Extraordinary rendition, U.S.

See also: Extraordinary rendition, U.S., George W. Bush Administration

As has been practiced by the United States government, captives are transferred from US 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.

Clinton Administration

Michael Scheuer, a former CIA specialist in counterterrorism, worked on developing rendition as a part of 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.

Obama Administration

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