Detention: Non-Guantanamo Habeas Litigation

False Continuity Continued: Today's WaPo on "Renditions" Under the Obama Administration

By Steve Vladeck
Wednesday, January 2, 2013, 10:24 AM

Under the snazzy headline "Renditions continue under Obama, despite due-process concerns," today's Washington Post has a long article on the overseas arrest, detention, and subsequent criminal indictment in New York (civilian) federal court of three "European men with Somali roots." The article claims (with emphasis added) that:

The men are the latest example of how 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.

Leaving aside the merits of the case the article describes, the article itself struck me as problematic in two distinct respects:

First, even if what happened in this case was "rendition" (which is debatable), it's a far cry from "extraordinary rendition," pursuant to which various terrorism suspects (e.g., Maher Arar, Khaled El-Masri, etc.) were illegally sent by the United States to third-party countries where they could be interrogated (and tortured) in a manner that would have been unlawful if conducted by U.S. officials. There are no allegations in this case that the detainees were mistreated in Djibouti, other than the un-elaborated claim that they were interrogated "without due process" (more on that shortly). Nor is there any claim that either the initial arrest or the subsequent transfer in this case were themselves illegal. Just so we're all clear, the Bush Administration practice that was so controversial (and so widely condemned) was not rendition as such, but rendition to torture--intentionally sending detainees to countries where they could and would be subjected to far harsher interrogation techniques, and without any opportunity to contest whether they were even who the government thought they were. To my mind, it is irresponsible (and patently inaccurate) to cast what appears to have happened in this case as "continu[ing]" the controversial counter-terrorism policies of the Bush Administration; it is equating apples to oranges in a context in which nuance matters, and thereby minimizing exactly what was so problematic about "extraordinary rendition" during the Bush years.

Second, as for the claim that the detainees were interrogated without "due process," that's a serious concern, but it, too, is not immediately obvious. The question is whether these detainees even had due process rights to invoke in a foreign interrogation. That, in turn, depends upon two distinct issues: (1) Whether the Due Process Clause could ever apply to the interrogation of non-citizens overseas (I think it could; plenty of others don't); and (2) even if it does, whether the interrogation was a "joint venture" for purposes of the Miranda doctrine (i.e., whether U.S. officials were sufficiently involved in the interrogation to trigger constitutional constraints). In Abu Ali, for example, the Fourth Circuit held that U.S. participation in a Saudi interrogation of a U.S. citizen terrorism suspect was not a joint venture based on the facts of that case, and so Miranda and its concomitant due process protections did not apply. Whether the interrogation in this case was a joint venture depends entirely on the degree of the United States' involvement in the interrogation, which just isn't clear from the article.

There's more to say about all of these topics; for now, suffice it to say that this is an interesting and important story with a terribly unfortunate framing. Whatever the right answers are for how the U.S. government should act in cases like these, it's just irresponsible to equate these facts, however implicitly, with the facts of cases like Arar and El-Masri.