The classic case on this matter involves one Dr. Humberto Alvarez-Machain. A DEA agent had been kidnapped, tortured, and killed in Mexico. Dr. Alvarez-Manchain was suspected of keeping the agent alive to prolong the torture.

Subsequently the Doctor was captured by bounty hunters and brought to the US for trial. There was no legal authority for them to act in Mexico, so it was effectively a kidnapping. Lower courts threw out the case but the Supreme court ruled he could be tried. He was acquitted and subsequently sued the U.S. government.

Here’s a law journal article on him. I’ve just had a few grad classes on international law, and near as I remember this is the most relevant pre-9/11 case.

I’m going off memory of a few graduate international law classes and some web searching here, so don’t treat me as an expert by any means. But you might want to start with the good doctor. The journal article has the largely negative international reaction to the case.

Thanks very much. I figured I’d ask the Washington Independent’s legal affairs correspondent, who’s a lawyer herself.

To present a slightly different view, Alvarez-Machain represents merely the long-standing policy of the U.S. government, and most other governments for that matter, that an illegal apprehension to achieve jurisdiction does not deprive the courts of the jurisdiction to try an individual. While courts have dithered about which conditions they would deprive themselves of jurisdiction, most do not see illegal apprehension as a bar to jurisdiction.

Let me excerpt something my moot court partner wrote for last year’s Jessup International Law Moot Court Competition: “States consistently exercise jurisdiction over defendants brought before their courts by extra-judicial means. Under the principle of mala captus bene detentus, municipal courts are not deprived of jurisdiction by the circumstances of a defendant’s appearance. In the rare instances in which municipal courts have declined to exercise their jurisdiction, they have generally done so on the basis of either an independent statutory ground or voluntary deference to a sister state. Although there is some evidence that the mala captus rule may be eroding at the national level, state practice in this regard is not yet so widespread as to confer upon the forum state an obligation to decline jurisdiction merely because the foreign state protests. Given the absence of a customary rule requiring municipal courts to decline jurisdiction over irregularly apprehended defendants, the simple fact of the irregular apprehension represents no bar to their prosecution.”

The larger legal problem is that internationally, when extradition is not possible, rendition is usually the only solution. Because the law is so broken, it generally comes down to political, military, and other solutions to fix these issues if extradition is not available.

So bottom line, rendition – consistently the U.S. policy for years and years, quasi-legal under international law (this would take an even longer explanation of why this is true).
Extraordinary rendition – where we kidnap and send them to a third party to be tortured – only Bush administration, and definitely illegal.
As for the basis in international law – there is no basis. What do you think this is? This is an solution to a legal problem that admits of no legal solution. That’s why it happens. It’s a violation of international law, it’s a violation of sovereignty, and if anyone did it to someone in the United States, we would complain heartily. But of the various violations possible, it’s relatively minor. As Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”

And yeah, I am a lawyer, this is not legal advice, you’re not my client, yadda yadda yadda. If you need more info, feel free to contact.

+1 to what voxelation says.

I’ve also did that Jessup problem (though I’m not a lawyer yet). I think you can make a strong case that anyone who refuses to extradite or at least arrest an Al Qaeda member is violating international law, and so rendition as Obama describes it is an acceptable means of self-defense.

That logic becomes less compelling as you complicate who the alleged terrorist is and what they are accused of knowing, of course. But for the worst of the worst it applies.

Overall though, this sort of rendition is the best solution to an impossible problem. Even Greenwald is on board IIRC- is there anyone on the left who is totally a pacifist, or is that mostly the insane libertarian camp?

The hypothetical scenario he’s describing isn’t extraordinary rendition, the process by which the U.S. would transfer a detainee extra-judicially into the custody of another country

Huh ?
He explicitly describes an extra-judicial transfer. That’s extraordinary rendition.
You say he’s not talking about an extra-judicial transfer: extraordinary rendition.
Where exactly is the breakdown in linkage here other than his name is “Obama” ?

You got yourself a little bit of that Scott Horton action going on. Where out of thin air you invent a way that the president who’s not named Bush is somehow doing something different, despite the glaring obvious that he’s not.

CIA and Italian intelligence agents abducted off the streets of Milan on suspicion of involvement with terrorism and handed to the Egyptian security service. Abu Omar told Peter Bergen last year what happened to him:

Spreading his arms in a crucifixion position, he demonstrates how he was tied to a metal door as shocks were administered to his nipples and genitals.

While we’re pointing out nuanced differences, it’s worthwhile noting there’s absolutely none between this example you cite and what Scott Horton suggests was the “no-torture-involved” kind of renditions Clinton ran.

In both cases, apparently, if you don’t torture the guy yourself and hand him over to the Egyptians for that express purpose, you get to call it “not involving torture”.

And here you were thinking you were citing something bad. Looks like you got Punked.

Extraordinary rendition – where we kidnap and send them to a third party to be tortured – only Bush administration, and definitely illegal.
…
As Al Gore said, “That’s a no-brainer. Of course it’s a violation of international law, that’s why it’s a covert action. The guy is a terrorist. Go grab his ass.”
…
And yeah, I am a lawyer,

You’re a sub-par one then.
You see the quote above where the kidnapped terrorism suspect gets shipped off to meet the Egyptian secret police ? That’s what Al Gore was talking about.
Torture also has zero relevance to what “extraordinary rendition” is.

Right – rendition breaks international law by violating a nation’s sovereignty; every country has the right to try criminals residing on their soil by their laws – unless a formal extradition request is made, the request is granted and the accused transferred by the book. (Of course we carry out renditions anyway, as AG pointed out)

Sending the accused to a third-party country could violate the Convention Against Torture which contains a non-refouler clause obligating countries *not* to extradite prisoners to places where they might possibly be subjected to torture. As a signatory, the CAT is binding on the US. (No sending folks to Egypt, right; we’ve done this, too, to our shame)

However, as the Jessupers know, the still very fuzzy area is what to do about perps residing in countries where there’s really no gov entity able or willing to make an arrest. For places like Somalia, the doctrine of “Rendition to justice” says then it’s okay to scoop them up and try them somewhere that has a functioning legal system with standards. Regarding govs that are able but unwilling to try them -you might be able to make an argument that we should be able to scoop them up, too, White965, but few in the intl community are aboard that ship. Mike Haydn has stated outright that he thinks we should be able to take anyone out of FATA that we please, with or without Islamabad’s say-so -but I think that’s a terrible idea, an unnecessary one, too, considering how cooperative Pakistan has been.

Here’s hoping Team Obama pulls it back on all three fronts.

And then there are the cases like Albania, where suspects thought to be members of Islamic Jihad were arrested with the assistance of the CIA, interrogated by them, then…with the agreement of the Albanians,,,shipped off to Egypt. There was no US extradition treaty with Albania, and none b/w Albania and Egypt. It was just done.

It seems to me that some form of international agreement on extradition needs to be arranged rather than some complex of bilateral agreements that can change and shift with the wind. As part of that serious cases of war crimes and other international criminal acts would be an absolute, though basic standard rights (as per Geneva Conventions) would be accorded the extradicted.

Violation of the principles would result in the removal of privileges of the international accord on extradition. You would lose the ability to bring back even common criminals if you resorted to extraordinary rendition.

For places like Somalia, the doctrine of “Rendition to justice” says then it’s okay to scoop them up and try them somewhere that has a functioning legal system with standards.

This is the only thing of consequence mentioned here so far.
If such a thing exists, this is significant. Very.

Otherwise, you may as well kick the guy in the balls for the whole 8 hour flight, since you’re still going to need to skew his trial or set up a different system (military comms) outside of the justice system in order to get around the fact you kidnapped his arse. If this wasn’t a problem nobody would flee to non-extradition countries.
You can put Hannibal Lektor on trial, but if you botched the warrant where you snatched his guilty arse, he still walks.

Either there’s an accepted (really accepted, like SCOTUS accepted) legal precedent for this or there’s not. If there is, let us know.

Kilo, that’s not what Al Gore was talking about then, and it was not the program in the 1990s. The original program was to capture men who were planning or had been involved in terrorist attacks and bring them to the U.S. for trial or questioning.

The practical question, and it’s one that people like you reflexively and unthinkingly speed over, is what do we do about terrorists who have done us harm, and intend to do us further harm, when they are in countries where we cannot obtain extradition because of a lack of a treaty, we cannot get the host country to prosecute, and we cannot get the host country to agree to surrender the individual to us? It’s the very situation that Obama is talking about.

I’m gathering that you would just let the terrorists continue to plot against us, and twiddle our thumbs until the next bomb went off.

I believe that we must be prepared to render that individual to the U.S., where they can be tried, or questioned, and the legality of their detention challenged in U.S. courts. Torture is illegal, and if we are to capture these individuals, they must be accorded the full panoply of rights guaranteed under international and municipal law. There can be no secret detentions, as it amounts to torture. But to ignore the threat, to do nothing about it when we can, is the bigger mistake.

Were you too busy being a jackass to me, or did you really just not read my comment? Mala captus bene detentus. Alvarez-Machain reconfirmed the Ker-Frisbie doctrine. Doesn’t matter how we snatch him, once he’s in front of the court, that’s all that matters.