Council of Europe on CIA Extraordinary Rendition Program

A much awaited information memorandum prepared by a special rapporteur with the Council of Europe, the European Union’s principal human rights auditor, was released yesterday regarding allegations of classified CIA prisons used to detain high-value targets in execution of the Global War on Terrorism. According to the memorandum, and media reports which provided impetus to the investigation, CIA officials conducting an operation known as “extraordinary rendition” have forcibly abducted individuals perceived to be affiliated with the al-Qa’eda network and rendered them to detention facilities in and around the European continent, as well as other American facilities worldwide. The investigation came to head when reports circulated that a number of European states had acted in complicity with the American operation, providing fly-over and landing rights to CIA chartered aircrafts. Dick Marty, the author of the scathing 25 page report, approached the inquiry, a simple reading of the document makes evident, with a prejudged determination, namely: Americans torture. The allegation is bolstered by, according to Mr. Marty, pointing to the Senator John McCain’s amendment to the recent defense authorization act. The McCain addition makes clear that it is not and shall not be the policy of the American government to torture. Mr. Marty draws from this assertion a reverse implication that because the law was only included then, “such treatment was not hitherto prohibited by American law in the circumstances referred to.”^[1] This assessment is inaccurate on two counts. First, that a legislative addition to a defense authorization intended to provide absolute clarity to an otherwise publicly ambiguous issue, says little about legal interpretations of those laws previously on the books. Second, as discussed here previously, McCain’s amendment did not substantively alter the law of torture. The ultimate and perennial question still remains: what is torture? According to leaked Administration memoranda relating to the treatment of so-called unlawful or unprivileged combatants, the threshold of acceptable activity is enormous. Mr. Marty’s categorical failure to sketch a definition of torture and apply the facts as can be identified leaves his conclusions wanting, beyond fueling the already hysterical exclamations of Presidential critics. This is not to argue that the extraordinary rendition program is lawful, it is not. But it is not for identifiable and calculable reasons.

Extraordinary Rendition in Context:
As a practice, rendition refers to that process of moving a person from one country to another. The regular form of rendition is known otherwise as extradition, governed by treaty laws and conducted in accordance with fundamental principles and customs of international practice. Irregular forms do also exist, however. One form is Trickery or Luring, whereby a suspected criminal is enticed (e.g. through the promise of drug buy) into international waters. Once in international territory the individual is arrested and taken immediately into custody. A second form of irregular rendition is deportation as a de facto form of extradition. The government deports someone that it would like otherwise to extradite but for whatever reason lacks the legal authority to do so.^[2] A third irregular method of rendition is by way of forcible abduction (i.e. state-sponsored kidnapping). The program of “extraordinary rendition” in fact constructed prior to September 11, 2001,^[3] came from forcible abduction framework of rendition, in an effort by the Central Intelligence Agency to find a place of detention and interrogation for high-value targets related to terrorism. It works like this: CIA forcibly abducts an individual, flies him to a third country (e.g. Egypt, Syria, Jordan, Uzbekistan), typically the country of citizenship for the individual, where he is subsequently interrogated by members of that country’s security apparatus. The principal problems are two-fold. First, the act of forcible abduction is nothing short of kidnapping. It is for this reason that, as previously discussed on the McNabb Associates, P.C. blogs, prosecutors in Milano, Italy have indicted 22 CIA officers in connection with the rendition of a one Abu Omar, an Italian citizen. Second to the problem of kidnapping is the treatment. Because it is not the Americans who conduct the interrogations (ostensibly), but the security apparatuses of known torturers, the CIA obtains a memorandum of understanding (written or verbal) that indicates that country’s commitment not to torture the detainee. The agreement, as one can expect however, is illusory. And this is the crux of the torture charge. American operatives do not themselves torture, the Administration reassures a cautious world. But it does hand them to people who do. This assertion, time will likely prove, is but political platitudes in waving of flag of justification of doing what some wrongfully perceive to be “necessary” to conduct a successful war. Overall, the rendition program is unlawful. In American law, in international law, and in the laws of those respective states in which the individuals are abducted. But only coherent, measured arguments will successfully persuade governments and peoples to act, rather than thrashing screeds against the Executive for indiscriminate and ill-defined reasons. In this regard, Mr. Marty’s report does more harm than good in moving the world one step closer to ending unnecessary and unlawful activities justified under the awesome banner of wartime authority.

[1] Dick Marty, “Alleged Secret Detentions in Council of Europe Member States,” Information Memorandum II, Committee on Legal Affairs and Human Rights, Council of Europe, ajdoc03 2006rev, 22 January 2006, p.10.
[2] For more in application see: Douglas C. McNabb and Matthew R. McNabb’s European Lawyer article on deportation as de facto extradition as applied in the United Kingdom against so-called “preachers of hate.”
[3] Mr. Marty inaccurately identifies the program as having been a response to 9/11, see p.10.