During the Bush administration, many liberal organizations passionately criticized "rendition" (sometimes called "extraordinary rendition"). Critics argued that Bush employed rendition to "outsource" torture or to secret terrorism suspects. They also asserted that diplomatic channels could not reliably protect transferees from torture because it occurs secretly. Finally, many activists argued that even without torture, rendition violated norms of procedural fairness because the rendered individuals do not have the ability to appear before a court to contest the transfer and because they do not have access to legal counsel.
After an L.A. Times article reported that Obama will continue the renditions policy, many liberals have come forward to defend the new boss. The typical liberal defense argues that rendition is not wrong in and of itself, but that removal of persons for the purpose of torturing or indefinitely detaining them violates human rights norms. Because Obama has banned the use of torture (which pre-existing statutes and treaties already prohibited) and ordered the CIA to close its longterm detention centers, many liberals dismiss the L.A. Times article as misleading.
After reviewing much of the pro-rendition liberal pushback, I have collected my thoughts and written a response. Here's a summary: the liberal defense is strained, dishonest, surprisingly nuanced, and contrary to true progressive politics because it elevates "party" over principle.
Liberals Opposed Rendition Regardless of Whether It Led to Torture
During the Bush administration liberals argued that rendition - whether for the purpose of torture or otherwise - violated human rights and constitutional norms. Many activists demanded that the U.S. abandon the rendition program altogether or that other countries refrain from helping enforce it (e.g., by allowing CIA flights over their airspace). They also demanded that the U.S. not transfer individuals to countries where they would likely experience torture or transfer anyone without judicial approval.
In January 2008, for example, Amnesty International published a very thorough report entitled "State of Denial: Europe's Role in Secret Detention and Rendition." The report makes several recommendations to prevent European complicity in U.S. rendition activities, including that:
European states should introduce measures that include: only transferring individuals to the custody of another state, or facilitating such a transfer, if the transfer is carried out under judicial supervision; and ensuring that no one is forcibly returned to any place where they may be at risk of serious human rights violations.The report also defines rendition as a transfer that lacks judicial oversight, not one that necessarily results in torture:
Amnesty International uses the term “rendition” to describe the international transfer of individuals from the custody of one state to another by means that bypass judicial and administrative due process. Renditions violate international law by failing to respect requirements of due process, and frequently involve multiple human rights violations, including unlawful and arbitrary detention; torture or other ill-treatment; and enforced disappearance.And in a 2006 report, Amnesty International condemned rendition generally -- regardless of whether it facilitates torture -- because it takes place without prior judicial validation:
[T]here is no legal or judicial mechanism to ensure that [rendition protects the public]. The methodology is to grab first, sometimes on flimsy or non-existent evidence, and to ask questions later.The report makes several recommendations, including the following:
Do not render or otherwise transfer to the custody of another state anyone suspected or accused of security offences unless the transfer is carried out under judicial supervision and in full observance of due legal process.Amnesty International does not limit its opposition to rendition to torture, but to any transfer that lacks judicial oversight and other common procedural safeguards. Although these procedures could help to prevent or to uncover torture, they are important rights on their own.
Ensure that anyone subject to transfer has the right to challenge its legality before an independent tribunal, and that they have access to an independent lawyer and an effective right of appeal.
Do not receive into custody anyone suspected or accused of security offences unless the transfer is carried out under judicial supervision and in full observance of due legal process. . . .
Bring all such detainees before a judicial authority within 24 hours of entry into custody.
Ensure that detainees have prompt access to legal counsel and to family members, and that lawyers and family members are kept informed of the detainee’s whereabouts.
Ensure that detainees who are not nationals of the detaining country have access to diplomatic or other representatives of their country of nationality or former habitual residence.
A famed 2007 report of the European Parliament also condemns "extraordinary rendition" because it lacks a judicial component. The report states that:
[E]xtraordinary rendition is an extra-judicial practice which contravenes established international human rights standards. . .whereby an individual suspected of involvement in terrorism is illegally abducted, arrested and/or transferred into the custody of US officials and/or transported to another country for interrogation which, in the majority of cases, involves incommunicado detention and torture . . . .Likewise, in a 2006 article published in the Harvard Human Rights Journal, Professor David Weissbrodt of the University of Minnesota Law School and Amy Bergquist (then a law student) condemn the practice of extraordinary rendition on several grounds, including that the practice lacks judicial involvement and rendered individuals do not have right to counsel:
Extraordinary rendition implicitly violates Article 14 [of the Universal Declaration of Human Rights] because . . . in the first instance, [detainees] are not allowed to come before courts and tribunals. . . .[T]he most relevant and fundamental [interest] is the right to be informed promptly of the charge against the individual. It is unclear whether authorities actually charge individuals subject to extraordinary rendition with crimes, and, if so, whether authorities provide them with the other procedural guarantees established in Article 14. At the very least, those guarantees are not present prior to their transfer, and detainees are frequently denied access to counsel. . . .Finally, Human Rights Watch demanded a complete cessation of all renditions during the Bush administration and urged other countries to withdraw support for the program (see this blog entry).
Rebutting the Liberal Pushback
Despite the broad opposition to CIA rendition, liberal defenders of Obama have labored to revise history by portraying liberal opposition to rendition as related only to the torture and the secreting of individuals.
Scott Horton, a Professor at Columbia Law School, wrote a column in Harper's Magazine, which argues that the L.A. Times "got punked." Horton contends that the fuss over the Bush policies only centered around "extraordinary renditions" (as distinct from the good-old fashioned renditions). Although some of Horton's prior work on the subject focuses on torture and disappearances, he makes the general claim that:
A central feature of [Bush's] program was rendition to torture, namely that the prisoner was turned over to cooperating foreign governments with the full understanding that those governments would apply techniques that even the Bush Administration considers to be torture. This practice is a felony under current U.S. law, but was made a centerpiece of Bush counterterrorism policy. [Editor's Note: The Bush admininstration denied doing this.]Glenn Greenwald, one of my favorite bloggers, similarly distorts the scope of liberal opposition to rendition:
[T]he objections to the Bush "extraordinary rendition" program were that "rendered" individuals were abducted and then either (a) sent to countries where they would likely be tortured and/or (b) disappeared into secret U.S. camps ("black sites") or sent to Guantanamo and accorded no legal process of any kind. There is absolutely nothing to suggest that Obama will continue any of that. . . .And over on Washington Monthly, Hilzoy contends that because Obama has ordered interrogators to comply with laws that prohibit torture and has ordered the CIA to close its prisons, rendition in the Obama administration will not violate the law or present the same problems that angered liberals during the Bush administration.
Hilzoy also argues that absent torture and indefinite detention, the CIA's removal of individuals becomes synonymous with extradition. This patently false assertion has floated around the web. Unlike the CIA's version of rendition, extradition contains the procedural protections, like judicial oversight, that liberals demanded Bush utilize, but which they now say are unnecessary.
Individuals who are extradited are turned over for very discrete purposes: to stand trial or to serve a sentence for a conviction already obtained. The subject must be turned over to a state actor. And a judge can typically veto the decision to extradite and must conclude that "probable cause" exists to try the person for the alleged crime. None of these factors attach to the CIA's program of rendition (extraordinary or otherwise). [Editor's Note: Interpol has a great webpage that summarizes the typical conditions of extradition. And a Brookings essay also distinguishes the two practices.]
Liberals condemned rendition during the Bush administration because it lacked judicial oversight, did not afford individuals access to counsel, and because it often subjected persons to torture and longterm detention. Because Obama has ordered governmental interrogators not to engage in torture and has ordered the CIA to close its longterm detention centers, liberals now say that rendition does not raise any problems. Apparently, snatching people without a court order, not giving them a lawyer, and then placing them in a remote country were never too much of a problem after all.
Admittedly, liberal opposition to rendition became most intense during the Bush administration because of the torture issue, but human rights activists condemned other aspects of the program as well. Perhaps they now believe they overreached in their criticism, but that's very different than having not taken the position in the first place.
Update: The term "liberals" does not = everyone on the planet who identifies politically as a liberal -- just in case you thought it did.
Related Readings on Dissenting Justice:
Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
"Extraordinary Rendition" Remains Under Obama Administration