‘Rendition operates within the rule of law; [Bush’s] extraordinary rendition…does not,’ points out law expert Louis Fisher. Does Rendition Policy Make Bush An Accessory To Torture?By Cliff Montgomery – Aug. 1st, 2008Below we offer portions of a fascinating legal paper which appeared in The American University Law Review last month, entitled, Extraordinary Rendition: The Price of Secrecy. Penned by Louis Fisher, Library of Congress Specialist in Constitutional Law, the article is a searing indictment of George W. Bush’s over-reaching and unconstitutional rendition policy.“Sweeping interpretations of presidential power and government secrecy after 9/11 bore fruit in the area of ‘extraordinary rendition.’ Under this doctrine, the President claims to possess inherent authority to seize individuals and transfer them to other countries for interrogation and torture. In the past, Attorneys General and other legal commentators understood that:(1) Presidents needed congressional authority for these transfers; and(2) the purpose was to bring the person to trial.”Until recently, the Justice Department held that the President could not order someone extradited or rendered without authority granted by a treaty or statute. That view of the law changed radically after 9/11. The Bush Administration sent persons to other countries not to try them in open court but to interrogate and abuse them in secret. In lawsuits challenging this practice, the Bush Administration regularly invoked the state secrets privilege.””Not until recent years did the Executive Branch ever claim independent authority to transfer suspects to another country without the support of a treaty or a statute, and in the infrequent cases where administrations did assert such authority it was for the purpose of bringing an individual to trial with associated judicial safeguards.””Rendition, used as a substitute for an extradition treaty, means surrendering someone to another jurisdiction for trial. The verb ‘render’ is used in the sense of giving up or delivering up.””Rendition, therefore, applies to a judicial process: someone accused of a crime or someone already convicted. It has no application to detainees or enemy combatants held indefinitely by executive officials with no plan to bring them before a federal judge for trial.””Over time, rendition became associated with kidnappings and forcible abductions, but still for the purpose of bringing someone to trial.””[But] putting ‘extraordinary’ in front of rendition changes the meaning fundamentally…Rendition operates within the rule of law; extraordinary rendition falls outside. Rendition brings suspects to federal or state court; extraordinary rendition does not.””For most of U.S. history, presidents had no independent or exclusive authority over extraditions and renditions. Congressional action was needed.””In a letter to Charles Pinckney, [Thomas] Jefferson underscored the risks of giving up fugitives to a despotic government instead of to a free one. Even under relatively free governments–such as England’s–Jefferson found the punishments so disproportionate to the crimes that the thought of rendition or extradition was repugnant.”In a paper prepared in 1792, he noted that in England ‘to steal a hare is death, the first offence.’ In his view, all excess punishments were a crime. It followed that ‘to remit a fugitive to excessive punishment is to be accessary to the crime.’ “”Administrations that did depart from those principles paid a political price.”During the Civil War, President Lincoln ordered the seizure of a Spanish subject (Jose Arguelles) and his return to Cuba for trial. No extradition treaty existed. Lincoln was rebuked in some quarters for exercising an ‘absolute despotism.'”The Senate and the House requested that the Lincoln Administration explain what authority had permitted the President to deliver Arguelles to Spain. Secretary of State William H. Seward defended Lincoln’s action under ‘the law of nations,’ but Article I of the Constitution clearly gives that power to Congress.”New York proceeded to indict for kidnapping the U.S. Marshal and the four deputies who had seized Arguelles. Although the prosecution went no further, the damage done to Lincoln and presidential power was substantial.””The President’s dependence on treaties and statutes to transfer someone to another country was well established throughout most of America’s history. The Supreme Court in 1936 spoke unanimously about the President’s lack of authority to act independently and unilaterally in such matters:
- It rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist–save as it is given by act of Congress or by the terms of a treaty–it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.
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