Outsourcing A Real Nasty Job
Shipping terrorism suspects overseas for some tough questioning may make sense. But is it legal?
The bill that passed last week was to authorize another $82 billion in military spending, mainly for operations in Iraq and Afghanistan. But lawmakers slipped in language that had nothing to do with money. Tucked away on Page 26 of the legislation, the members of Congress stated explicitly that no one in U.S. custody--American or foreigner--may be tortured or subjected to "cruel, inhuman, or degrading treatment." Human-rights groups applauded, but even now, no one can say for sure whether the legislation outlaws one of Washington's most secretive--and controversial--intelligence programs. It goes by a deliberately bland bureaucratic euphemism called "extraordinary rendition." What it means is that the CIA or other government agencies can send, or "render," terrorism subjects for interrogation to other countries, even those with records of human-rights violations and abuse of prisoners.
No one knows for sure how many people U.S. agencies have rendered to foreign governments, but the total is believed to be several hundred, and there is no dispute that the number has increased markedly since the 9/11 attacks. Maher Arar, a Canadian citizen, was one of the individuals rendered to a foreign government after the attacks. Born in Syria, the 35-year-old engineer was accosted by U.S. officials at New York's JFK International Airport in September 2002 on his way home to Ottawa from a vacation in Tunisia. The officials hauled Arar onto a small private jet and flew him to Jordan. He was then driven to Syria, where he was imprisoned, without charges, for 12 months. During his incarceration, Arar says, he was interrogated repeatedly about ties to terrorists, tortured, and beaten with an electric cable. After a year, Arar was set free, still without charges. Today, he is suing the U.S. government.
The legal underpinnings of the rendition program are more than a bit murky. The Bush administration says justification for the practice rests on several pillars. These include executive authority in times of war, something called the "states secrets privilege," which is not a law but a series of legal precedents, and the fact that Washington routinely seeks diplomatic assurances that terrorism suspects will not be tortured before they are sent abroad for interrogation.
Presidential policy. The legal authority may also rest, in part, on a still classified directive signed by President Bush after the attacks on the World Trade Center and the Pentagon. Some scholars speculate that the directive may include language about executive-branch authority similar to that contained in several Justice Department memos that surfaced after the detainee-abuse scandal at Iraq's Abu Ghraib prison. Those documents sought to legitimize coercive interrogation and torture techniques in Afghanistan, Cuba, and Abu Ghraib. The presidential directive, in other words, may argue that "there is no law that prohibits the administration from doing this," says Scott Silliman, director of the Center for Law, Ethics and National Security at Duke University.
John Yoo, a former deputy assistant attorney general and author of several of the interrogation memos, now teaches at the University of California-Berkeley law school. In a law review article on renditions published last year, Yoo employed precisely this reasoning. The September 11 attacks, he wrote, "triggered the President's authority as Commander in Chief and the United States' rights under international law to transfer custody of enemy prisoners to other nations."