[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School]
A recent Washington Post story posits that the rendition of terrorism suspects has continued under the Obama administration. While the story fails to describe how renditions have changed since the Bush administration, it highlights several areas of concern.
The story focuses on the prosecution of three European men with Somali roots (two Swedes, the third a long-term U.K.-resident) in federal court in Brooklyn for supporting al-Shabab, an Islamist militia in Somalia that the United States considers a terrorist group. Many details about the case have not been made public, but the basic facts are as follows. The men were arrested while passing through Djibouti, under what the story describes as “a murky pretext.” They were held without access to a lawyer or a judge in Djibouti, where they were questioned by U.S. officials. The men were subsequently arrested by the FBI and brought to the United States on charges of providing material support for terrorism.
Plainly, these facts differ from Bush-era “extraordinary renditions.” Bush’s extraordinary rendition program had two main features: prolonged incommunicado detention in secret CIA-run jails (or “black sites”); and transfers to foreign countries for torture and other abusive interrogation practices. In many cases, the same individuals were subjected to both, as they were secretly moved around a global U.S. detention network in a manner that resembled a shell game.
President Obama ended the extraordinary rendition program through his 2009 executive order requiring the closure of “black sites” and banning torture (including by ordering that the interrogation of all individuals in U.S. custody comply with the Army Field Manual on interrogation and Common Article 3). Moreover, by shifting U.S. policy away from torture, he undermined the program’s raison d’être, which was not incapacitating terrorism suspects but exploiting them for intelligence-gathering
Obama did not end all renditions—a practice which pre-dates the Bush administration. (I define renditions as the transfer of an individual without extradition or some other formal process). Obama, however, has returned the focus of renditions to bringing terrorism suspects to justice through criminal prosecution rather than making them disappear.
Yet, despite these important changes, concerns remain.
First, as the Post story highlights, the United States’ increasing reliance on proxy detention raises due process issues. Proxy detention occurs when one country detains a person within its borders at another country’s direction or behest.
Proxy detention is not necessarily problematic, and its continued use reflects the fact that countries often need the assistance of foreign governments in counter-terrorism operations. It can also facilitate criminal prosecution in the absence of an extradition treaty and thus without a formal mechanism for a suspect’s arrest and transfer. Proxy detention can, however, raise concerns where the foreign government has no independent interest in detaining the person, there is no lawful basis for the detention, and where the detention is used as a means for the foreign government to collect evidence and build a criminal case. In the past, the United States has utilized proxy detention to avoid the limitations of its own laws that would otherwise restrict its ability to detain without prompt access to counsel and judicial process.
Second, proxy detention increases the risk of abusive interrogation. Defense attorneys for the three men arrested in Djibouti have said Djibouti officials treated their clients roughly. I do not know whether these allegations are valid, nor have the attorneys provided much detail. But U.S. officials should not be able to engage foreign proxies to use techniques that those officials are themselves prohibited from using, or turn a blind eye if those techniques are employed. The risk of abuse is heightened by the U.S. government’s position that foreign terrorism suspects overseas are not covered either by the Constitution or international human rights treaty obligations, which it maintains do not apply extraterritorially.
Third, the Post article highlights another issue— one that has less to do with human rights norms than with the substantive reach of U.S. counter-terrorism laws and the material support for terrorism statute in particular. It suggests that discomfort with the Djibouti arrests may have less to do with how the three men were treated in foreign custody than with why they are being prosecuted by the United States in the first place. Their lawyers concede they were combatants who fought on behalf of al-Shabab in Somalia, but deny they ever engaged in any terrorist activity against the United States. The case thus raises larger concerns about the scope of criminal liability under the material support statute—concerns that are magnified by the defendants’ extraterritorial seizure and detention. (For a recent case discussing limitations on the United States’ authority to prosecute piracy absent a direct connection to the United States, see the district court’s decision in United States v. Ali). Their rendition to the United States, in other words, would seem less problematic if they were being prosecuted for terrorist activity aimed at the United States or its nationals.
Labels like “rendition,” which can cover a range of conduct, are not terribly illuminating. More important is the extent to which the United States is utilizing foreign governments to avoid procedural safeguards against arbitrary detention; the increased risk of abusive treatment in proxy detention; and the implications of aggressively using the material support statute without a nexus to the United States. These issues do not trigger the same alarms as the sheer lawlessness that characterized extraordinary rendition, but they are worthy of continuing scrutiny nonetheless.