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A Call to End All Renditions

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says that instead of leaving the door open for the CIA to continue to engage in the rendition of terrorism suspects to other countries so long as the process is somehow handled "humanely", the Obama administration should end renditions altogether and prosecute those who have ordered renditions since 2001...

Binyam Mohamed, an Ethiopian residing in Britain, said he was tortured after being sent to Morocco and Afghanistan in 2002 by the U.S. government. Mohamed was transferred to Guantánamo in 2004 and all terrorism charges against him were dismissed last year. Mohamed was a victim of extraordinary rendition, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured.

Mohamed and four other plaintiffs are accusing Boeing subsidiary Jeppesen Dataplan, Inc. of flying them to other countries and secret CIA camps where they were tortured. In Mohamed’s case, two British justices accused the Bush administration of pressuring the British government to block the release of evidence that was “relevant to allegations of torture” of Mohamed.

Twenty-five lines edited out of the court documents included details about how Mohamed’s genitals were sliced with a scalpel as well as other torture methods so extreme that waterboarding “is very far down the list of things they did,” according to a British official quoted by the Telegraph (UK).

The plaintiffs’ complaint quotes a former Jeppesen employee as saying, “We do all of the extraordinary rendition flights – you know, the torture flights.” A senior company official also apparently admitted the company transported people to countries where they would be tortured.

Obama’s Justice Department appeared before a three-judge panel of the Ninth U.S. Circuit Court of Appeals Monday in the Jeppesen lawsuit. But instead of making a clean break with the dark policies of the Bush years, the Obama administration claimed the same “state secrets” privilege that Bush used to block inquiry into his policies of torture and illegal surveillance. Claiming that the extraordinary rendition program is a state secret is disingenuous since it is has been extensively documented in the media.

“This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course,” said the ACLU’s Ben Wizner, counsel for the five men.

If the judges accept Obama's state secrets claim, these men will be denied their day in court and precluded from any recovery for the damages they suffered as a result of extraordinary rendition.

Two and a half weeks before Obama’s representative appeared in the Jeppesen case, the new President had signed Executive Order 13491. It established a special task force “to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.”

This order prohibits extraordinary rendition. It also ensures humane treatment of persons in U.S. custody or control. But it doesn’t specifically guarantee that prisoners the United States renders to other countries will be free from cruel, inhuman or degrading treatment that doesn’t amount to torture. It does, however, aim to ensure that our government’s practices of transferring people to other countries complies with U.S. laws and policies, including our obligations under international law.

One of those laws is the International Covenant on Civil Political Rights (ICCPR), a treaty the United States ratified in 1992. Article 7 of the ICCPR prohibits the States Parties from subjecting persons “to torture or to cruel, inhuman, or degrading treatment or punishment.” The UN Human Rights Committee, which is the body that monitors the ICCPR, has interpreted that prohibition to forbid States Parties from exposing “individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”

Order 13491 also mandates, “The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.” The order does not define “expeditiously” and the definitional section of the order says that the terms ‘detention facilities’ and ‘detention facility’ “do not refer to facilities used only to hold people on a short-term, transitory basis.” Once again, “short term” and “transitory” are not defined.

In his confirmation hearing, Attorney General Eric Holder categorically stated that the United States should not turn over an individual to a country where we have reason to believe he will be tortured. Leon Panetta, nominee for CIA director, went further last week and interpreted Order 13491 as forbidding “that kind of extraordinary rendition, where we send someone for the purposes of torture or for actions by another country that violate our human values.”

But alarmingly, Panetta appeared to champion the same standard used by the Bush administration, which reportedly engaged in extraordinary rendition 100 to 150 times as of March 2005. After September 11, 2001, President Bush issued a classified directive that expanded the CIA’s authority to render terrorist suspects to other States. Former Attorney General Alberto Gonzales said the CIA and the State Department received assurances that prisoners will be treated humanely. “I will seek the same kinds of assurances that they will not be treated inhumanely,” Panetta told the senators.

Gonzales had admitted, however, “We can’t fully control what that country might do. We obviously expect a country to whom we have rendered a detainee to comply with their representations to us . . . If you’re asking me, ‘Does a country always comply?’ I don’t have an answer to that.”

The answer is no. Binyam Mohamed’s case is apparently the tip of the iceberg. Maher Arar, a Canadian born in Syria, was apprehended by U.S. authorities in New York on September 26, 2002, and transported to Syria, where he was brutally tortured for months. Arar used an Arabic expression to describe the pain he experienced: “you forget the milk that you have been fed from the breast of your mother.” The Canadian government later exonerated Arar of any terrorist ties. In another instance, thirteen CIA operatives were arrested in Italy for kidnapping an Egyptian, Abu Omar, in Milan and transporting him to Cairo where he was tortured.

Panetta made clear that the CIA will continue to engage in rendition to detain and interrogate terrorism suspects and transfer them to other countries. “If we capture a high-value prisoner,” he said, “I believe we have the right to hold that individual temporarily to be able to debrief that individual and make sure that individual is properly incarcerated.” No clarification of how long is “temporarily” or what “debrief” would mean.

When Sen. Christopher Bond (R-Mo.) asked about the Clinton administration’s use of the CIA to transfer prisoners to countries where they were later executed, Panetta replied, “I think that is an appropriate use of rendition.” Jane Mayer, columnist for the New Yorker, has documented numerous instances of extraordinary rendition during the Clinton administration, including cases in which suspects were executed in the country to which the United States had rendered them. Once when Richard Clarke, President Clinton’s chief counter-terrorism adviser on the National Security Council, “proposed a snatch,” Vice-President Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

There is a slippery slope between ordinary rendition and extraordinary rendition. “Rendition has to end,” Michael Ratner, president of the Center for Constitutional Rights, recently told Amy Goodman on Democracy Now!: “Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence.” Ratner queried whether Cuba could enter the United States and take Luis Posada, the man responsible for blowing up a commercial Cuban airline in 1976 and killing 73 people. Or whether the United States could go down to Cuba and kidnap Assata Shakur, who escaped a murder charge in New Jersey.

Moreover, “renditions for the most part weren’t very productive,” a former CIA official told the Los Angeles Times. After a prisoner was turned over to authorities in Egypt, Jordan or another country, the CIA had very little influence over how prisoners were treated and whether they were ultimately released.

The U.S. government should disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001. Those who ordered renditions should be prosecuted. And the special task force should recommend, and Obama should agree to, an end to all renditions.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her new book, Rules of Disengagement: The Politics and Honor of Military Dissent (with Kathleen Gilberd), will be published in April 2009. Her articles are archived at

February 10, 2009

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People often forget that the extraordinary rendition program was created by Bill Clinton. It was far less used than it was under Bush; part of its utility was to be able to threaten suspects with something worse in the ultimate "good cop/bad cop" routine.

I don't like it either. But from having had contact with the kinds of people who are conducting islamist jihad on the West (it's not just america, we just like to think so) I am reluctant to say end this program completely.

I do think we should improve our interrogation methods and get rid of most of the harsh methods. The most successful interrogators in history have very rarely used harsh methods. I know for a fact that the KGB and today's FSB (Russia's successor to the KGB) is very slow to use them. But they do sometimes.

I know what people are going to say to this, but having been near enough to decisions like this, when it appears that the question is, harm one person who evidence makes certain is the perpetrator, or allow hundreds, thousands or maybe even millions to die, pretty much everybody makes the same choice. If it's your children who are the target, every mother I know would skin someone alive to stop it.

That is why Bill Clinton created extraordinary rendition. I agree that it should not be used as often as it has been. But if we say, "Stop it completely." that means one of two things will happen.

A. Sooner or later, a lot of people will die while one man laughs at us.

B. The most likely scenario is that some man or woman will decide that going to jail or being executed is worth it. (And don't kid yourself. Women do make that decision. Don't think they are slower to make it than men are either.)

I sometimes wonder which is better. Some days I don't know. The big problems come when a mistake gets made and you have the wrong person. That is what happens when things are authorized wholesale, without enough review.

But regardless of what any of us thinks, if a nuclear bomb ever goes off in an American city, torture will be used after that. And the draconian police powers that will be created will make anything we have seen yet seem like an old ladies tea party. That is one of the reasons why I am reluctant to end extraordinary rendition completely. If we do that, and something happens, it will be just the lever that the far right needs to really take torture big time.

Be careful about the big picture. If you really want to minimize torture, complete prohibition may not be the best course.

February 11, 2009  

The extraordinary rendition program was NOT created by Bill Clinton. That's a baseless claim. This article isn't factual in full, either.

The original RENDITION was instituted under George HW Bush. It allows terrorism suspects to be captured and brought the US, and only with full legal and civil rights. It's also recognized to be humane, and is Geneva approved.

That same original RENDITION allows the US to release such suspects to the governments of other countries, provided those governments do not engage in tortuous acts.

That's the exact same as the state of California releasing an arrested suspect to the law enforcement of Oregon, where that suspect may also be wanted for criminal charges.

Under George W Bush was EXTRAORDINARY RENDITION instituted, which allowed the CIA to capture suspects, hold those suspects in foreign areas outside the US, detain those suspects with no legal rights or representation, and no civil rights, either. Thus, those suspects were tortured, and in many ways.

This extraordinary rendition is exactly what is being referred to in this article ("...President Bush issued a classified directive that expanded the CIA’s authority..."). That actually WAS extraordinary rendition - not an extension of it or variation to it.

The first day of Obama's presidency saw the end of EXTRAORDINARY RENDITION and stated reinstitution of RENDITION.

Some former CIA folks are lunging at the opportunity to try to associate rendition with extraordinary rendition. Particular media are gobbling it up, too.
Part of their claims are that some extraordinary rendition occured under Clinton's term. While the CIA did get caught in illegal detentions of foreign suspects during Clinton's administration, that did NOT occur by Clinton's approval. Clinton learned after, and Clinton made sure it didn't happen again.

Toradze, your claims of Clinton creating it and exercising it are false, as I'm sure you know, as well.

It almost seems as if particular CIA staff and particular media (and you, too, Toradze) are trying to get the blame away from Bush 43 without including any reference to the original rendition under Bush 41; to do so, they are now attempting to associate Obama with extraordinary rendition, and claiming it originated with Clinton.

I understand all the complaints against Extraordinary Rendition, and issue very many against it myself. I don't understand why so many people are trying to misdirect the attention of its wrongdoings onto others with no affiliation, including the president who put a stop to it on his first day in office.

For example, this article casts negativity upon Panetta for promoting the original rendition procedure - which is the same as transfer of wanted suspects between US states. Panetta issued a statement that says the US will abide by the original and Geneva-approved program.

Ths article attempts to misconstrue Panetta's statement to be an extension of extraordinary rendition. Nothing further from the truth.

February 11, 2009  


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