Today's Article
'Rendition operates
within the rule of law;
[Bush's]
extraordinary
rendition...does not,'
points out law expert
Louis Fisher.
within the rule of law;
[Bush's]
extraordinary
rendition...does not,'
points out law expert
Louis Fisher.
The American Spark
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Does Rendition Policy Make Bush An Accessory To Torture?
By Cliff Montgomery - Aug. 1st, 2008
Below 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:
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark e-
newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!
By Cliff Montgomery - Aug. 1st, 2008
Below 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.
Like what you're reading so far? Then why not order a full year (52 issues) of the The American Spark e-
newsletter for only $15? A major article covering an story not being told in the Corporate Press will be
delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!