Renditions and the Rule of Law

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

October 15, 2007

In the upcoming movie “Rendition” starring Reese Witherspoon, renditions – the extrajudicial transfer of suspected terrorists from one country to another – turn out to be a tool used by foolish and brutal intelligence officials, with innocents caught up in the fray.

The plot mixes together various techniques, not all of which are inherent to renditions, but the movie’s exaggerations nevertheless highlight the very real human rights abuses and mistakes now associated with the program. The key, however, is not to jettison renditions, but rather to increase the program’s transparency, strengthen oversight efforts, and embed within the process procedures that ensure more accord with the rule of law.

When renditions put terrorists behind bars, it removes them from the streets and keeps them from plotting more attacks. Even when renditions do not lead to imprisonment, they can produce considerable information as those arrested often have documents, phone numbers, or other information that is useful in disrupting plots.

Such benefits can, in theory, be gained by using the traditional criminal justice system – and in most cases, this is the best path. However, renditions are often the only option for interrogating a suspect and bringing him to justice when extradition is not politically or legally possible. In some countries, judges may either be sympathetic to terrorists or intimidated by radicals’ supporters. In others, including in some European countries, governments do not trust their own court systems or want to avoid the appearance of cooperating closely with the United States on counterterrorism. Pakistan suffers from all of these problems today.

Yet renditions must be used sparingly. Renditions, of course, violate the laws of the country in which they occur, going against US traditions of supporting the rule of law. However, the most controversial aspect of renditions is sending suspects to third countries where human rights abuses are common. Reported recipients of rendered suspects, such as Egypt, Jordan, and particularly Syria, are often brutal to prisoners.

Abuses are even more worrisome than usual because – as “Rendition” illustrates – at times we will apprehend an innocent person. Maher Arar, who was rendered and released a year later with no charge, had ended up in Syria where, according to a Canadian investigation, “he was interrogated and tortured.” Mistakes like this are not just a result of government officials being sloppy or too aggressive, but rather inherent to the lower evidentiary standard that makes renditions attractive in the first place. However, when the United States gets the wrong man, it paints an image of America as supportive of brutality, making allies less willing to cooperate openly with Washington.

The United States should modify the program to better comport with the rule of law. Washington should be sure to send all suspects to countries where they are wanted under that country’s legal system in order to ensure that a legal procedure of some sort is eventually followed and that the individual will not simply “disappear” within the country’s darkest prisons.

Reducing the likelihood of torture is particularly important. The United States should avoid the worst offenders, such as Syria. In addition, the United States must redouble efforts to make sure that the assurances it receives regarding torture are honored by the governments in question.

This increased care regarding treatment and greater attention to the legal dimensions of renditions is particularly important today given that the program is tainted by its lack of transparency and association with torture. In the public mind, torture is the purpose of renditions – a perception even stronger among the publics of US allies.

Essential for the legitimacy of this process is legal review. At the very least, a senior official in the Department of Justice who has some degree of separation from the executive branch officials involved in the program should be consulted to ensure that the intelligence used to finger the suspected terrorist is carefully vetted. To add more legitimacy, a small court appointed by the chief justice of the Supreme Court could be used to review the names and evidence – an idea that is currently being considered by members of Congress.

To be clear, the criteria would not be equivalent to that used in finding a guilty verdict for US courts, as intelligence is often limited and fragmentary. However, the legal review would ensure that at least some standards are maintained.

The United States also needs to ensure that the renditions process regularly involves senior political leaders. This process, in many ways, speaks to the heart of the policy: the moral claims are conflicting, so the question becomes who compares them and how they do so. The burden should be on elected officials, not civil servants. Congressional leaders should be kept informed of both the criteria used to put individuals on the list for renditions and given briefings on the results of past actions to facilitate oversight. Then the worst abuses common to the program can be curbed without jettisoning a vital counterterrorism instrument.

Renditions are troubling because they can exact a high human and diplomatic price, but dangerous terrorists would go free if the program were abandoned. Unfortunately, this flawed instrument is often the only one available.