Obama Administration Takes Same Position on Rendition As Bush Administration

Earlier this year, in response to an article in the LA Times, I criticized liberals who defended the Obama administration's plans to utilize rendition. Rendition, as practiced by the CIA, involves the transfer of a "suspect" from one country to another without the judicial or administrative oversight normally associated with extradition. Under rendition, individuals are usually snatched without warning and without access to counsel.

During the Bush presidency, many civil libertarians criticized rendition on four grounds:

1. Rendered individuals were transferred without the ability to contest the transfer before a judge; 2. Rendered individuals could not consult an attorney prior to transfer (or even after transfer); 3. Rendered individuals were often rendered for the purpose of torture - or this was the inevitable consequence of their transfer; and 4. Rendered individuals were often "disappeared" and confined in secret CIA prisons.

But after the LA Times article reported that the Obama administration would continue the practice of rendition, many liberal commentators blasted the article and attempted to distinguish Obama's and Bush's rendition. Obama, they argued, would not render individuals to torture or permanent detention. Bush, however, sent people away for torture and indefinite detention.

Yes, We Will . . . Use Rendition
On Monday, a member of the Obama administration (speaking anonymously) informed the New York Times that Obama would continue the practice of rendition, but that it would no longer operate as a method of outsourcing torture or detaining individuals indefinitely. Furthermore, the official reported that the Obama administration would use diplomatic means to prevent the torture of individuals subject to rendition. Earlier this year, CIA Director Leon Panetta also said that rendition would continue during the Obama administration.

Remarkably, Obama's proposed policy is identical to Bush's. Bush denied sending individuals to torture and to black cells. But Bush certainly snatched individuals without allowing them to consult with counsel or to challenge their removal before a judge or administrative agency. Furthermore, the Bush administration said that it would utilize diplomatic means to make sure that individuals subject to rendition did not face torture.

Human rights groups have criticized all of the four major aspects of rendition. They have also condemned as ineffective the use of diplomacy to prevent torture. Human rights advocates argue that because torture occurs "behind closed doors," diplomatic efforts cannot prevent it.

It has become increasingly clear that the Obama administration will continue several practices related to rendition that the human rights community assailed during the Bush administration. In addition, Solicitor General Elena Kagan and Attorney General Eric Holder have already defended the use of indefinite detention under conditions that do not involve a "theater of war." If the government applies this theory to individuals subject to rendition, then the remaining distinctions between Bush's policy and Obama's policy would evaporate.

Although some human rights groups, including the ACLU and the Center for Constitutional Rights, have criticized Obama regarding rendition, the outcry is minimal compared with the protests over rendition during the Bush years. Of course, Obama's rendition program has not substantially begun. The "first" case was only recently documented.

For earlier articles related to rendition on Dissenting Justice, see:

Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program

Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?

"Extraordinary Rendition" Remains Under Obama Administration

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Rendition, Secrecy and Torture: Inseparable?

Obama's "Interesting" Comments About Rendition

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Obama's "Interesting" Comments About Rendition

Irony Alert: Can Spain Abduct Bush-Era Officials and Prosecute Them for Violating International Law?

The New York Times reports that Spain has launched a criminal investigation to determine whether officials in the Bush administration violated international law by authorizing the torture of detainees at Guantanamo Bay. A source "close to the case" believes that the investigation will likely produce sufficient evidence to arrest the individuals.

Arrest warrants in this setting, however, would have at most a symbolic value. Unless the Obama administration does the unthinkable act of seizing Bush-era officials and placing them in the extradition process, Spain's criminal investigation probably will not lead to an arrest or prosecution. Because the Obama administration has already announced that it will not prosecute Bush-era officials who condoned or engaged in torture, it is highly unlikely that the President would turn over these officials to Spain (or any other country) for prosecution.

Irony Alert: Liberal and Conservative Arguments Support Spain Abducting Bush-Era Officials
Outside of the normal channels for transferring suspects to foreign countries (extradition or deportation), rendition is Spain's only option for removing suspects from the United States to face prosecution. Rendition involves the extrajudicial transfer -- or abduction -- of persons to stand trial in another jurisdiction.

Bush's use of rendition generated a lot of criticism among liberals who argued that it became a tool for outsourcing torture and secreting individuals to prolonged detention in CIA prisons. After the media and members of the Obama administration indicated that President Obama would likely continue using rendition, liberals struggled to distinguish Obama's practices from Bush's.

Many liberals argued that Obama's rendition would not present legal problems because he has ordered interrogators to comply with anti-torture laws and has directed the CIA to close its longterm detention facilities. I have have argued, by contrast, that liberal efforts to distinguish Obama's and Bush's use of rendition "elevate form over substance."

Since liberals and conservatives have defended rendition, I wonder how both political camps would contest Spain's abduction of former governmental officials to face prosecution. We may never get to hear their strained arguments, however, because Spain's criminal investigation is largely symbolic.