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Extraordinary Rendition

Extraordinary Rendition. Amy Gaskins Shannon Kelso October 27, 2009. Dr. Stuart S. Malawer, National Security Law (Fall 2009). 1. Agenda. Issue Statement History and Context Solution Proposal Proposal Analysis Stakeholder and Interest Group Positions

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Extraordinary Rendition

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  1. Extraordinary Rendition • Amy Gaskins • Shannon Kelso • October 27, 2009 Dr. Stuart S. Malawer, National Security Law (Fall 2009). 1

  2. Agenda • Issue Statement • History and Context • Solution Proposal • Proposal Analysis • Stakeholder and Interest Group Positions • Domestic and International Considerations • Summary and Conclusion • Sources • Questions and Discussion 2

  3. Issue Statement • Extraordinary rendition or irregular rendition “…refer[s] to the extrajudicial transfer of a person from one State to another.” • Particularly, …”the alleged transfer of suspected terrorists to countries known to employe harsh interrogation techniques that may rise to the level of torture, purportedly with the knowledge or acquiescence of the United States.” • -CRS Report RL32890, April 5, 2006 3

  4. Issue Statement • “Generic description” from CIA files • From American Civil Liberties Union obtained via Freedom of Information Act request 4

  5. Issue Statement • Covert Transfer • Unlike extradition or rendition, whereby one State formally transfers a prisoner to another State with jurisdiction, usually by treaty • Without Jurisdiction • Prisoners may be informally transferred to another State which may not have jurisdiction or • Prisoners may be transferred to secret prisons by one State in another State’s territory • Held Indefinitely • Prisoners are detained without charge or due process, report not being accused of anything but held purely for intelligence gathering • Torture • Prisoners report being subjected to months of harsh interrogation practices, including torture 5

  6. Issue Statement • The “Ticking Time Bomb” Rationale • If one person’s information or cooperation could save X number of lives, aren’t we obligated to use all means necessary to save those lives? • Civilians, Americans, allies 6

  7. Issue Statement • Civil Liberties • Habeas corpus now applies to detainees • Geneva Conventions now apply to detainees • Presidential Power • “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” (Hamdi S.C. Summary) • National Security Interests • “Success in intelligence often depends on surprise and deception and on creating uncertainty in the mind of an enemy.” (Former CIA directors) • Efficacy • Have these methods been effective in furthering National Security? • How effective have these methods been when balanced against human rights and civil liberties concessions that accompany them? 7

  8. Issue Statement • February 2003Powell’s Case for War • At the time of his capture by the CIA in Milan, Abu Omar is under surveillance by the Italian intelligence services for his connections with a fiery local cleric and for his suspected help in recruiting European Muslims to fight in the imminent U.S.-led invasion of Iraq. The same month, U.S. Secretary of State General Colin Powell, arguing the case for war against Iraq, tells the United Nations Security Council that "a senior terrorist operative" has told U.S. authorities that Saddam Hussein had offered to train two al Qaeda operatives in the use of "chemical or biological weapons." He is talking about evidence extracted in Egypt from senior al Qaeda figure Ibn al-Sheikh al-Libi, who was captured in 2001 and rendered to Egypt by the U.S. government. Al-Libi later recants his testimony, saying it was extracted under torture (emphasis added, Frontline) 8

  9. What is Rendition? • The practice of capturing and transporting someone to another country without legal extradition • Two countries only • Used for over 100 years • Ker v. Illinois (1886) 9

  10. What is Extraordinary Rendition? • Covert CIA program • Captures terrorist suspects abroad • Transfers them to a third country • No legal process (i.e. extradition, habeas corpus) • Detention, interrogation, and intelligence gathering 10

  11. UN Convention Against TortureOctober 1994 • Bans the transfer of a prisoner to another country where there are “substantial grounds” that he may face torture • US Congress defines “substantial grounds” as “more likely than not” • Potentially makes renditions to other countries a crime under US law 11

  12. CIA Rendition ProgramAugust 1995 • Systematic covert program • Authorized by President Clinton under PDD-39 • CIA must comply with provisions of the Convention Against Torture • Used primarily to disrupt terrorist activity • Egypt becomes first partner country 12

  13. First Extraordinary RenditionSeptember 22, 1995 • Egyptian Abu Talal al-Qasimi captured in Croatia • Transferred to Egypt • Executed as a result of 1992 military tribunal in absentia conviction 13

  14. War Crimes Act of 1996August 1996 • Allows US federal courts to prosecute grave war crimes • Willful killing • Torture • Inhuman treatment • Unlawful deportation or transfer • Applies whether acts are committed “inside or outside the United States” 14

  15. Post 9/11Ibn al-Sheikh al-Libi • Captured on Pakistan border • Custody battle between FBI and CIA • Rendered to Egypt • Repatriated to Libya • Died in Abu Salim prison soon after a team from Human Rights Watch visited him 15

  16. Asylum SeekersDecember 18, 2001 • Two Egyptians seeking asylum in Sweden • Handed over to US team at Stockholm’s Bromma Airport • Rendered to Egypt • Swedish journalists identify tail number of Gulfstream used 16

  17. Guantanamo BayJanuary 2002 • First detainees arrive at Guantanamo Bay • President Bush signs EO 13440 • Al Qa’ida and Taliban detainees will not be given POW status under Geneva 17

  18. Binyam MohamedApril 10, 2002 • Arrested in Pakistan at Karachi Airport • Rendered to Temara Prison in Morocco • Held for 18 months • Transferred to CIA prison in Afghanistan 18

  19. Mohamed et al. v. Jeppesen Dataplan, Inc.May 30, 2007 • American Civil Liberties Union files suit on behalf of three victims of extraordinary rendition program • Charged that Jeppesen • Knowingly provided direct flight services to the CIA • Facilitated flights to US-run detention facilities overseas • USG intervened and asserted the “state secrets privilege” • Ninth Circuit Court of Appeals reversed dismissal in April 2009 19

  20. Maher ArarSeptember 26, 2002 • Canadian citizen • Detained by US officials at JFK Airport in New York • Held for seven days • Deported to Syria • Spent 10 months in Palestine Branch Prison in Damascus • Freed a year after his arrest • Canadian Prime Minister • offers formal apology • orders $9.75 million in compensation 20

  21. Arar v. AshcroftJanuary 22, 2004 • Federal lawsuit challenging rendition • Filed by Center for Constitutional Rights on behalf of Mr. Arar • USG moved to dismiss the case by asserting the “state secrets” privilege • Case dismissed on February 16, 2006 and appealed • Oral argument heard en banc on December 9, 2008 21

  22. Khaled el-MasriJanuary 23, 2004 • German national • Detained at Serbia-Macedonia border • Held for three weeks in a Skopje hotel room • Drugged and transferred to CIA prison in Kabul, Afghanistan • CIA Director orders his release in May 2004 • Deposited on a hill in Albania at night without explanation • Case of mistaken identity 22

  23. El-Masri v. TenetMay 24, 2007 • ACLU files suit on behalf of Khaled el-Masri • Charged that former CIA Director • Violated US and universal human rights laws • USG intervened and invoked “state secrets” privilege • U.S. Court of Appeals upheld dismissal • Supreme Court refused to review case in October 2007 23

  24. CIA “Black Sites”Spring 2005 • Secret prison system exposed by Washington Post journalist • Condoleezza Rice describes rendition as a “vital tool” against terrorism • Detainee Treatment Act of 2005 passed 24

  25. Emptying Secret PrisonsSeptember 2006 • President Bush announces that 14 HVDs held in CIA prisons have been transferred to Guantanamo Bay 25

  26. Where Are Renditions Happening? 26

  27. Who Is Complicit? 27

  28. CIA Prison System and Flight Routes 28

  29. Hearings on RenditionApril 2007 • Two House Foreign Affairs committees hold a joint hearing on legality of extraordinary rendition • Former head of CIA’s Bin Laden Unit defends rendition program as • “the single most effective counterterrorism operation ever conducted by the United States government” 29

  30. The National Security with Justice Act of 2007 (S. 1876) • Bill sponsored by Sen. Biden • S. 1876 would • Prohibit extraterritorial detention and rendition, except under limited circumstances • Modify the definition of “unlawful enemy combatant” • Extend statutory habeas corpus to detainees 30

  31. CIA Director Defends RenditionSeptember 7, 2007 • General Michael Hayden • CIA has detained “fewer than 100” people at proxy detention centers • Renditions were conducted lawfully • More than 70% of HUMINT in NIE came from detainees 31

  32. Executive Order 13491January 22, 2009 • Ensuring Lawful Interrogations • Revokes EO 13440 • Establishes Common Article 3 as a minimum baseline • Orders CIA to close all detention facilities in operation • Forbids any future CIA detention facilities from operating • Provides ICRC access to detainees • Establishes Special Task Force to review interrogation and transfer policies 32

  33. Solution Proposal • End the practice of extraordinary rendition and in its place employ only rendition, which introduces accountability into prisoner and detainee transfer process 33

  34. Solution Proposal • Prisoners and detainees would receive Geneva Convention protections or habeas corpus • U.S. would not be able to render if prisoner may incur torture • Intelligence analysts will have more restrictions and may be less effective • Chilling effect on information sharing between countries with harsh interrogation or torture and the U.S. 34

  35. Groups Who Want Program to Continue • CIA & Other IC Components • Effective method of intelligence collection • Identifies and disrupts terrorist networks • Maintains relationships with FIS • Third Countries • Enhances relationship with CIA • Increased funding/aid from US government • Public recognition for capture efforts • Limited liability 35

  36. Groups Who Don’t WantProgram to Continue • Human/Civil Rights Organizations • ACLU, CCR, HRW, Amnesty Int’l, Reprieve • Rendition violates human and/or constitutional rights • Federal Bureau of Investigation (FBI) • Concern over jurisdiction and legality • Fought against rendition of al-Libi • Openly opposed CIA detainee treatment at Guantanamo Bay 36

  37. Summary and Conclusion • Ending practice of extraordinary rendition: • Satisfies civil liberties, human rights, and executive powers issues, but • National security interests and the intelligence community may pay a price • This reflects position of the current Administration 37

  38. Summary and Conclusion • Given the questionable efficacy of these practices to date, coupled with the need to comply with increasing court rulings granting rights to prisoners and detainees, this solution may be inevitable • Better to employ this solution today so that adequate legal framework and intelligence oversight is in place for the next “ticking time bomb” 38

  39. Questions? 39

  40. Sources • American Civil Liberties Union. “El-Masri v Tenet.” American Civil Liberties Union and the ACLU Foundation, 4 May 2007. Web. 25 Oct. 2009. <http://www.aclu.org/safefree/torture/29868res20070524.html> • American Civil Liberties Union. “Mohamed et al. v Jeppesen Dataplan, Inc.” American Civil Liberties Union and the ACLU Foundation, 30 May 2007. Web. 25 Oct. 2009. <http://www.aclu.org/safefree/torture/29921res20070530.html> • Biden, Joseph R., Jr. “S. 1876.” The Library of Congress THOMAS. Web. 26 Oct. 2009. <http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s1876:> • Center for Constitutional Rights. “Arar v. Ashcroft et al.” Web. 25 Oct. 2009. <http://ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft> 40

  41. Sources • Council of Europe. “Alleged Secret Detentions in Council of Europe Member States.” 27 Jun. 2007. Web. 26 Oct. 2009. <http://www.coe.int/T/E/Com/Files/Events/2006-cia/> • Frontline/World. Extraordinary Rendition. Public Broadcasting Service. 7 Nov. 2007. Web. 26 Oct. 2009. <http://www.pbs.org/frontlineworld/stories/rendition701/> • Obama, Barack. “Executive Order - Ensuring Lawful Interrogations.” 22 Jan. 2009. Web. 26 Oct. 2009. <http://www.whitehouse.gov/the_press_office/EnsuringLawfulInterrogations/> • United States Supreme Court. “Ker v. Illinois, 119 U.S. 436 (1886).” US Supreme Court Center. Web. 26 Oct. 2009. <http://supreme.justia.com/us/119/436/> 41

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