In other words, up until the middle of the 19th century, there were no cases of note or significance that indicated that the executive branch of the UNITED STATES government had the authority to render suspects or criminals to foreign locations outside of the explicit authority granted through a signed treaty with a foreign government.
It was during the Civil War that the first major break with this established legal tradition was made. The incident involved the capture of a foreign citizen in New York City during wartime and performed by presidential authority alone. The man captured was Jose Augustin Arguelles, a Spanish subject, who captured illegal slave traders, claimed a reward, then sold the slaves to plantation owners. Under Spanish law he was a criminal, but the United States had no extradition treaty with Spain. Despite having no legal authority to do so, Lincoln authorized the capture of the man and his return to Cuba where he could be tried for his crimes. Critics decried Lincoln as a despot; abolitionists were more supportive of the action (Weaver and Pallitto, 2006). While this case opened the door for unilateral executive action, the fallout for Lincoln was significant enough that until the 20th century, most presidents approached the possibility of such action quite cautiously.
Though the Arguelles case was anomalous in the legal history of the United States up until that point, it the process of clouding the question of how renditions can occur, under what circumstances, and the rights that must be afforded to the rendered individuals. A number of cases continued to crop up -- such as Frishie v. Collins (1952) and Ker v. Illinois (1886) -- that eroded the integrity of the doctrine that the executive branch had no innate authority to perform renditions outside of treaty agreements. In fact, even as late as 1979, it seemed that the UNITED STATES executive branch by and large adhered to the historical precedent of executive restraint on the matter. Unfortunately for the principles of due process and rule of law, that adherence began to vanish during the late 1980s and during the years leading up to the September 11th terrorist attacks. Increasingly, though carefully, the executive branch -- namely the Department of Justice, the FBI, and the CIA -- began to seize and render suspected terrorists. These actions were not taken to bring them to justice, i.e. To courts in the United States. Rather, these renditions consisted of "transfers of people to foreign powers for torture or warehousing" (Weaver and Pallitto, 2006: p. 110). By 2001, the practice of extraordinary rendition had already been institutionalized in the UNITED STATES executive branch as a means for dealing with suspected terrorists outside of the strictures of UNITED STATES or international legal processes. Though used cautiously, it was still not unheard of by that time.
After September 11, 2001 when the Bush Administration's war on terror launched into full swing, these practices were greatly expanded and enhanced as a means for obtaining information from terrorist suspects. Only after September 11th would the United States systematically intensify the practice of extraordinary renditions on the dubious assumption that they would help ensure national security. Security concerns came to trump human and civil rights of everyone in the world by this logic -- anyone suspected of having terrorist ties was a potential target for the UNITED STATES government and would be seized at will by the government. The extraordinary rendition would then transfer these individuals to other nations or to CIA black sites where no oversight was practiced and the possibility of torture became a terrible reality.
9/11 and Intensification of Renditions
The terrorist attacks against the United States on September 11, 2001 stand as some of the most devastating historical examples of terrorism in the United States and, to some degree, in the world. The immediate effects of the attacks were incredibly human and property losses, as well as a renewed sense of fragility and uncertainty among the American people. The successful attacks forced Americans to realize that they were not beyond the reach of dedicated terrorists. Suddenly, the UNITED STATES faced as much danger from terrorism as the rest of the world, which had long had to deal with the issue.
However, the shock and surprise of the attack was significant for the American people and for the UNITED STATES government. Illusions of security unraveled so quickly that when the Bush Administration publicly called for greater security measures -- such as the PATRIOT Act or the creation of the Department of Homeland Security -- the American people largely endorsed this approach to protecting them and combating terrorism. Unfortunately, the Bush Administration almost immediately began employing other methods and techniques to fight terrorism that were unknown to the American public, to legislators, or anyone else. Extraordinary rendition was one of these methods. On September 17, 2001, President Bush issued a secret presidential directive that authorized the CIA to use whatever means necessary to capture, detain, and kill terrorist suspects on a global scale (Elsea and Kim, 2006; Huq, 2006). Around the same time, the Justice Department issued new guidelines for interrogation methods that included euphemisms such as "coercive interrogation" and "enhanced techniques" (Rifkind, 2006).
The American people and the American media, which collectively just wanted to feel safer in the aftermath of the September 11th tragedies, largely overlooked these troubling changes. However, the focus on security instead of freedom, fueled by basic fear of imminent attack and death, blinded the nation and much of the world to the lengths that the Bush Administration was taking in order to combat terrorism on a global scale. The September 17th secret directive is unnerving because it provides broad and unspecified powers to the CIA to fight terrorism and also because it was issued entirely in secret. Without any kind of transparency or oversight, the president could have just as easily authorized intelligence agencies to use their techniques against UNITED STATES citizens -- perhaps employing the NSA to monitor the telephone calls of American citizens. The fact that this happened as well demonstrates an important point: it was years before the extent of these actions became known to the public, long after many egregious examples of abuses had already occurred. The secretive nature of the war on terrorism has created circumstances by which the president is able to operate outside of the national and international legal systems.
The CIA used their newfound powers to establish and expand black sites throughout the world where prisoners could be detained and interrogated outside of UNITED STATES jurisdiction. Black sites were set up throughout the world, though it is unclear how many exist, how many prisoners have been housed there, and under what conditions those prisoners were kept. The Washington Post reported that they had confirmed the location of black site CIA detention facilities in Thailand, Afghanistan, Iraq, Poland, Romania, and Cuba (Hodgson, 2005/06). In addition, efforts to uncover the practice of extraordinary rendition have helped document the CIA flights that have covertly transported prisoners and suspects to detention sites around the world, beyond the purview of the United States judiciary. These flights have been extensively used to covertly transport prisoners to facilities that are not subject to oversight and where "coercive interrogation" techniques can be employed to extract information from suspects (Hodgson, 2005/06; Huq, 2006; Grey, 2005).
Extraordinary renditions have been the means by which suspects and prisoners are taken from one nation's jurisdiction to another's for the express purpose of using torture or other abusive interrogation methods to extract information. For those who doubt that the UNITED STATES government endorses torture of suspects, consider the words of an unnamed American intelligence agent who was quoted in the Washington Post, on December 26, 2002: "We don't kick the ***** out of them [terrorist suspects]. We send them to other countries so they can kick the ***** out of them" (Gutierrez, 2006: p. 12). In other words, extraordinary renditions have been employed purposefully to deliver suspects into the hands of individuals or nations who will knowingly torture those individuals for information. The process of extraordinary rendition simply adds a layer of deniability to the process, one which American agents and government officials can hide behind in order to avoid culpability in the torture of suspects who were seized by UNITED STATES agents. This is the purpose of the extraordinary rendition, one it fulfills expertly and which has been used ever more extensively since September 11th. The practice is widely employed because through it the UNITED STATES government can simply make individuals disappear from view until the torture has been completed and any information extracted.
Of course, once the word got out that the Bush Administration was using extraordinary renditions to transfer prisoners last year, a bit of political backpedaling was called for. Though it is apparent the entire purpose of the extraordinary rendition was to make torture an option in the cases of suspected terrorists, the Administration claims that it only transferred prisoners…