Tuesday, March 10, 2009

Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?

[Check out this "just added" essay: Updates: Obama a Moderate? Former GITMO Detainee Now Taliban Military Leader, Georgia Busts Assisted-Suicide Ring. . . ]

A United Nations human rights official unambiguously stated that "change" in the United States will not alter the organization's scrutiny of U.S. antiterrrorism practices. The statement came as UN investigators announced the start of a probe into CIA rendition flights and secret detention.

UN Official Promises Not To Let New Administration "Off the Hook"
Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, made the following statement concerning human rights enforcement in the Obama administration: "We will not let the United States off the hook simply because of the change in administration . . . . It is certainly too early to say that rendition will have stopped. . . ."

With respect to President Obama's executive orders closing CIA prisons and mandating that interrogators comply with antitorture laws, Scheinin was guardedly optimistic: "We can at least hope this is a real change that will put an end to the most horrendous forms of extraordinary renditions. . . ."

Obama and Rendition
The subject of rendition led to international condemnation of the Bush administration. This topic, however, also led to debate concerning the Obama administration after the L.A. Times published a story which reported that Obama would continue the practice of rendition -- despite having ordered the end of torture and the closure of CIA prisons.

Many liberals rushed to defend the government through formalistic arguments, which parsed Obama's "rendition" and Bush's "extraordinary rendition." Although the two concepts are in fact distinct, in this particular setting, the differences are more illusory than real.

Critics argued that Bush used extraordinary rendition to abduct individuals and send them to indefinite detention and to torture in other nations. Because Obama's executive orders eliminate these procedures, many liberals portrayed the L.A. Times article as a piece of alarmist sophistry.

Liberal defenders of rendition, however, failed to present a comprehensive picture of the human rights community's critiques of the Bush administration. Certainly, the torture and prolonged detention elements of rendition occupied center stage, but many liberals also contested the lack of judicial or administrative review of the CIA's decision to transfer (really "to abduct") individuals and the lack of access to counsel.

Rendition Versus Extradition
Some liberals seemingly tried to sanitize or at least to diminish the problems associated with "rendition" by linking it to accepted forms of inter-jurisdictional transfers like "extradition." While both of these concepts admittedly involve the involuntary movement of people across state or national boundaries, any effort -- intentional or otherwise -- to equate the CIA's rendition program with ordinary extradition is misguided.

Scheinin's statements on the subject confirm that material differences exist between rendition (extraordinary or otherwise) and extradition. According to Reuters, Scheninin:

Hope[s] the Obama administration's policy would at least mean suspects abducted by U.S. agents are tried in America. But he stressed that instead of nabbing suspects abroad and then trying them on one's home soil, international law says countries should seek extraditions through legal channels.
While many individuals have dismissed the due process concerns raised by rendition (whether or not it results in torture or longterm detention), Sheinin's comments (at least as summarized by Reuters) demonstrate that there are international law issues that arise from the CIA abductions - at least when they take place in countries that have an extradition agreement with the United States. Other civil liberties advocates have also criticized using rendition as a substitute for the formalized extradition process (see Marjorie Cohn and Michael Rattner comments).

I am trying to locate Sheinin's exact quotation. If I find it, I will post it. But Sheinin has made statements preferring extradition to rendition in the past. In a 2007 report on rendition, for example, he concluded that: "[T]he removal of a person outside the legally prescribed procedures of extradition or deportation amounts to an unlawful detention in violation of Article 9 (1) of the International Covenant on Civil and Political Rights." Here is a link to the International Covenant on Civil and Political Rights.

The 2007 report also expresses grave concern with rendition for the purpose of interrogation or detention (which increases the likelihood of torture); it expresses less concern with "rendition to justice" (i.e., to transfer an individual to stand trial for an alleged crime). During his confirmation hearings, however, Leon Panetta indicated that the U.S. could continue rendition for interrogation and prosecution.

Related Readings on Dissenting Justice:

Obama's "Interesting" Comments About Rendition

Rendition, Secrecy and Torture: Inseparable?

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program

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