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Additional Thoughts on Washington Post "Renditions" Story

Matthew Waxman
Wednesday, January 2, 2013, 11:15 AM

Steve has already noted (and critiqued) this Washington Post story about continued “renditions” by the United States government.

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Steve has already noted (and critiqued) this Washington Post story about continued “renditions” by the United States government. The term “renditions” is used in so many ways (often, as Steve suggests, with connotations of harsh interrogation), and this article defines it as “the practice of holding and interrogating terrorism suspects in other countries without due process.” Specifically, it reports:

The three European men with Somali roots were arrested on a murky pretext in August as they passed through the small African country of Djibouti. But the reason soon became clear when they were visited in their jail cells by a succession of American interrogators. U.S. agents accused the men — two of them Swedes, the other a longtime resident of Britain — of supporting al-Shabab, an Islamist militia in Somalia that Washington considers a terrorist group. Two months after their arrest, the prisoners were secretly indicted by a federal grand jury in New York, then clandestinely taken into custody by the FBI and flown to the United States to face trial.

The story references the frequent argument that by restricting the option to detain categories of terrorism suspects under the laws of war as belligerents, the Obama administration may be placing greater emphasis on lethal targeting as the only viable alternative. Another option, though, is proxy detention by other governments, and restrictions on U.S. detention create pressure to use that, too. I suspect this is going on -- at least indirectly -- more than we know publicly. As the story notes: “Renditions are taking on renewed significance because the administration and Congress have not reached agreement on a consistent legal pathway for apprehending terrorism suspects overseas and bringing them to justice.” (Note, however, that there is no indication in this story that the individuals described could have been legally targeted with force or would have been detainable under the AUMF).

The Washington Post story contains statements by advocates implying that detention by other governments has occurred at the request – maybe even direction – of the U.S. government. However, there doesn’t appear to be any corroboration of that, and I suspect that the U.S. government would generally be careful to avoid acting in a way that creates “constructive custody” on its part. The story also contains references to intelligence and law enforcement cooperation in renditions from European partners, and it’s important to keep in mind that such cooperation probably depends on how the United States intends to handle particular suspects (and to me this is a reason to allow the President significant flexibility, especially to use civilian criminal justice avenues).

Matthew Waxman is a law professor at Columbia Law School, where he chairs the National Security Law Program. He also previously co-chaired the Cybersecurity Center at Columbia University's Data Science Institute, and he is Adjunct Senior Fellow for Law and Foreign Policy at the Council on Foreign Relations. He previously served in senior policy positions at the State Department, Defense Department, and National Security Council. After graduating from Yale Law School, he clerked for Judge Joel M. Flaum of the U.S. Court of Appeals and Supreme Court Justice David H. Souter.

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