Extraordinary Rendition: A Struggle between Necessity and Legality
By Miguel Burón.
The United States Administration is known to have committed several violations of civil rights, especially under the pretext of Homeland Security. Effectively, extraordinary rendition is one of the cases in which these abuses become most blatant. Extraordinary rendition consists in “the transfer of an individual -with the involvement of the United States or its agents- to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment”[1]. The unstated -although evident- aim of this practice is avoiding the delays derived from the principles of American due process through the usage of demeaning methods of persuasion that couldn’t be practiced in America.
One of the major concerns is how such a practice has been employed in a country like the U.S., in which the rule of law is taken for granted. President George W. Bush was aware of the unacceptability of torture, either in American territory either in foreign countries where criminals may be handed over, as he stated during his interview with the New York Times[2]. Nonetheless, it was under his ruling that extraordinary rendition began to gain increasing approval[3]. If it is clear that torture is not acceptable, what has lead U.S. policies towards the practice of the so-called torture by proxy? As seen by Micheal Scheuer, a former C.I.A. counter-terrorism expert who helped establish this practice, extraordinary rendition was born as the natural response to the constraints that the principles of the due process afforded by American law imposes on intelligence service investigations. Before extraordinary rendition, even if the C.I.A. strongly believed in the links between a certain suspect and some terrorist group, this suspect could not be convicted due to the lack of evidence. In contrast to the due process, extraordinary rendition posed a quick and effective way to obtain information. Nonetheless, this evidence could not be put forward before American Courts[4] due to the fact it had been obtained illegally and was, therefore, void. But the criminal prosecution of terrorist suspects was never a priority for Bush Administration, which was rather focused on preventing future attacks[5]. This need for alternative methods is perfectly captured in the words that, five days after Al Qaeda’s attacks on the World Trade Center and the Pentagon -the so-called 9/11-, former Vice-President Dick Cheney pronounced before NBC's journalist Tim Russert: “A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective”[6].
It was precisely as a result of 9/11 that the pressure to avoid future terrorist attacks began to trespass the limits of Human Rights. The U.S. government began to accept that torture was necessary in order to take out of the detainee the necessary confessions to track down the rest of the group and, therefore, avoid future harms on American citizens. In other words, civil rights can be violated in favor of Homeland Security, as the latter is a collective interest. Nevertheless, they accepted that national territory was not the place to do that: they had to come up with a third party. The obvious choice was Egypt, whose secret police force –the Mukhabarat- was worldwide known for its brutality. Moreover, provided that some of the senior members of Al Qaeda were Egyptian[7], handing suspects over to Egypt would favor both Egypt and the U.S., serving American purposes to get rid of the problems that their impunity would entail and Egyptian purposes to get back and interrogate those people.
Even if it began as a program aimed at a reduced number of suspects against whom the Administration had outstanding foreign arrest warrants, it ended up including a wide range of population termed illegal enemy combatants, among whom many had never been officially charged with a single crime. As a consequence, Egypt was soon not big enough to host the increasing number of extradited suspects, and the practice sought the collaboration of other countries, including Syria and Saudi Arabia, but also European countries as layovers[8] [9].
Given that this is an international-level crime, it is completely necessary to analyze the international rules that this practice contravenes. The commonplaces to all the cases of extraordinary rendition -leaving aside the peculiarities of particular situations- are basically two: torture and transfer of individuals to states where they risk being tortured. Ironically, the United States of America is party to a long list of international treaties that specifically forbid those practices, namely, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the Geneva Conventions of 1949 and the Refugee Convention of 1951[10], all of which agree on both the prohibition of torture and the non-refoulement clause. Even so, the Administration once tried to justify sending detainees to those states relying on a very fine reading of an imprecise clause in the aforementioned UN Convention against Torture, which required “substantial grounds for believing that (an individual) would be in danger of being subjected to torture” in order to stop their extradition. Nonetheless, that fragile and far-fetched justification should not be possible anymore, since the U.S. Department of State has identified Egypt, Jordan, Syria, Saudi Arabia, Morocco and Yemen as practitioners of torture on detainees. By chance, all of these states happen to be within the list of countries where, according to press reports[11], terrorism suspects have been usually sent by the U.S. for interrogation.
However, extraordinary rendition not only violates international law, but it also contravenes the very U.S. law. The secret surrounding these practices makes it hard to determine what source of authority was empowered to provide confirmation for U.S. engagement in those activities. This is exactly what determined the Association of the Bar of the City of New York and the NYU Center for Human Rights and Global Justice to thoroughly search all American legal standards for any potential source of authority. Their conclusion was clear: “no publicly available statute, regulation, or executive finding, directive or other action exists to authorize extraordinary rendition”[12]. In other words, nor the existing statutory law -Foreign Affairs Reform and Restructuring Act of 1998-; nor any judicial precedent -the Ker-Frisbie doctrine-; nor any legislation of the Congress; nor any of the types of presidential powers -general power as Commander-in-Chief, presidential power to authorize covert actions and presidential power to make international agreements-; nor the CIA governing documents, establish any authority for extraordinary rendition.
In conclusion, both domestic and international law agree on the banning of extraordinary rendition. The reason to this is doubtlessly the fact that, necessary though these measures may seem, collective interest must never prevail over the protection of Human Rights. Furthermore, extraordinary rendition does not comply with the American Doctrine of Balancing -since the benefits obtained do not compensate the sacrifices made-, nor is it in compliance with the European Doctrine of Proportionality -as there are more suitable ways to get the suspect to confess, respecting the principles of the worldwide acclaimed due process-. In my humble opinion, the U.S. Government should end extraordinary rendition, as well compensate those harmed by this practice. Moreover, all the legislation relevant to extraordinary rendition should be revised and reformed in order to remove any possible gap that could potentially allow similar activities in the future. In addition to this, it would also be desirable to declare a moratorium on the use of diplomatic guarantees regarding torture. All these measures are a basic necessary in the eradication of a practice that, far from being an appropriate tool for the War on Terror, constitute a fraud of law that should be revealed and called a halt to.
[1] Association of the Bar of the City of New York & Center for Human Rights and Global Justice. Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”. New York: ABCNY & NYU School of Law, 2004.
[2] George W. Bush Interview. The New Tork Times, January 27th, 2005.
[3] DOYLE, D. Which Ones Are the Bad Guys, Then? The US’s Contempt for the Rights of Its Prisoners Puts Saddam to Shame. The Sunday Tribune, March 30th, 2003.
[4] MAYER, J. Outsourcing torture: the secret history of America’s extraordinary rendition program. The New Yorker, February 14th, 2005.
[5] MOELER, S. Think Again: Bush’s War on Terror. Center for American Progress (www.americanprogress.org), March 18th, 2004.
[6] FROOMKIN, D. Cheney’s “dark side” is showing. The Washington Post, November 7th, 2005.
[7] MAYER, J. Outsourcing torture: the secret history of America’s extraordinary rendition program. The New Yorker, February 14th, 2005.
[8] FISHER, M. A staggering map of the 54 countries that reportedly participated in the CIA’s rendition program. The Washington Post, February 5th, 2013.
[9] MASCOLO, G. et al. CIA Flights in Europe: The Hunt for Hercules N8183J. Spiegel International, November 28th, 2005.
[10] Association of the Bar of the City of New York & Center for Human Rights and Global Justice. Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”. New York: ABCNY & NYU School of Law, 2004.
[11] FISHER, M. A staggering map of the 54 countries that reportedly participated in the CIA’s rendition program. The Washington Post, February 5th, 2013.
[12] Association of the Bar of the City of New York & Center for Human Rights and Global Justice. Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”. New York: ABCNY & NYU School of Law, 2004.
