The Law: “Extraordinary Rendition” and Presidential Fiat

Renditions, the surrendering of persons to foreign jurisdictions, are commonplace in modern international affairs. When these transfers are made in accordance with treaty, and, if necessary, enabling statutes, and through a stipulated procedure, they are "ordinary" renditions. But in the last decade, the United States has pursued a policy of rendering people to nonjudicial authorities outside of treaty and legal processes, actions usually accomplished through kidnapping and forcible removal from an asylum country to the receiving jurisdiction. These transfers have become known as "extraordinary renditions," but they are certainly not renditions in the traditional sense. For one thing, the term "rendition" is a legal term of art, connoting conformance with an established line of legal precedent, authorization under treaty and enabling statutes, and accepted practice in international law. On the other hand, extraordinary rendition is not a legal term of art and is an act accomplished specifically and purposefully outside of legal venues. It is usually undertaken precisely because of a belief that legal processes will not yield the desired transfer to the receiving jurisdiction or will be too slow in coming to that result, or to effect the transfer of persons to nonjudicial authorities for interrogation or torture. The use of the term rendition to describe these activities falsely clothes them with reference to a legal and processual history, implying that somehow they are actions recognized in, and sanctioned by, law. But the U.S. Supreme Court has never taken up the question of forcible removal of persons to foreign jurisdictions outside of treaty and on presidential authority alone. Neither has Congress ever authorized such activity. Here we are not interested in giving a wholly legal analysis of extraordinary renditions, for two recent publications have thoroughly and ably canvassed this issue (Committee on International Human Rights 2004; Garcia 2005). Rather, we investigate the historical development of presidential claims to power in this area, how those claims have been treated by the courts, and how that history informs present practices of the Bush administration. Although renditions were contemplated from the beginnings of the republic, presidents have historically made no claim to authority to render persons outside of treaty processes. As recently as 1979, the Office of Legal Counsel of the Department of Justice opined that the Shah of Iran could not be extradited to his home country, because "the President cannot order any person extradited unless a treaty or statute authorizes him to do so" (Hammond 1979). Nevertheless, the administration of George W. Bush has, since the terrorist attacks of September 11, 2001, pursued extraordinary rendition as a policy tool to combat terrorism (Committee 2004; Mayer 2005). Bush administration acts include not only the forcible removal of persons from foreign countries, but the kidnapping of persons from U.S. soil and surrender to foreign jurisdictions to be tortured (Mayer 2005). In the case of Maher Arar, a Canadian citizen changing planes in New York City while returning from vacation, the United States seized Mr. Arar and flew him in a government jet to Jordan, where he was then delivered to Syria for torture (Arar v. Ashcroft 2004). (1) These acts are certainly extraordinary, both in terms of law and rendition history, and are part of what some see as an assault on the separation of powers by the Bush administration (Fisher 2005). It is instructive to understand the historical backdrop behind these actions and how we managed to get to the point where President Bush may successfully, so far, claim plenary power to commit otherwise illegal acts in the alleged protection of U.S. national security. Extraordinary renditions present troubling issues that challenge our understandings of presidential authority, and implicate at least a serious discontinuity between presidential behavior and our accepted principles of law and fairness. …