On New Year’s Day, Craig Whitlock reported in the Washington Post an August 2012 arrest by local authorities of three Somali men
transiting Djibouti in August who were then interrogated by FBI agents and transferred
to U.S. custody to face charges in the United States in Article III
courts. After this depiction, Whitlock
concludes that “the Obama administration has embraced rendition,” declaring
that they have “tak[en] on renewed significance because the administration and
Congress have not reached agreement on a consistent legal pathway for
apprehending terrorism suspects overseas and bringing them to justice.” He
clearly links the Obama administration’s practice to the Bush administration
practice, impliedly asking us to see this as yet another example of Obama
carrying on his predecessor’s counterterrorism tactics (and getting away with
it without criticism):
The men are the latest example of how the Obama
administration has embraced rendition — the practice of holding and
interrogating terrorism suspects in other countries without due process —
despite widespread condemnation of the tactic in the years after the Sept. 11,
2001, attacks. (emphasis mine).
But the practice Whitlock describes through the
August 2012 vignette is not the practice as he defines it in the emphasized
quotation above. Whitlock describes the
arrest of suspects, their transfer apparently without extradition or other
judicial process to the United States, and their subsequent indictment and
trial. The Bush-era practice—the one subject to “widespread condemnation . . .
in the years after the Sept. 11, 2001 attacks”—involved detaining individuals
in one country, transporting them to a third country, and then torturing them.
These individuals were not indicted, they were not provided attorneys, in fact
there was little expectation that these individuals would be heard from again.
Examples of the Bush-era practice include the abduction of Osama Moustafa
Hassan Nasr in Milan in 2003 and his subsequent transfer to Egypt to be
tortured—26 Americans have been convicted by an Italian court in absentia forthis incident—and the 2003 mistaken arrest of Khalid el-Masri by Macedonian
police, his transfer to U.S. authorities, and his being held or tortured in
Iraq and Afghanistan. In 2004, after the U.S. realized that el-Masri was
mistakenly detained, he was flown to Albania and deposited on the side of a road
at night.
If these practices—the ongoing Obama administration
practice described by Whitlock and the Bush-era practice—sound substantially
different to you, that is because they are. The Obama administration is engaged
in a practice Whitlock correctly identifies as rendition. The Bush-era
practice Whitlock invites us to remember is known as extraordinary rendition.
The adjective matters a great deal.
Rendition is a practice greatly predates September
11, 2001—see, for example, this 1934 BU law review article on the practice. It
is also exactly as Whitlock describes it: “The return of a fugitive from one
state to the state where the fugitive is accused or convicted of a crime.” 8
ed. Black’s Law Dictionary. Rendition allows states to avoid the normal legal
procedure of extradition when there are barriers to extradition like the
absence of an extradition treaty, or the absence of a similar crime in each
jurisdiction, or when extradition might be unfeasible for political reasons.
Rendition is certainly not the normal mode of business between states, and it
may circumvent due process rights the accused is entitled to, but it is not
uncommon and its purpose is to expose the rendered individual to judicial
process: either trial or the execution of a sentence for conviction.
What makes extraordinary rendition extraordinary
is that its purpose is not to bring the target before a court for trial or to
otherwise subject the target to judicial process. No, the point of
extraordinary rendition is to avoid judicial process altogether—to cause an
individual to disappear, be held incommunicado, and extract intelligence not
evidence from that individual. What made the practice so heinous in the Bush
administration is not merely its lack of transparency or accountability but
rather that its opacity facilitated torture.
So, yes, the Obama administration is using ordinary
rendition. Is this shocking? No. Is it in anyway similar to the abduction,
black sites, and torture used in the Bush administration? No. Adjectives
matter.