Rendition: Reject the Abuses, Retain the Tactic

Daniel L. Byman
Daniel L. Byman
Daniel L. Byman Director and Professor, Security Studies Program - Georgetown University, Nonresident Senior Fellow - Foreign Policy, Center for Middle East Policy

April 17, 2005

Perhaps the most misunderstood U.S. counterterrorism tool is the “rendition”: the transfer of suspected terrorists from one country to another without formal legal proceedings. Human rights activists and international law experts have blasted the tactic as illegal and accused the U.S. government of “outsourcing torture” by shipping some suspects to countries that brutally interrogate prisoners. New York Times columnist Bob Herbert even declared that renditions stand “side by side with contract killings.” Not surprisingly, calls to end or curtail the practice are growing.

There is no question that renditions are a flawed instrument, especially when used recklessly and without exploring other options first. But it is a mistake to focus on the tool without understanding the problem it is used to solve: What does the U.S. government do when it has the opportunity to detain, question and gain information from a suspected terrorist who isn’t an American citizen, but does not have enough evidence to bring charges against the suspect in a U.S. court?

In one sense, renditions are a perfect metaphor for the dilemmas posed by the war against terrorism. For years, a debate has raged in policy circles about whether we are conducting a war or pursuing a crime. The Bush administration is now doing both, employing intelligence and law enforcement agencies. But each operates under entirely different rules, creating a sort of gray area between national security and the legal system. Intelligence officials might believe they have enough credible evidence to detain someone and possibly disrupt a terrorist plot in progress. Prosecutors might look at that same evidence and say it’s not enough to go to trial.

Renditions allow the government to do something rather than nothing. But the tactic carries multiple risks, as we have seen in several specific cases since the Bush administration greatly expanded its use after 9/11. The intelligence could be faulty. The suspect could be innocent. The interrogators, with no one watching, could use torture to extract information. A misstep of any kind—mistaken identity or human rights abuse—could damage diplomatic relations.

Precisely because renditions carry big risks in human rights and diplomatic terms, policymakers must make clear to intelligence and law enforcement agencies that they are a tool to use sparingly. But with the proper safeguards, renditions are an appropriate response to difficult circumstances. In the best case, they can prevent a deadly attack and yield new information that might save lives in the future.

Renditions began back in the 1980s, long before terrorism dominated America’s consciousness. Typically, they were used to bring people to the United States, not send them elsewhere. U.S. officials would snatch drug lords from countries that had not signed extradition treaties and then “arrest” them when the plane landed on U.S. soil. For similar reasons, this tactic was also used in the 1990s to render several accused terrorists—including Ramzi Yousef, who masterminded the first World Trade Center bombing in 1993—to face justice in the United States.

In contrast to an extradition, a suspect who is “rendered to justice” does not go through the court system of the country where he is seized. Typically, foreign governments assent (silently) or even cooperate with the capture. More rarely, U.S. agents pull a suspect off the streets without the host government’s cooperation.

But today, the process increasingly goes in the other direction: from U.S. control into the hands of a friendly foreign government, particularly several in the Middle East. In most cases, the local government, in cooperation with U.S. officials, bundles a suspect on to a plane and sends him to a country where charges are pending against him. Sometimes the charges involve grave crimes, such as mass murder. At times, however, U.S. officials have asked their foreign counterparts to gin up a charge so that the United States can credibly claim it is rendering a suspect to face legal charges when it is really trying to gather information.

The shift in the destination of the suspects and the ginning up of charges make these sorts of renditions much more troubling. A number of countries favored for renditions—such as Egypt, Jordan, Morocco and particularly Syria—are often brutal to prisoners. Moreover, by asking foreign governments to create charges where none existed before, the United States has shifted the program from one intended to enforce the rule of law to one that undermines it.

Both Republican and Democratic administrations have embraced renditions, but the current administration has particularly favored them. Before 9/11, according to testimony from former CIA director George Tenet, the CIA and the FBI had rendered 70 suspected terrorists (about 20 of whom went to the United States for trial). Since 9/11, more than 100 other suspects have been rendered, according to newspaper reports.

Counterterrorism officials find renditions attractive because they get terrorists off the streets (contrary to some conspiracy theories, the CIA does not render suspects without the approval of White House officials and government lawyers). Although the world is not safe now that Ramzi Yousef is in a supermax prison in Colorado, it is safer. In 1998, the Wall Street Journal has reported, CIA officers and the Albanian police closed down an Egyptian Islamic Jihad cell that planned to bomb the U.S. embassy in Tirana, Albania’s capital. The suspects were sent to Egypt, where two were executed, and others jailed. Their interrogations also led to numerous other arrests, dealing a crushing blow to the organization.

Renditions are necessary and relatively uncontroversial when extradition is not an option and the suspects end up in the United States for trial. Why wouldn’t extradition be an option? In some countries, the formal court system isn’t trustworthy because judges are sympathetic to terrorists or vulnerable to intimidation. Even more worrisome, because of the United States’s rock-bottom approval ratings in much of the world, a highly publicized extradition hearing could increase sympathy for the suspect and damage the government’s popularity. Historically, the United States has shielded such cooperative but weak regimes from the adverse publicity associated with extradition proceedings.

Several Pakistani cities saw anti-American demonstrations when Pakistan allowed Mir Aimal Kansi, who had murdered two CIA employees in Virginia in 1993, to be sent to the United States. Many Pakistanis saw Kansi’s actions as heroic. Pakistanis’ approval of jihadist violence against the United States has grown since then. Imagine if Pakistan captured Osama bin Laden tomorrow. Would the Musharraf government really want to try him in a Pakistani court or even have an extradition request go through the country’s legal system? Pakistan would prefer to dodge that political bullet.

Some governments are hostile, not just weak, and in those instances, renditions could be vital. In the spring of 1998, intelligence officials plotted to render bin Laden from Taliban-controlled Afghanistan, an operation made necessary because the Afghan regime supported the terrorist leader. No standard legal measure would have worked in place of a rendition.

The most controversial aspect of renditions is sending suspects to third countries where human rights abuses are common. Some counterterrorism officials find such renditions attractive because of the high bar that U.S. law sets for convicting suspected terrorists. Intelligence agencies often cannot meet the “beyond a reasonable doubt” legal standard. Hearsay, rumor and circumstantial evidence are often the only available intelligence, and information can be maddeningly imprecise, incomplete and even contradictory. Many U.S. allies in the Middle East have a far lower standard of evidence and are willing to bend their rules in response to a U.S. request.

Even when evidence is plentiful and solid, revealing it in a court of law could jeopardize a well-placed informant, making a conviction a Pyrrhic victory.

U.S. officials have even sought to transfer suspects from a Western ally because the ally’s laws or inclinations hindered the close monitoring or aggressive interrogation of a terrorism suspect. Mohammed Haydar Zammar, a Syrian-born citizen of Germany, was arrested when he traveled from Germany to Morocco and then was secretly transferred for questioning in Syria. Zammar is believed to have been al Qaeda’s top recruiter in Hamburg and to have helped form the Hamburg cell at the center of the Sept. 11, 2001, attacks. He had refused to cooperate with German police, and lacking enough evidence to charge him, they allowed him to leave for Morocco. As Zammar quickly discovered, the legal niceties that protected him in Germany did not apply in Syria and Morocco.

Inevitably and properly, the question of interrogation leads to the greatest danger of renditions—torture. Though the U.S. government demands that foreign governments promise not to use torture, officials have little control over those arrested once they leave U.S custody. One CIA officer has called these promises a “farce.” Sending anyone to face torture is a weighty moral burden, but this problem should weigh even more heavily on policymakers’ shoulders because the United States will at times inevitably render the wrong people.

Renditions to countries such as Syria are the most risky, as the case of Maher Arar shows. In September 2002, U.S. officials detained Arar, a Canadian citizen born in Syria, when he was changing planes in Kennedy Airport on his way back to Montreal from Tunisia. Arar was sent to Syria for questioning, where he claims he was beaten and kept in miserable conditions—highly credible claims given Syria’s dark human rights record. Arar was released a year later with no charge, and has since sued the U.S. government.

Stories such as Arar’s hurt America’s standing in the eyes of its allies and erode support for U.S. counterterrorism efforts, something even the best public diplomacy cannot undo. Germany, for example, bitterly criticized the rendition of Zammar to Syria. Canada, Sweden, Germany and Italy are now investigating U.S. renditions. Weakened ties to friendly governments are felt later when they refuse to send troops to Iraq, resist trade overtures, or otherwise demonstrate their displeasure. More broadly, successful counterterrorism depends in part on convincing the world that there is no moral equivalency between the terrorists and the government they oppose. When the United States muddies these waters, this distinction begins to blur.

The decision to render a suspect to a third country is seldom easy, but some rules of thumb should apply. Renditions are unnecessary when the local intelligence service is good, such as in Britain and France. The trickiest cases are those involving close U.S. allies whose intelligence services and court systems, while far from ideal, are capable. In such cases, counterterrorism officials must judge whether the host government will properly gather intelligence and use its powers to prevent the suspect from fleeing. Inevitably, walking this line will lead mistakes on both sides: Some terrorists successfully flee when countries are not vigilant enough, while in other cases, suspects (including some innocents) are nabbed to the outrage of our friends.

Because renditions lie in that gray area between the rule of law and the nation’s security, a more honest debate about the practice would serve the country well. Liberal voices must answer the painful question of whether suspected terrorists who are not U.S. citizens should be allowed to escape without hindrance when we have some evidence of threat or wrongdoing, but not enough to try them in U.S. courts. Conservatives, in turn, must confront the moral problem of torture and the political consequences of angering our allies. Only then can the worst abuses common to the program be curbed without jettisoning an important counterterrorism instrument.