Extraordinary Rendition Research Articles

Extraordinary Rendition and the Quest for Accountability in Europe

Extraordinary Rendition and the Quest for Accountability in Europe

Extraordinary Rendition and the Quest for Accountability in Europe

Extraordinary Rendition and the Quest for Accountability in Europe

The New Counterterrorism: Contemporary Counterterrorism Trends in the United States and Israel

In the first decade of the twenty-first century we are witnessing the emergence of a new form of counterterrorism in several democratic states. This new counterterrorism is ideological–religious in its rhetorical outlook, networked in its organizational structures, increasingly lethal in its operational tactics and more and more brutal in its methods. The shift to an ideological–religious discourse can be traced back to a conceptual transformation about the nature of terrorism, from the notion of terrorism as a “crime” to that as a “war”. The latter, differently from the former, requires ideological justification, which in states with strong religious constituencies, such as the USA and Israel, can partially be sought and acquired on a religious basis. Second, the new counterterrorism is based on normalization of extra-judicial means in the fight against terrorism. This has happened at three levels: by creation of overt and covert extra-jurisdictional domains—or legal black holes—outside of the human rights regimes of democratic states, by legitimization of torture at political, intellectual and popular cultural levels and by increasingly widespread use of extra-judicial killings of terrorist suspects. Third, the tactics used by new counterterrorism agencies are increasingly lethal and lead to disproportionately high number of casualties among innocent civilians. This development is to a large extent due to hardening of traditional counterterrorism targets and use of imprecise technology and intelligence in operations. Finally, the new counterterrorism is networked and often beyond the control of the judicial sovereignty of courts. This is largely due to informal contacts developed within the framework of the post 9/11 extraordinary rendition program and outsourcing and privatization of counterterrorism related activities and the ensuing contractual arrangements between state institutions and private enterprises.

German Government Not Obliged to Seek Extradition of CIA Agents for 'Extraordinary Rendition': Comments on the El-Masri Judgment of the Cologne Administrative Court

In a recent decision, which in different respects opens up new lines of enquiry, the Administrative Court of Cologne (Verwaltungsgericht Köln) dismissed an action by which the plaintiff sought to oblige Germany to request the extradition of 13 CIA agents involved in his ‘extraordinary rendition’ from the United States. This article describes the history of the case that has been met with great interest in the press and in legal circles, and analyses the reasoning of the Court on the admissibility and merits of the case.

Extraordinary Rendition and U.S. Counterterrorism Policy

This article examines the United States Government policy of extraordinary rendition as a response to terrorism. The paper provides a working definition of the term, outlines why it has become controversial, and uses case studies to examine success and failures of extraordinary rendition in practice. The paper concludes with lessons learned—more specifically, policy amendments—that are necessary to keep extraordinary rendition as a viable tool for the Obama Administration and mitigate political fallout against the United States from both its allies and enemies. This paper argues that extraordinary rendition provides flexibility to policymakers to detain terrorists in cases where an attack may be forthcoming and when other approved legal processes are slow to react. Therefore, instead of ending extraordinary renditions altogether, the United States should reevaluate how it implements the policy on a tactical, operational, and strategic level and amend it based on the recommendations put forward in this article.

What's so extraordinary about rendition?

The election of Barack Obama was believed to herald a profound change in direction for US foreign policy, following eight years of pre-emption, neo-conservatism and extraordinary rendition under George W. Bush. However, this has not occurred to the degree that many expected. Instead the Obama White House continues to refer to the controversial policy of rendition as ‘appropriate’.1 This article will consider the rendition programme and its evolution to discern the degree to which the Bush administration was continuing policies inherited from President Clinton. This article will reveal the extent to which rendition was developed under the Clinton administration and the degree to which it evolved into extraordinary rendition in the years prior to the George W. Bush presidency. The article will reveal the extent to which the Clinton White House was waging a war on al Qaeda, using rendition to destroy the organisation, ‘brick by brick’.2 The article will finally consider the extent to which Obama has repudiated the Bush Doctrine and chartered a new course for US foreign policy.

Liberal Lawfare and Biopolitics: US Juridical Warfare in the War on Terror

Two basic forms of ‘lawfare’ are employed by the United States in its enactment of the war on terror, both of which have a biopolitical focus. The first strategy has been well documented.1 It involves the indefinite detention and sometimes extraordinary rendition of enemy combatants, legally sanctioned and politically justified by the ‘exceptional’ circumstances of late modern war and terrorist violence. Geography plays a central role in strategy number one: the legal statuses of detainees, whose lives and bodies are cast out and denied basic juridical rights, are bounded, identified and allowed for in extra-territorial spaces throughout the world, from Guantanamo Bay to Bagram Air Force Base. Such exceptional biopolitical spaces are essentially ‘defensive’ and operate at the local scale. On the contrary, the second seldom-discussed legal strategy conditions and protects the US military in ‘offensive’ mode, operates at the national and transnational scale, and involves the careful legal designation and protection of US military personnel in forward deployed areas.2 This paper is centrally concerned with strategy number two – a strategy that can be defined as ‘forward juridical warfare’ and involves the US military's mobilisation of the law in the waging of war along the ‘new frontiers’ of its war on terror. The paper seeks to expound the legal and biopolitical constitution and operation of the current US military's forward presence overseas, and begins by drawing on recent work on biopolitics that has sought in various ways to critique the proliferation of practices of liberal lawfare and securitization in our contemporary world.

The Bush and Obama Administrations' Invocation of the State Secret Privilege in National Security Litigation: A Proposal for Robust Federal Judicial Review

The Justice Department under the Bush Administration repeatedly invoked the State Secrets Privilege (SSP) in high-profile national security litigation cases challenging many of the controversial practices instituted in response to the September 11th, 2001 terrorist attacks. Furthermore, in all national security-related litigation still pending from the Bush Administration era and in newly developed cases, the Obama Administration has, to the dismay of many, declined to reverse this policy. From litigation challenging the practice of extraordinary rendition to the issue of wiretapping US citizens without judicial approval, the Obama Justice Department has continued to invoke the SSP, concluding that any legal challenges against national security-related programs would necessitate disclosure of high-secret discovery materials and could potentially harm American national security. This paper critiques some of the arguments advanced for how to reform the privilege, such as the State Secrets Reform Act, S. 2533, “A bill to enact a safe, fair, and responsible state secrets privilege Act” that would significantly seek to constrain presidential authority in this area. I argue against congressional reform, and instead assert that the proper basis for reformation should come from the judiciary itself. The conventional default deference given to the Executive Branch should be dramatically curtailed in favor of a more robust procedural guarantee of judicial review. This argument stands against proposed reform from Congress, and instead focuses on ways in which federal judges can better police presidential assertions of privileged information in national security litigation.

Being Targeted, Being Recognized: The Impact of 9/11 on Arab and Muslim Americans

The wounds inflicted by the September 11 terror attacks remain fresh today, nine years later. Americans have still not fully recov ered from the trauma, nor has the American government been able to conclude the two wars that it launched in response. And while everyone in the country has been negatively affected in some way by the securitization of everyday life that came in the wake of the crisis, the group that has suffered most has been Arab and Muslim Americans. They were targeted as a suspect population sim ply for being Arab and Muslim—the one thing they had in common with the terro rists, who were otherwise all foreigners. Depending on (and even at times regardless of) their citizenship status, they faced depor tation, extraordinary rendition, interroga tion, surveillance, random searches, acts of vandalism, hate crimes and various other forms of discrimination. Singled out and tar geted by both the government and the public, Arab and Muslim communities found them

Privatized Sovereign Performance: Regulating in the ‘Gap’ between Security and Rights?

This article explores what I term ‘privatized sovereign performance’: the ‘private’ operationalization of functions that are intimately connected with the sovereign identity of the state. It is considered in the context of corporate involvement in extraordinary rendition in order to outline the rights‐related difficulties it creates or exacerbates, and explore the ways in which transnational private regulatory mechanisms have a role to play in crafting a rights‐based response. It argues that the ‘public’ is saturated in rights‐based regulation which pushes a state that wants to conceal its torturous activity into the ‘private’; that the conventional private regulatory mechanism of litigation faces significant obstacles and is ineffective in this circumstance; and that transnational private regulation holds potential to align the structural and legal obstructions to torture between the public and private sphere, thus making the ‘escape hatch’ from rights seemingly presented by the privatization of sovereign performance more difficult to access.

The Unitary Executive and the Jurisprudence of Carl Schmitt: Theoretical Implications for the 'War on Terrorism'

The Global War on Terrorism has occasioned a new challenge to constitutionalism and the rule of law. This challenge comes in the form of both astonishing theoretical justifications for the expansion of presidential authority at the expense of traditionally established legal constraints and unprecedented international and domestic policy formulation. These policy formulations have generated intensive controversy over their merits, legality, and political viability. Among the most prominent include legislation allowing considerable leeway in interrogation techniques by American servicemen abroad, the practice of extraordinary rendition, the recently revealed National Security Agency (NSA) eavesdropping program, the PATRIOT ACT, extensive usage of signing statements, among numerous others. Many of these initiatives seek to effectively liberate the President from governmental review and thereby place him above the reach of the law. Such thinking about the nature of executive power comes under the general framework of the “Unitary Executive Theory (UET). This theory has been promulgated by the Bush Administration as the proper method for combating terrorism and other imminent security threats facing the United States of America. Tracing the philosophical basis for such reasoning about the relationship of Executive authority to the rule of law unveils a prominent jurist, who, writing during the tumultuous Weimar Era in Germany back in the 1920's sought to justify Nazi authoritarianism at the expense of constitutional procedures. A severe political emergency facing the very security of the nation could not be handled by appeal to legal or political approvals. Rather, Carl Schmitt argues, a sovereign entity, presumably the President, must be vested authority to circumvent the law in order to effectively deal with the threats at hand. This institution of the “state of exception leaves the executive operating without any constraints from any judicial or legislative body, creating a considerable amount of independence- and potential abuse in the exercise of political power. The political thought expounded by Carl Schmitt strikingly parallels the ideas behind the UET. In the following essay, I seek to critically weave together the jurisprudence of Carl Schmitt with the underlying logic of the Bush Administration policy platform in our post-9/11 world.

The Law Presidential Power and Foreign Affairs in the Bush Administration: The Use and Abuse of Alexander Hamilton

Alexander Hamilton's writings, virtually alone among the framers, were invoked by President George W. Bush and his legal advisors as the cornerstone of the administration's assertions of sweeping executive powers in the areas of war and peace and national security. The Bush administration's conscription of Hamilton to justify its soaring claims of presidential power, however, represents a distortion and abuse of his views of the latter president's views, particularly those expressed in The Federalist Papers. With the loss of Hamilton as an intellectual pillar, President Bush's theory of a plenary executive power finds no support among the framers. Analysis of Hamilton's writings will repair his undeserved reputation as an apologist for expansive executive powers.

Physical Integrity Rights and Terrorism

Can states afford to protect human rights when facing a terrorist threat? Contemporary academic literature suggests that the answer to this question is no, concluding that states that afford their citizens basic political rights and civil liberties leave themselves more exposed to terrorist attacks (Piazza 2008; Wade and Reiter 2007; Pape 2003; Eubank and Weinberg 1994). American policymakers seem to agree. Both the Bush and Obama administrations regard the curtailment of physical integrity rights as a necessary element of effective counterterrorism policy. The Bush administration responded to the terrorist attacks of September 11, 2001, with policies permitting indefinite detention, extraordinary rendition, use of physically abusive interrogation practices, and increased and largely unchecked surveillance and wiretapping of suspected terrorists. Although it banned abusive interrogation and announced plans to close the detention facility at Guantanamo Bay, the Obama administration has maintained the practice of wiretapping, reserved the option of rendition, and dramatically increased unmanned drone attacks against suspected terrorists in Pakistan, which often results in civilian casualties. Both presidents have claimed that these policies are necessary to keep Americans safe from terrorism (Hosenball 2009; “Bush Defends Policy on Terror Detainees” 2005).

The More Things Change, the More They Stay the Same: The Liberal Tradition and Obama's Counterterrorism Policy

Barack Obama campaigned on a platform of “Change We Can Believe In.” One of the biggest changes many anticipated with his election was a dramatic break with the previous administration's counterterror policy. There were good reasons for thinking that this would be the case. George W. Bush was a Republican who took his cues from the most conservative elements of his party, including neoconservatives, the religious right, and other proponents of an assertive stance of U.S. global primacy and a forward-leaning posture in the war on terror. Conversely, Barack Obama is a liberal Democrat who opposed the Iraq War and seeks to “reset” America's relations with other countries around the world by recommitting the United States to a more moderate approach to waging the war against al-Qaeda, including measures such as adopting a more multilateral foreign policy, closing the detention center at Guantanamo Bay, ending the practices of extraordinary rendition and enhanced interrogation, and showing a greater respect for civil liberties domestically.

British Muslims and the UK government's ‘war on terror’ within: evidence of a clash of civilizations or emergent de‐civilizing processes?

In the immediate aftermath of the September 2001 attacks on America, defending civilization was quickly established at the core of the 'war on terror'. Unintentionally or otherwise this incorporation of civilization connected with Samuel Huntington's 'Clash of Civilizations' thesis. Within the 'war on terror' the dark side of counterterrorism has become apparent through international practices like extrajudicial killing, extraordinary rendition and torture. The impact of Western governments' policies upon their indigenous Muslim populations has also been problematic but social and political analysis has been relatively limited. This paper seeks to help address the scarcity of sociological contributions. Hidden costs of the UK government's attempts to utilize violence and enhance social constraints within the nation-state are identified. It is argued that although counterterrorism strategies are contributing to a self-fulfilling spiral of hatred that could be considered evidence in support of the 'Clash of Civilizations', the thesis is unhelpful when trying to grasp the underlying processes. Instead the paper draws upon Norbert Elias's application of the concepts of 'civilizing' and 'de-civilizing' to help improve levels of understanding about the processes and consequences of particular Muslim communities being targeted by security forces. The paper concludes with an exploration of the majority of the population's acquiescence and willingness to accept restraints upon Muslims in order to safeguard their own security.

Learning From Others: The Scalia-Breyer Debate and the Benefits of Foreign Sources of Law to U.S. Constitutional Interpretation of Counter-Terrorism Initiatives

Abstract The article discusses the importance of using foreign sources in the constitutional interpretation of counter-terrorism initiatives. By reviewing the Arar case, the author underlines the value of Canadian jurisprudence to evaluating extraordinary rendition. The similarities between the Arar and El Masri cases underscore the weakness of the current standard adopted by American judiciary in evaluating extraordinary rendition. The article further draws on the Israeli experience in dealing with torture. American jurisprudence will be greatly improved if it directly discusses the strengths and weaknesses of the Israeli debate in its own constitutional interpretation. In totality, American jurisprudence has an incredible untapped resource in the experiences of other countries on addressing problems that Americans would likely see as unique.

Portraying Normative Legitimacy: The EU in Need of Institutional Safeguards for Human Rights

This article explores the politics of European security policies from a human rights perspective. It argues that internal and external security policies are chiefly related through their joint and intertwined impact on the perceived legitimacy of the EU's normative demands on third countries. Building on a theoretical exploration of the normative power Europe concept, its applicability in practice is analysed by looking at three key developments: the EU's response to the allegation of some of its member states supporting extraordinary renditions by the USA; the recent establishment of the EU's Fundamental Rights Agency; and the partial suspension of a Partnership and Cooperation Agreement in response to the excessive and indiscriminate use of force by Uzbek security forces in Andijan in 2005. In all three cases the EU's actions lack consistency and are guided chiefly by political considerations of its member states rather than by a principled approach. It is concluded that the EU's objective to export human rights and democratic values through the Common Foreign and Security Policy and the external dimension of the Area of Freedom, Security and Justice – that is to exercise normative power on justice and home security affairs – is hampered by a failure to develop institutional structures that ensure consistent and transparent monitoring and promotion of human rights.

'Extraordinary Renditions' and State Obligations to Criminalize and Prosecute Torture in the Light of the Abu Omar Case in Italy

By focusing on the Italian case concerning the ‘extraordinary rendition’ (or in precise legal terms, the abduction) of Mr Abu Omar, this article addresses the obligations states have under the UN Torture Convention to prosecute individuals for torture and complicity in torture occurring as a result of ‘extraordinary renditions’. The article considers the obligation to criminalize complicity in torture and its implementation in Italy. It then analyses the ongoing Italian criminal proceedings concerning the abduction of Mr Abu Omar and concludes that Italy failed to comply with the obligation to prosecute complicity in torture under the Convention for a variety of reasons. In particular, it addresses the issue of ‘state secrecy’, which emerged during the proceedings and was decided upon by the Constitutional Court, and argues that state secrecy cannot be used to avoid compliance with international obligations.

Our nation unhinged: the human consequences of the war on terror

List of Illustrations The Cuban Iguana and American Jurisprudence Foreword by Erwin Chermerinsky Opening Part One: Manipulating the Law Introducing the Term Enemy Combatant Justifying Harsh Interrogations and Torture Asserting Absolute Power as Commander-in-Chief Part Two: Lawless Detentions in America Yaser Hamdi, American Citizen Jose Padilla, American Citizen Ali Saleh Kalah Al Marri, American Resident Preventive Detention Part Three: Lawless Detentions in Guantanamo I. Guantanamo and the Road to the Supreme Court, 2002-2004 Why Guantanamo? Martin Luther King Weekend, January 2002 The Road to the Supreme Court With a Little Help from the Cuban Iguana A Historic Supreme Court Decision: Rasul v. Bush II. Inhumane Treatment of Detainees at Guantanamo Interrogation Log of a Guantanamo Detainee FBI Report: July 29, 2004 Denial of Treatment Suicides at the Base Emergency Response Force Hunger Strikers and Forced Feeding III. The Administration under Siege, 2004-2006 Combatant Status Review Tribunals (CSRTs) Government Interference with Attorneys The Administration's Legal Position Falters Detainee Treatment Act of 2005 IV. Winds of Change, 2006-2008 A Second Historic Supreme Court Decision: Hamdan v. Rumsfeld The Military Commissions Act The Third Guantanamo Case: Boumediene v. Bush Supreme Court Oral Arguments A Parallel Case on Reviewing CSRT Hearings The Return to War Crime Prosecutions: Hicks, Khadr, and Hamdan Victory: Boumediene v. Bush Part Four: Foreign Prisons and CIA Black Sites The Evolution of Extraordinary Rendition Case Study: Khalid El-Masri Case Study: Maher Arar Case Study: Abu Omar Violating Human Rights Laws Part Five: Detentions in America with Due Process John Walker Lindh Richard Colvin Reid Zacarias Moussaoui The Lackawanna Six Closing Addendum: Visiting Guantanamo Bay List of Abbreviations Notes Index

Privatised Torture: Reflections on the Implications for Human Rights Law of the Emergent Phenomenon of Out-Sourced Torture

This paper, delivered as part of the Scrymgeour Lecture series of Dundee Law School, addresses the phenomenon of the use of private entities (airline companies and air traffic logistics companies) in the transportation of suspected terrorists for interrogation and torture (‘extraordinary rendition’). In addressing this phenomenon from the perspective of international human rights law, the paper makes both normative and practical arguments. Normatively it is claimed that the use of private entities for the purposes of concealment of activity and in the attempt to minimise liability in the event of suit reveal a position termed ‘ontological acceptance: intentional breach’ by the United States towards the absolute prohibition of torture in international law. It is argued that the normative core of the prohibition is sound, but that the gap between norm and enforcement is exacerbated by the use of private entities. The final part of the paper argues for an approach to enforcement that addresses both the public and the private through law and regulatory mechanisms.