Hints About the Future of Rendition Policy from Obama

March 09, 2009 | Last updated: July 31, 2020

Obama on rendition, to The New York Times. I’m transcribing from the audio.

There could be situations — and I emphasize could be, because we haven’t made a determination yet — where, let’s say that we have a well-known al-Qaeda operative, doesn’t surface very often, [and who] appears in a third country with whom we don’t have an extradition relationship or isn’t willing to prosecute. And we think [this operative] is a very dangerous person. 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.

The hypothetical scenario he’s describing isn’t extraordinary rendition, the process by which the United States would transfer a detainee extra-judicially into the custody of another country, typically as a method of claiming not to know that the detainee is tortured. It’s more like a tweaked version of the infamous case of Abu Omar, whom CIA and Italian intelligence agents abducted off the streets of Milan on suspicion of involvement with terrorism and handed to the Egyptian security service. Abu Omar told Peter Bergen last year what happened to him:

Spreading his arms in a crucifixion position, he demonstrates how he was tied to a metal door as shocks were administered to his nipples and genitals. His legs tremble as he describes how he was twice raped. He mentions, almost casually, the hearing loss in his left ear from the beatings, and how he still wakes up at night screaming, takes tranquilizers, finds it hard to concentrate, and has unspecified “problems with my wife at home.”

An Italian judge has indicted 25 CIA operatives and an Air Force colonel for their involvement in Abu Omar’s abduction. Since the U.S. refuses to extradite them, they’re being tried in absentia.

Assume for a moment that the hypothetical scenario Obama outlines is enshrined as U.S. policy tomorrow. That would mean the next Abu Omar would be snatched by the CIA from some country and eventually handed over to the custody of either another U.S. agency — as the CIA is out of the “long-term” detention business — and a process ensues whereby s/he can challenge the basis for his/her detention. The individual would have to be interrogated in accordance with the Geneva Conventions. And this would all have to comport with international law. I am unsure of what basis there is for rendition in international law and would love to be enlightened on that score.