Extrajudicial and erroneous

This subject has been split into multiple articles due to the large amount of material

• Extraordinary Rendition
• Extraordinary Rendition: International investigations
• Extraordinary Rendition: National investigations
• Extraordinary Rendition: Investigations by non-state actors
• Torture by nations participating in extraordinary rendition
• Extrajudicial and erroneous

Governments and law enforcement use procedures against their citizens deemed acceptable to operate the rule of law. The other justifications for using these procedures, outside of the rule of law, and cases determined to be erroneous, that is, not deemed acceptable, are examined.

Ethics

See Wikipedia:Ethical arguments regarding torture

The power of law has always been held by rulers. Law has always been an attempt to improve upon the principle of Wikipedia: Might makes right, but violent power is always in the background. Behind the judges are the police; behind the foreign policymakers are the army. Extrajudicial, Extraordinary, and Irregular are just words to get around the fact that all of these things are crimes, even for the state that commits them, used for the purposes of making might seem right. The attempt to justify these things, however, is worthy of consideration.

The primary justification is the same for war: that it serves the interest of the state to act in this way. This is a freedom not granted to individuals in the society, for whom it is called murder, and it has never been justified outside of self defense.

Applying the principle of what is acceptable to citizens, to the War on Terror: just as declaring that your neighbor has it in for you and going to their house and shooting them is a crime, the State as a whole is thus acting in a criminal fashion when it makes war unless war has been declared on it.

Pacifists of course believe that the principle of self defense is flawed by hypocrisy; the moral justification for committing a violent act cannot be that another's violent act is immoral. In this case, war is always immoral.

The basic ethical debate is often presented as a matter of deontological versus utilitarian viewpoint. The purely ethical view is the deontological, from Greek "deon" (duty), which proposes general rules and values that are to be respected regardless of outcome. A utilitarian thinker either disregards ethical considerations due to practical considerations, or follows the result of Wikipedia:Consequentialism when they weigh one set of ethical considerations against another. Eg, when the overall outcome of lives saved due to torture are positive, torture can be justified; the intended outcome of an action is held as the primary factor in determining its merit or morality (the Wikipedia: Ends justify the means). However, if the outcome of policies allowing torture are uncertain (or if the outcome can not be definitely traced back to the use of torture) then even the utilitarian view can conclude that torture is wrong. Note that the values weighed by the utilitarian school are not only subjective, but not always equivalent. Weighing a chance of saved lives against certain pain and torment must make several subjective judgements; how much more weight certainty has vs a chance, how much the quantity of life matters vs how living beings experience life, and how much weight these two sets have on each other in combination.

Torture

See Torture and the United States and Torture and Ethical arguments regarding torture

Torture has always been, and continues to be, widely held to be unethical, unconstitutional, ineffective, and defy the Geneva Conventions.

Alan Dershowitz's 2002 article "Want to Torture? Get a Warrant" opines that torturing terror suspects, however distasteful, is necessary to help prevent further terrorist attacks, which may only be (Wikipedia:Ticking time bomb scenario) a matter of hours or days away.

However, renditions take considerable time. More importantly, this argument fails to take into account the motivations of the victim. Any captives who are actually terrorists would be highly motivated to resist torture if the results of their resistance would yield imminent rewards. Conversely, they are more likely to talk if their information is less useful. Information given under torture is most vulnerable to being false: victims without information have every incentive to give information, but no information to give, and therefore no recourse but to render false information in order to make the torture stop, if only for a short while.

Extraordinary Rendition

See Extraordinary Rendition

Extraordinary rendition and irregular rendition describe the abduction and extrajudicial transfer of a person from one nation to another. "Torture by proxy" is such a transfer to countries known to practice torture, with the intention of torturing the person by proxy at the destination location. Torture by proxy is denied by the US, but documented evidence of it exists, and a Parliamentary Assembly of the Council of Europe report concluded that it was "credible": "The elements we have gathered so far tend to reinforce the credibility of the allegations concerning the transport and temporary detention of detainees — outside all judicial procedure - in European countries." The chairman of the PACE stated "he was personally convinced the US had undertaken illegal activities in Europe in transporting and detaining prisoners."

Multiple sources of evidence exist to support the allegation that the CIA runs a secret global abduction and internment operation of suspected terrorists, known as “extraordinary rendition”, which since 2001 has captured about 3,000 people and transported them around the world.

At least three sources of evidence exist< to support the allegation that torture has been employed with the knowledge or acquiescence of the Governments of the United States and the United Kingdom (torture by proxy). Condoleezza Rice, then United States Secretary of State, said in an April 2006 radio interview that the United States does not transfer people to places where it is known they will be tortured.

The US program prompted several official investigations in Europe into alleged secret detentions and unlawful inter-state transfers involving Council of Europe member states. June 2006 report from the Council of Europe estimated 100 people had been kidnapped by the United States' Central Intelligence Agency (CIA) on EU territory (with the cooperation of Council of Europe members), and rendered to other countries, often after having transited through secret detention centers ("black sites") used by the CIA, some sited in Europe. According to the separate European Parliament report of February 2007, the CIA has conducted 1,245 flights, many of them to destinations where suspects could face torture, in violation of article 3 of the United Nations Convention Against Torture. A large majority of the European Union Parliament endorsed the report's conclusion that many member states tolerated illegal actions of the CIA and criticized several European governments and intelligence agencies for their unwillingness to cooperate with the investigation. Within days of his inauguration, President Obama signed an Executive Order opposing rendition torture and establishing a task force to provide recommendations about processes to prevent rendition torture.

Definitions

Rendition, in law, is a transfer of persons from one jurisdiction to another, and the act of handing over, both after legal proceedings and according to law. Extraordinary rendition, however, is a rendition which is extralegal, i.e. outside the law (see: kidnapping). As rendition refers to the transfer; the apprehension, detention, interrogation, and any other practices occurring before and after the movement and exchange of extrajudicial prisoners do not fall into the strict definition of extraordinary rendition. In practice, however, the term is widely used to describe such practices, particularly the initial apprehension. This latter usage extends to the alleged transfer of suspected terrorists by the US to countries known to torture prisoners or to employ harsh interrogation techniques that may rise to the level of torture.

The Bush administration has confirmed this practice; stating, among other provisions that they have specifically asked that torture not be used. Torture can still occur, however, despite these provisions, and much documentation exists alleging that it has happened in many cases. In these instances, the initial captor allows the possibility of torture by releasing the prisoner into the custody of states that practice torture.

The next distinction of degree is that of intent, where much of the search for evidence continues. It has been further alleged that some of those detainees have been tortured with the knowledge, acquiescence or even participation of US agencies. A transfer of anyone to anywhere for the purpose of torture would be a violation of US law. However, New York attorney Marc D. Falkoff says that such evidence that transfer for the purposes of torture was an operational practice does exist. In a court filing Falkoff describes a classified prisoner transfer memo from Guantanamo as noting that information could not be retrieved, as torture could not be used, and recommending that the prisoner be sent to a nation that practiced torture.

'Security' and secrecy

A comment by FAIR on the Washington Post's decision, to withhold the locations of these secret prisons, was that since the revelations "could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad," the Post did its part to minimize these risks. Yet, according to FAIR, "the possibility that illegal, unpopular government actions might be disrupted is not a consequence to be feared, however — it's the whole point of the U.S. First Amendment." Furthermore, by not disclosing these locations it would make it impossible to have them closed and thereby the Post is enabling the rendition, secret detention, and torture of prisoners at these locations to continue. Another consequence might be that U.S. soldiers and civilians are put at risk.

According to Raw Story, the Polish site identified by reporter Larisa Alexandrovna and Polish intelligence officer David Dastych is Stare Kiejkuty.

"The complex at Stare Kiejkuty, a Soviet-era compound once used by German intelligence in World War II, is best known as having been the only Russian intelligence training school to operate outside the Soviet Union. Its prominence in the Soviet era suggests that it may have been the facility first identified — but never named — when the Washington Post’s Dana Priest revealed the existence of the CIA’s secret prison network in November 2005."

Both Alexandrovna and Dastych have stated that their sources told them that the same information and documents were provided to Washington Post in 2005. In addition, they also identified the methodology of concealing the black sites:

"Former European and US intelligence officials indicate that the secret prisons across the European Union, first identified by the Washington Post, are likely not permanent locations, making them difficult to identify and locate.

What some believe was a network of secret prisons was most probably a series of facilities used temporarily by the United States when needed, officials say. Interim “black sites” – secret facilities used for covert activities — can be as small as a room in a government building, which only becomes a black site when a prisoner is brought in for short-term detainment and interrogation."

They go on to explain that "Such a site, sources say, would have to be near an airport." The airport in question is the Szczytno-Szymany International Airport, according to Alexandrovna and Dastych.

In response to these allegations, former Polish intelligence chief, Zbigniew Siemiatkowski, embarked on a media blitz and claimed that the allegations made by Alexandrovna and Dastych were "...part of the domestic political battle in the US over who is to succeed current Republican President George W Bush," according to the German news agency Deutsche Presse Agentur."</blockquote>

Debate over legality, utility

See Guantanamo Bay detention camp

Extrajudicial describes behaviour that is illegal, with an purported justification. It is presented as ostensibly legal by those who practice it, and condemned as illegal as those who oppose it.

Wikipedia:Habeas corpus is entirely ignored in both the Guantanamo Bay custodies and extrajudicial rendition. Due process is denied but for a few released with the intent of giving a semblance of legality.

Evidence obtained illegally or under duress is inadmissible in US courts. This creates a problem with the appearance of due process, hence the neologism of Illegal Combatants, constructed to put Gitmo prisoners and Wikipedia:Ghost prisoners in a legal limbo of incarceration that is neither military nor civilian, to prevent them receiving rights from either set of laws, just as Blackwater mercenaries were put in a limbo that prevents them from being prosecuted by either law. The appearance of due process is maintained, as it cannot be denied.

Evidence obtained illegally hampers court cases against suspected terrorists in the US. The trial of Wikipedia:Zacarias Moussaoui, the only person to be indicted in the US in connection with the 9/11 attacks, was in part complicated by Moussaoui's requests for access to confidential documents and his assertion of a right to call al-Qaida members held in captivity in Guantanamo Bay Naval Base as witnesses, a demand rejected by government attorneys on the grounds that it would compromise confidential sources.

The House of Commons Foreign Affairs Select Committee in their first report published on 15 February 2006, points out that although both the UK and the U.S. have ratified UNCAT, the UK ratified it without reservations, while the US ratified CAT with a reservation that specifies the meaning of "mental pain or suffering" in more detail than Article 1 CAT; and that under U.S. legislation, the term "cruel, inhuman or degrading treatment" is interpreted according to the U.S. Constitution, (see Treaty obligations, below). Having made this point the report goes on to say in paragraph 44 that: The US Secretary of State, Condoleezza Rice, has denied the use of torture, in response to a letter written by Foreign Secretary Jack Straw on behalf of the United Kingdom as President of the European Union. On 5 December 2005 she said:

Rendition is a vital tool in combating trans-national terrorism. Its use is not unique to the United States, or to the current administration...[However] the United States does not permit, tolerate or condone torture under any circumstances.

• The United States has respected—and will continue to respect—the sovereignty of other countries.
• The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation under torture.
• The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured.
• The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred people will not be tortured.

While Rice has denied that the CIA used torture, she refused to address the allegations of covert prisons that have caused consternation across Europe and not least in Romania.

The ACLU, Physicians Committee for Human Rights and Veterans for America have sought access to presidential directives expressly authorizing extraordinary rendition. A story published in The NewStandard in December 2005 notes:

To date, there have been no Congressional or other governmental inquiries into the CIA's use of extraordinary renditions, despite repeated calls for such investigations.

Treaty obligations of the United States

The United Nations Convention Against Torture (UNCAT) Article 3 states:

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Any state that is a signatory of the UNCAT and passes an individual to another state "where there are substantial grounds for believing that he would be in danger of being subjected to torture" would be in breach of their treaty obligations, which most Western governments would be reluctant to do.

The United States Senate, however, ratified the treaty with certain reservations, declarations, and understandings, which may alter the nature of their treaty obligation with regard to UNCAT Article 3. Congressional Record S17486-01 II.3 reads "the United States understands the phrase, 'where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in Article 3 of the Convention, to mean 'if it is more likely than not that he would be tortured.'"

On May 19, 2006, the United Nations Committee Against Torture (the U.N. body that monitors compliance with the United Nations Convention Against Torture), recommended that the United States cease holding detainees in alleged secret detention facilities, and to publicly condemn any such policy. It also recommended that the United States stop the practice of rendering prisoners to countries where they are likely to be tortured. The decision was made in Geneva following two days of hearings at which a 26-member U.S. delegation defended the practices.

Erroneous rendition

An article published in the December 5, 2005, Washington Post reported that the CIA's Inspector General was investigating what it calls erroneous renditions. The term appears to refer to cases in which innocent people were subjected to extraordinary rendition.

Khalid El-Masri is the most well-known person who is believed to have been subjected to the process of "extraordinary rendition," as a result of mistaken identity. Laid Saidi, an Algerian detained and tortured along with El-Masri, was apprehended apparently because of a taped telephone conversation in which the word tirat, meaning "tires" in Arabic, was mistaken for the word tairat, meaning "airplanes."

The Post's anonymous sources say that the Inspector General is looking into a number of similar cases — possibly as many as thirty innocent men who were captured and transported through what has been called "erroneous renditions."

A December 27, 2005 story quotes anonymous CIA insiders claiming there have been 10 or fewer of such erroneous renditions. It names the CIA's inspector general, John Helgerson, as the official responsible for the inquiry.

The AP story quotes Tom Malinowski, Washington office director of Human Rights Watch who said:

"I am glad the CIA is investigating the cases that they are aware of, but by definition you are not going to be aware of all such cases, when you have a process designed to avoid judicial safeguards."

See Also and References

See Extraordinary Rendition