Term Paper on "Extraordinary Rendition"

Term Paper 25 pages (6889 words) Sources: 10 Style: APA

[EXCERPT] . . . .

Extraordinary Rendition

The Costs of Extraordinary Rendition

On September 6, 2006, President Bush openly admitted that the CIA, under his authorization, had been operating secret detention centers at sites abroad for the previous five years (Elsea & Kim, 2007). Suspected terrorists, including anyone else suspected of having relevant information, were covertly transferred to these sites and then interrogated under pressure to provide information that the Bush Administration feels is vital. The existence of these secret detention facilities outside of UNITED STATES jurisdiction and purview is troubling enough. But the process by which suspects are placed into this system of detention facilities is even more unnerving.

In order to secretly populate these CIA prisons -- or black sites -- with suspected terrorists, the Bush Administration employed a process known as extraordinary rendition. Extraordinary rendition amounts to kidnapping foreign nationals and delivering them into facilities under the jurisdiction of a third party (Weaver and Pallitto, 2006). It has been demonstrated that suspects transferred in such a fashion are quite often tortured for information and treated in ways that violate basic human rights, international treaties, and UNITED STATES law. Conveniently for the UNITED STATES government, suspects are sent to nations such as Syria or Egypt where torture is common practice. In fact, it would seem that the only nations to which the United States routinely transfers suspects through extraordinary renditions are those nations that have terrible human rights records. It may well be that the UNITED STATES government has not specific intention of using torture against these suspects, but it should be readily apparent that they are more than willing to reserve the capacity to use torture if the need should arise. If the situation were otherwise, then we should expect any suspect captured to be openly and legally transferred to UNITED STATES detention facilities where their treatment and interrogations could be controlled and monitored under UNITED STATES law.

If that were the situation, then the UNITED STATES would be practicing conventional renditions on these suspects under international treaties that allow for the extradition of prisoners to other nations to be tried for their crimes. Conventional renditions occur all the time. Any time a prisoner is extradited to another nation's jurisdiction, that prisoner has been effectively rendered into that state's custody. Rendition, thus, are common and entirely legal both nationally and internationally. What makes extraordinary renditions different is their use of covert force instead of a legal process to transfer suspects from one nation to another for detention and interrogation (Parry, 2005). The extralegal nature of extraordinary renditions complicates the issue. By referencing conventional renditions, the Bush Administration is attempting to use a trick of linguistics to imply that extraordinary renditions are as legal and appropriate as conventional renditions. But this tactic amounts to sugarcoating an illegal and indefensible practice. Purposefully using force to transport suspects to sites where they will be more than likely tortured cannot be misconstrued as a legal, ethical, or appropriate method for fighting terrorism (Huq, 2006; Gutierrez, 2006). Instead the practice represents a significant violation of civil and human rights by the United States.

The purpose of this study is to examine the practice of extraordinary renditions within an historical and legal context. The possibility of using methods like extraordinary renditions has come up before in UNITED STATES history, and it is enlightening to examine the reasons why the practice was summarily dismissed as untenable. Despite an historical tradition of eschewing the practice of extraordinary renditions, there has been an extreme increase in their use since the September 11th terrorist attacks. Starting almost immediately after that moment in UNITED STATES history, the Bush Administration has quietly, though persistently, pursued the use of extraordinary renditions of terrorist suspects. When placed alongside the historical anathema of extraordinary renditions in the United States, the sudden intensification of their use in the last six years is incredibly dramatic. Considering cases such as Maher Arar and others will put a human face on the use of extraordinary renditions and demonstrate how they violate pretty much every legal and ideological standard most Americans equate with the United States.

Within this modern context of presidential fiat and zero governmental accountability, I will present a discussion of the legal implications of extraordinary renditions. Specifically, what arguments are used to support the practice, and how does its continuing use threaten the very fabric of legal democracy and rule of law in the United States and in the world? Finding answers to these questions is the most important first step we can take regarding extraordinary renditions; permitting the continued abuse and torture of individuals who have been convicted of no crime is entirely unacceptable. The use of extraordinary rendition represents a significant black mark for the United States' efforts to combat terrorism and maintain credible legal footing in the international community. From a domestic standpoint, the use of extraordinary renditions poses a potential threat to the civil rights of United States citizens by taking the position that human and civil rights can be denied by the government if the government feels that the situation warrants such a denial.

Historical Context of UNITED STATES Renditions

Though extraordinary renditions have become famous thanks to their use by the United States government in the past several years, the practice was not invented by the United States. The first recorded instance can be traced back to 1694 in England. A suspect in a plot against Charles II was believed to possess information about the plot and potentially about future plots against the king. Unwilling to talk, the investigators felt the matter was too important to be left to the ordinary legal channels. Unfortunately, torture had been outlawed in England in 1640, making it technically impossible to force the individual to talk. Consequently, the prisoner was transferred to Scotland, which wouldn't outlaw torture until 1708 -- fourteen years later. Sent to Scotland, the prisoner was tortured for information by whatever means the investigators thought necessary (Rifkind, 2006).

The innocence or guilt of this individual is not at issue. Of concern is the fact that the English government was willing to supersede the rule of law in order to serve its own interests. We might argue that the torture might have been appropriate, if the prisoner divulged some crucial information. The problem, however, is that said individual was only a suspect in the plot -- confirmation could only come through torture. The modern practice of extraordinary rendition runs along similar lines: send suspects to other nations where they can be tortured for information to find out if they are terrorists or if they have any information about terrorists. In lieu of actually finding evidence or investigating the issue, the Bush Administration has granted the government -- specifically the CIA -- the ability to send suspects to be tortured based solely on strong suspicions instead of evidence. This power is significant, both for its broadness and for its complete disjunction with the body of historical and legal evidence against the use of extraordinary renditions in the United States.

In the United States, torture is widely understood to be not only illegal but also wholly unconstitutional (Parry, 2005). The prohibition against cruel and unusual treatment is purportedly held to be one of the sacrosanct values of the United States, a value that the government is charged with protecting. Looking back at the sweep of American history, we find that by and large the United States government has protected this value. Over time, the determinations of different administrations and of the judiciary have remained remarkably consistent. Consider some of the cases that have occurred in that time. For instance, at "the founding of the United States, the understanding was that the president had no authority to render a person to a foreign jurisdiction without acting pursuant to a treaty and, if a non-self-executing treaty, without the authority of enabling legislation" (Weaver and Pallitto, 2006: p. 103-104). In 1793, when he was Secretary of State, Thomas Jefferson denied a request by the French minister to the UNITED STATES who wanted rendition of certain individuals who were engaged in war against France. Without a preexisting treaty agreement, Jefferson operated under the Constitutional premise that even the worst offender could walk into the United States as a free man who would not be instantly delivered into the hands of authorities.

In 1833, Roger Taney, the UNITED STATES attorney general found there was no presidential authority without a treaty to render two men accused of piracy to Portugal. In 1841, another attorney general -- Hugh Legare -- came to the same conclusion. Without provision via treaty, the president has no innate authority to render individuals in this fashion. Similar cases of denial of this presidential "right" can be found littered throughout UNITED STATES history: "the understanding that the president was without power to send asylum residents to foreign jurisdictions in the absence of treaty and statute seemed well settled in law prior to the Civil War" (Weaver and Pallitto, 2006: p.… READ MORE

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