Why Extraordinary Rendition's Not Always Eevviilll

So the L.A. Times reports that Obama's keeping rendition on the table, and suddenly everybody loses their heads. Without looking, I can tell you how this will play out: the Cons will crow that Obama recognizes the need for torture, and the progressives will howl that he's becoming Bush III.

Neither of which is true. Ask Dr. Rendition (aka Hilzoy):

Since the publication of the LA Times story about rendition yesterday, I've noticed some confusion about the topic. So Dr. Rendition will try to make things easy.

Q: What is rendition?

A: Rendition is the act of transferring a person into a different jurisdiction.

Q: "It occurs to me that this more benign definition of rendition as transferring someone to another criminal justice system, used to be called extradition. Can someone explain the difference to me?"

A: Extradiction is one form of rendition, as you can see from Lawyers.com's Glossary of Legal Terms, which defines 'Rendition' as "extradition of a fugitive who has fled to another state." Here's a nice example of the term's normal usage from a hundred-year-old case:

"Among the powers of governors of territories of the United States is the authority to demand the rendition of fugitives from justice under 5278 of the Revised Statutes, and we concur with the courts below in the conclusion that the governor of Porto Rico has precisely the same power as that possessed by the governor of any organized territory to issue a requisition for the return of a fugitive criminal."

That was just the first case I found when I looked. There are lots more.

Q: But extraordinary rendition means sending someone off to be tortured, right?

A: No. Extraordinary rendition is rendition outside normal legal frameworks. (Extradition is a form of "ordinary" rendition.) It includes sending people off to countries where we have reason to think that they will be tortured. But it also includes things like catching Osama bin Laden in another country and bringing him to the United States to stand trial. What makes something a case of extraordinary rendition is the way the person is transferred from one jurisdiction to another, not what happens to that person once s/he arrives.

Q: But don't most people who talk about 'rendition' just mean 'sending people off to other countries to be tortured'?

A: Probably. That's the kind of rendition that became famous when Bush was in office. But remember: lawyers are not most people. They use all sorts of words in peculiar ways (besides using words like 'estoppal' that normal people don't use at all.) To them, this is a technical term. They use it accordingly.

Glenn Greenwald, who is certainly no fan of torture, extralegal methods, and all that rot, puts forth a hypothetical that basically illustrates what extraordinary rendition's supposed to be used for: extracting dangerous, horrible people from the countries where they've gone to ground and bringing them to a country that will prosecute. We've used this method many times in the past, and so have other countries, taking such people as Adolf Eichmann and Mir Aimal Kansi from their hidey-holes and delivering them to courts that tried, convicted and sentenced them for their crimes. The U.S. Department of State has a handy little chart showing folks who were either extradicted or renditioned between '93 and '99, back before "rendition" became a synonym for "snatch, disappear and torture the possibly innocent bastard." Keeping the door open to rendition doesn't mean Obama's sliding down the slippery slope to Jack Bauer Fantasyland. Sorry, wingnuts, but you'll have to look elsewhere for validation.

But what's to keep rendition from becoming a dirty practice again? We all know there's a dark side to it, just as there is whenever you get into gray areas of the law. Cujo359 once again comes through with a sensible proposal:

My own feeling is that the act of rendition itself may be necessary for some time, since there's no way of enforcing any edict of the World Court or other international justice system in a country that doesn't agree to abide by it. Perhaps in the long run, though, the only acceptable way of doing this will be to go through an international court to obtain a warrant. Messy as that idea sounds, it's probably better than letting everyone do it on his own.

That begs the question of what would happen if the World Court declined to issue such a warrant in a case that clearly merited it, but it would be at least a step closer to bringing extralegal actions under the scrutiny of a court, where abuses could be minimized, and a judicial eyeball kept on rendition to ensure that renditioned people aren't simply shipped off to be warehoused and tortured without legal recourse.

Even without such warrants, we can ensure that our own practice of rendition is restricted to bringing suspected criminals to trial in regular courts. It's not a get-into-Guantanamo-free card. And considering Obama's closing Gitmo and doing all sorts of things to show that yes, really, truly, he's serious about this no-torture stuff, I imagine that's exactly what's going to happen when he revamps the rendition option. If not, enough of us screaming at him should do the trick.