Extraordinary Rendition by America (since 1980, at the very least)

A History of Rendition


Definition:


Rendition: a form of extradition - the transfer of a suspect from one State (country) for the purposes of arrest, detention and , or, interrogation effectuated through judicial means. Or, extradition by means of legal treaties between governing bodies.

Irregular or Extraordinary Rendition: the transfer of suspects from one State to another State for the purposes of arrest, detention and, or, interrogation effectuated by extra-judicial means. Or, extradition outside the confines of laws and treaties.


Applying Law:

Both the US Foreign Affairs Reform and Restructuring Act of 1998, and the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) impose the primary legal restrictions on the transfer of persons to countries where they would face torture. Besides CAT, additional obligations may be imposed upon U.S. rendition practice via the Geneva Conventions, the War Crimes Act, the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights.


In short:

A nation cannot “render” a suspect to a country where they will be tortured and countries must give credible assurances that they will not engage in torture.


Background: Rendition/Extradition

“The surrender of persons to a requesting State to answer criminal charges was originally guided
by principles of comity and reciprocity. Beginning in the late eighteenth century, the surrender of
persons to a requesting State to answer charges increasingly became governed by formal
extradition treaties between States (though the practice of extradition can be traced back to
antiquity). For background, see CRS Report 98-958, Extradition to and from the United States:
Overview of the Law and Recent Treaties, by Charles Doyle.

In contrast to earlier practices, extradition treaties established formal procedures governing the surrender of persons from one
treaty party to another, facilitating treaty parties’ shared interest in punishing certain crimes while
providing persons with a legal means to challenge their proposed transfer to a requesting State.
By the 20th century, extradition treaties became the predominant means of permitting the transfer
of persons from one State to another to answer charges against them.”


U.S. extradition procedures for transferring a person to another State are governed by the
relevant treaty with that State, as supplemented by 18 U.S.C. §§ 3184-3195. U.S. law prohibits
the extradition of an individual in the absence of a treaty. 18 U.S.C. § 1394.

Besides irregular rendition and extradition, aliens present or attempting to enter the United
States may be removed to another State under U.S. immigration laws, if such aliens are either
deportable or inadmissible and their removal complies with relevant statutory provisions. See,
e.g., 8 U.S.C. §§ 1182


Before the United States may extradite a person to another State, an extradition hearing must be
held before an authorized judge or magistrate, during which the judge or magistrate must
determine whether the person’s extradition would comply with the terms of the extradition treaty
between the United States and the requesting State (federal statute prohibits the extradition of an
individual in the absence of a treaty).

Even if the magistrate or authorized judge finds extradition
to be appropriate, a fugitive can still institute habeas corpus proceedings to obtain release from
custody and thereby prevent his extradition, or the Secretary of State may decide not to authorize
the extradition. See CRS Report 98-958, supra note 1, at 15-20. These protections do not apply in
situations where an alien is being removed from the United States for immigration purposes. See
supra note 4. Nevertheless, separate procedural and humanitarian relief protections do pertain.

(Make note of the date – it’s an eye opener)

In 1980, the Department of Justice’s Office of Legal Counsel issued an opinion that irregular renditions absent the consent of the State where the fugitives are seized would violate customary international law because they would be an invasion of sovereignty for one country to carry out law enforcement activities in another without that country’s consent.

In 1989, the Office of Legal Counsel constrained the 1980 opinion,
though not on the grounds that such renditions are consistent with customary international law.

- Authority of the Federal Bureau of Investigation to Override International Law in
Extraterritorial Law Activities, 13 OP. OFF. LEGAL COUNSEL 163 (1989) (finding that
extraterritorial law enforcement activities authorized by domestic law are not barred even if they
contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations
Charter, as well as customary international law). Further, while upholding court jurisdiction over
a Mexican national brought to the United States via rendition, despite opposition from the
Mexican government, the Supreme Court nevertheless noted that such renditions were potentially
“a violation of general international law principles.” United States v. Alvarez-Machain, 505 U.S.
655, 669 (1992).

In a related case twelve years later, however, the Court held that any such
principle — at least as it related to the rights of the rendered individual — did not “rest on a norm
of international character accepted by the civilized world and defined with a specificity
comparable to the features of the 18th century paradigms.”


http://www.fas.org/sgp/crs/natsec/RL32890.pdf

That lets us know that the debate on extraordinary renditions has being going on since, at least,the 1980. And that means "irregular renditions", extradition outside domestic (US treaties) and international law, have been going on for many years. Before Bush II. Before Clinton.

This ugly practice has an ugly history.

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