America is about to go backwards on torture under Trump – and that doesn't just mean waterboarding

The US has been in the rendition business for decades, long before George W Bush

US President-elect Donald Trump (Getty Images)

Tuesday’s UK Supreme Court ruling, allowing two Libyans to sue the British government for alleged complicity in their rendition and torture by the CIA, takes us back to the dark days after 9/11 when America kidnapped people and handed them over to squalid foreign regimes, like Colonel Gaddafi’s or President Assad’s.

However, it has gone unnoticed that US President-elect Donald Trump looks set to continue renditions when he takes office in a few days. True, his cabinet nominees told Congress last week that they would not use torture, despite Trump’s calls for waterboarding and “a hell of a lot worse” on the campaign trail. But Mike Pompeo, his pick for CIA Director, has effectively confirmed that rendition will be an available policy. In response to written questions from Senators recently, he said that, if the CIA does conduct “rendition/transfers” of prisoners to foreign countries, he will seek “diplomatic assurances” from those countries that torture will not occur.

In other words, rendition is on the table. This isn’t surprising, because the US has been in the rendition business for decades, long before George W Bush came on the scene. It basically involves the extralegal transfer of prisoners from one country to another without going through formal extradition or deportation procedures.

There are two types of rendition. On the one hand, there are the less problematic “ordinary renditions”, when suspects are captured and brought to the US for trial. On the other, there are “extraordinary renditions”, when suspected terrorists are abducted and sent extrajudicially to third countries where they are often held in secret and mistreated.

“Ordinary renditions” are old, dating back to the mid-1980s, and, under certain conditions, comply with international law. “Extraordinary renditions”, by contrast, started more recently, under President Clinton in 1995, and are far more controversial due to the torture and indefinite detention they typically involve.

Bush intensified extraordinary renditions after 9/11. Perhaps the most famous case during his administration was the “Italian Job”, when CIA officers kidnapped the cleric Abu Omar off the streets of Milan in 2003 and flew him to Cairo, where he was held incommunicado and tortured by Egypt’s brutal mukhabarat.

The Bush team denied that torture was the purpose of these renditions, insisting it had diplomatic assurances that prisoners would be treated humanely. But, given the nature of the regimes in question (Assad’s Syria being one), these assurances were usually hollow, and abuse all but guaranteed.

To the surprise of many, President Obama continued renditions when he took office in 2009. However, there have been no “extraordinary renditions” to Egypt, Syria or elsewhere that we know of during his administration, only “ordinary renditions” when captives have been snatched abroad and flown back to the US for trial.

Similar to renditions, and more concerning for Obama’s record, are prisoner transfers. In Afghanistan, US and other coalition forces have handed detainees over to the Afghan intelligence service, the National Directorate of Security (NDS), where a substantial number have been vilely tortured according to UN reports in 2011 and 2013.

When the UN released its findings, coalition forces in Afghanistan quickly suspended prisoner transfers. But the CIA did not, and continued sending captives to NDS facilities where extreme torture was documented.

More recently it has been reported that Isis fighters caught with the aid of US special forces were tortured by Iraqi Kurds in 2015. The authors of the story, Shane Harris and Nancy Youssef, even go so far as to call the episode “reminiscent of the “rendition” program under Presidents Bill Clinton and George W. Bush.”

Then there is “proxy detention”, where foreign governments hold terror suspects at America’s behest. This practice, also known as “rendition-lite”, has seen a number of individuals arrested abroad, tortured by local security forces, and periodically interrogated by FBI agents since Obama took office in 2009. According to outgoing CIA Director John Brennan, proxy detention has been the agency’s preferred approach to holding captives under Obama. With the closing down of the CIA’s black sites, and the gradual emptying of Guantanamo, the US has increasingly outsourced its detention operations to third parties.

Congressman Mike Pompeo is known as a vocal opponent of President Obama's nuclear deal (AP)

Obama’s CIA has reportedly even used a “black site” in Somalia to interrogate captives in its fight against al-Shabab. The site was funded by the US, but managed and staffed by indigenous personnel, making it – in theory – a Somali operation. It appears prisoners were rendered there from other African nations and held in filthy conditions.

Maybe this “light footprint” strategy is an improvement. Surely it is better to let sovereign countries handle their own affairs. But the system could facilitate prisoner abuse by allowing the US and others to farm out their dirty work. Diplomatic assurances provide a degree of plausible deniability that torture was ever intended.

Whether Trump will outsource torture in this way, only time will tell. But, given the long and often sordid history of extraordinary renditions, we should remain vigilant.