New documents in recent days have brought up several new details about the shadowy practice of snatching terrorism suspects from one country and rendering them into the custody of another. As we noted last week, several documents on rendition emerged as part of an obscure court case in the state of New York. Others were discovered by Human Rights Watch in Libya.
Of course, it's been known for years that the Bush administration practiced (and on several occasions, botched) rendition.
What's less appreciated: While the Obama administration has tried to distance itself from the some of the harshest counterterrorism techniques, it has also said that at least some forms of renditions will continue.
In confirmation hearings in 2009, CIA director nominee Leon Panetta said that the Obama administration would not conduct what’s known as “extraordinary rendition,” which he defined as “when we send someone for the purpose of torture or actions by another country that violate our human values.” Rendition that delivers suspects to another country to be prosecuted in that country’s judicial system is still an “appropriate use of rendition,” he said.
Months later, the newly installed Panetta again tried to distance the administration from the Bush-era actions. “The worst part of rendition was rendition to a black site,” he told The New Yorker. “That will not be the case anymore. If we render someone, it will be to a country with jurisdiction over that individual.” The Obama administration had ordered the closure of the CIA black sites.
It's hard to tell what such statements have meant in practice because the Obama administration has also followed another aspect of the Bush adminstration's rendition policy: utter secrecy. The Obama White House has invoked the states secrets privilege to block evidence that could reveal details about past renditions under Bush and, more recently, has declined to comment on the latest documents discovered in Libya and the details that emerged in the litigation in New York.
Though an Obama administration task force recommended that greater accountability measures be imposed on countries that suspects are rendered to, the extent to which the recommendations have been implemented is unclear, and public statements by officials have been vague.
The administration has said it will continue seeking what are known as diplomatic assurances, or assurances from the receiving country promising that suspects won't be tortured in their custody.
“I will seek the same kind of assurances that they will not be treated inhumanely,” Panetta stated in his confirmation hearings. “I intend to use the State Department to be sure those assurances are implemented and stood by.”
The Bush administration relied on such assurances for years, and human rights groups have long decried the use of diplomatic assurances as unreliable, citing instances in which those assurances were violated.
In 2005, the Washington Post cited several current and former intelligence officers asserting that the diplomatic assurances relied on by the CIA were essentially highly questionable verbal pledges. “They say they are not abusing them, and that satisfies the legal requirement, but we all know they do,” one anonymous official told the Post. Then-Attorney General Alberto Gonzalez also acknowledged that “we can’t fully control what a country might do.”
That semblance of an accountability system was in place even when the CIA rendered Abdul Hakim Belhaj, now the top rebel commander in Libya, back in 2005. Belhaj has said that after being rendered by the United States, he was tortured by CIA agents and then delivered by Qaddafi’s government in Libya, which also abused him. One CIA memo dated 2005, found by Human Rights Watch, corroborates the basic facts of his rendition and shows the U.S. spy agency requesting an assurance from Libya that he would be treated humanely. (See the memo, which we’ve posted.)
According to Joanne Mariner, director of the human rights program at Hunter College, the Libya case is "a really compelling example of how diplomatic assurances do not work." She says that while there aren't known cases of the Obama administration using rendition in a problematic way, it's not clear whether diplomatic assurances have been any more meaningful under this administraton than the last.
"What the Obama administration has said is not terribly reassuring," Mariner said, pointing to a general lack of transparency. "What we do know is that this administration has publicly stood behind the concept of diplomatic assurances and has expressed confidence in diplomatic assurances."
At least one Obama administration official has maintained that rendition is legal under U.S. law, even if the receiving country might torture the suspect. As the Washington Post's SpyTalk blog noted, CIA assistant General Counsel Daniel Pines, writing for a law journal last year, asserted that while U.S. officials could not themselves torture suspects during rendition, “U.S. law does not even preclude the United States from rendering an individual to a foreign location where he or she could be abused or tortured.” Pines said he was expressing his own views, and not the official views of the CIA or U.S. government.
But on the international stage, the United States and its allies have been accused of breaching international law in their practice of extraordinary rendition under the Bush administration. A 2009 report by the United Nations special rapporteur stated that the U.S. system of extraordinary renditions and secret detention "violate the prohibition against torture and other forms of ill-treatment."