Extraordinary rendition, U.S.

Extraordinary rendition by the U.S. involves foreign captives who are transferred to or from U.S. custody without going through the regular channels of international extradition. This is a form of extrajudicial detention, although the process may or may not involve a hearing in the country involved. If the U.S. requested a country to deport a citizen of a third country, in transit through the second country, the second country could hold an administrative deportation hearing, as distinct from a judicial one. Contrary to some news reports, the practice was not limited to the George W. Bush Administration.

In some cases, the rendition was to the U.S. proper. In others, U.S. personnel assisted agents of other countries to apprehend and render people in third countries, with U.S. assistance in the operation but the individual never being under full U.S. custody.

Policy and legal context

One of the rationales for avoiding international extradition is that the matter may involve the state secrets privilege, upheld by the U.S. Court of Appeals for the Fourth Circuit in el-Masri v. Tenet.

A relevant treaty obligation is that from the Convention against Torture, which contains a doctrine called refoulement, which forbids a country from sending a person to a country where there is a substantial chance he might be tortured.

Reagan Administration

On February 1, 1986, Ronald Reagan issued a policy, "The National Program for Combatting Terrorism". As an operational agency to carry out aspects of the program, he authorized, at the same time, the Central Intelligence Agency's Counterterrorist Center, headed by Dewey Clarridge, a CIA operations officer who advocated an preemptive strategy against terrorists. Reagan also issued a Presidential Finding to authorize covert action; when Robert Gates briefed the Senate Select Committee on Intelligence, he described the discussion of when operational teams could kill a terrorist as "almost theological." They agreed they could kill a terrorist in the act of driving a bomb at a barracks, but were far less clear if they could do so when he was assembling a bomb. These issues of rules of engagement have been an issue ever since.

Clinton Administration

A significant amount of extraordinary rendition, with brief U.S. interrogation either in the nation of capture or on a U.S. ship, took place in the Bill Clinton|Clinton Administration. Following initial interrogation, the prisoners were then sent to Egypt or other countries that would do detailed interrogation. Michael Scheuer, a former CIA specialist in counterterrorism, worked on developing rendition as a part of Bill Clinton|Clinton Administration doctrine in the mid-1990s. In an interview with the New Yorker, Scheuer, said “It was begun in desperation, ” intended to “detect, disrupt, and dismantle” terrorist operations, principally directed at al-Qaeda, with broad but nonspecific approval at the White House level; Scheuer cites Richard Clarke as giving a general "Figure it out by yourselves", although Clarke declined to talk to the author.

According to Scheuer, the first partner was to be Egypt, on the basis that it had the capability to track, capture and transport suspects. He said “What was clever was that some of the senior people in Al-Qaeda were Egyptian,” (i.e., Egyptian Islamic Jihad as an organization and Ayman al-Zawahiri as a key target. “It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated.” Scheuer said that the U.S. carried out its obligations to avoid the refoulement doctrine, but told the interviewer he was "not sure" if there was a written agreement not to torture.

On September 22, 1995, Abu Talal al-Qasimi, also known as Tal`at Fu'ad Qassim was captured in Croatia by CIA personnel, interrogated aboard a ship, and eventually transferred to Egypt, where he was executed.

In July 1998, in Tirana, Albanian, a joint Albanian-U.S. force raided a cell of militants associated with an Egyptian insurgent group, al-Jihad (Holy Struggle). Four were captured and one killed. The prisoners, Ahmad Ibrahim al-Sayyid al-Naggar, Ahmad Isma`il `Uthman, Shawqi Salama Mustafa and Muhammad Hassan Mahmud Tita, were questioned and then transferred to Egypt. `Uthman and al-Naggar, had previously been sentenced to death in absentia by Egyptian military tribunals in March 1994 and October 1997 respectively. al-Naggar's brother, Magdi Ibrahim, had been acquitted in the earlier in absentia trial, but he was again tried in the 1999 proceeding.

Human Rights Watch also said that the CIA had rendered another Egyptian, Issam `Abd al-Tawab `Abd al-Alim, from the Bulgarian capital Sofia to Cairo.

Obama Administration

The policy of the Obama administration has not been fully elaborated, although this Administration has taken a strong policy against torture.