November 7, 2007
On Rendition (Not the Movie)
1. Panel Discussion
Outsourcing Torture and Extraordinary Rendition Panel Discussion, Torture and the War on Terror Conference, Case Western Reserve School of Law (Oct. 7, 2005) (video)
2. Recent Legal Scholarship
NYU law prof Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law (SSRN) . From the abstract:
In recent years, the practice of extraordinary rendition by the U.S. government has come in for strong critique by human rights advocates, the United Nations, and other governments. Despite the avalanche of protest, U.S. government officials and some scholars have defended rendition, relying on a number of legal arguments. These arguments do not explicitly support the practice of informal transfer to a risk of torture; instead, they imply that the practice is legal by pointing to what defenders claim are lacunae in the relevant legal frameworks. Where lacunae are found, the Administration suggests, prohibitions give way to permission: territories outside the United States are conceptualized as locations where the U.S. may act as it pleases; informal promises between countries replace the absolute prohibition of certain transfers; and the war paradigm is used to deprive individuals of the protection of the law. This Article examines these arguments in close detail, suggesting that they are not only incorrect; they also hide a dangerous shift in policy: a practice purportedly developed to uphold the rule of law against lawless terrorists - rendition to justice - has become a lawless practice aimed at perverting the rule of law in relation to terrorism - extraordinary rendition.
William Mitchell College of Law professor John Radsan, A More Regular Process for Irregular Rendition (SSRN). From the abstract:
This article assesses the transfer of terrorism suspects outside the United States to other countries for detention and interrogation. The focus is on the CIA's alleged program of irregular rendition on non-U.S. citizens. Article 3 of the Convention Against Torture sets a standard for irregular rendition, precluding transfers in which there are substantial grounds for believing the suspect will be tortured in the receiving country. Beyond an argument that commander-in-chief powers may override American law on rendition, two means for complying with Article 3 are obtaining official assurances from the receiving country before transfer and monitoring the conditions of the suspect's confinement after transfer. The assurances, oral or in writing, could come from heads of state, through diplomatic channels, or from intelligence officials. And the monitoring could be done by human observers or by technical means. Assurances and monitoring are not necessary on renditions to countries with excellent human rights records. On renditions to countries whose human rights records are at the bottom of the list, assurances and monitoring will not be enough to reach legality. Assurances and monitoring do, however, make a difference on close calls. Accordingly, several combinations of assurances and monitoring are assessed against the records of countries, including Romania, Jordan, and Uzbekistan, which have been mentioned as possible recipients of CIA renditions. The conclusion, in disagreement with Human Rights Watch and the New York City Bar Association, is that irregular rendition can be carried out under the rule of law with care, caution, and a bit more transparency.
Washington University School of Law professor Leila N. Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law (SSRN). From the abstract:
This Essay examines the contentions of U.S. government lawyers that the U.S. should abandon the provisions of the Geneva Conventions in favor of a de novo legal regime that would govern the capture, detention, treatment and trial of enemy prisoners taken in the Global War on Terrorism (GWOT), whether captured in the U.S. or abroad. In particular, it examines the question of extraordinary rendition - transferring detainees abroad for detention and interrogation either from the United States, on behalf of the United States, or from occupied Iraq. Although the numbers of prisoners rendered abroad has been relatively few, the covert nature of the operations, and the allegations of prisoner mistreatment raise very troubling questions about the wisdom and the legality of the U.S. rendition program. It concludes that extraordinary rendition is not permissible under existing, applicable and well-established norms of international law. Additionally, because renditions are carried out in secret, employ extralegal means, and often result in prisoner abuse, including cruel treatment, torture, and sometimes death - they appear to be emblematic of the larger human rights concerns that trouble many of the detention and interrogation practices employed by the U.S. government since September 11, 2001. Of particular concern is that rather than explicitly amending the law or articulating clear, narrowly tailored justifications for derogating from the law, derogations that would presumably be temporary and specific, such as the derogations permitted under international human rights treaties, government officials have sought to redefine legal norms in an exceptional burst of “executive activism” in ways that are neither particularly plausible or persuasive. This use of legal subterfuge is deeply troubling in and of itself, as well as in regards to it potentially harmful consequences. Finally, the Essay questions the efficacy, as well as the wisdom, of these extralegal policies.
3. In the Press
Daniel Benjamin, 5 Myths About Renditions (and the Movie Version), Washington Post (Oct. 19, 2007)
Daniel L. Byman, Renditions and the Rule of Law, The Boston Globe (October 15, 2007)
4. Congressional Testimony
Extraordinary Rendition, Extraterritorial Detention, and Treatment of Detainees: Restoring Our Moral Credibility and Strengthening Our Diplomatic Standing, Senate Committee on Foreign Relations Hearings Testimony of Daniel L. Byman, Senior Fellow, Foreign Policy Studies, Saban Center for Middle East Policy (July 26, 2007) (prepared statement)(pdf)
Torture Taxi: On the Trail of the CIA's Rendition Flights
by Trevor Paglen and A. C. Thompson
List Price: $23.00
Hardcover: 208 pages
Publisher: Melville House Publishing (September 24, 2006)
Book Description: In this first book to systematically investigate extraordinary rendition, an award-winning investigative journalist and a "military geographer" explore the CIA program in a series of journeys that takes them around the world. They travel to suburban Massachusetts to profile a CIA front company that supplies the agency with airplanes; to Smithfield, North Carolina, to meet pilots who fly CIA aircraft; to the San Francisco suburbs to study with a "planespotter" who tracks the CIA's movements; and to Afghanistan, where the authors visit the notorious "Salt Pit" prison and meet released Afghan detainees.
They find that nearly five years after 9/11, the kidnappings have not stopped. On the contrary, the rendition program has been formalized, colluding with the military when necessary, and constantly changing its cover to remain hidden from sight.
List Price: $14.95
Paperback: 400 pages
Publisher: St. Martin's Griffin; Reprint edition (September 18, 2007)
Book Description: On June 10th, 2002, Attorney General John Ashcroft announced that the US had captured a known terrorist who was exploring a plan to explode a "dirty bomb" on American soil. That alleged terrorist was José Padilla who was finally charged in 2005 with conspiracy to murder. What Ashcroft didn't talk about was how information against him was obtained – by the relentless torture of one man-- Binyam Mohamed, in the name of the United States. Arrested at Karachi Airport before Padilla’s arrest on April 10, 2002, Mohamed was put on a luxury executive jet and flown to an interrogation center in Morocco. For over 18 months, he was subjected to one torture after another: Beating followed beating and, then, his guards produced razor blades and began to split the skin all over his body, including on his genitals. Since 1997, hundreds of people, many of whom have no ties to terrorist organizations, have been abducted from foreign airports or street corners on suspicions based at times on the flimsiest of evidence courtesy of the United States Central Intelligence Agency. In Ghost Plane, Stephen Grey tells the true story of the CIA's torture program known by the euphemism "extraordinary rendition" and the airplanes that make the program run. Begun during the Clinton administration, but taking a decidedly more voracious turn after 9/11, the rendition system has seen the transfer of more than 1000 prisoners into jails stretching from Guantanamo to Syria, from Kabul to Bangkok and beyond. Grey had access to the thousands of CIA flight records and has interviewed dozens of sources from the most senior levels of the National Security Council to the CIA. In Ghost Plane, he paints a disturbing picture of the War on Terror that reaches to the highest levels of power in Washington, D.C. and exposes the extreme ethical corruption at the heart of this US government program, a program finally acknowledged by President George Bush in September 2006, undertaken in the name of the citizens of the United States.
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