More rendition under the new US President?
Eagle-eyed Matt, frequent and welcome contributor to these columns, has sent me this disturbing message, which needs to be read with the Los Angeles Times article mentioned in the first sentence. (The article is headed: “Obama preserves renditions as counter-terrorism tool” and, as Matt shows, is well sourced.) Here is what Matt wrote:
Did you notice this? Looks as if extraordinary rendition stays under Obama.
Or is this a case of lazy journalism?….when I look at the sources section 2 g states:“(g) The terms “detention facilities” and “detention facility” in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.”
and section 5:
“Sec. 5. Special Interagency Task Force on Interrogation and Transfer Policies.”“(ii) 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.”
(my emphasis)Anyway I thought I’d draw your attention to this as this is the kind of thing you are often interested in and can probably make better sense of it than I can!
Cheers
I agree that this is worrying, on the face of it. It is however important to remember that ‘ordinary’ rendition — kidnapping a suspected criminal extra-legally in a foreign country, removing him from it without any extradition or other legal procedure and transporting him to the US for trial — has been practised by US administrations since the 1880s (not a typo: the 1880s) and that the US courts have consistently refused to enquire into the circumstances in which a person accused of crime has been brought into their jurisdiction. In his magisterial and authoritative account of rendition, Ghost Plane, Stephen Grey describes how in the 1980s, under President Reagan, renditions became an acknowledged weapon against terrorists: Executive Order 12333 of 4 December 1981 authorised the CIA to participate in such operations (Ghost Plane, p. 119). It seems to have been only after 9/11 in 2001 that ‘extraordinary rendition’ — used to kidnap suspects overseas and transfer them secretly not to the US, but to third countries for harsher kinds of interrogation than would be legally permissible in the United States — began to be practised and eventually to have aroused intense concern both in the US and internationally.
Given such a long history of ordinary rendition, never apparently challenged in the American courts and practised relatively openly by successive administrations for well over 100 years, it becomes more understandable that President Obama’s Executive Order of 22 January, made only two days after he took office as President, should adopt such a cautious attitude to the practice. It seems that many Americans see nothing much wrong with it so long as it doesn’t involve torture. I suppose most Europeans, certainly including me, see it as worse than kidnapping — worse because sanctioned and indeed carried out by the state, because it’s inherently arbitrary, because those who authorise and carry it out are not accountable to anyone, because its victims have no means of redress, because if deemed acceptable when practised by Americans, there’s no ground for resisting it if and when carried out anywhere in the world by agents of the governments of Zimbabwe or Russia or China; and because if it’s sanctioned and continues to be practised, even if only by the Americans, no citizen of any other country, anywhere in the world, is safe from sudden abduction at the hands of the CIA or other US agencies, with the possibility of the ruin of a perhaps perfectly innocent life. Rendition, even in its original form, certainly seems completely contrary to the spirit of President Obama’s Inaugural Address. It’s devoutly to be hoped that the proposed working group set up to study this obnoxious practice finds that it is indeed contrary to basic tenets of international law, and, in spite of rendition having been tolerated in the US for so many years, that it should stop. Period.
Brian
there’s no ground for resisting it if and when carried out anywhere in the world by agents of the governments of Zimbabwe or Russia or China;
Or Israel? To name one country which has been known to practice such rendition.
If some country A carries out an “ordinary” rendition of a person in some other country B and the government of B becomes aware of the fact then what redress does B have in international law beyond normal criminal proceedings against those directly involved? In general, what are the legal consequences of any illegal act by agents acting on behalf of the government of A while in B, assuming they’re not covered by diplomatic immunity or other special agreements (e.g., US forces in the UK or Japan, I think) and assuming it’s below the threshold which would be considered an act of war (whatever that is).
Brian writes: Thanks, Ed. Quite right: Israel “rendered” Eichmann in Argentina and flew him to Israel in 1960, of course, and also picked up Mordechai Vanunu, the nuclear whistleblower, in Italy in 1991. According to Wikipedia,
This confirms (if confirmation were necessary) that kidnapping anyone in someone else’s country, and removing him without any legal process to another country, is likely to damage relations with the country where the kidnapping takes place. I think, but would need to check in Stephen Grey’s book, that some of the countries from which the CIA has abducted terrorist suspects, including Canada, have protested strongly to Washington about this criminal activity in their sovereign territory; and similar protests have, I think, been made by governments (e.g. Germany’s) whose nationals have been abducted from third countries by the CIA without consultation with the government concerned and without observing the requirements of extradition treaties or other legal obligations. Protests of this kind may entail some coolness in relations for a while, and may be reinforced by refusal to co-operate in other areas or deliberate delays in co-operation. Cancellation or postponement of ministerial visits, delay in granting agrément to the other country’s nominated candidate to be its ambassador, a freeze in social contacts, and so forth, are all possible ways of expressing displeasure in concrete ways. Perhaps the main sanction if rendition continues to be practised by the Obama administration will be public international outrage over the criminal actions in other countries of authorised agents of the United States government. This would take much of the shine off the new start promised by President Obama and eagerly awaited by the rest of the world.
Incidentally, Americans in other countries enjoying diplomatic immunity have absolutely no licence to kidnap people in the country where they are serving. Diplomatic immunity does not confer any right to act in breach of the country’s laws. It normally confers immunity from prosecution, but that would normally be waived by the diplomat’s government if he was credibly accused of having committed a crime and the prosecution was clearly not politically motivated. If the diplomat’s government refused to waive his immunity to enable him to be arrested and tried on a serious criminal charge such as kidnapping, the receiving government would almost certainly expel the diplomat concerned and might well withdraw its own ambassador from the other country’s capital “for consultations”, which in effect requires the other government to withdraw its own ambassador too. Even the US government would be pretty reluctant to get into quarrels of this kind with too many normally friendly governments — especially a US government which has promised to take more notice of its allies’ concerns and interests. I think, but am not sure, that even under the GW Bush administration CIA officers have been prosecuted in Rome for kidnapping rendition victims on Italian soil, but I don’t know whether this required Washington to waive their diplomatic immunity. Perhaps someone can enlighten us?
Rendition as you suggest is an extraordinary measure that has is hard to justify in most ordinary circumstances. Given, however, that the US Supreme Court has held since the 1880s (in particular Ker vs Illinois, involving a kidnap in Peru by the Pinkerton detective agency) that the act of rendition is not per se illegal, at least under US law, the acid test is whether Obama will return to the idea of renditions to justice as opposed to renditions to jurisdictions where justice is unlikely. Whether you approve of such kidnaps or not in principle, there has got to be big difference between kidnapping someone and bringing them before a US federal court (the traditional practice) and secretly shipping them off to a place like Egypt where they may never been seen again, and where torture is routine (extraordinary rendition).
(PS: It is a cop-out just to announce that from now on people won’t be sent somewhere to be tortured; that has never been the policy only the practice. Assurances of good treatment by the countries that receive these prisoners have to be credible; and above all there has to be openness & accountability – both for the country responsible for the kidnap and for the country that receives the prisoner. It’s the secrecy that kills the prisoner.)
Brian writes: Thanks very much for this comment, from the horse’s mouth so to speak. I entirely agree that there’s a substantive difference between (a) kidnapping someone abroad to bring them to justice in one’s own country, and (b) kidnapping him abroad for shipping off to a third country where he may disappear, is likely to be tortured, and is anyway unlikely to receive justice. Nevertheless, I regard (a) — “ordinary” rendition where the object is to bring the suspect before an American court — as deeply objectionable, whatever the view that may have been taken of it by the American courts, and even if it is considerably less objectionable than (b), “extraordinary rendition”, with its undertones of possible torture and other unacceptable practices. “Assault and battery” is obviously less objectionable than murder, but it’s objectionable nonetheless, as I’m sure you would agree. We are surely entitled to hope that the Obama administration will abandon both kinds of rendition, whatever may have been the practice ever since the 1880s; and that if even ordinary rendition continues, the countries whose laws are violated by CIA agents will kick up the most almighty public fuss about the contempt shown for their laws and sovereignty.