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Trying to clear the thicket called rendition.

People are getting all bent out of shape over whether Obama's Executive order on torture and rendition prohibits the kind of chicanery Bushco engaged in - wrapping hapless captives in diapers and duct tape, drugging them up, tying them into a business jet and shipping them to a country where these people would be tortured by the locals, with US people waiting for answers or even participating.

That looks like it has been prohibited.  But we need to avoid confusing a lot of concepts and procedures so we can think and speak clearly about it.  The tradmed is doing its usual egregious job of Stupid and Confuse, to make sure their Republican owners remain happy, by starting the lie that Obama has not banned everything but has left loopholes.

That's false.

Here - we simplify, explain, and clarify.

There is "extraterritorial jurisdiction", which stands for the proposition that United States courts have jurisdiction over foreign people in foreign countries doing things that only tangentially relate to the United States, or over US persons for things done overseas.  A couple examples:

The Leon Klinghoffer/Achille Lauro episode* in the middle 80s set off a wave of statutes pushed through to allow US prosecution of people for attacks on Americans abroad, based solely on the status of teh victim as a US person, or on the ship or airplane being US registered.

*  You remember - a couple putative terrists took over a cruise ship and launched Holocaust survivor Klinghoffer off the fantail in his wheelchair, while people watched. When they were ultimately taken into custody and brought before an Italian court (IIRC, the liner was registered in Italy), that court found no jurisdiction over crimes on the high seas and released the putative terrist.

Another aspect of extraterritorial jurisdiction is in statutes which provide for prosecuting US citizens for crimes committed abroad.  The most recent prominent example is the torture trial in Miami of a man (whose name escapes me) relative to his involvement in the Liberian civil war, where he was a member of a prominent political family.  The defendant got 147 years for torture;  his link to the US was his dual citizenship here and there.

Another example is the Foreign Corrupt Practices Act, which criminalizes US persons and companies giving bribes overseas (so as to get business or government favors in that foreign country).

Then there is the different concept of extraterritorially kidnapping someone to bring them back to the United States for trial.  This was approved in 1992 by a 6-3 Supreme Court (Rehnquist opinion, Stevens, O'Connor and Kennedy in the dissent) in the case of United States v. Alvarez Machain, holding that an extradition treaty with another country, in that case Mexico, does not bar the United States from kidnapping a citizen of that country and putting him on trial in Federal court.

FROM THE DECISION:
The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts. We hold that he does not, and that he may be tried in Federal district court for violations of the criminal law of the United States. Respondent, Humberto Alvarez Machain, is a citizen and resident of Mexico. He was indicted for participating in the kidnap and murder of United States Drug Enforcement Administration special agent Enrique Camarena Salazar and a Mexican pilot working with Camarena, Alfredo Zavala Avelar. The D.E.A. believes that respondent, a medical doctor, participated in the murder by prolonging agent Camarena's life so that others could further torture and interrogate him. On April 2, 1990, respondent was forcibly kidnapped from his medical office in Guadalajara, Mexico, to be flown by private plane to El Paso, Tex., where he was arrested by D.E.A. officials. The District Court concluded that D.E.A. agents were responsible for respondent's abduction, although they were not personally involved in it.

You can find more about it here, and in the US Reports.

Interestingly, but unsurprisingly, in one of Yoo's memos about torture not being torture and other contortions, he cited Alvarez Machain for a much more expansive view of how the government can act - that the Fourth Amendment does not apply overseas, among other things.  It's an example of how precedents can be stretched by inventive sophists.  Yoo provided those in spades.

Then there is rendition - of the ordinary type.  

This, as my prior comment noted, is the process of sending the person from one jurisdiction to another to stand trial in the other jurisdiction's courts.  The person would have been charged in Jurisdiction A and captured in Jurisdiction B, either pursuant to a regularly issued warrant out of Jurisdiction A which had been domesticated in Jurisdiction B or following an arrest in Jurisdiction B for breaking B's local law.  Domesticating a warrant would mean undertaking to make sure that a warrant out of "A" would be valid for "B's" police to arrest and hold someone in "B".  Most extradition treaties have some sort of provision to make this process pretty much automatic.

An example.  Assume a defendant wanted for murder in a capital-punishment US state, who fled the US to Europe and then, while in (say) England, was arrested by the local police for dealing in controlled substances.  One of two things would likely happen.

Either he would pop up on a warrant list issued by that US state and put into the flow of warrants from everywhere, and the UK police would see that.  They would then notify the US Department of State of holding a US person and the existence of the warrant showing up.

Or the UK police would notify the US consul of having arrested a US national (assuming they, unlike Texas cops dealing with Mexicans they arrest, obey the Vienna Convention) and the US consul would see his name on a list of warrants.  The word of the arrest would work its way back to the local US prosecutor (who'd had the warrant issued).  The local prosecutor, to get this person extradited from the UK (which forbids extraditing people to places where they are exposed to capital punishment) so he could be tried for the murder, would have to issue a written, binding promise (often backed by a court order) that this defendant would not be exposed to capital punishment if sent back.  This would pass through the federal government to the UK government.  Once the UK was satisfied, they would be free (once the defendant had completed his UK sentence to their satisfaction - often they'll allow a prisoner to finish his sentence at home) to extradite him to the US.  

The actual shipping of this person would be the rendition.  

That is ordinary rendition, in the international context.

In the inside the US domestic context, rendition is the process of physically shipping a defendant pursuant to an extradition order (or if he waives extradition) back to the state which issued the warrant for his arrest.

Extraordinary rendition is what Obama has banned.  FWIW, he could not ban ordinary renditions, as those are set up and operated pursuant to treaties (extradition treaties) with foreign nations.  While (arguably) a President can pull the US out of a treaty without consulting or consent by Congress, it has to be done explicitly  (if only so the other country knows).  That was not done here.  So, extradition treaties, which provide for shipping (rendering) people from one regularly-constituted court to another in a different country, continue to operate.  Even for the Bush family and their Paraguay estates (we now have an extradition treaty with Paraguay).

I hope this (very simple) explanation clears up any confusion.

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  • Display: Sort:
    Yes (none / 0) (#1)
    by squeaky on Tue Feb 03, 2009 at 10:02:31 PM EST
    That should clear it up. Makes perfect sense to me.  

    Thanks (none / 0) (#2)
    by lilburro on Wed Feb 04, 2009 at 08:10:12 AM EST
    this is extremely useful.  There appears to be some dissonance between the Supreme Court decision United States v. Alvarez Machain and international law though -

    Amnesty International believes that these practices are illegal because they bypass any judicial or administrative process such as extradition. Under international law, it is illegal to transfer people from one country to another without any kind of judicial or administrative process.

    As usual, I am not familiar with the case law.  I suppose if the US has a warrant for the abductee's arrest, that could be considered a kind of judicial process.  I will have to do some more research.

    Just having a warrant is not enough (none / 0) (#3)
    by scribe on Wed Feb 04, 2009 at 09:59:35 AM EST
    to allow a law enforcement officer to cross into a foreign country and take someone back to the US.

    One has to remember that warrants and subpoenas only run (i.e., have effect) to the boundaries of the area under the jurisdiction of the issuing court.

    Thus, for example, a subpoena out of a state court in, say, California, is just a scrap of paper in South Carolina.  The same for a warrant.

    The reasons a warrant from California would get honored in South Carolina - at least long enough to hold the defendant and get a hearing and maybe start extradition - are twofold.  First, there is the existence of mutual assistance-type agreements in each state's statutes, such that South Carolina would agree, by having passed a statute to that effect, to respect the warrants issued out of other states that have statutes agreeing to respect South Carolina's.  Second, it's kind of like what can happen in a college with a lot of fraternities - an informal agreement between them that "you can drink at our place and we won't charge you for the beer and we can drink at yours and you won't charge us.  Each house buys the beer it serves and with its own money.  That way no one needs a liquor license, a cash register, or to worry about all the things that go with serving alcohol for money.  (Especially when, occasionally, bikers drop in.)"

    Moving on to the Mexico problem, the same sort of invalid-outside-the-issuing-jurisdiction issue would apply, but even moreso.  Just because you have a warrant issued out of a US court does not mean you can go to Mexico and kidnap someone named in that warrant.  You would be violating Mexico's local law against kidnapping.  

    If, on the other hand, you take the time to get the assistance of the Mexican government and domesticate the warrant (have the Mexican authorities issue a Mexican warrant in reliance on your US warrant) and you ask them nicely, then the Mexicans might arrest the person named in the warrant and extradite him to the US.

    Parent

    OK (none / 0) (#4)
    by lilburro on Wed Feb 04, 2009 at 11:04:14 AM EST
    so kidnapping or no kidnapping, you can be tried in a US Court (in the context of, as you call it, "the Mexico problem").  However, might not Mexico seek to prosecute DEA agents for arranging to have bounty hunters kidnap Alvarez-Machain?

    My suspicion is that Obama is not going to limit his policy solely to renditions that go through a formal extradition process.  This article is the most extreme report regarding Obama's rendition policy - no name put to the source though.  

    The maintainence of transitory facilities (permitted in Obama's executive order) suggests that we will nab people.  In what countries would we be permitted to do so?  Unless we're only nabbing American terrorists, maintaining transitory facilities suggests that we are going to be in another country nabbing terrorists, and then sending them to a third country (otherwise, why wouldn't the police of country #2 nab and detain the suspect for themselves?).  Unless we are only going to hold onto them for a bit before returning them to country #2's justice system/police (we would in that case be forming a sort of shadow police in country #2).  

    Is this system - country 1, in country 2, sends person X to country 3 - legal under international law?

    thanks for your patience scribe...

    Parent