Mr. Arar's claims and the underlying rendition 
     policy deeply troubling and would like information on the 
     role of the FBI, if any, in this case.
       1. Under what specific authority was Mr. Arar detained, 
     first at the airport and then at the federal detention center 
     in Brooklyn?
       2. Is it true that one or more FBI agents interrogated Mr. 
     Arar after he was detained by immigration officers at JFK 
     airport?
       3. If so, is it true that Mr. Arar was denied access to 
     counsel?
       4. Did the FBI participate in any manner in the transfer of 
     Mr. Arar to Washington, D.C., Jordan, Syria, or to any other 
     location?
       5. An intelligence official is quoted in the Washington 
     Post story as saying, ``The Justice Department did not have 
     enough evidence to detain him when he landed in the United 
     States.'' If this is true and if, as has also been reported 
     in the press, U.S. officials were in contact with Canadian 
     authorities, why did the FBI and/or other officials choose 
     not to turn Arar over to Canadian authorities?
       6. In a June 25, 2003, letter to me on the subject of 
     rendition and other matters, the U.S. Defense Department 
     General Counsel, William Haynes, stated that the ``United 
     States policy is to obtain specific assurances from the 
     receiving country that it will not torture the individual 
     being transferred to that country.'' Did the United States 
     seek assurances from Jordan and/or Syria that Mr. Arar would 
     not be subject to torture, or to cruel, or inhuman, or 
     degrading treatment or punishment while in the custody of 
     either nation? If so, what steps did the United States take 
     after his rendition to assess compliance with such assurances 
     in this case? Were the assurances provided in writing? If so, 
     please provide a copy to the Committee. If such a document is 
     classified, please arrange for cleared staff to view it. If 
     no assurances were obtained, please explain why not.
       7. Under U.S. law, non-citizens who express concerns about 
     torture if removed are entitled to an evaluation of their 
     claim before being removed. Under the specific regulations 
     that were likely applied to Mr. Arar's removal, there is an 
     explicit prohibition against returning someone to a country 
     where there are substantial grounds for believing he would be 
     subjected to torture. What process was used, if any, to 
     evaluate the likelihood that Mr. Arar would be subjected to 
     torture before removing him to Syria?
       8. Are you aware of a ``secret presidential 'finding' 
     authorizing the CIA to place suspects in foreign hands 
     without due process''? If so, please provide a copy to the 
     Committee. If such a document is classified, please arrange 
     for cleared staff to view it.
       9. Has the FBI participated in any other alleged 
     renditions, including interviewing and then handing suspects 
     over to intelligence officers for transfer to another 
     country?
       Thank you for your prompt answers to these questions.
           Sincerely,
                                                    Patrick Leahy,
     U.S. Senator.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, November 21, 2003.
     Hon. John Ashcroft,
     Attorney General, Department of Justice,
     Washington, DC.
       Dear Attorney General Ashcroft: I am writing to inquire 
     about the rendition of Maher Arar, a Canadian and Syrian 
     citizen, from the United States to Syria last year.
       I wrote to FBI Director Robert Mueller about this case on 
     Monday, November 17. (See attached). Since that time, 
     additional

[[Page S785]]

     information on this case has been provided to the press, 
     mainly in statements by unnamed administration officials, but 
     also by Department of Justice (DOJ) spokespersons.
       Washington Post articles indicate that the deportation of 
     Mr. Arar was approved on October 7, 2002, by then-Deputy 
     Attorney General Larry Thompson, who signed the order in his 
     capacity as Acting Attorney General. ``Man Was Deported After 
     Syrian Assurances,'' Washington Post, November 20, 2003 
     [hereinafter Washington Post, Nov. 20, 2003]; ``Top Justice 
     Aide Approved Sending Suspect to Syria,'' Washington Post, 
     November 19, 2003. The same story states that U.S. officials 
     ``decided to send [Arar] to Syria last year only after the 
     CIA received assurances from Syria that it would not torture 
     the man.'' Washington Post, Nov. 20, 2003. And yet, 
     ``spokesmen at the Department of Justice declined to comment 
     on why they believed the Syrian assurances to be credible.'' 
     Id.
       Mr. Arar claims that he was, in fact, tortured while in 
     Syrian custody. The Syrian government has denied that Arar 
     was subjected to torture, but statements from U.S. officials 
     contradict that assertion. In a November 15 New York Times 
     article, ``American officials who spoke on condition of 
     anonymity,'' were quoted as saying that Arar ``confessed 
     under torture in Syria that he had gone to Afghanistan for 
     terrorist training, named his instructors and gave other 
     intimate details.'' ``Qaeda Pawn, U.S. Calls Him. Victim, He 
     Calls Himself,'' New York Times, November 15, 2003 (emphasis 
     added). I find this statement to be shocking in light of the 
     administration's assertions that it acted within the scope of 
     its international treaty obligations.
       Mr. Arar claims to have stated repeatedly to his U.S. 
     interrogators that he feared torture at the hands of the 
     Syrian government. Whether or not Mr. Arar had ties to 
     terrorist organizations, as is alleged by U.S. officials, or 
     whether his confession was a false one produced by coercion, 
     as he claims, he was subject to the legal protections 
     provided by the Convention Against Torture, which the United 
     States has ratified.
       The statements by Mr. Arar and the unnamed sources in the 
     New York Times article cited above beg the question of 
     whether the United States has investigated Syria's alleged 
     non-compliance with any assurances it provided to the U.S. 
     government. This question is especially critical in light of 
     President Bush's statement on November 7, 2003, that Syria 
     has left ``a legacy of torture, oppression, misery, and 
     ruin'' to its people.
       In light of the above facts and assertions, I request that 
     you provide detailed answers to the following questions:
       1. Under what specific authority was Mr. Arar detained, 
     first at John F. Kennedy Airport and then at the federal 
     detention center in Brooklyn, New York?
       2. Is it true that Mr. Arar was denied access to counsel, 
     as he claims?
       3. An intelligence official is quoted in a November 5 
     Washington Post story as saying, ``The Justice Department did 
     not have enough evidence to detain him when he landed in the 
     United States.'' ``Deported Terror Suspect Details Torture in 
     Syria,'' Washington Post, November 5, 2003. It has also been 
     reported that U.S. officials were in contact with Canadian 
     authorities regarding this case. Given that Mr. Arar, a 
     Canadian citizen, resides in Canada and was traveling home to 
     Canada when he was detained at the airport, why did the 
     officials choose not to turn Arar over to Canadian 
     authorities?
       4. Did you become aware of Mr. Arar's case at any point 
     between his detention on September 26, 2002, and October 7, 
     2002, the date the deportation order was signed by Mr. 
     Thompson? Did Mr. Thompson, who was serving as Acting 
     Attorney General when he signed the order, consult with you 
     before signing the order? Did you approve this action?
       5. In a June 25, 2003, letter to me on the subject of 
     rendition and other matters, the U.S. Defense Department 
     General Counsel, William Haynes, stated that the ``United 
     States policy is to obtain specific assurances from the 
     receiving country that it will not torture the individual 
     being transferred to that country.'' The November 20 
     Washington Post article cited above confirms that assurances 
     were obtained from Syria. What was the scope of such 
     assurances? Were they provided to the U.S. government in 
     writing? If so, please provide a copy to the Committee. If 
     such a document is classified, please arrange for cleared 
     staff to view it. If the assurances were not provided in 
     writing, please explain why written assurances were not 
     sought or provided.
       6. What steps did the United States after Arar's rendition 
     to assess compliance with the assurances provided by Syria in 
     this case?
       7. Is the statement of an unnamed official above that Arar 
     ``confessed under torture'' accurate? If so, then Syria's 
     actions violated the assurances provided to the U.S. before 
     Arar's rendition. What has the U.S. done (a) to investigate 
     such non-compliance and (b) to hold Syria accountable for 
     such violations.
       8. Under U.S. law, non-citizens who express concerns about 
     torture if removed are entitled to an evaluation of their 
     claim before being removed. Under the specific regulations 
     that were likely applied to Mr. Arar's removal, there is an 
     explicit prohibition against returning someone to a country 
     where there are substantial grounds for believing he would be 
     subject to torture. What process was used, if any, to 
     evaluate the likelihood that Mr. Arar would be subjected to 
     torture before removing him to Syria?
       9. According to the November 5 Washington Post article 
     cited in question 3, numerous unnamed intelligence officials 
     have admitted to the press that renditions have occurred, 
     purportedly under a ``secret rendition policy.'' This policy 
     was described as ``a secret presidential `finding' 
     authorizing the CIA to place suspects in foreign hands 
     without due process.'' Are you aware of a ``secret 
     presidential `finding' authorizing the CIA to place suspects 
     in foreign hands without due process''? If so, please provide 
     a copy to the Committee. If such a document is classified, 
     please arrange for cleared staff to view it.
       10. Has the FBI or DOJ authorized or participated in any 
     other alleged renditions, including interviewing and then 
     handing suspects over to intelligence officers for transfer 
     to another country?
       11. In its effort to fight terrorism, the administration 
     has focused on individuals who have connections to Al Qaeda 
     that need to be further explored, and has argued that it has 
     the right to detain and interrogate prisoners in Guantanamo 
     Bay, perhaps as unlawful combatants or enemy combatants, as 
     long ``as it is necessary to help win the war against the Al 
     Qaeda network and its allies.'' Washington Post, ```High 
     Court Will Hear Appeals From Guantanamo Prisoners,'' November 
     11, 2003. Notwithstanding my concerns about the legal status 
     of those detained at Guantanamo, and the administration's 
     treatment of enemy combatants in general, it would seem that 
     Mr. Arar fit the classic administration profile for someone 
     who should be detained in Guantanamo. Presumably, Mr. Arar 
     would have been safer in detention at Guantanamo Bay than in 
     Syria.
       a. Was the option to detain Arar as an enemy combatant in 
     Guantanamo Bay considered and rejected in favor of rendition 
     to Syria? If so, on what basis was the decision made to send 
     him to Syria?
       b. Where there is more than one destination country to 
     which detainees may be rendered, do you believe there should 
     be a policy to render detainees to the country where torture 
     is least likely (e.g., a country that does not have a history 
     of documented humanitarian abuses)?
       c. What is the standard applied by the administration in 
     determining whether to deport an individual, transfer the 
     individual to custody at Guantanamo Bay, or to charge the 
     individual with a crime?
       Thank you for your prompt answers to these questions.
           Sincerely,
                                                    Patrick Leahy,
     U.S. Senator.

                          ____________________