Overreaching With Extraordinary Rendition

There are some things that exist in such a gray area that to create a bright line rule one way or another is going to be problematic. Waterboarding, arguably torture but which, sparingly used, has proven critical to our national security, certainly falls into that category. Another is the practice of extraordinary rendition. That is the kidnapping of wanted people in foreign lands. It is a technique that bypasses extradition treaties which are, in a particular instance, too cumbersome or otherwise would not work to allow the U.S. to take custody of the targeted individuals.

In the past decade, the practice of extraordinary rendition has been associated with targeting terrorist suspects and transporting them to the U.S. or a third country to be held on behalf of the U.S. And while that has caused some consternation among our allies - and been the basis for a truly horrid Hollywood bomb of a movie - there is no move afoot to make such a program illegal. It has proven quite useful. But overuse or even overpublicizing such a program is sure to lead to an international backlash. And that is precisely what may be occurring as regards to extraordinary rendition. This today from The Times of London:

AMERICA has told Britain that it can “kidnap” British citizens if they are wanted for crimes in the United States.

A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it.

. . . Until now it was commonly assumed that US law permitted kidnapping only in the “extraordinary rendition” of terrorist suspects.

The American government has for the first time made it clear in a British court that the law applies to anyone, British or otherwise, suspected of a crime by Washington.

Legal experts confirmed this weekend that America viewed extradition as just one way of getting foreign suspects back to face trial. Rendition, or kidnapping, dates back to 19th-century bounty hunting and Washington believes it is still legitimate.

Jones replied that it was acceptable under American law to kidnap people if they were wanted for offences in America. “The United States does have a view about procuring people to its own shores which is not shared,” he said.

He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: “If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s.”

Mr Justice Ouseley, a second judge, challenged Jones to be “honest about [his] position”.

Jones replied: “That is United States law.”

He cited the case of Humberto Alvarez Machain, a suspect who was abducted by the US government at his medical office in Guadalajara, Mexico, in 1990. He was flown by Drug Enforcement Administration agents to Texas for criminal prosecution.

Although there was an extradition treaty in place between America and Mexico at the time — as there currently is between the United States and Britain — the Supreme Court ruled in 1992 that the Mexican had no legal remedy because of his abduction. . . .

Read the article here. The Machain case discussed above involved a doctor who had assisted in the brutal murder of DEA agent by a drug gang. If memory serves, the doctor's role involved administring drugs to the DEA agent so that he would remain conscious throughout the time he was being tortured to death. The Mexican government was not cooperating in the extradition of the doctor, so the DEA took matters into its own hands to bring him to the US to face justice.

As any rate, the use of extraordinary rendition is not something that U.S. officials or are agents need to be discussing in public. If our legislators raise it, that is one thing, but there is nothing to be gained by taking a public position on this program outside of that limited venue. Likewise, using rendition in any but very special cases - terrroism, Dr. Machain, etc. - is likely to cause an international backlash that will endanger the entire program. Rendition is a strategic tool not to be used by just any DoJ official who is frustrated with the extradition process.