Extraordinary Rendition
The Costs of Extraordinary Rendition
On September 6, 2006, President Bush openly admitted that the CIA, under his authorization, had been operating secret detention centers at sites abroad for the previous five years (Elsea & Kim, 2007). Suspected terrorists, including anyone else suspected of having relevant information, were covertly transferred to these sites and then interrogated under pressure to provide information that the Bush Administration feels is vital. The existence of these secret detention facilities outside of UNITED STATES jurisdiction and purview is troubling enough. But the process by which suspects are placed into this system of detention facilities is even more unnerving.
In order to secretly populate these CIA prisons — or black sites — with suspected terrorists, the Bush Administration employed a process known as extraordinary rendition. Extraordinary rendition amounts to kidnapping foreign nationals and delivering them into facilities under the jurisdiction of a third party (Weaver and Pallitto, 2006). It has been demonstrated that suspects transferred in such a fashion are quite often tortured for information and treated in ways that violate basic human rights, international treaties, and UNITED STATES law. Conveniently for the UNITED STATES government, suspects are sent to nations such as Syria or Egypt where torture is common practice. In fact, it would seem that the only nations to which the United States routinely transfers suspects through extraordinary renditions are those nations that have terrible human rights records. It may well be that the UNITED STATES government has not specific intention of using torture against these suspects, but it should be readily apparent that they are more than willing to reserve the capacity to use torture if the need should arise. If the situation were otherwise, then we should expect any suspect captured to be openly and legally transferred to UNITED STATES detention facilities where their treatment and interrogations could be controlled and monitored under UNITED STATES law.
If that were the situation, then the UNITED STATES would be practicing conventional renditions on these suspects under international treaties that allow for the extradition of prisoners to other nations to be tried for their crimes. Conventional renditions occur all the time. Any time a prisoner is extradited to another nation’s jurisdiction, that prisoner has been effectively rendered into that state’s custody. Rendition, thus, are common and entirely legal both nationally and internationally. What makes extraordinary renditions different is their use of covert force instead of a legal process to transfer suspects from one nation to another for detention and interrogation (Parry, 2005). The extralegal nature of extraordinary renditions complicates the issue. By referencing conventional renditions, the Bush Administration is attempting to use a trick of linguistics to imply that extraordinary renditions are as legal and appropriate as conventional renditions. But this tactic amounts to sugarcoating an illegal and indefensible practice. Purposefully using force to transport suspects to sites where they will be more than likely tortured cannot be misconstrued as a legal, ethical, or appropriate method for fighting terrorism (Huq, 2006; Gutierrez, 2006). Instead the practice represents a significant violation of civil and human rights by the United States.
The purpose of this study is to examine the practice of extraordinary renditions within an historical and legal context. The possibility of using methods like extraordinary renditions has come up before in UNITED STATES history, and it is enlightening to examine the reasons why the practice was summarily dismissed as untenable. Despite an historical tradition of eschewing the practice of extraordinary renditions, there has been an extreme increase in their use since the September 11th terrorist attacks. Starting almost immediately after that moment in UNITED STATES history, the Bush Administration has quietly, though persistently, pursued the use of extraordinary renditions of terrorist suspects. When placed alongside the historical anathema of extraordinary renditions in the United States, the sudden intensification of their use in the last six years is incredibly dramatic. Considering cases such as Maher Arar and others will put a human face on the use of extraordinary renditions and demonstrate how they violate pretty much every legal and ideological standard most Americans equate with the United States.
Within this modern context of presidential fiat and zero governmental accountability, I will present a discussion of the legal implications of extraordinary renditions. Specifically, what arguments are used to support the practice, and how does its continuing use threaten the very fabric of legal democracy and rule of law in the United States and in the world? Finding answers to these questions is the most important first step we can take regarding extraordinary renditions; permitting the continued abuse and torture of individuals who have been convicted of no crime is entirely unacceptable. The use of extraordinary rendition represents a significant black mark for the United States’ efforts to combat terrorism and maintain credible legal footing in the international community. From a domestic standpoint, the use of extraordinary renditions poses a potential threat to the civil rights of United States citizens by taking the position that human and civil rights can be denied by the government if the government feels that the situation warrants such a denial.
Historical Context of UNITED STATES Renditions
Though extraordinary renditions have become famous thanks to their use by the United States government in the past several years, the practice was not invented by the United States. The first recorded instance can be traced back to 1694 in England. A suspect in a plot against Charles II was believed to possess information about the plot and potentially about future plots against the king. Unwilling to talk, the investigators felt the matter was too important to be left to the ordinary legal channels. Unfortunately, torture had been outlawed in England in 1640, making it technically impossible to force the individual to talk. Consequently, the prisoner was transferred to Scotland, which wouldn’t outlaw torture until 1708 — fourteen years later. Sent to Scotland, the prisoner was tortured for information by whatever means the investigators thought necessary (Rifkind, 2006).
The innocence or guilt of this individual is not at issue. Of concern is the fact that the English government was willing to supersede the rule of law in order to serve its own interests. We might argue that the torture might have been appropriate, if the prisoner divulged some crucial information. The problem, however, is that said individual was only a suspect in the plot — confirmation could only come through torture. The modern practice of extraordinary rendition runs along similar lines: send suspects to other nations where they can be tortured for information to find out if they are terrorists or if they have any information about terrorists. In lieu of actually finding evidence or investigating the issue, the Bush Administration has granted the government — specifically the CIA — the ability to send suspects to be tortured based solely on strong suspicions instead of evidence. This power is significant, both for its broadness and for its complete disjunction with the body of historical and legal evidence against the use of extraordinary renditions in the United States.
In the United States, torture is widely understood to be not only illegal but also wholly unconstitutional (Parry, 2005). The prohibition against cruel and unusual treatment is purportedly held to be one of the sacrosanct values of the United States, a value that the government is charged with protecting. Looking back at the sweep of American history, we find that by and large the United States government has protected this value. Over time, the determinations of different administrations and of the judiciary have remained remarkably consistent. Consider some of the cases that have occurred in that time. For instance, at “the founding of the United States, the understanding was that the president had no authority to render a person to a foreign jurisdiction without acting pursuant to a treaty and, if a non-self-executing treaty, without the authority of enabling legislation” (Weaver and Pallitto, 2006: p. 103-104). In 1793, when he was Secretary of State, Thomas Jefferson denied a request by the French minister to the UNITED STATES who wanted rendition of certain individuals who were engaged in war against France. Without a preexisting treaty agreement, Jefferson operated under the Constitutional premise that even the worst offender could walk into the United States as a free man who would not be instantly delivered into the hands of authorities.
In 1833, Roger Taney, the UNITED STATES attorney general found there was no presidential authority without a treaty to render two men accused of piracy to Portugal. In 1841, another attorney general — Hugh Legare — came to the same conclusion. Without provision via treaty, the president has no innate authority to render individuals in this fashion. Similar cases of denial of this presidential “right” can be found littered throughout UNITED STATES history: “the understanding that the president was without power to send asylum residents to foreign jurisdictions in the absence of treaty and statute seemed well settled in law prior to the Civil War” (Weaver and Pallitto, 2006: p. 105). In other words, up until the middle of the 19th century, there were no cases of note or significance that indicated that the executive branch of the UNITED STATES government had the authority to render suspects or criminals to foreign locations outside of the explicit authority granted through a signed treaty with a foreign government.
It was during the Civil War that the first major break with this established legal tradition was made. The incident involved the capture of a foreign citizen in New York City during wartime and performed by presidential authority alone. The man captured was Jose Augustin Arguelles, a Spanish subject, who captured illegal slave traders, claimed a reward, then sold the slaves to plantation owners. Under Spanish law he was a criminal, but the United States had no extradition treaty with Spain. Despite having no legal authority to do so, Lincoln authorized the capture of the man and his return to Cuba where he could be tried for his crimes. Critics decried Lincoln as a despot; abolitionists were more supportive of the action (Weaver and Pallitto, 2006). While this case opened the door for unilateral executive action, the fallout for Lincoln was significant enough that until the 20th century, most presidents approached the possibility of such action quite cautiously.
Though the Arguelles case was anomalous in the legal history of the United States up until that point, it the process of clouding the question of how renditions can occur, under what circumstances, and the rights that must be afforded to the rendered individuals. A number of cases continued to crop up — such as Frishie v. Collins (1952) and Ker v. Illinois (1886) — that eroded the integrity of the doctrine that the executive branch had no innate authority to perform renditions outside of treaty agreements. In fact, even as late as 1979, it seemed that the UNITED STATES executive branch by and large adhered to the historical precedent of executive restraint on the matter. Unfortunately for the principles of due process and rule of law, that adherence began to vanish during the late 1980s and during the years leading up to the September 11th terrorist attacks. Increasingly, though carefully, the executive branch — namely the Department of Justice, the FBI, and the CIA — began to seize and render suspected terrorists. These actions were not taken to bring them to justice, i.e. To courts in the United States. Rather, these renditions consisted of “transfers of people to foreign powers for torture or warehousing” (Weaver and Pallitto, 2006: p. 110). By 2001, the practice of extraordinary rendition had already been institutionalized in the UNITED STATES executive branch as a means for dealing with suspected terrorists outside of the strictures of UNITED STATES or international legal processes. Though used cautiously, it was still not unheard of by that time.
After September 11, 2001 when the Bush Administration’s war on terror launched into full swing, these practices were greatly expanded and enhanced as a means for obtaining information from terrorist suspects. Only after September 11th would the United States systematically intensify the practice of extraordinary renditions on the dubious assumption that they would help ensure national security. Security concerns came to trump human and civil rights of everyone in the world by this logic — anyone suspected of having terrorist ties was a potential target for the UNITED STATES government and would be seized at will by the government. The extraordinary rendition would then transfer these individuals to other nations or to CIA black sites where no oversight was practiced and the possibility of torture became a terrible reality.
9/11 and Intensification of Renditions
The terrorist attacks against the United States on September 11, 2001 stand as some of the most devastating historical examples of terrorism in the United States and, to some degree, in the world. The immediate effects of the attacks were incredibly human and property losses, as well as a renewed sense of fragility and uncertainty among the American people. The successful attacks forced Americans to realize that they were not beyond the reach of dedicated terrorists. Suddenly, the UNITED STATES faced as much danger from terrorism as the rest of the world, which had long had to deal with the issue.
However, the shock and surprise of the attack was significant for the American people and for the UNITED STATES government. Illusions of security unraveled so quickly that when the Bush Administration publicly called for greater security measures — such as the PATRIOT Act or the creation of the Department of Homeland Security — the American people largely endorsed this approach to protecting them and combating terrorism. Unfortunately, the Bush Administration almost immediately began employing other methods and techniques to fight terrorism that were unknown to the American public, to legislators, or anyone else. Extraordinary rendition was one of these methods. On September 17, 2001, President Bush issued a secret presidential directive that authorized the CIA to use whatever means necessary to capture, detain, and kill terrorist suspects on a global scale (Elsea and Kim, 2006; Huq, 2006). Around the same time, the Justice Department issued new guidelines for interrogation methods that included euphemisms such as “coercive interrogation” and “enhanced techniques” (Rifkind, 2006).
The American people and the American media, which collectively just wanted to feel safer in the aftermath of the September 11th tragedies, largely overlooked these troubling changes. However, the focus on security instead of freedom, fueled by basic fear of imminent attack and death, blinded the nation and much of the world to the lengths that the Bush Administration was taking in order to combat terrorism on a global scale. The September 17th secret directive is unnerving because it provides broad and unspecified powers to the CIA to fight terrorism and also because it was issued entirely in secret. Without any kind of transparency or oversight, the president could have just as easily authorized intelligence agencies to use their techniques against UNITED STATES citizens — perhaps employing the NSA to monitor the telephone calls of American citizens. The fact that this happened as well demonstrates an important point: it was years before the extent of these actions became known to the public, long after many egregious examples of abuses had already occurred. The secretive nature of the war on terrorism has created circumstances by which the president is able to operate outside of the national and international legal systems.
The CIA used their newfound powers to establish and expand black sites throughout the world where prisoners could be detained and interrogated outside of UNITED STATES jurisdiction. Black sites were set up throughout the world, though it is unclear how many exist, how many prisoners have been housed there, and under what conditions those prisoners were kept. The Washington Post reported that they had confirmed the location of black site CIA detention facilities in Thailand, Afghanistan, Iraq, Poland, Romania, and Cuba (Hodgson, 2005/06). In addition, efforts to uncover the practice of extraordinary rendition have helped document the CIA flights that have covertly transported prisoners and suspects to detention sites around the world, beyond the purview of the United States judiciary. These flights have been extensively used to covertly transport prisoners to facilities that are not subject to oversight and where “coercive interrogation” techniques can be employed to extract information from suspects (Hodgson, 2005/06; Huq, 2006; Grey, 2005).
Extraordinary renditions have been the means by which suspects and prisoners are taken from one nation’s jurisdiction to another’s for the express purpose of using torture or other abusive interrogation methods to extract information. For those who doubt that the UNITED STATES government endorses torture of suspects, consider the words of an unnamed American intelligence agent who was quoted in the Washington Post, on December 26, 2002: “We don’t kick the ***** out of them [terrorist suspects]. We send them to other countries so they can kick the ***** out of them” (Gutierrez, 2006: p. 12). In other words, extraordinary renditions have been employed purposefully to deliver suspects into the hands of individuals or nations who will knowingly torture those individuals for information. The process of extraordinary rendition simply adds a layer of deniability to the process, one which American agents and government officials can hide behind in order to avoid culpability in the torture of suspects who were seized by UNITED STATES agents. This is the purpose of the extraordinary rendition, one it fulfills expertly and which has been used ever more extensively since September 11th. The practice is widely employed because through it the UNITED STATES government can simply make individuals disappear from view until the torture has been completed and any information extracted.
Of course, once the word got out that the Bush Administration was using extraordinary renditions to transfer prisoners last year, a bit of political backpedaling was called for. Though it is apparent the entire purpose of the extraordinary rendition was to make torture an option in the cases of suspected terrorists, the Administration claims that it only transferred prisoners on assurances that no torture will be used during their detention. Naturally, these assurances come with the caveat that no guarantees can be made (Huq, 2006). Thus, the Bush Administration has admitted that suspects are sent to countries for interrogation where torture is a possibility, but that promises were made that no torture would be employed. This position, naturally, begs the question of why these individuals were sent to these places for interrogation in the first place. If the UNITED STATES government had no intention of using coercive interrogations, or torture, on these subjects then why not simply question these individuals through conventional processes within the UNITED STATES justice system? If nothing about the treatment of these suspects is unethical or outright illegal, then why seize and transfer these individuals in complete secrecy? Why send them to detention facilities in nations with histories of prisoner abuse and torture?
In fact, every country to which the United States has sent terrorism suspect is recognized by the UNITED STATES State Department — and the world, for that matter — as extreme violators of human rights. Syria and Egypt, two locations to which these suspects are most commonly rendered, are well-known for their torture of prisoners (Huq, 2006; Gutierrez, 2006). It is almost as if the Bush Administration requested the State Department list of nations in which torture is a common practice and international human rights are not recognized and then purposefully organized extraordinary renditions to make sure prisoners ended up in those nations. If that is the case, it demonstrates the reality that torture, abuse, and an attack on human rights was the end goal of the Administration in this issue. The entire purpose of extraordinary renditions in the wake of the September 11th attacks becomes clearer: to seize and torture anyone suspected of ties to international terrorism.
We find, then, that since September 11, 2001 extraordinary renditions have been used to seize terrorist suspects, hold them without due process, and interrogate them with torture. The practice has been called a necessary tool against terrorism, but amounts to one of the worst human rights violations in the history of the United States. Consider a few cases of extraordinary rendition and how they have unfolded. In September 2002, Maher Arar, a Canadian citizen, was seized by UNITED STATES government agents while transferring planes in New York City on his vacation. Without explanation or accusation, Arar was held at a detention facility in Brooklyn in solitary confinement without access to counsel until the extraordinary rendition could proceed. At that point, he was flown to Jordan and then onto Syria where he would spend the better part of the next year being tortured for information about his suspected ties to international terrorism. Though his treatment was severe, his ultimate fate was much more fortunate than some of the suspects who have simply disappeared. After almost a year of torture in Syria, Arar was released without charges and with the assurances of the Syrian government that he had no terrorist ties (Weaver and Pallitto, 2006; Huq, 2006; Gutierrez, 2006). Disturbingly, this means that Arar — a Canadian citizen — was held without trial and without accusation for almost a year. The UNITED STATES relocated him secretly to Syria where he could be tortured for information to the satisfaction of UNITED STATES intelligence agents.
If the case of Maher Arar was an isolated incident, the problem with extraordinary rendition might be as significant. Unfortunately, his case is not anomalous, but instead representative of the kind of treatment that the UNITED STATES encourages through extraordinary rendition. “Off the Record” (2007) lists thirty-nine cases in which extraordinary rendition has been confirmed or has been suspected of transporting suspects to secrete detention facilities to be tortured. Though thirty-nine examples doesn’t seem like an excessive number, we must remember that extraordinary renditions are, by their nature, covert. The UNITED STATES government has no intention of revealing the details of these renditions to the public or the media. Thus, diligent investigation must be used to unearth clues and details that have not been guarded ass well as others. In some cases — such as Arar’s — individuals who were taken by the UNITED STATES government have been released from custody and have come forward to tell their story to the world. In these cases, we can more easily paint a picture of what has happened to individuals who are taken under the auspices of extraordinary renditions.
Of the thirty-nine individuals listed in the above-mentioned report, the authors divide the cases into three categories. Category 1 consists of people whose seizure and detention has been officially acknowledge, though the fate and whereabouts of these individuals is still unknown. Category 2, a larger group, contains individuals whose extraordinary renditions have not been confirmed but for whom there is significant evidence that the UNITED STATES has taken them into secret detention facilities. Category 3 contains all of those individuals for whom there is some evidence of extraordinary rendition by the UNITED STATES, though not as much as in the Category 2 cases (Off the record, 2007). In all, these cases illustrate the difficulty in probing the matter of extraordinary rendition. The extreme secrecy with which these operations are conducted means that without official confirmation — or the release of the prisoner as in the case of Arar — there are few available avenues for determining the status and fate of these missing individuals. For each of these categories, I will discuss some illustrative cases in order to present some of the growing body of evidence regarding the increased use of extraordinary renditions by the UNITED STATES since Septmber 11, 2001.
Hassan Ghul falls into Category 1. Ghul was apprehended in northern Iraq on January 23, 2004. Ghul is a citizen of Pakistan and was described by the UNITED STATES government as an individual who helped facilitate al-Qaeda operations, possibly including the September 11th attacks. Three days after his capture, President Bush publicly congratulated UNITED STATES intelligence agents for capturing Ghul. The suspect was immediately interrogated by the UNITED STATES military and UNITED STATES intelligence. More than a year later, ABC News reported on December 5, 2005 that Ghul had been secretly transferred to a CIA black site in Poland where he was held without accusation, trial, or conviction. His treatment there is unknown, as is his current status and whereabouts. However, the UNITED STATES government included his name on their “Terrorists No Longer a Threat” List in July 2006, implying that Ghul’s apprehension was a mistake, that he is being held indefinitely without trial, or that he has been killed (Off the record, 2007).
The practice of simply making these suspects disappear through extraordinary rendition and then removing them from the list of wanted terrorists is increasingly common, though there is little public knowledge as to why these individuals are placed on the “No Longer a Threat” list after an extraordinary rendition takes place. For instance, Mustafa Setmariam Nasar, a man with dual Syrian-Spanish citizenship, was captured by Pakistan in November 2005. One of the UNITED STATES’ most wanted terrorists, Pakistan confirmed that the man was handed over into UNITED STATES custody sometime in early 2006. By March of that year, Nasar’s name was removed from at least one list of wanted terrorists, and in July he was placed on the “No Longer a Threat” list (Off the record, 2007). Like Ghul, his ultimate fate after the rendition is entirely unknown.
Similarly, consider the case of Suleiman Abdalla Salim wanted by the UNITED STATES government for alleged involvement in 1998 bombings of UNITED STATES embassies in Africa. On March 18, 2003, Salim — a citizen of either Yemen or Tanzania — was kidnapped from a hospital in Somalia by Somali warlords and delivered to UNITED STATES officials. Witnesses indicate that Salim was held in at least two secret detention sites in Afghanistan where he was badly tortured while in UNITED STATES custody. His ultimate whereabouts and fate remain uncertain (Off the record, 2007). These cases are presented to prove a point, but are just a small slice of the confirmed use of extraordinary renditions, let alone those instances that have not yet come to light. Of concern here is that extraordinary rendition is used without warning and without legal justification to capture and forcibly relocate individuals who are suspected of crimes. Once apprehended, these individuals quite literally disappear from the gaze of the world, and possibly from the scrutiny of history. It is uncertain if the world will ever know exactly what has happened to these individuals and what the UNITED STATES government did to them after bringing them into custody.
Though it has had a dubious history in the United States and has only recently became common practice for presidential administrations, extraordinary renditions have been used extensively by the Bush Administration since September 11th and the proclaimed war on terror. Since that time, extraordinary renditions have been conducted largely by the UNITED STATES intelligence community to seize suspected terrorists or individuals with terrorist ties, secretly transfer them to black site detention facilities or place them in the custody of foreign governments, and then encourage the use of torture against these subjects. The ultimate fate of these individuals, in all but a few cases, is completely unknown. That the use of extraordinary rendition is touted as a necessary tool in the fight against terrorism, this explanation and argument is becoming less believable as time wears on. After all, if the method was so necessary and so justified, then it stands to reason that there should have no reason for these operations to have conducted in secret and without any kind of oversight or transparency. Unfortunately, this has not been the case. If these individuals were not going to be ill-treated or have their basic human right denied, then there should have been little cause to transfer them to nations with outrageous human rights records where, we have seen, they were tortured for information and for any potential involvement with terrorists. The legal implications of this practice will be discussed more fully in the subsequent section; however it is important to recognize that extraordinary renditions, once believed to be beyond the authority of the president, are now being used extensively and without apology by the Bush Administration to wage its war on terrorism.
Legal Implications of Extraordinary Renditions
Having established the intensification of extraordinary renditions that have occurred since September 11, 2001, it is prudent to discuss the legal implications of the practice. How supporters defend extraordinary renditions is an interesting point to consider as well. Even a cursory analysis of the practice reveals that extraordinary renditions threaten the integrity of the American legal democracy and could potentially destabilize international relations in the process (Gutierrez, 2006).
The most egregious issue with the practice of extraordinary renditions is that they violate basic human and legal rights afforded to all people by the international community. For instance, the 1948 Universal Declaration of Human Rights outlined most of the human rights that stand as the standard by which the actions of nations are judged (Gutierrez, 2006). Those nations that repeatedly violate these human rights are marked as such by the rest of the world. Nations such as Syria and Egypt, to which the United States has been farming out its interrogations, are nations noted for their poor human rights records. Even if we accept the argument, as the Bush Administration claims, that terrorists are combatants in a war and not privy to these human rights, extraordinary rendition and subsequent torture would still require the United States to adhere to the Geneva Convention’s provisions on treatment of war prisoners. and, we should not fail to mention the fact that many of those individuals who have been rounded up through extraordinary rendition are only suspected terrorists or individuals with suspected terrorist ties. In other words, without proof that these individual are enemy combatants, international agreements on human rights would still apply. Even if proof existed on this score, the prisoners should be protected from torture under the Geneva Convention.
The Bush Administration continues to argue that these precepts of basic human treatment do not apply to terrorists — apparently even suspected ones — because the United States government classifies terrorists as enemy combatants. Despite this claim, the UNITED STATES Supreme Court has found that even enemy combatants are entitled to basic levels of protection as outlined in the Geneva Convention (Elsea and Kim, 2007). No matter the Bush Administration’s claims to the contrary, the fact that these individuals are terrorists, or suspected terrorists, does not justify their ill treatment under the practice of extraordinary rendition. Arguments that extraordinary rendition is a necessary tool against terrorism ring hollow when we consider that the practice violates every legal and ethical prescription on human rights that the United States supposedly values. The focus on whether or not these individuals should be considered enemy combatants is largely moot. Even if they were enemy combatants, the Supreme Court has determined that they should be afforded basic human and civil protections according to the Geneva Convention.
In April 2003, a memo from the Pentagon presented the legal argument that the President did not have to follow international treaties or federal laws that barred the use of torture because the President is also the Commander-in-Chief of the UNITED STATES military. This position has been unfortunately compounded by the actions of the president himself. Openly threatening the rule of law in the United States, Bush has stated that he is not bound by recent Congressional legislation forbidding the use of torture (Rifkind, 2006). In defiance of the decisions of Congress, existing laws, and international treaties, the Bush Administration has decided that torture is acceptable and that it has every right to use extraordinary rendition to move terrorist suspects into situations where they will be tortured for information. The implications of this decision should be obvious and alarming. The executive branch of the UNITED STATES government has effectively decided that it can operate wholly outside the legal and political structures laid out in the Constitution and which have been refined over the centuries through federal law and international accord. The use of extraordinary rendition with such impunity is simply one example of the Administration’s willingness to dismantle the American democratic ideal one freedom at a time.
For those who would say that these measures are necessary given the threat of terrorism and that the Bush Administration has not actually tortured anyone directly, consider the nature of extraordinary renditions. Individuals who experience these renditions “are rendered in a manner to specifically deprive them of due process and civil liberties protections” (Weaver and Pallitto, 2006: p. 109). In other words, the entire purpose of the modern extraordinary rendition is to deprive individuals of freedoms and protections so that they can be treated as non-persons who can be tortured or abused for information at will. In claiming presidential fiat for operating in this manner, the Bush Administration has willfully ignored the majority of United States history and jurisprudence.
As we have already seen from an examination of the history of extraordinary rendition in this country, until very recently the practice of renditions outside treaty provisos was considered a power not afforded to the president. The authority to act outside of such limitations simply did not exist and any time it was employed — such as by President Lincoln in the Arguelles case — the political fallout was severe and the criticism harsh. That extraordinary renditions became more common, if no less reprehensible, in the last decade of the 20th century has encouraged the current presidential administration to use the practice to their own advantage. But despite all arguments to the contrary, there is no legal or historical evidence that presidential fiat is an acceptable rationale for extraordinary renditions. The phrase may reference commonplace, and wholly legal, renditions, the extraordinary rendition is performed completely outside of the national and international legal systems. No amount of political or legal bullying to the contrary can alter this reality (Weaver and Pallitto, 2006). At its heart, the extraordinary rendition is an extralegal exercise not supported by the weight of historical legal evidence.
Conclusion
Extraordinary rendition is the practice by which the United States forcibly relocates foreign citizens to third party jurisdictions for detention and interrogation. As we have seen, the most likely destinations for individuals who are rendered in this way is countries with poor human rights records, such as Syria or Egypt, where torture of the suspects is all but certain. In other words, to impress the significance of this situation, the United States has institutionalized the practice of seizing individuals without regard to due process or basic human rights and then sending them to other nations where they will be tortured or abused for information. Cases such as Maher Arar and Khaled al-Masri demonstrate the lengths that the United States will go to pursue individuals with suspected terrorist ties and extract information from them. No matter what perfunctory assurances United States’ officials claim they receive, modern extraordinary rendition amounts to sanctioning torture and using it for morally dubious ends.
Additionally, the negative blowback from extraordinary rendition has further widened the divide between the United States and her allies in Europe on the issues of terrorism, the wars in the Middle East, and others (Hodgson, 2005/06). On this score, the United States increasingly is being perceived — and perhaps rightly so — as a rogue nation that ignores international law and treaties whenever it so desires. The international implications of such a stance are obvious and threaten to destabilize the delicate framework of international accountability. Domestically, the legal implications are even more unnerving. The use of extraordinary renditions to secretly sidestep UNITED STATES laws regarding torture and human rights means that the federal government has provided itself with a loophole to ignore the basic Constitutional protections that form the backbone of UNITED STATES society. While torture may be tolerated socially in extreme situations — such as imminent threat of life — the Bush Administrations global war on terror threatens to make that kind of extreme situation the norm (Parry, 2005). If that becomes the case, then it will be open season for the executive branch of the government to tromp on civil and human rights, not only of foreign nationals but also of UNITED STATES citizens.
Most troubling is the fact that extraordinary renditions have been conducted entirely in secret without any oversight or accountability. The Bush Administration has simply had no one to answer to for these actions and, thus, no reason to keep extraordinary renditions within the confines of national and international laws. Of the thousands of prisoners who have been captured in Afghanistan, Iraq, and globally since September 11, 2001 thousands still remain unaccounted for, effectively disappeared from history (Grey, 2006). Without record of what happened to them, it is unclear how these prisoners were treated or what their fates were. Many look to the recent abuse scandals Abu Gharib or Guantanamo Bay as examples of how bad the situation can get, with prisoner abuse rampant. Unfortunately, we must accept that this is not nearly as bad as it can get. The abuse scandals that have occurred publicly and that have been photographically documented amount to governmental press releases. As damaging as those cases may have been, those were the examples of abuse that were presented to the media. The torture and abuse that occurs because of extraordinary rendition and at CIA black sites is imaginably much worse (Grey, 2006). The air of secrecy that has shrouded extraordinary renditions up until this moment emboldened operators to act with impunity because their actions could always be denied. Without transparency and accountability, abuses will occur with increasing frequency.
In short, then, the practice of extraordinary renditions constitutes an extreme violation of UNITED STATES law, international law, and conventions on human rights. Extraordinary renditions deny suspects basic considerations of due process and then covertly transfer those suspects into the waiting hands of known torturers. No matter how many times the Administration claims they were assured that torture was not occurring, there is no reason to believe these claims and every reason not to. Though some might argue that, given the threat of terrorism, extraordinary renditions and torture are justified, this is a legally and morally indefensible position. Not only does the practice violate basic human rights, it opens the door to future abuses against anyone the government might deem a “credible” threat. If the executive branch of the United States government is allowed to continue to operate with such impunity, then the nation and the world should fear for the state of civil rights in the UNITED STATES
Extraordinary renditions represent the worst kind of legal abuse by the executive branch of the United States government. Operating in near complete secrecy, the president authorized the CIA and the intelligence community to use extreme, extralegal, methods to hunt down, capture, and kill suspected terrorists. Though the assassination of terrorists is beyond the purview of this study, the capacity of the government to permit the capture and extraordinary rendition of suspects who have not been charged with any crime flies in the face of all civil rights supposedly valued in the United States and emulated throughout the world. Of course, if we consider these terrorists — though, again, by and large they are only suspected terrorists — to be enemy combatants, then we might find legal justification for the denial of some civil rights during wartime. Unfortunately, even in war time, basic human rights laws still apply: the Geneva Convention, for example, expressly forbids the use of torture on enemy combatants even during a war. This means that the practice of the UNITED STATES to purposefully use extraordinary renditions to transfer suspects to sites where they will be tortured is a violation of international accord on human rights and the conventions of war.
Extraordinary renditions are characterized by the forcible removal of a foreign national to the jurisdiction of a third-party nation by the United States where those nationals can be interrogated and even tortured with impunity. It is also an extreme example of abuse of power and the violation of human rights. Numerous case examples exist of extraordinary renditions in which suspects were captured and then simply disappeared from the face of the Earth, to be detained indefinitely at CIA black sites without trial or possibly to be killed for their suspected crimes. While not necessarily an example of torture itself, extraordinary renditions represent the method by which these violations occur and constitute the extralegal — or rather illegal — means by which the UNITED STATES government is pursuing its global war on terrorism.
References
Elsea, J.K. And Kim, J. (2007, January 23). Undisclosed UNITED STATES detention sites overseas: background and legal issues. CRS Report for Congress. Congressional Research Service. Retrieved November 29, 2007, at http://www.fas.org/sgp/crs/intel/RL33643.pdf
Grey, S. (2005, December 19). Torture’s tipping point. New Statesman, pp. 24-25.
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Gutierrez, D. (2006, January-February). The extraordinary cruelty of “extraordinary rendition.” The Humanist, pp. 11-15.
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Rifkind, M. (2006, February 25). Cruel, unusual — and stupid. The Spectator, pp. 24-25.
Weaver, W.G. And Pallitoo, R.M. (2006, March). The law: “extraordinary rendition” and presidential fiat. Presidential Studies Quarterly, 36(1), pp. 102-116.
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