January 8, 2008
1. Executive Summary
Since the early 1990s, the United States government has been operating a program to forcibly seize suspected terrorists in foreign countries and transfer them to a 3rd state without the knowledge or consent of the host country. This program, known as extraordinary rendition, was expanded after the Bush administration declared its war on terror in 2001. So far, an estimated 1,245 flights have rendered suspected terrorists to various locations around the world, including so-called "black sites" or undisclosed detention facilities operated by the CIA. The practice has created tension between the United States and some of its key allies in the war on terror. Extraordinary rendition has been criticized by the Council of Europe, Congressional committees and human rights proponents, some of whom question the program’s legality.
2. History of the Program
The practice of extraordinary rendition arose in the wake of the 1993 World Trade Center bombing as a way for the CIA to keep key terror suspects out of the U.S. court system, where it was feared that intelligence sources would be jeopardized. The program was later expressly authorized by President Bill Clinton in Presidential Decision Directive 39, which cited procedures for forcible abduction of terrorist suspects without the consent of host governments outlined in National Security Directive 77.
After September 11, the program was routinely used to render suspects in the war on terror. The European Union Parliament estimated that the CIA had flown as many as 1,245 extraordinary rendition flights between September 2001 and February, 2007, including flights to countries where suspects are known to be tortured.
The practice remained largely unknown to the public, however, until 2004, when reports of the program began to surface in the European media. White House confirmation of the program came in a speech delivered by President George W. Bush on September 6, 2006, in which Bush acknowledged that certain terrorists were being held outside the United States, although he refused to divulge the location of these detention centers or details of the prisoners’ confinement. An investigation by the Council of Europe subsequently confirmed that certain terrorists had been held in CIA-run “black sites” in Poland and Romania between 2003 and 2005 while others had been handed over to countries identified by the State Department as using torture to extract information from detainees.
In 1993, Richard Clarke, the former chief of counter-terrorism on the U.S. National Security Council urged the administration of President Bill Clinton to conduct the first extraordinary rendition. According to Clarke, Al Gore admitted the program’s illegality, but urged Clinton to go ahead with the practice covertly. There are, however, numerous legal issues involved in the extraordinary rendition process, and it is uncertain which issue or issues Gore felt illegal.
The US Department of Justice Attorney Manual cites the 1992 Supreme Court decision United States v Alvarez-Machain as allowing for the trial of defendants even if they were abducted from a foreign country by US agents so long as prosecutors secure approval of the procedure in advance from the Department of Justice. As this ruling applies to defendants who have been brought to the US for trial, however, it is uncertain if it has any bearing on extraordinary rendition, where defendants are held in a foreign country expressly to avoid being put on trial.
Some critics have charged that the process unconstitutionally strips the right of habeas corpus–or the right to contest one’s detention, a legal precedent dating back to the Magna Carta–from detainees, while others suggest the process is in violation of the United Nations Convention Against Torture, which forbids nations from turning prisoners over to countries where there is a reasonable chance of torture and to which the United States is a signatory.
One of the first legal tests of these powers came before the Supreme Court in 2004 in a case referred to as Rasul v Bush. In this case, the Supreme Court held that prisoners in the detention of the United States or its agents retain the right to petition US courts under habeas corpus regardless of where they are being held. Subsequently, the Bush Administration proposed and Congress passed the Military Commissions Act, which purportedly stripped away that right, although the act’s constitutionality is currently being debated by the Supreme Court.
Again, it is uncertain what ramifications these legal decisions have on the extraordinary rendition process, which may apply only to sites–such as Guantanamo Bay–which are under US control. Meanwhile, the government continues to assert that the program does not violate the United Nations Convention Against Torture, as they seek assurances that detainees will not be tortured before handing suspects over to foreign governments for interrogation.
4. Effect on International Relations
It remains to be seen what long-term effects the extraordinary rendition process will have on international relations, but the procedure has undoubtedly increased tensions between the United States and its key allies in Europe, where many of the key terror suspects were abducted or held. Following is a summary of the program’s effects on bilateral relations with various countries:
U.S. relations with Canada were affected by the extraordinary rendition of Maher Arar. Arar is a Canadian citizen of Syrian origin who was detained while transiting through America in 2002 and subsequently rendered to Syria, where he was tortured for 10 months before finally being allowed to return to Canada. Canadians were scandalized to learn that the Royal Canadian Mounted Police had been sharing information on Mr. Arar with US intelligence agencies and subsequently Canadian Deputy Prime Minister Anne McLellan struck a commission to review oversight of national security functions. Given the close relationship between the Harper and Bush administrations, however, it is unlikely that Canada will cease intelligence sharing and other joint actions in the war on terror while these administrations are in power.
In 2003, Khaled al-Masri, a German citizen, was abducted by 13 CIA agents in Macedonia and flown to Afghanistan where he claims he was tortured for five months before being released in Albania. Faced with outrage at the case among the domestic population and increasing pressure from the European Parliament on states complicit in the American extraordinary rendition program, Germany requested the extradition of 13 CIA agents identified as taking part in the abduction. The U.S. denied the request. The German government has decided not to pursue the issue further in order to avoid conflict with the U.S. authorities. In order to maintain favorable relations with the U.S., Germany will likely allow the Council of Europe or other European body to implement a Europe-wide response to the extraordinary rendition program rather than pursue reparation by itself.
In 2007, Italian courts indicted 26 American intelligence officials and five Italian intelligence officials for their part in the extraordinary rendition of Osama Moustafa Hassan Nasr, who was abducted from Milan and flown to Egypt where he was tortured for four years. The case was adjourned, however, after political pressure was brought to bear on the prosecutor for allegedly overstepping his bounds in collecting evidence for the case. Given the United States’ refusal to cooperate, and given that a similar trial was scrapped by the German government, it is unlikely that the case will proceed. Italy will likely follow most of Europe in looking for a united European diplomatic front on the issue.
Tensions arose between the UK and the US when America began ignoring caveats on shared intelligence that prohibited action from being taken, leading the UK’s intelligence and security committee to recommend stricter policies on intelligence sharing. This, coupled with the British public’s unease with recent reports that the US now claims the right to kidnap Britons from British soil for any criminal offence, will likely commit Prime Minister Gordon Brown’s government to some action on the issue, but it is doubtful that Mr. Brown wishes to jeopardize the so-called “special relationship” between Britain and the US, which saw Blair’s government become America’s closest ally in the war on terror. Look for tougher rhetoric from the Brown government about the need to stop extraordinary rendition, but the government will likely follow others in awaiting a European consensus to form on the issue in the European parliament.
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