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Extraordinary RenditionExtraordinary Rendition

Amy GaskinsAmy Gaskins

Shannon KelsoShannon Kelso

October 27, 2009October 27, 2009

Dr. Stuart S. Malawer, National Security Law (Fall 2009).

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AgendaAgenda

Issue StatementIssue Statement History and ContextHistory and Context Solution ProposalSolution Proposal Proposal AnalysisProposal Analysis

• Stakeholder and Interest Group PositionsStakeholder and Interest Group Positions• Domestic and International ConsiderationsDomestic and International Considerations

Summary and ConclusionSummary and Conclusion SourcesSources Questions and DiscussionQuestions and Discussion

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Issue StatementIssue Statement

Extraordinary rendition or irregular Extraordinary rendition or irregular rendition “…refer[s] to the rendition “…refer[s] to the extrajudicialextrajudicial transfer of a person from one State to transfer of a person from one State to another.”another.”• Particularly, …”the alleged transfer of Particularly, …”the alleged transfer of

suspected terrorists to countries known to suspected terrorists to countries known to employe harsh interrogation techniques that employe harsh interrogation techniques that may rise to the level of torture, purportedly may rise to the level of torture, purportedly with the knowledge or acquiescence of the with the knowledge or acquiescence of the United States.”United States.”

• -CRS Report RL32890, April 5, -CRS Report RL32890, April 5, 20062006

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Issue StatementIssue Statement ““Generic description” from Generic description” from

CIA filesCIA files From American Civil From American Civil

Liberties Union obtained Liberties Union obtained via Freedom of Information via Freedom of Information Act requestAct request

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Issue StatementIssue Statement Covert TransferCovert Transfer

• Unlike Unlike extradition extradition or or renditionrendition, whereby one State formally , whereby one State formally transfers a prisoner to another State with jurisdiction, usually transfers a prisoner to another State with jurisdiction, usually by treatyby treaty

Without JurisdictionWithout Jurisdiction• Prisoners may be informally transferred to another State which Prisoners may be informally transferred to another State which

may not have jurisdiction ormay not have jurisdiction or• Prisoners may be transferred to secret prisons by one State in Prisoners may be transferred to secret prisons by one State in

another State’s territoryanother State’s territory Held IndefinitelyHeld Indefinitely

• Prisoners are detained without charge or due process, report Prisoners are detained without charge or due process, report not being accused of anything but held purely for intelligence not being accused of anything but held purely for intelligence gatheringgathering

TortureTorture• Prisoners report being subjected to months of harsh Prisoners report being subjected to months of harsh

interrogation practices, including tortureinterrogation practices, including torture

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Issue StatementIssue Statement

The “Ticking The “Ticking Time Bomb” Time Bomb” RationaleRationale• If one person’s If one person’s

information or information or cooperation could cooperation could save X number of save X number of lives, aren’t we lives, aren’t we obligated to use obligated to use all means all means necessary to save necessary to save those lives?those lives?

• Civilians, Civilians, Americans, alliesAmericans, allies

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Issue StatementIssue Statement Civil LibertiesCivil Liberties

• Habeas corpusHabeas corpus now applies to detainees now applies to detainees• Geneva Conventions now apply to detaineesGeneva Conventions now apply to detainees

Presidential PowerPresidential Power• ““We have long since made clear that a state of war is not a We have long since made clear that a state of war is not a

blank check for the President when it comes to the rights of blank check for the President when it comes to the rights of the Nation’s citizens.”the Nation’s citizens.” (Hamdi S.C. Summary) (Hamdi S.C. Summary)

National Security InterestsNational Security Interests• ““Success in intelligence often depends on surprise and Success in intelligence often depends on surprise and

deception and on creating uncertainty in the mind of an deception and on creating uncertainty in the mind of an enemy.”enemy.” (Former CIA directors) (Former CIA directors)

EfficacyEfficacy• Have these methods been effective in furthering National Have these methods been effective in furthering National

Security?Security?• How effective have these methods been when balanced How effective have these methods been when balanced

against human rights and civil liberties concessions that against human rights and civil liberties concessions that accompany them?accompany them?

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Issue StatementIssue Statement February 2003February 2003

Powell’s Case for War Powell’s Case for War • At the time of his capture by the CIA in Milan, Abu Omar is At the time of his capture by the CIA in Milan, Abu Omar is

under surveillance by the Italian intelligence services for his under surveillance by the Italian intelligence services for his connections with a fiery local cleric and for his suspected connections with a fiery local cleric and for his suspected help in recruiting European Muslims to fight in the help in recruiting European Muslims to fight in the imminent U.S.-led invasion of Iraq. The same month, U.S. imminent U.S.-led invasion of Iraq. The same month, U.S. Secretary of State General Colin Powell, arguing the case Secretary of State General Colin Powell, arguing the case for war against Iraq, tells the United Nations Security for war against Iraq, tells the United Nations Security Council that "a senior terrorist operative" has told U.S. Council that "a senior terrorist operative" has told U.S. authorities that Saddam Hussein had offered to train two al authorities that Saddam Hussein had offered to train two al Qaeda operatives in the use of "chemical or biological Qaeda operatives in the use of "chemical or biological weapons." He is talking about evidence extracted in Egypt weapons." He is talking about evidence extracted in Egypt from senior al Qaeda figure Ibn al-Sheikh al-Libi, who was from senior al Qaeda figure Ibn al-Sheikh al-Libi, who was captured in 2001 and rendered to Egypt by the U.S. captured in 2001 and rendered to Egypt by the U.S. government. government. Al-Libi later recants his testimony, saying it Al-Libi later recants his testimony, saying it was extracted under torture was extracted under torture (emphasis added, Frontline)(emphasis added, Frontline)

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What is Rendition?What is Rendition?

The practice of capturing and The practice of capturing and transporting someone to another transporting someone to another country without legal extraditioncountry without legal extradition

Two countries onlyTwo countries only Used for over 100 yearsUsed for over 100 years Ker v. IllinoisKer v. Illinois (1886) (1886)

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What is Extraordinary Rendition?What is Extraordinary Rendition?

Covert CIA Covert CIA programprogram

Captures terrorist Captures terrorist suspects abroadsuspects abroad

Transfers them to Transfers them to a a third countrythird country

No legal process No legal process (i.e. extradition, (i.e. extradition, habeas corpus)habeas corpus)

Detention, Detention, interrogation, and interrogation, and intelligence intelligence gatheringgathering

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UN Convention Against TortureUN Convention Against TortureOctober 1994October 1994

Bans the transfer of a prisoner to Bans the transfer of a prisoner to another country where there are another country where there are “substantial grounds” that he may “substantial grounds” that he may face tortureface torture

US Congress defines “substantial US Congress defines “substantial grounds” as “more likely than not”grounds” as “more likely than not”

Potentially makes renditions to other Potentially makes renditions to other countries a crime under US lawcountries a crime under US law

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CIA Rendition ProgramCIA Rendition ProgramAugust 1995August 1995

Systematic covert programSystematic covert program Authorized by President Clinton Authorized by President Clinton

under PDD-39under PDD-39 CIA must comply with provisions of CIA must comply with provisions of

the Convention Against Torturethe Convention Against Torture Used primarily to disrupt terrorist Used primarily to disrupt terrorist

activityactivity Egypt becomes first partner countryEgypt becomes first partner country

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First Extraordinary RenditionFirst Extraordinary RenditionSeptember 22, 1995September 22, 1995

Egyptian Abu Talal al-Qasimi Egyptian Abu Talal al-Qasimi captured in Croatiacaptured in Croatia

Transferred to EgyptTransferred to Egypt Executed as a result of 1992 military Executed as a result of 1992 military

tribunal tribunal in absentiain absentia conviction conviction

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War Crimes Act of 1996War Crimes Act of 1996August 1996August 1996

Allows US federal courts to prosecute Allows US federal courts to prosecute grave war crimesgrave war crimes• Willful killingWillful killing• TortureTorture• Inhuman treatmentInhuman treatment• Unlawful deportation or transferUnlawful deportation or transfer

Applies whether acts are committed Applies whether acts are committed “inside or outside the United States”“inside or outside the United States”

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Post 9/11Post 9/11Ibn al-Sheikh al-LibiIbn al-Sheikh al-Libi

Captured on Pakistan borderCaptured on Pakistan border Custody battle between FBI and CIACustody battle between FBI and CIA Rendered to EgyptRendered to Egypt Repatriated to LibyaRepatriated to Libya Died in Abu Salim prison soon after a Died in Abu Salim prison soon after a

team from Human Rights Watch team from Human Rights Watch visited himvisited him

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Asylum SeekersAsylum SeekersDecember 18, 2001December 18, 2001

Two Egyptians seeking asylum in Two Egyptians seeking asylum in SwedenSweden

Handed over to US team at Handed over to US team at Stockholm’s Bromma AirportStockholm’s Bromma Airport

Rendered to EgyptRendered to Egypt Swedish journalists identify tail Swedish journalists identify tail

number of Gulfstream usednumber of Gulfstream used

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Guantanamo BayGuantanamo BayJanuary 2002January 2002

First detainees First detainees arrive at arrive at Guantanamo BayGuantanamo Bay

President Bush President Bush signs EO 13440signs EO 13440• Al Qa’ida and Al Qa’ida and

Taliban detainees Taliban detainees will not be given will not be given POW status under POW status under GenevaGeneva

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Binyam MohamedBinyam MohamedApril 10, 2002April 10, 2002

Arrested in Pakistan at Karachi Arrested in Pakistan at Karachi AirportAirport

Rendered to Temara Prison in Rendered to Temara Prison in MoroccoMorocco

Held for 18 monthsHeld for 18 months Transferred to CIA prison in Transferred to CIA prison in

AfghanistanAfghanistan

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Mohamed et al. v. Jeppesen Dataplan, Inc.Mohamed et al. v. Jeppesen Dataplan, Inc.May 30, 2007May 30, 2007

American Civil Liberties Union files suit on American Civil Liberties Union files suit on behalf of three victims of extraordinary behalf of three victims of extraordinary rendition programrendition program

Charged that Jeppesen Charged that Jeppesen • Knowingly provided direct flight services to the Knowingly provided direct flight services to the

CIA CIA • Facilitated flights to US-run detention facilities Facilitated flights to US-run detention facilities

overseasoverseas USG intervened and asserted the “state USG intervened and asserted the “state

secrets privilege”secrets privilege” Ninth Circuit Court of Appeals reversed Ninth Circuit Court of Appeals reversed

dismissal in April 2009dismissal in April 2009

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Maher ArarMaher ArarSeptember 26, 2002September 26, 2002

Canadian citizenCanadian citizen Detained by US officials at JFK Airport in Detained by US officials at JFK Airport in

New YorkNew York Held for seven daysHeld for seven days Deported to SyriaDeported to Syria Spent 10 months in Palestine Branch Spent 10 months in Palestine Branch

Prison in DamascusPrison in Damascus Freed a year after his arrestFreed a year after his arrest Canadian Prime Minister Canadian Prime Minister

• offers formal apology offers formal apology • orders $9.75 million in compensationorders $9.75 million in compensation

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Arar v. AshcroftArar v. AshcroftJanuary 22, 2004January 22, 2004

Federal lawsuit challenging renditionFederal lawsuit challenging rendition Filed by Center for Constitutional Filed by Center for Constitutional

Rights on behalf of Mr. ArarRights on behalf of Mr. Arar USG moved to dismiss the case by USG moved to dismiss the case by

asserting the “state secrets” asserting the “state secrets” privilegeprivilege

Case dismissed on February 16, 2006 Case dismissed on February 16, 2006 and appealedand appealed

Oral argument heard en banc on Oral argument heard en banc on December 9, 2008December 9, 2008

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Khaled el-MasriKhaled el-MasriJanuary 23, 2004January 23, 2004

German nationalGerman national Detained at Serbia-Macedonia borderDetained at Serbia-Macedonia border Held for three weeks in a Skopje hotel Held for three weeks in a Skopje hotel

roomroom Drugged and transferred to CIA prison in Drugged and transferred to CIA prison in

Kabul, AfghanistanKabul, Afghanistan CIA Director orders his release in May CIA Director orders his release in May

20042004 Deposited on a hill in Albania at night Deposited on a hill in Albania at night

without explanationwithout explanation Case of mistaken identityCase of mistaken identity

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El-Masri v. TenetEl-Masri v. TenetMay 24, 2007May 24, 2007

ACLU files suit on behalf of Khaled el-MasriACLU files suit on behalf of Khaled el-Masri Charged that former CIA DirectorCharged that former CIA Director

• Violated US and universal human rights lawsViolated US and universal human rights laws USG intervened and invoked “state USG intervened and invoked “state

secrets” privilegesecrets” privilege U.S. Court of Appeals upheld dismissalU.S. Court of Appeals upheld dismissal Supreme Court refused to review case in Supreme Court refused to review case in

October 2007October 2007

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CIA “Black Sites”CIA “Black Sites”Spring 2005Spring 2005

Secret prison system exposed by Secret prison system exposed by Washington PostWashington Post journalist journalist

Condoleezza Rice describes rendition Condoleezza Rice describes rendition as a “vital tool” against terrorismas a “vital tool” against terrorism

Detainee Treatment Act of 2005 Detainee Treatment Act of 2005 passedpassed

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Emptying Secret PrisonsEmptying Secret PrisonsSeptember 2006September 2006

President Bush announces that 14 HVDs President Bush announces that 14 HVDs held in CIA prisons have been transferred held in CIA prisons have been transferred to Guantanamo Bayto Guantanamo Bay

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Where Are Renditions Where Are Renditions Happening?Happening?

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EgyptEgypt SyriaSyria JordanJordan MoroccoMorocco

ThailandThailand PolandPoland RomaniaRomania AfghanistanAfghanistan

HungaryHungary AlgeriaAlgeria EthiopiaEthiopia UzbekistanUzbekistan

2727

Who Is Complicit?Who Is Complicit?

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ItalyItaly GermanyGermany SpainSpain UKUK

TurkeyTurkey CyprusCyprus Bosnia-Bosnia-HerzegovinaHerzegovina GambiaGambia

AzoresAzores GreeceGreece SwedenSweden IrelandIreland

PakistanPakistan MacedoniaMacedonia Czech Czech RepublicRepublic AzerbaijanAzerbaijan

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CIA Prison System CIA Prison System and Flight Routesand Flight Routes

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Hearings on RenditionHearings on RenditionApril 2007April 2007

Two House Foreign Affairs Two House Foreign Affairs committees hold a joint hearing on committees hold a joint hearing on legality of extraordinary renditionlegality of extraordinary rendition

Former head of CIA’s Bin Laden Unit Former head of CIA’s Bin Laden Unit defends rendition program asdefends rendition program as• ““the single most effective the single most effective

counterterrorism operation ever counterterrorism operation ever conducted by the United States conducted by the United States government”government”

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The National Security with Justice The National Security with Justice Act of 2007 (S. 1876)Act of 2007 (S. 1876)

Bill sponsored by Sen. BidenBill sponsored by Sen. Biden S. 1876 wouldS. 1876 would

• Prohibit extraterritorial detention and Prohibit extraterritorial detention and rendition, except under limited rendition, except under limited circumstancescircumstances

• Modify the definition of “unlawful enemy Modify the definition of “unlawful enemy combatant”combatant”

• Extend statutory habeas corpus to Extend statutory habeas corpus to detaineesdetainees

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CIA Director Defends RenditionCIA Director Defends RenditionSeptember 7, 2007September 7, 2007

General Michael HaydenGeneral Michael Hayden CIA has detained “fewer than 100” CIA has detained “fewer than 100”

people at proxy detention centerspeople at proxy detention centers Renditions were conducted lawfullyRenditions were conducted lawfully More than 70% of HUMINT in NIE More than 70% of HUMINT in NIE

came from detaineescame from detainees

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Executive Order 13491Executive Order 13491January 22, 2009January 22, 2009

Ensuring Lawful InterrogationsEnsuring Lawful Interrogations Revokes EO 13440Revokes EO 13440 Establishes Common Article 3 as a Establishes Common Article 3 as a

minimum baselineminimum baseline Orders CIA to close all detention facilities Orders CIA to close all detention facilities

in operationin operation Forbids any future CIA detention facilities Forbids any future CIA detention facilities

from operatingfrom operating Provides ICRC access to detaineesProvides ICRC access to detainees Establishes Special Task Force to review Establishes Special Task Force to review

interrogation and transfer policiesinterrogation and transfer policies

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Solution ProposalSolution Proposal

End the practice of extraordinary End the practice of extraordinary rendition and in its place employ rendition and in its place employ only rendition, which introduces only rendition, which introduces accountability into prisoner and accountability into prisoner and detainee transfer processdetainee transfer process

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Solution ProposalSolution Proposal

Prisoners and detainees would receive Prisoners and detainees would receive Geneva Convention protections or Geneva Convention protections or habeas habeas corpuscorpus

U.S. would not be able to render if U.S. would not be able to render if prisoner may incur torture prisoner may incur torture

Intelligence analysts will have more Intelligence analysts will have more restrictions and may be less effectiverestrictions and may be less effective

Chilling effect on information sharing Chilling effect on information sharing between countries with harsh between countries with harsh interrogation or torture and the U.S.interrogation or torture and the U.S.

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Groups Who Want Groups Who Want Program to ContinueProgram to Continue

CIA & Other IC CIA & Other IC ComponentsComponents• Effective method of Effective method of

intelligence intelligence collectioncollection

• Identifies and Identifies and disrupts terrorist disrupts terrorist networksnetworks

• Maintains Maintains relationships with relationships with FISFIS

Third CountriesThird Countries• Enhances relationship Enhances relationship

with CIAwith CIA• Increased funding/aid Increased funding/aid

from US governmentfrom US government• Public recognition for Public recognition for

capture effortscapture efforts• Limited liabilityLimited liability

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Groups Who Don’t WantGroups Who Don’t WantProgram to ContinueProgram to Continue

Human/Civil Rights Human/Civil Rights OrganizationsOrganizations• ACLU, CCR, HRW, ACLU, CCR, HRW,

Amnesty Int’l, Amnesty Int’l, ReprieveReprieve

• Rendition violates Rendition violates human and/or human and/or constitutional rightsconstitutional rights

Federal Bureau of Federal Bureau of Investigation (FBI)Investigation (FBI)

• Concern over Concern over jurisdiction and legalityjurisdiction and legality

• Fought against Fought against rendition of al-Libirendition of al-Libi

• Openly opposed CIA Openly opposed CIA detainee treatment at detainee treatment at Guantanamo BayGuantanamo Bay

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Summary and ConclusionSummary and Conclusion

Ending practice of extraordinary Ending practice of extraordinary rendition:rendition:• Satisfies civil liberties, human rights, Satisfies civil liberties, human rights,

and executive powers issues, but and executive powers issues, but • National security interests and the National security interests and the

intelligence community may pay a priceintelligence community may pay a price This reflects position of the current This reflects position of the current

AdministrationAdministration

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Summary and ConclusionSummary and Conclusion

Given the questionable efficacy of these Given the questionable efficacy of these practices to date, coupled with the need practices to date, coupled with the need to comply with increasing court rulings to comply with increasing court rulings granting rights to prisoners and detainees, granting rights to prisoners and detainees, this solution may be inevitable this solution may be inevitable

Better to employ this solution today so Better to employ this solution today so that adequate legal framework and that adequate legal framework and intelligence oversight is in place for the intelligence oversight is in place for the next “ticking time bomb”next “ticking time bomb”

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Questions?Questions?

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SourcesSources

American Civil Liberties Union. “El-Masri v Tenet.” American Civil Liberties American Civil Liberties Union. “El-Masri v Tenet.” American Civil Liberties Union and the ACLU Foundation, 4 May 2007. Web. 25 Oct. 2009. Union and the ACLU Foundation, 4 May 2007. Web. 25 Oct. 2009. <http://www.aclu.org/safefree/torture/29868res20070524.html><http://www.aclu.org/safefree/torture/29868res20070524.html>

American Civil Liberties Union. “Mohamed et al. v Jeppesen Dataplan, Inc.” American Civil Liberties Union. “Mohamed et al. v Jeppesen Dataplan, Inc.” American Civil Liberties Union and the ACLU Foundation, 30 May 2007. American Civil Liberties Union and the ACLU Foundation, 30 May 2007. Web. 25 Oct. 2009. Web. 25 Oct. 2009. <http://www.aclu.org/safefree/torture/29921res20070530.html><http://www.aclu.org/safefree/torture/29921res20070530.html>

Biden, Joseph R., Jr. “S. 1876.” The Library of Congress THOMAS. Web. 26 Biden, Joseph R., Jr. “S. 1876.” The Library of Congress THOMAS. Web. 26 Oct. 2009. <http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s1876:>Oct. 2009. <http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s1876:>

Center for Constitutional Rights. “Arar v. Ashcroft et al.” Web. 25 Oct. Center for Constitutional Rights. “Arar v. Ashcroft et al.” Web. 25 Oct. 2009. <http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft>2009. <http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft>

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SourcesSources Council of Europe. “Alleged Secret Detentions in Council of Europe Member Council of Europe. “Alleged Secret Detentions in Council of Europe Member

States.” 27 Jun. 2007. Web. 26 Oct. 2009. States.” 27 Jun. 2007. Web. 26 Oct. 2009. <http://www.coe.int/T/E/Com/Files/Events/2006-cia/><http://www.coe.int/T/E/Com/Files/Events/2006-cia/>

Frontline/World. Frontline/World. Extraordinary RenditionExtraordinary Rendition. Public Broadcasting Service. 7 . Public Broadcasting Service. 7 Nov. 2007. Web. 26 Oct. 2009. Nov. 2007. Web. 26 Oct. 2009. <http://www.pbs.org/frontlineworld/stories/rendition701/><http://www.pbs.org/frontlineworld/stories/rendition701/>

Obama, Barack. “Executive Order - Ensuring Lawful Interrogations.” 22 Jan. Obama, Barack. “Executive Order - Ensuring Lawful Interrogations.” 22 Jan. 2009. Web. 26 Oct. 2009. 2009. Web. 26 Oct. 2009. <http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogation<http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/>s/>

United States Supreme Court. “Ker v. Illinois, 119 U.S. 436 (1886).” US United States Supreme Court. “Ker v. Illinois, 119 U.S. 436 (1886).” US Supreme Court Center. Web. 26 Oct. 2009. Supreme Court Center. Web. 26 Oct. 2009. <http://supreme.justia.com/us/119/436/><http://supreme.justia.com/us/119/436/>

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