The Duck of Minerva

The Duck Quacks at Twilight

Extraordinary Rendition and Detainee Abuse are Two Separate Policy Problems. Let’s Treat Them As Such.

August 24, 2009

Bob Drogin at the LA Times is the latest to regurgitate the misinformed claim that Raymond Azar, whose human rights appear to have been violated as he was extradited from Afghanistan to Washington on bribery charges, is “the first target of rendition under Obama.”

The incident described yesterday by Drogin, in which Azar was arrested in his home and then allegedly hooded, photographed, subjected to a cavity search and told he would “never see his family again unless he confessed,” actually occurred on April 7th; Azar is now in detention in or around Washington DC and has also claimed that his treatment at the hands of those who arrested him amounted to torture. Claims began surfacing a few days later on blogs such as Huffintgon Post and Daily Kos that Azar was the “Obama Adminisration’s First Rendition Victim”; this claim is now being repeated on various political blogs.

If Azar’s claims are accurate, his human rights to humane treatment were violated as he was arrested. The Justice Department’s proposed investigation into CIA abuse would seem therefore to be a timely and wise choice, as detainee abuse seems to have become embedded in the culture of many US agencies (in this case, the FBI). This is something that can only be reversed with significant political and legal attention to the matter, and which should not be assumed to have ended with the presidential transition.

However ill-treatment per se doesn’t mean Azar was a victim of extraordinary rendition, and this narrative is muddying the public’s understanding of the concept itself.

“Rendition,” for one thing, is not a human rights abuse: it is simply the practice of transferring prisoners between jurisdictions, and is provided for at the domestic level in Article 4 Section 2 of the US Constitution. Internationally, rendition generally takes the form of extradition, which is a legally arranged transfer of a suspected or convicted criminal, and is governed by a range of bilateral and multilateral treaties. All this is perfectly legal.

But treaty law also constrains the practice of extradition. Among other things, signatories to the Convention on Torture are prohibited under Article 3 from extraditing suspects to states where they are likely to be tortured. “Extraordinary rendition” is a term that came to describe the practice of informally doing just that: transferring a suspect without a formal extradition agreement into the custody of a government at whose hands s/he is likely to face ar harsher interrogation for the purpose of information extraction. In other words, whereas extradition is a legal process aimed at criminal prosecutions subject to due process standards, extraordinary rendition in an extra-legal arrangement for finding loopholes for interrogations.

The practice of transferring suspects to such governments or to CIA-run “black sites” as a means of skirting international rules regarding interrogation was widely condemned during the Bush Administration – but the practice dated back at least to 1995, during the Clinton Administration. Nor has it ended with the election of a Democratic President. After Bush left office, the Obama Administration claimed it would seek diplomatic assurances from countries before transferring suspects (but this was already part of the earlier policy). He has not put an end to the extraordinary rendition policy per se, a choice I’ve criticized before; the Administration’s position was reiterated today. I have not been tracking whether or not individuals have actually suffered from it since Obama took office, but it seems clear to me that Azar did not: this is not a case of the US sending a detainee overseas for abuse.

Azar appears to have been extradited by the government of Afghanistan to the US under the normal legal procedures to face charges of corruption in a US court, as the LA Times article itself admits:

“Their case is different from the widely criticized “extraordinary renditions” carried out after the Sept. 11 attacks. In those cases, CIA teams snatched suspected Al Qaeda members and other alleged terrorists overseas and flew them, shackled and hooded, to prisons outside the United States without any arrest warrants or other judicial proceedings.

The FBI arrested Azar and Cobos with warrants signed by a federal magistrate. And the State Department, Talamona said, asked the government of Afghanistan “for its consent in advance to take these two individuals into custody and return them to the United States to stand trial. They consented to our request.”

If there is a violation of extradition law happening here, it was Afghanistan, not the US, that engaged in it (and indeed, give the recent US record of detainee abuse, perhaps governments worldwide would be in violation of Article 3 of the Torture Convention by sending any detainees to the US). But the extradition happened through normal legal channels, not secretly in an effort to circumvent those channels, and not for the purposes of extracting intelligence.

This strikes me as a case of a prisoner who was lawfully extradited receiving ill-treatment as he was relocated. Detainee abuse by US personnel in violation of legal protections is an important issue, but it is distinct from a policy of turning over suspects to governments who lack such protections altogether. Let’s treat it as such.

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Charli Carpenter is a Professor in the Department of Political Science at the University of Massachusetts-Amherst. She is the author of 'Innocent Women and Children': Gender, Norms and the Protection of Civilians (Ashgate, 2006), Forgetting Children Born of War: Setting the Human Rights
Agenda in Bosnia and Beyond (Columbia, 2010), and ‘Lost’ Causes: Agenda-Setting in Global Issue Networks and the Shaping of Human Security (Cornell, 2014). Her main research interests include national security ethics, the protection of civilians, the laws of war, global agenda-setting, gender and political violence, humanitarian affairs, the role of information technology in human security, and the gap between intentions and outcomes among advocates of human security.