Extraordinary rendition officially ruled out, but secrecy makes its elimination hard to prove
The use of "extreme rendition” is one of the most controversial legacies of President George W. Bush. It was so contentious that during the 2008 presidential campaign, Barack Obama promised to "eliminate the practice of extreme rendition, where we outsource our torture to other countries.”
As we have previously noted, extreme rendition -- sometimes called "extraordinary rendition” -- refers to taking terrorism suspects to nations where they are at a high risk of being tortured or imprisoned indefinitely. This practice became common following the terrorist attacks of September 11, 2001.
On Aug. 24, 2009, Attorney General Eric Holder announced that the Special Task Force on Interrogations and Transfer Policies had finished its review. The United States would continue to send individuals to other countries, the panel decided, but the United States would seek "assurances from the receiving country" that the suspect would not be tortured. But the specific recommendations themselves were -- and remain -- classified.
To gauge the progress on implementing these principles, we interviewed human rights and legal experts. There was broad consensus among these experts that if extraordinary rendition is happening at all, it's happening less frequently than it did under Bush. But there was also agreement that we can't really be certain what is going on.
There are two reasons for the uncertainty. One is that rendition activities are performed by top secret intelligence agencies, so in the normal course of affairs, the public is unlikely to know many details of what goes on. The second is that it's extremely difficult to "prove a negative” -- that is, to demonstrate with any certainty that something is not happening.
"I see no evidence that they have engaged in this practice,” said David Cole, a Georgetown University law professor. "They have not abandoned non-extraordinary rendition, at least in theory, which means the capture of an individual to take him to another country, but they would claim that they will not do so for purposes of torture.”
Steven Watt, a senior staff attorney for the American Civil Liberties Union's human rights program, suggested that Obama has "partially fulfilled the promise to end extreme rendition.” He gave Obama credit for officially ending the practice but added that there is still a possibility that ordinary renditions can turn into extraordinary renditions even if that's not the intent of the policy.
Much hinges on how believable the promises from other nations are. Jen Nessel, a spokeswoman for the Center for Constitutional Rights, a human-rights advocacy group, said her organization believes that "‘guarantees" of no torture are worthless,” though she acknowledged that "there is some debate about the issue.”
Tom Malinowski, the Washington Director for Human Rights Watch, said that there is no evidence that the Obama administration has sent to suspects to the most repressive countries believed to be used by the Bush administration, such as Syria, Egypt and Libya (each of which, in any case, has undergone major governmental changes during Obama's tenure, and would not necessarily be receptive to such requests any more).
However, Malinowski added that a "big problem” is that the Obama administration "has placed a much greater emphasis on asking foreign intelligence and security services to take the lead in arresting terrorism suspects around the world.”
For instance, he said, "instead of having the CIA detain an Egyptian, and then rendering him to Egypt, the U.S. is now more likely to pass the intelligence to the Egyptians and ask them to make the arrest themselves. That's not technically a rendition – and it's not prohibited by human rights treaties in the way some renditions are -- but some would argue that it has the same effect. And because these detainees never pass through U.S. hands, we have no information about how many people are involved and where they end up detained.”
We conclude that Obama has partially met the promise by officially ending the practice of extraordinary rendition. No evidence has emerged that the administration has continued the policy of its predecessors surreptitiously. Still, too little is known about current activities to rate this a Promise Kept. Not even the task force's full recommendations have been released publicly yet. On balance, we rate this a Compromise.
Department of Justice, "Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President” (press release), Aug. 24, 2009
New York Times, "U.S. Says Rendition to Continue, but With More Oversight,” Aug. 25, 2009
Email interview with Tom Malinowski, Washington Director for Human Rights Watch, Nov. 30, 2012
Email interview with Robert Chesney, University of Texas law professor, Nov. 30, 2012
Email interview with Jen Nessel, spokeswoman for the Center for Constitutional Rights, Nov. 30, 2012
Email interview with David Cole, Georgetown University law professor, Nov. 30, 2012
Interview with Steven Watt, senior staff attorney for the American Civil Liberties Union"s human rights program, Dec. 4, 2012
Obama's extreme rendition policy is issued, but results still uncertain
On the campaign trail, President Barack Obama promised to end the use of torture, close the Guantanamo Bay Detention Center, and stop al-Qaida prison recruitment.
He also pledged to end the use of "extreme rendition," a promise that we last rated in January 2009. At that time, we rated it In the Works, since on Jan. 22, 2009 Obama signed an executive order directing the creation of a task force to study and evaluate the transfer of prisoners to other nations for detention and/or interrogation. We were curious to see how things have unfolded since then.
First, however, a little primer on international law (a short one, we promise).
To start off, there is a difference between extreme rendition, also known as extraordinary rendition, and rendition itself.
The use of rendition in the United States goes back to President Ronald Reagan, who authorized the practice in 1986 for use against terrorism suspects. Over the years, it became a tool to retrieve suspects from foreign countries, and to bring them to this country for a trial. During the Clinton era, the suspect was also sometimes brought to a third country. These transfers are often referred to as "renditions to justice". They happen outside the legal extradition and deportation framework, but the ultimate goal is to put the individual before a regular legal panel.
Extraordinary renditions, which critics say became widespread following the September 11 terrorist attacks, are used to bring suspects to countries where they are at a high risk of being tortured and/or imprisoned indefinitely.
In the promise, Obama said that he'll stop outsourcing "our torture to other countries," so we'll look at whether he ended the use of extraordinary rendition, not rendition as a whole.
We asked numerous legal experts to evaluate how President Obama is doing with the promise.
It immediately became clear, however, that this was not going to be easy. Rendition activities are performed by top secret intelligence agencies, so it's possible we'll never really know whether extraordinary renditions have ceased.
Still, it appears that there is at least some movement on the promise.
On Aug. 24, 2009, Attorney General Eric Holder announced that the Special Task Force on Interrogations and Transfer Policies had finished its review. The United States will continue to send individuals to other countries, stated a Department of Justice Press press release, but the United States will seek "assurances from the receiving country" that the suspect will not be tortured. The recommendations specifically called on the Department of State to be involved in evaluating those assurances and for the Inspector Generals of the Departments of State, Defense and Homeland Security to submit annual reports on transfers conducted by each of their agencies. The report also recommends that agencies obtaining assurances from foreign countries insist on a monitoring mechanism or establish a monitoring mechanism, to ensure that the individual is not tortured. The specific recommendations themselves are classified, however.
Ben Wizner, a lawyer with the American Civil Liberties Union, told us that it's "unlikely that CIA renditions under Obama -– if they"re being conducted -– are even remotely on the scale of what occurred during the Bush administration." Wizner said we're not seeing a large number of families coming forward claiming that their loved ones were shipped off to other countries and tortured, which is what happened during the Bush administration.
Still, some experts are critical. Maria LaHood, a senior staff attorney with the Center for Constitutional Rights, said the DOJ Task Force recommendations are not particularly meaningful. "Neither assurances nor monitoring can prevent against torture," she said. She cited the case of Maher Arar, a Canadian citizen who was taken to Syria in 2002. Arar claims that he was severely beaten and tortured in the Syrian jail, despite assurances from Syria and consular visits from from Canadian authorities. LaHood said that it's hard to tell from policy recommendations if there's been an improvement or not.
Margaret L. Satterthwaite from the Center for Human Rights & Global Justice at New York University also criticized the DOJ task force recommendations. There is no mechanism in place for the individual subjected to rendition to challenge the transfer before an independent panel. Moreover, nobody outside the government actually knows the details of the policy, so it's hard to objectively evaluate whether the government is sticking to its promise.
We're not sure if we'll ever be able to issue a definitive ruling on this promise. The administration has announced new procedural safeguards concerning individuals who are sent to foreign countries. President Obama also promised to shut down the CIA-run "black sites," and there seems to be anecdotal evidence that extreme renditions are not happening, at least not as much as they did during the Bush administration. Still, human rights groups say that these safeguards are inadequate and that the DOJ Task Force recommendations still allow the U.S. to send individuals to foreign countries. We'll give the Obama administration credit for the steps it's already taken, but until we have a more definitive evidence that extraordinary renditions have stopped, this promise stays In the Works.
E-mail interview, Robert Chesney, The University of Texas at Austin, June 21, 2010
E-mail interview, Beau Grosscup, California State University Chico, June 14, 2010
E-mail and phone interview, Maria LaHood, Center for Constitutional Rights, July 13, 2010
E-mail and phone interview, Ben Wizner, American Civil Liberties Union, July 13, 2010
E-mail and phone interview, Margaret L. Satterthwaite, New York University School of Law, July 15, 2010
E-mail interview, Steven Ratner, University of Michigan Law School, June 22, 2010
The Department of Justice, Press Release: Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President, Aug. 24, 2009.
The New York Times, U.S. Says Rendition to Continue, but With More Oversight, by David Johnston, Aug. 24, 2009.
Obama signs executive order concerning extreme rendition
On Jan. 22, 2009, President Obama signed a detailed executive order on torture and extreme rendition.
The order said that prisoners "shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment)." It also specifically nullifies interpretations of federal law on interrogations "issued by the Department of Justice between September 11, 2001, and January 20, 2009."
The order also creates a task force to study whether the procedures in the Army Field Manual are sufficient to protect the country and make recommendations on "additional or different guidance for other departments or agencies."
The task force will also study and evaluate the transfer of prisoners to other nations, a process known as "extreme rendition." The task force is given six months to finish its work, with a possibility of extension.
The order, worth reading in its entirety, also says the CIA shall not operate detention centers and should close "as expeditiously as possible" any centers it now operates. The International Committee of the Red Cross, an independent monitoring organization, should also be given timely access to prisoners, the order states.
Obama has taken the first step toward fulfilling this promise, but there are still many details to be worked out, such as closing CIA detention centers and ending extreme rendition. So for now, we're moving this one to In the Works.
The White House Web site, executive order on ensuring lawful interrogations , signed Jan. 22, 2009, accessed Jan. 27, 2009