Rendition vs. Rendition or Adjectives Matter

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.