Hints About the Future of Rendition Policy from Obama

Oh good, we'll just rely on “ordinary” rendition.

So, except for not torturing, giving them the opportunity to challenge their detention, and recognizing habeas corpus for the captured individual, this sounds like what was done to Abu Omar to you?

See, I've spent the past seven years thinking that the difference between torturing people and not torturing them, between granting terrorism suspects due process and other constitutional rights and not doing so, were large, meaningful distinctions, not tweaks.

I don't know — this is slippery slope stuff. When governments start from a willingness to bend the limits of law, including international law, they usually end up abusive. “Trust my guys; they are the good guys,” doesn't seem an adequate policy.

“Rendition to justice,” in which an individual is apprehended pursuant to a valid arrest warrant and brought before a regular criminal tribunal without torture or ill-treatment, is accepted in some countries and under some circumstances under international law (for example, the host country must consent to the apprehension). Emerging principles of human rights law require that individuals be given an opportunity to challenge transfers–before the transfer–to third states on the basis that they fear torture or other ill-treatment. For more, see Satterthwaite, “What's Wrong with Rendition,” in the ABA's National Security Law Report, No. 29, issue 4, available at: http://www.abanet.org/natsecurity/nslr/2007/API…

In substance, this is very close to the Bush administration's policies. Calling it “rendition” rather than “extraordinary rendition” does not alter the similarities.

Obama's comments describe an extrajudicial process of abducting a suspected terrorist and taking that person to another country or to US custody. Although his executive orders ban torture and close CIA prisons, these measures obviously do not apply to other governments. Also, the US sponsors other longterm detention sites that are not run by the CIA.

The Bush administration said that it did not use rendition to outsource torture. The Obama administration says the same thing about it's own potential use of rendition. Cabinet members of both the Bush and Obama administrations say that diplomatic efforts would reduce the risk of torture in other countries. Many human rights advocates, however, believe that diplomacy cannot protect individuals against torture because it occurs in secrecy, away from diplomats. So if individuals subject to rendition were ultimately tortured in the receiving countries because diplomacy cannot safeguard against torture, the same problem could reemerge during the Obama administration.

Also, Obama's comments do not suggest that persons subject to rendition would necessarily remain in US custody. His reference to a “third country” actually suggests that the individual would likely go somewhere other than the US or the country from which he or she was abducted.

Finally, the Department of Justice — under Bush and Obama — has argued that detainees at Bagram Airforce Base in Afghantistan do not qualiffy for habeas corpus relief. Also, Eric Holder and Elena Kagan have both claimed authority to detain indefinitely any member of Al Qaeda. Thus, the closure of CIA prisons does not preclude the indefinite detention of and denial of habeas corpus to terrorism suspects.

If the US uses rendition to send individuals to Bagram, it is unlikely that the US will permit those individuals to file habeas petitions in US courts — because it has already taken the position that they do not qualify for habeas corpus. And if the US considers the individual a member of Al Qaeda, then it could argue (again) that it can indefinitely detain the person. I am not saying that any of this stuff will in fact occur. But it is important to remain vigilant.

http://dissentingjustice.blogspot.com/2009/03/o…

Obama said ” I think we still have to think about how we deal with that scenario, in a way that comports with international law, that abides by my very clear edict that we don’t torture and that we ultimately provide anybody that we’re detaining, through habeas corpus, an opportunity to answer to charges. How all that sorts itself out is extremely complicated, because it’s not just domestic law, it’s also international law. Our relationship with various other entities. So, again, it will take this year to be able to get all these procedures in place and on the right footing.” He didn't say we'd ship them to other countries at all, or even imply it, which makes your wording curious when you say “…would be snatched by the CIA from some country and eventually handed over to the custody of 'either' another U.S. agency…” the key word I have a problem with is “either”, as you never say what the alternative is to “another U.S. agency”, but it is seemingly implied, you imply he'd send them to another country, but that isn't true. And that needless description of how that guy was tortured along time ago is just in bad taste and implies that it would continue under Obama, which is completely false.

Obama said ” I think we still have to think about how we deal with that scenario, in a way that comports with international law, that abides by my very clear edict that we don’t torture and that we ultimately provide anybody that we’re detaining, through habeas corpus, an opportunity to answer to charges. How all that sorts itself out is extremely complicated, because it’s not just domestic law, it’s also international law. Our relationship with various other entities. So, again, it will take this year to be able to get all these procedures in place and on the right footing.” He didn't say we'd ship them to other countries at all, or even imply it, which makes your wording curious when you say “…would be snatched by the CIA from some country and eventually handed over to the custody of 'either' another U.S. agency…” the key word I have a problem with is “either”, as you never say what the alternative is to “another U.S. agency”, but it is seemingly implied, you imply he'd send them to another country, but that isn't true. And that needless description of how that guy was tortured along time ago is just in bad taste and implies that it would continue under Obama, which is completely false.