Words matter. Few if any places is this truer than in legal and journalism circles. And arguably, this is most critical when there is intense public scrutiny on important issues of the day. It is thus disappointing that as esteemed a paper as The Washington Post would use a term—rendition—in what I would argue is a misleading manner. My purpose is not to engage in an academic legal parsing of the Post’s article. I am neither a practicing lawyer nor a professional media critic. Rather, it is to highlight how different—and I believe better—our counterterrorism practices are today.
Over the past eleven years the term “rendition” has became part of Washington’s daily lexicon. Based on its common usage, rendition (or, alternatively, “extraordinary rendition”) has come to suggest U.S. agents swooping into a foreign country uninvited and unapproved, snatching a terrorist suspect, and taking him to a secret site to be held extrajudicially. And often, it also suggested the subject would be interrogated using—depending on one’s views—enhanced interrogation techniques or torture.
The front page article at issue, titled “Renditions continue under Obama, despite due-process concerns,” in question makes a serious claim: that “the Obama administration has embraced rendition—the practice of holding and interrogating terrorism suspects in other countries without due process—despite widespread condemnation of the tactic in the years after the Sept. 11, 2001, attacks.” As support for this claim, the article focuses on two cases involving four individuals who the U.S. Government claims were seeking to help the al-Qaida-associated Somali group, al Shabaab.
More specifically, the article notes that the individuals (three in Djibouti and a fourth—who has since pled guilty in a U.S. court—in Nigeria) were arrested by local authorities and ultimately found themselves in the United States being criminally charged in Article III courts. The article states that, in the interim, the suspects were interviewed or, alternatively, interrogated by U.S. personnel in Djibouti and Nigeria respectively.
Do these “renditions” as described by the Post, track post-9/11 practices and parallel the popular understanding of the phrase? Far from it. Suspects weren’t taken into custody by the United States, but rather by the foreign country itself. Nor is there any evidence that any of the arrests were not consistent with that foreign country’s laws. Similarly, these suspects weren’t secretly moved to black sites where U.S. officials interrogated them. Rather, while in legal custody of the foreign nation, U.S. officials are alleged to have participated in questioning. Not only is this markedly dissimilar from the worst practices immediately post-9/11 but also perfectly consistent with at least decades-old global practices for criminal investigations.
Finally, the article states that “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.” Although this may sound harrowing, it is nothing more than the description of how countless individuals accused of violating U.S. laws—well beyond terrorism—have always been pursued and returned to the U.S. to face charges. Grand Jury proceedings are, by law and tradition, secret proceedings and indictments are routinely sealed (i.e., kept secret until an individual is in custody). Furthermore, U.S. courts and international law have long recognized that fugitives can be expelled from a country of which they are not a national—exactly the situation faced by the individuals cited by the Post—and removed to the nation in which they are charged.
Using Black’s Law Dictionary, these events may well qualify as renditions. But the article implicitly and explicitly suggests—quite mistakenly—something far darker and more sinister. In my view, these cases represent counterterrorism practices that carefully adhere to our Constitutional and international legal obligations, as well as broader moral principles.
We are not sending in covert operators when we don’t have to (although as illustrated by the raid that killed Osama bin Laden, we are ready to when necessary). Instead, we are working with foreign nations, building coalitions, establishing legal processes, and helping other nations to develop accountable counterterrorism practices. These are cases where we can and should talk about successful international cooperation that led to suspected terrorists facing charges in open court. As a result of U.S. leadership and strong counterterrorism allies we have helped regional partners reduce the threat of terrorism. In short, based on what the Post presents, the Obama Administration should be applauded, not condemned. Because not only do words matter, so do actions.