On the campaign trail, President Barack Obama promised to end the use of torture, close the Guantanamo Bay Detention Center, and stop al-Qaida prison recruitment.
He also pledged to end the use of "extreme rendition," a promise that we last rated in January 2009. At that time, we rated it In the Works, since on Jan. 22, 2009 Obama signed an executive order directing the creation of a task force to study and evaluate the transfer of prisoners to other nations for detention and/or interrogation. We were curious to see how things have unfolded since then.
First, however, a little primer on international law (a short one, we promise).
To start off, there is a difference between extreme rendition, also known as extraordinary rendition, and rendition itself.
The use of rendition in the United States goes back to President Ronald Reagan, who authorized the practice in 1986 for use against terrorism suspects. Over the years, it became a tool to retrieve suspects from foreign countries, and to bring them to this country for a trial. During the Clinton era, the suspect was also sometimes brought to a third country. These transfers are often referred to as "renditions to justice". They happen outside the legal extradition and deportation framework, but the ultimate goal is to put the individual before a regular legal panel.
Extraordinary renditions, which critics say became widespread following the September 11 terrorist attacks, are used to bring suspects to countries where they are at a high risk of being tortured and/or imprisoned indefinitely.
In the promise, Obama said that he'll stop outsourcing "our torture to other countries," so we'll look at whether he ended the use of extraordinary rendition, not rendition as a whole.
We asked numerous legal experts to evaluate how President Obama is doing with the promise.
It immediately became clear, however, that this was not going to be easy. Rendition activities are performed by top secret intelligence agencies, so it's possible we'll never really know whether extraordinary renditions have ceased.
Still, it appears that there is at least some movement on the promise.
On Aug. 24, 2009, Attorney General Eric Holder announced that the Special Task Force on Interrogations and Transfer Policies had finished its review. The United States will continue to send individuals to other countries, stated a Department of Justice Press press release, but the United States will seek "assurances from the receiving country" that the suspect will not be tortured. The recommendations specifically called on the Department of State to be involved in evaluating those assurances and for the Inspector Generals of the Departments of State, Defense and Homeland Security to submit annual reports on transfers conducted by each of their agencies. The report also recommends that agencies obtaining assurances from foreign countries insist on a monitoring mechanism or establish a monitoring mechanism, to ensure that the individual is not tortured. The specific recommendations themselves are classified, however.
Ben Wizner, a lawyer with the American Civil Liberties Union, told us that it's "unlikely that CIA renditions under Obama -– if they"re being conducted -– are even remotely on the scale of what occurred during the Bush administration." Wizner said we're not seeing a large number of families coming forward claiming that their loved ones were shipped off to other countries and tortured, which is what happened during the Bush administration.
Still, some experts are critical. Maria LaHood, a senior staff attorney with the Center for Constitutional Rights, said the DOJ Task Force recommendations are not particularly meaningful. "Neither assurances nor monitoring can prevent against torture," she said. She cited the case of Maher Arar, a Canadian citizen who was taken to Syria in 2002. Arar claims that he was severely beaten and tortured in the Syrian jail, despite assurances from Syria and consular visits from from Canadian authorities. LaHood said that it's hard to tell from policy recommendations if there's been an improvement or not.
Margaret L. Satterthwaite from the Center for Human Rights & Global Justice at New York University also criticized the DOJ task force recommendations. There is no mechanism in place for the individual subjected to rendition to challenge the transfer before an independent panel. Moreover, nobody outside the government actually knows the details of the policy, so it's hard to objectively evaluate whether the government is sticking to its promise.
We're not sure if we'll ever be able to issue a definitive ruling on this promise. The administration has announced new procedural safeguards concerning individuals who are sent to foreign countries. President Obama also promised to shut down the CIA-run "black sites," and there seems to be anecdotal evidence that extreme renditions are not happening, at least not as much as they did during the Bush administration. Still, human rights groups say that these safeguards are inadequate and that the DOJ Task Force recommendations still allow the U.S. to send individuals to foreign countries. We'll give the Obama administration credit for the steps it's already taken, but until we have a more definitive evidence that extraordinary renditions have stopped, this promise stays In the Works.