Homeland security policies and initiatives established in the direct aftermath of 9/11 expedited procedures that have compromised American core values and the very foundation of the nation. One such policy is the practice of extraordinary rendition, which allows the U.S. government the ability to essentially abduct suspect individuals in other nations and transport them to third-party nations—usually those in which torture is a standard form of interrogation. The basis of this process deals with the principle that the U.S. does not practice torture; however, it is the policy of the U.S. to turn a blind eye and essentially "outsource" physical and psychological torture. "Extraordinary rendition is a hybrid human rights violation, combining elements of arbitrary arrest, enforced disappearance, forcible transfer, torture, denial of access to consular officials, and denial of impartial tribunals" (Weissbrodt & Bergquist, 2006, p.2). Extraordinary rendition has been a hotly debated issue for years and has transformed markedly from the rendition policy of each U.S. president since George H.W. Bush.
Although the use of torture is undeniably illegal, many argue that while it is disturbing, it is a reality and necessary consequence to protecting American lives in the 21st century against individuals who are utilizing unconventional means of warfare. In order to take a deeper look at the U.S. rendition policy, this article will present both proponent and opponent views on rendition and the legal and moral implications of the policy. Furthermore, the article will discuss the disastrous consequences that have stemmed from this policy and outline possible alternative actions and recommendations.
Roots of Rendition
Before exploring the arguments for and against extraordinary rendition, it is necessary to fully analyze the policy of rendition in the U.S. and look at the historical roots of rendition that have led to a dilution of the policy's original usage and intent. Taking an individual who has an active warrant in another nation into custody in order to deport and extradite them in the nation where they are wanted for crimes is considered legal rendition. "Renditions are considered legal when they coincide with internationally accepted rules of the law and are performed within the bilateral framework of nation states. Extraordinary renditions are when suspects are transferred between nations without formal legal proceedings" (Future of European Foreign Policy, 2007, p.1). Extraordinary renditions are quite different from legal renditions because the individuals that are arbitrarily arrested do not necessarily have any warrant out for their arrest and they are not returned to their country of origin. Instead, the individuals are taken, without consent, legal representation, or even a phone call to nations that are known for implementing physical and psychological torture in interrogation methods.
Although the topic of extraordinary rendition became highly controversial and discussed in the wake of 9/11 and under the Bush administration, the U.S. policy of rendition has been around for decades. The most notable difference between the Bush administration and previous administrations was the increased oversight and strict procedures present during the presidencies of George H.W. Bush and Bill Clinton. Specifically under the Clinton administration, individuals who were extraordinarily rendered had to have an outstanding arrest warrant filed, the case was required to go through administrative scrutiny, the case had to be approved by a senior government official and the government the individual was sent to had to be notified. "Under both the administrations of President George H.W. Bush and President Clinton, the United States used kidnapping and forcible abductions where the normal extradition process was unavailable to bring fugitives to a country where they would stand trial for the crimes of which they were accused" (Lobel, 2008, p.487). This type of rendition is in stark contrast compared to the rendition program promoted by the Bush administration. Lobel goes on to state, "The [Bush] Administration's extraordinary rendition program has resulted in condemnation and litigation abroad and in the United States courts" (p.2). Individuals transferred to different countries are not being sent to stand trial; it is for the sole purpose of intelligence gathering.
The Obama administration has taken a drastically different approach to homeland security compared to the previous administration. President Obama has said:
[Brutal methods] undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counter-terrorism efforts—they undermine them (Hajjar, 2009, p.333).
Directly after being sworn into office, President Obama signed an executive order to close Guantanamo Bay and unequivocally stated that the United States was adamantly opposed to the use of torture, even in cases of extraordinary rendition in other nations. "Although the new Obama administration has pronounced the intention to recommit to an official anti-torture position, the legacy of torture-permissive policies is proving enormously difficult to resolve" (Hajjar, 2009, p.316). This is most notably evident by the inability of the Obama administration to close Guantanamo Bay on schedule.
The United States' stance on extraordinary renditions during the Bush administration was an unwavering belief that it falls within the framework of the war on terrorism. In order to sell this policy to the American public, the Bush administration rhetoric was based on fear and stated that the administration would do everything in its power to protect American lives. Former Secretary of State Condoleeza Rice once stated, "The U.S. does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture" (Future of European Foreign Policy, 2007, p.2). Using this wording, the U.S. was able to essentially play naïve in order to avoid accountability stating that they were not aware that torture would be used in the interrogation of "illegal combatants" or "detainees" in nations such as Egypt, Syria, Jordan, and Morocco where torture is systematic and accepted.
How It Works
The process of extraordinary rendition involves first picking up an individual and detaining them in temporary facilities in order to question them. After they have been held in the country where they were taken into custody, the originating nation will fly or ship the individual to a second nation usually on secret flights while the individual is blind folded and disoriented. This secondary nation is generally located in a nation in Europe and is used to transfer flights. Lastly, the individual in question is shipped to a third nation, usually one that is publicly known for using torture techniques, and the individual is held at these "black sites" for as long as the interrogators feel necessary. "United States extraordinary renditions utilize a network of military facilities, air bases, and pre-existing legal arrangements for operating in foreign countries" (Future of European Foreign Policy, 2007, p.3). Secret prisons and detainment centers are located in different nations for different reasons. Intelligence facilities in the Middle East and European prisons in nations such as Romania and Poland are a reality.
After World War II, the international community established legislation to unequivocally prohibit core crimes such as genocide, war crimes, and torture. In 2006 the Council of Europe created a report titled, "Alleged Secret Detentions and Unlawful Intern-state Transfers involving Council of Europe Member States," which documented and labeled 14 European nations as facilitating the U.S. in extraordinary rendition cases. The nations implicated were said to have participated in human rights violations. "The rule of law, right to a fair trial, protection of life, liberty, and security are the fundamental foundations of European norms enshrined in national constitutions and EU treaties" (Future of European Foreign Policy, 2007, p.5). Critics of extraordinary rendition programs claim several international human right treaties that have been breached including the U.N. Declaration on Human Rights, Geneva Convention relative to the treatment of prisoners of war, and Geneva Convention relative to the protection of civilian persons" (Future of European Foreign Policy, p.5). "The Universal Declaration of Human Rights is the authoritative interpretation of the human rights obligations contained in the United Nations Charter [and] many of its provisions has attained the statues of international customary law" (Weissbrodt & Bergquist, 2006, p.3). The ticking-time-bomb scenario is widely used by advocates for torture resulting from extraordinary rendition. The idea that there is an eminent terrorist attack and that there is an individual in custody that has knowledge of the attack which would aid officials in preventing it from occurring. Unfortunately, the individual may refuse to aid the authorities in preventing the attack by withholding valuable information. Therefore, proponents of extraordinary rendition and torture claim that physical force and psychological manipulation are the only methods left available in order to stop an attack on American soil and/or interests.
Problems in the System
While this line of reasoning appears to support the basis that torture and arbitrary arrest are sometimes necessary, the truth is that the situation presented is rarely, if ever, the actual scenario. "A public debate on the moral philosophy of national security became a preoccupation of pundits and academics who opined and disagreed about whether torture should be used to extract innocent life-saving information from a recalcitrant terrorist in order to avert a catastrophic attack" (Hajjar, 2009, p.312). In addition, there have been many innocent individuals tortured under the guise of extraordinary rendition. Moreover, if an individual did have knowledge of an imminent attack on the U.S., it is doubtful that the individual would disclose information in time to prevent the attack and the truth of the matter is that more often than not individuals will say whatever they can to prevent pain and suffering unto themselves.
One of the problems with this line of reasoning is that intelligence is not always correct and many individuals have been sent to be tortured in foreign nations at "black sites" when they are innocent. One such example is the case of Khaled El-Masri. El Masri's case exposes the dire conditions afforded individuals in extraordinary rendition; "El-Masri was abducted, ill-treated, and interrogated for several months because U.S. intelligence confused him with Khalid Masri, who was believed to have an important role in the Hamburg cell of al Qaeda" (Weissbrodt & Bergquist, 2006, p.4). Such a mistake is an utter failure on the part of American intelligence and all precautions should be taken in order to prevent such serious errors from occurring in the future. The amount of resources allocated to the interrogation of El-Masri and the irreparable harm afforded to an innocent man could never be remedied.
Role of 9/11
Many supporters of extraordinary rendition use the 9/11 terrorist attack as an argument for coercive interrogation methods claiming the devastating attacks could have been averted.
Memos pertaining to CIA interrogations "exposed a policy of torture built on an elaborate set of legal interpretations and security rationales circumventing the black-letter prohibition in order to authorize violent and painful interrogation tactics and negating the risk of criminal liability for doing so" (Hajjar, 2009, p.314). The interpretations and word play used mainly by the Bush administration to support the use of torture and illegal rendition are based on the belief that the executive branch should possess the authority to protect the American people at all costs, regardless of whether or not such practices impede on civil liberties. The memos seemed to interpret the Constitution as allowing the president the means to ignore laws against torture in the name of national security. In labeling possible terrorists suspects as "unlawful combatants" the Bush administration effectively bypassed rights entitled to prisoners of war classified under the Geneva Conventions.
Vice President Dick Cheney "insisted repeatedly that water boarding and other forms of torture worked exceedingly well to extract valuable information, as proven by the fact that there had been no mass-casualty attacks in the United States since 9/11" (Hajjar, 2009, p.314). This line of reasoning may support the mentality that torture is an appropriate mode of interrogation if the information gathered prevents a terrorist attack, but the reasoning is also inherently flawed. It is difficult, if not impossible, to prove that coercive measures have indeed prevented possible terrorist attacks. Terrorist attacks tend to occur after years of planning and it is possible that no terrorist attacks could occur if torture or "rough" interrogation methods were not executed.
Many individuals oppose extraordinary rendition and torture under any and all circumstances for a variety of reasons. One of the most popular arguments against rendition and torture is the idea that illegally detaining an individual, denying them basic rights, and sending them to nations that regularly use torture to obtain information is inherently against the fundamental values and beliefs of the American people and is against both national and international laws. "The Constitution absolutely forbids the U.S. government from engaging in torture or sending someone to be tortured, and that prohibition ought to apply whenever and wherever the government acts" (Lobel, 2008, p.500). One question that many Americans debate is: Do individuals detained outside of the U.S. have the same protection against torture as someone held within the U.S. for questioning. The Fifth and Fourteenth Amendment rights to due process do not apply to non-U.S. citizens located outside of the U.S. "Arguably, secret renditions to and from countries in which the U.S. government does not exercise control do present practical problems and diplomatic and national security concerns, which the government could argue might make the Fifth Amendment's protections against torture unavailable to aliens subject to such rendition" (Lobel, p.495).
The case of Maher Arar illustrates the problems that arise when individuals are illegally abducted and tortured outside of the U.S., but with the knowledge and direction of the U.S. intelligence community and administration. In order to better explain the United States previous policy of extraordinary rendition, the case of Maher Arar will be discussed.
"For more than ten months, he was locked in a damp, cold, underground cell that Arar termed a 'grave' cell because it measured only three feet wide, six feet long, and seven feet high" (Lobel, 2008, p.484). It is undeniable that Arar was physically and psychologically tortured. The U.S. government was fully aware of Syria's infamous reputation of practicing torture. Arar "alleged that by conspiring with Syrian officials to subject Arar to torture and arbitrary detention in Syria, defendants are liable under the Torture Victims Protection Act of 1991 (TVPA) and violated Arar's substantive due process rights under the Fifth Amendment" (Lobel, p.485). Canada apologized and paid millions in retribution; the U.S. has not apologized and even continues to have his name on the no-fly list. Lisa Hajjar states, "international law, constitutional law, and the U.S. government all agree that torture is always illegal, irrespective of the purposes for which it is used" (Lobel, p.492). Yet, while the U.S. government states that it is opposed to any form of torture, when it is evident that the U.S. was involved in the torture of individuals, as in the case of Arar, remunerations should be made.
When hearing cases such as Arar's and El-Masri's, many inevitably wonder how individuals can perform such horrific acts on their fellow man. While many Americans can write off the torture of individuals sent to nations such as Syria and Egypt due to the nature of the established interrogations, it is hard to understand how individuals within the American military are able to perform such cruel acts such as those that took place at Abu Ghraib. How can individuals in the military perform such horrific and violent acts on possibly innocent individuals? Lisa Hajjar (2009) answers this question stating, "dehumanization of the enemies; norms of obedience within the military and militarized institutions; and competitiveness among individuals and units for professional success (e.g. breaking prisoners, eliciting information)," allow individuals to torture possibly innocent people (p.329). Even if there are specific regulations and rules established when conducting torture, they are not always followed by the individuals actually conducting the torture.
The torture program established by the U.S. to interrogate suspected terrorists has actually hurt American forces in the Middle East and is one of the primary recruiting tools for terrorist organizations such as al Qaeda. Matthew Alexander, a retired Air Force major, reported that "at least hundreds but more likely thousands of American lives are linked directly to the policy decision to introduce torture and abuse of prisoners as accepted tactics" (Hajjar, 2009, p.335). In the case of Abu Ghraib, the blame for the torture of the detainees was placed on a few individuals who were said to have attacked prisoners in an autonomous way; yet, the individuals higher up in the chain of command were never investigated so that the issue was never looked into further. This effectively removed any accountability and reprimand that should have been present in the instance of Abu Ghraib.
Looking at the U.S. national security of extraordinary rendition in terms of ethics may better explain the different viewpoints of this highly controversial issue. From a deontological standpoint, the very action of torturing and individual is unethical regardless of the reasoning or consequences that may result if the coercive methods were not utilized. This standpoint is mired in the belief that any action should be looked at on principle, not the costs that may stem from the action. The second ethical framework used by proponents of extraordinary rendition and torture believe in a teleological or utilitarianism school of thought. This ethical mentality promotes the idea that the consequences of an action are more important than the actual action itself.
Some may argue that by torturing an individual, regardless of whether or not they are innocent, is a necessary evil if it will prevent a devastating terrorist attack. Based on the ethical view that the best decision promotes the greatest good for the greatest number of people, some feel that the detainment and torture of a minority of innocent individuals is an unfortunate consequence of a policy that should continue. It is also necessary when contemplating ethics in the context of extraordinary rendition and torture to look at the "slippery-slope" possibility. Where the very implementation of torture and illegal abduction may create a policy where no one is protected from military detainment and American liberties are eroded and interpreted in a dangerous manner to fulfill the agenda of individuals in power.
How reliable and accurate is the information gathered from suspected terrorists under duress? "The overwhelming majority of prisoners were innocent or had no meaningful intelligence but remained in custody, continuing to be interrogated, long after their innocence or intelligence valuelessness was known" (Hajjar, 2009, p.330). If being tortured, most sane individuals would say whatever they thought would stop the pain and suffering inflicted, even if they were innocent of any crime. "German Jesuit Friedrich von Spee in 1631 stated, 'It is incredible what people say under the compulsion of torture, and how many lies they will tell about themselves and about others;' in the end, whatever the torturers want to be true, is true" (Hajjar, p.336). It is a waste of human and financial resources when innocent individuals are confessing to crimes they have not committed or disclosing information that is not correct in order to end the harm being inflicted.
The United States has always been seen as the embodiment and pillar of protecting and supporting civil liberties and basic rights. Nations around the world have consistently looked to the United States as a prototype for liberties which makes it particularly concerning that the U.S. is eroding its most prized practice. "The consequences of human right abuses from extraordinary renditions threaten diplomatic relations and erode public support for counterterrorism activities" (Future of European Foreign Policy, 2007, p.1). Why should other nations practice torture with little international denunciation, but if the U.S. is implicated in third-party torture, there is widespread condemnation? Other nations look at the policies and practices of the U.S. for guidance. "The global power and influence of the United States make American torture more deleterious than torture by less powerful regimes because of its capacity to influence international legal norms and standards of treatment for prisoners" (Hajjar, 2009, p.315). Whether the U.S. likes it or not, the international community looks to the American people to set global standards of conduct and influence, so it is necessary for the U.S. to follow international and national laws.
So, what can be done by the United States in response to extraordinary rendition and torture that results from such a policy? One possible solution just touched on is the idea of the international community publicly embarrassing the U.S. policy of illegal renditions through exposing human rights violations. "By revealing that governments are acting in flagrant violation of customary international law and human rights instruments to which they are parties, the international community can exert pressure on the offending governments to halt their practices" (Weissbrodt & Bergquist, 2006, p.12). Governments must uphold human rights standards in order to maintain legitimacy.
A second alternative to extraordinary rendition would be the use of International Criminal Courts (ICC) or military tribunals. With the current debate over the legitimacy of Khalid Sheik Mohammed's trial in New York City, the majority of Americans do not believe terrorist suspects should be tried in the American judicial system, but that does not mean they should be denied even the most basic rights attributed to Americans. There needs to be entities established where jurisdiction is not questioned during trials concerning terrorist suspects.
Furthermore, what would be the largest benefit to the unethical practice of extraordinary rendition, which was drastically transformed during the Bush administration? To revert back to the practice and policies of rendition during the Clinton administration. First, if an individual is sent to a nation that regularly practices torture in order to gather intelligence, said individual must have an active warrant out for their arrest and return to the nation. Moreover, if an individual is denied basic rights and civil liberties, there must be definitive evidence implicating the individual in terrorist activities.
Many individuals who oppose torture would give a green light to coercive interrogations if the individual in question definitively possessed information that would without a doubt prevent a terrorist attack and there was only a limited amount of time. The reality of the situation is that these ticking-time bomb scenarios are rarely, if ever, the case. The real situation boils down to: "Counterterrorism operations involving extraordinary rendition yield valuable intelligence capable of preventing potential terrorist attacks at the expense of infringing on international legal norms, national sovereignty and individual human rights" (Weissbrodt & Bergquist, 2006, p.10-11).
Regardless of the reasons, the legal and moral implications of the U.S.'s practice of extraordinary rendition are too great. The main difficulty in even debating the issue of extraordinary rendition poses challenges because the act itself is concerned with national security and is classified so that the actual statistics on extraordinary rendition are not disclosed to the general public. After analyzing the practice of extraordinary rendition, which inevitably leads to coercive interrogation practices, it is evident that the U.S. must only engage in such behavior once the intelligence community exhausts all possible alternatives.
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Hajjar, L. (2009). Does Torture Work? A sociological Assessment of the Practice in Historical and Global Perspective. Annual Review of Law and Social Sciences, 311-345.
Homeland Security. (n.d.). Retrieved November 17, 2009, from http://www.whitehouse.gov/issues/homeland-security/
Lobel, J. (2008). Extraordinary Rendition and the Constitution: The Case of Maher Arar. The Review of Litigation, 28(2), 480-500.
Purpura, P. P. (2007). Terrorism and Homeland Security. Burlington, MA: Butterworth-Heinemann.
Weissbrodt, D., & Bergquist, A. (2006). Extraordinary Rendition: A Human Rights Analysis. Retrieved September 2, 2009, from EbscoHOST.
About the Author
Paul France, PHD (ABD), MA, MEP, CLE, CEM, CHS-V, has over 20 years of extensive experience in the public safety sector, law enforcement and homeland security. He is the SW director of the Wisconsin Department of Military Affairs-Emergency Management and is currently assigned to the State Intelligence Fusion Center. France has played a key role in developing the state of Wisconsin's homeland security program. He completed his M.S. in homeland security at the Naval Postgraduate School Center for Homeland Defense & Security, the nation's premier program in homeland security and executive-level education.