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

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Presentation on theme: "1 Extraordinary Rendition Amy Gaskins Shannon Kelso October 27, 2009 Dr. Stuart S. Malawer, National Security Law (Fall 2009)."— Presentation transcript:

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

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

3 3 Issue Statement Extraordinary rendition or irregular rendition “…refer[s] to the extrajudicial transfer of a person from one State to another.” 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.”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, CRS Report RL32890, April 5, 2006

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

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

6 6 Issue Statement The “Ticking Time Bomb” Rationale 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?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, alliesCivilians, Americans, allies

7 7 Issue Statement Civil Liberties Civil Liberties Habeas corpus now applies to detainees Habeas corpus now applies to detainees Geneva Conventions now apply to detaineesGeneva Conventions now apply to detainees Presidential Power 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) “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 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) “Success in intelligence often depends on surprise and deception and on creating uncertainty in the mind of an enemy.” (Former CIA directors) Efficacy Efficacy Have these methods been effective in furthering National Security?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?How effective have these methods been when balanced against human rights and civil liberties concessions that accompany them?

8 8 Issue Statement February 2003 Powell’s Case for War February 2003 Powell’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)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)

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

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

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

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

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

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

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

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

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

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

19 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 American Civil Liberties Union files suit on behalf of three victims of extraordinary rendition program Charged that Jeppesen Charged that Jeppesen Knowingly provided direct flight services to the CIAKnowingly provided direct flight services to the CIA Facilitated flights to US-run detention facilities overseasFacilitated flights to US-run detention facilities overseas USG intervened and asserted the “state secrets privilege” USG intervened and asserted the “state secrets privilege” Ninth Circuit Court of Appeals reversed dismissal in April 2009 Ninth Circuit Court of Appeals reversed dismissal in April 2009

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

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

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

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

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

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

26 26 Where Are Renditions Happening? 26EgyptSyriaJordanMoroccoThailandPolandRomaniaAfghanistan HungaryAlgeriaEthiopiaUzbekistan

27 27 Who Is Complicit? 27ItalyGermanySpainUKTurkeyCyprus Bosnia- Herzegovina Gambia AzoresGreeceSwedenIreland PakistanMacedonia Czech Republic Azerbaijan

28 28 CIA Prison System and Flight Routes

29 29 Hearings on Rendition April 2007 Two House Foreign Affairs committees hold a joint hearing on legality of extraordinary rendition 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 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”“the single most effective counterterrorism operation ever conducted by the United States government”

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

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

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

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

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

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

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

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

38 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 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” Better to employ this solution today so that adequate legal framework and intelligence oversight is in place for the next “ticking time bomb”

39 39 Questions?

40 40 Sources American Civil Liberties Union. “El-Masri v Tenet.” American Civil Liberties Union and the ACLU Foundation, 4 May Web. 25 Oct American Civil Liberties Union. “El-Masri v Tenet.” American Civil Liberties Union and the ACLU Foundation, 4 May Web. 25 Oct American Civil Liberties Union. “Mohamed et al. v Jeppesen Dataplan, Inc.” American Civil Liberties Union and the ACLU Foundation, 30 May Web. 25 Oct American Civil Liberties Union. “Mohamed et al. v Jeppesen Dataplan, Inc.” American Civil Liberties Union and the ACLU Foundation, 30 May Web. 25 Oct Biden, Joseph R., Jr. “S ” The Library of Congress THOMAS. Web. 26 Oct Biden, Joseph R., Jr. “S ” The Library of Congress THOMAS. Web. 26 Oct Center for Constitutional Rights. “Arar v. Ashcroft et al.” Web. 25 Oct Center for Constitutional Rights. “Arar v. Ashcroft et al.” Web. 25 Oct

41 41 Sources Council of Europe. “Alleged Secret Detentions in Council of Europe Member States.” 27 Jun Web. 26 Oct Council of Europe. “Alleged Secret Detentions in Council of Europe Member States.” 27 Jun Web. 26 Oct Frontline/World. Extraordinary Rendition. Public Broadcasting Service. 7 Nov Web. 26 Oct Frontline/World. Extraordinary Rendition. Public Broadcasting Service. 7 Nov Web. 26 Oct Obama, Barack. “Executive Order - Ensuring Lawful Interrogations.” 22 Jan Web. 26 Oct Obama, Barack. “Executive Order - Ensuring Lawful Interrogations.” 22 Jan Web. 26 Oct United States Supreme Court. “Ker v. Illinois, 119 U.S. 436 (1886).” US Supreme Court Center. Web. 26 Oct United States Supreme Court. “Ker v. Illinois, 119 U.S. 436 (1886).” US Supreme Court Center. Web. 26 Oct


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