04_rendition-geopolitics.mdml

# Rendition and the Geopolitics of the “War on Terror”

The Bush Administration consistently argued that 9/11
inaugurated a new geopolitical era and a fundamentally new kind of
threat to the integrity of the state and to its sovereign borders.
Groups like al Qaeda, they argued, are dangerous precisely because
they are different in form than the threats that had previously
animated the geopolitics of modernity. As one report from the
Office of Homeland Security [@homeland-security:2002, p.10] put it:

> Al-Qaeda is part of a dangerous trend toward sophisticated
terrorist networks spread across many countries, linked together by
information technology, enabled by far-flung networks of financial
and ideological supporters, and operating in a highly decentralized
manner.

In turn, the report continued, transnational terrorist groups
exploit vulnerabilities in domestic territory:

> Our population is large, diverse, and highly mobile, allowing
terrorists to hide within our midst. Americans congregate at schools,
sporting arenas, malls, concert halls, office buildings, high-rise
residences, and places of worship, presenting targets with the
potential for many casualties [@homeland-security:2002, pp. 10-11].

Geographically-diffuse, organizationally-fragmented,
profoundly-mobile, and stateless, officials concluded, the new
global terrorist was also a challenge to traditional notions of
containerized sovereignty: easily able to slip across international
borders, to then blend virtually seamlessly into local places, and
from there turn the most innocuous instruments of everyday life—box
cutters, airplanes, and cell phones—into deadly weapons.

In the face of this new threat, the Administration argued that the
historical-geopolitical conditions of the past that influenced the
development of existing laws are no longer relevant. In the context
of a globalized world of easy border-crossing, unprecedented
information-access, and multi-cultural societies, it was time to
undo the restrictive boundaries of existing law. As Vice President
Cheney put it in a speech in early-2006:

> We are not dealing with a conventional enemy, but with a group of
killers whose objective is to slip into our country, to work in
sleeper cells, to communicate in secret, using every means of
technology from the Internet to cell phone networks. This enemy is
weakened and fractured, yet still lethal, still determined to hurt
Americans. We have a duty to act against them as swiftly and as
effectively as we possibly can. Either we are serious about
fighting this war or we are not [@cheney:2006:agenda].

For Cheney, then, to be “serious” was to be willing to rethink
common sense norms and practices.

To that end, the Bush Administration aggressively mapped out a
dramatic expansion of its counter-terrorism strategies. Among the
issues they focused on early were avoiding the restrictions that
bound the options they might consider. Both domestic and
international law provided overlapping legal jurisdictions of
frameworks of rights that constrained what United States military,
intelligence and law enforcement personnel could do in the emerging
“War on Terror” and *where* they could do it. The Administration
strategy thus sought to reduce these restrictions so as to free up
room for innovative and aggressive measures. The most controversial
of these strategies centered on the intersections of intelligence
gathering and detention, with rendition being but one
example.

## Intelligence, Spatial Transformations, and the “War on Terror”

The detention center at Guantánamo Bay has offered visible focus to
concerns about the extraterritorial dimension of the Bush
Administration’s “War on Terror.” Here debate centered on both the
status of detainees as legal subjects, and their jurisdictional
location within the fractured intersections of national and
international law [@gregory:2006:flag; see also @sidaway:2010:island
for related issues around Diego Garcia). The Bush Administration
invented new legal subjects such as “unlawful enemy combatants” so as
to reposition detainees’ relationship to international law, and they
created new spaces of detention to reposition United States
obligations to both domestic and international law. They justified
such moves by creative interpretation of the relationship between law
and sovereignty, arguing that, for example, Cuba has “ultimate
sovereignty” over the Guantánamo Bay base and thus the Cuban state
alone has the obligations to abide by international law.

In his sweeping analysis of the legal issues surrounding Guantánamo,
Joseph Margulies [-@margulies:2006:abuse] argues that many of the most
controversial aspects of the Bush Administration’s “War on Terror”
reflected its uncompromising vision of the relationship between
anti-terrorism, intelligence and detention. That vision saw
intelligence as among the central tools to combat future terrorist
attacks. In turn, its architects saw effective intelligence as
inseparable from effective detention. Indeed, analysts frequently
characterized the attacks of 9/11 as an intelligence failure. So while
they described the general threat as geographically and
organizationally agile transnational terrorist networks that exploited
the vulnerabilities of democratic states, their more specific
diagnosis was one that saw states as relatively information poor. In
this view, the strategic advantage of groups like al Qaeda was their
ability to exploit new iformation technologies such as the internet,
and so to communicate instantaneously, across great distances, largely
under the eyes of states. This diagnosis, then, understood the
terrorist attacks as simultaneously reflecting two sides to the
information-state nexus.  On one hand, the state itself was
information-poor; unable to see into the inner workings of
contemporary netwar. On the other hand, it saw an information-rich
adversary; one which had access to an unprecedented volume of
information about the state and the potential targets within its
midst. Metaphorically, then, the state was much like a blind elephant;
profoundly visible, and yet unable to see.

The Bush Administration interpreted this new information threat
through the lens of a relatively new theory of intelligence: called
the “mosaic theory” [@pozen:2005:mosaic]. Traditionally, state
intelligence has been source-oriented. Meaningful information, in this
view, is intrinsic to a document, or interview, or other
source. During the Cold War, the intelligence agencies applied this
approach to cultivating high-level contacts in foreign governments,
focused on decoding communications among government officials
discussing commonly understood efforts and initiatives, and in general
assumed a kind of integrated modernist object of intelligence. Under
the mosaic theory of intelligence, however, meaning is relational and
fragmented. Intelligence is not intrinsic to isolated pieces of
information, but rather to complex relationships among a myriad of
otherwise innocent facts. The object of intelligence is thus
fragmented. Moreover, it is one that reflects the largely phantom
quality of the distinction between society and state (T. Mitchell,
1991), and what Painter has described as the “prosaic” quality of
state-society relations [@painter:2006:prosaic]. The mosaic theory,
then, suggests two new threats and related policy approaches. First,
it suggests that successfully averting tragedies like 9/11 will
involve the collection and intensive analysis of unprecedented volumes
of information. The state's intelligence lens must much more fully
illuminate the looming threats both within and without its borders,
and it must do this by taking a broad view on what might constitute
meaningful intelligence.

Much of the focus of the War on Terror has thus been on the
acquisition of intelligence. Intelligence, in turn, was embedded not
just in electronic transfers of money or communication, but also
embodied in the minds of individual bodies. This “human intelligence”
was central to Bush Administration detention policies, which, as
Margulies [-@margulies:2006:abuse] emphasizes, were designed not per
se to punish or to avert future acts by the individuals in question,
but rather to extract information about the network itself so as to
avoid future terrorist attacks. Extracting that embodied intelligence
required that suspects be captured and detained. Moreover, they must
be detained in spaces that have suitably flexible relations to law,
where they can be interrogated free from any of the inconveniences of
law (or indeed liberal society more broadly).

A second consequence of the mosaic theory is the conclusion that
the state itself may well be too visible. If on one hand, then,
transnational terrorists are successful because they are largely
invisible, they are on the other hand because they collect
strategic intelligence about their targets. It is for this reason
that the Bush Administration quietly reclassified millions of
previously unclassified documents, removing them from Internet
access, and so forth.

In this way, the mosaic theory as interpreted by Bush Administration
policy understood the state as both the subject and the object of
intense visibility. In Margulies' interpretation, the intelligence
imperative of the Bush Administration’s “War on Terror” resulted in a
policy of preventive, and largely extra-legal, detention. All the
focus on detention at Guantánamo misses a more crucial fact for
Margulies: the military designed facilities like Camp Delta as ideal
spaces of interrogation. Their purpose was to extract intelligence
(see also Mayer, 2007). In turn, and related, the other policy outcome
of this perspective was that the practices of statecraft involved in
anti-terrorism must be wherever possible hidden from view.[^6]

[^6]: Dana Priest and William Arkin [-@priest:2010] have recently
documented the extensive network of security infrastructure built up
across the United States in the wake of the events of 2001, often in
mundane, everyday places like suburban office parks.

## Territorial Constraints

Extraordinary rendition was a product of both of these imperatives:
the need to both acquire embodied intelligence, and to do so
secretly. It was also a product of the previously mentioned desire to
avoid the territorial constraints of law. In crafting an aggressive
counter-terrorism strategy post-9/11—one that focused on the
centrality of intelligence gathering—the Bush Administration came up
against a variety of simultaneously legal and spatial constraints that
severely limited what they could do, and *where*.

The most obvious constraints the Adminstration faced were those of
domestic law. These included Constitutional protections outlined in
the Bill of Rights: in particular those that circled around the
spatial relations between citizens and the state: the right to
privacy, to be free from detention without charge and the entitlement
to a speedy trial. Most fundamentally, it included the right to
petition for *habeas corpus* review: the most elemental judicial check
on executive power. All of these restrictions, Bush Administration
officials concluded, were too onerous to effectively conduct an
aggressive “War on Terror.” Absent a formal declaration of emergency—a
legal exception that might, for example, remove the right to *habeas
corpus* review—constitutional rights limited the capacity of the
Executive to detain suspects and to interrogate them. As a result, the
Bush Administration sought creative ways to achieve the same effect
elsewhere: beyond the legal boundaries of United States jurisdictional
commitments.

Yet while domestic law hampered Administration efforts within
sovereign territory, international treaty obligations introduced other
constraints extra-territorially [@satterthwaite:2007:rendered]. Most
notably, the *Geneva Conventions* set strict rules on both detention
and interrogation of prisoners. Similarly, the *International
Convention Against Torture* included not only provisions against
aggressive interrogation measures, but also against the rendition of
people to other jurisdictions that did practice torture. International
law, then, placed serious constraints on the conduct of the “War on
Terror” extra-territorially as well.

Extraordinary rendition thus became one stategy to seek to avoid these
legal-geographic constraints by positioning people and things in
spaces with less-than-clear legal sovereignty or oversight. Notably,
however, use of extraordinary rendition required rather creative
interpretation of law, and legal territory.

## Gaps

While the term “rendition” has taken on a particular meaning in the
context of the “War on Terror,” its legal meaning is much broader.
Rendition involves the transfer of a person or thing from one
jurisdiction to another. Extradition, for example, is a kind of
rendition; in this case a formal legal process structured by legal
agreements such as international treaties. But rendition can also
involve more informal transfers of people and things.

In both legal and practical precedent, extraordinary rendition has its
origins before 9/11. Beginning in the late-1980s, United States law
enforcement faced new challenges [herbert:1997:territoriality].[^9]
These challenges all centered on the increasingly extra-territorial
and transnational character of crime. The “War on Drugs” was perhaps
the first of these struggles, involving producers, distributors and
consumers tied together across a variety of domestic and foreign
territories; some within United States jurisdiction, and many not. In
order to fight this war, agencies like the FBI and the DEA
increasingly dealt with suspects and informants who circulated in
spaces beyond United States territorial jurisdiction.

[^9]: Note, however, that extraordinary rendition is not a particular
   innovation of United States statecraft. As Human Rights Watch
   [-@hrw:2005:black-hole] has documented, for example, regimes in the
   Arab world have been shuttling prisoners informally around since at
   least the 1990s. Similarly, there were earlier international human
   rights cases around extraordinary rendition in South America
   involving Uruguayan security officials apprehending suspects in
   Brazil and Argentina and subsequently allegedly torturing them in
   Uruguay [@satterthwaite:2007:rendered, p. 1364].

This is an old story of a spatial or scalar struggle over the
territoriality of criminality and statecraft. The United States
government established the FBI as an anti-crime organization with
federal jurisdiction in order to explicitly target then-new kinds of
crimes that crossed existing jurisdictional boundaries. The new
jurisdictional authority of the FBI—as well as later additions such as
the DEA, ATF, and so forth—allowed them the same spatial reach as the
criminals they were charged with apprehending. Yet the state could
only rescale such authority within its sovereign boundaries. Such was
not the case with extra-territorial character of globalized illicit
trade in sex workers, drugs or weapons. As a result, fighting these
new criminal threats involved coordination and cooperation with other
jurisdictional authorities. Sometimes this meant joint policing
operations, and sometimes requests for extradition. In any case, it
introduced the potential for conflicts over which jurisdiction had the
ultimate authority over the “personal jurisdiction” of particular
criminal suspects.

Such conflicts came to a head in the 1985 case of the kidnap and
subsequent torture and murder of DEA agent Enrique Camarena in
Guadalajara, Mexico, allegedly at the hands of a drug cartel. In
1990, DEA agents arranged for a doctor indicted in the crime to be
captured and forcibly rendered to United States jurisdiction. He
was thus kidnapped outside his office in Guadalajara, flown by
private jet to El Paso, Texas, and put on trial in Los Angeles. The
rendition happened without the cooperation or help of Mexican
officials, despite an existing extradition treaty between the
United States and Mexico.

The central legal question the case presented was whether the fact of
the defendants’ extra-legal rendition was grounds for granting
jurisdiction to United States courts to hear the cases. In the
original case (United States v. Alvarez Machain, 1992; see also Caron,
2004), the Judge ruled that it was not, and released the
defendant. The appeal went to the Supreme Court, which relied on
precedent that stretched back to the 19th century to conclude that the
manner by which a defendant was brought within the territorial
jurisdiction of a court was irrelevant, and that the court did in fact
have legal jurisdiction to hear the case.

The Department of Justice has more recently referred to this ruling
to conclude that the courts placed no legal restrictions on such
extra-territorial abductions. As one Justice Department document
interpreted the ruling:

> [T]he Supreme Court ruled that a court has jurisdiction to try a
criminal defendant even if the defendant was abducted from a
foreign country against his or her will by United States agents.
Though this decision reaffirmed the long-standing proposition that
personal jurisdiction is not affected by claims of abuse in the
process by which the defendant is brought before the court, it
sparked concerns about potential abuse of foreign sovereignty and
territorial integrity (International Extradition and Related
Matters, 1997).

So while noting the potential political fallout of such informal
renditions, the Department of Justice nevertheless noted the
Judiciary presented no legal roadblocks to its use. Faced, then,
with a range of characters—rogue dictators like Manuel Noriega,
drug lords, transnational terrorists—that escaped capture by hiding
behind the protective walls of foreign jurisdictional boundaries,
the United State government increasingly relied on these “informal
renditions” throughout the 1990s. These involved United States law
enforcement agents apprehending criminal suspects in foreign
jurisdictions and transporting them to the jurisdictional orbit of
United States courts (Bush, 1993). While expressly designed to
avoid the sometimes complicated legal formalities of
extradition—and in fact doing so in ways which often directly
challenged the territorial sovereignty of other states—these
"renditions to justice" nevertheless ultimately brought suspects
within the space of law; to be prosecuted to be sure, but under
conditions which also guaranteed them basic legal rights in the
process.

If these informal renditions that brought people like Manuel Noriega
to face trial in the United States still more-or-less corresponded
to international legal norms in the sense that their goal was to
try criminal suspects before courts of law, another kind of
informal rendition had a quite different relationship to law.
During the Clinton Administration, the CIA began using a tactic
that has since become known as “extraordinary rendition.” This
involved the apprehension of international criminal suspects—often
by United States agents—in a foreign jurisdiction, and their
transfer to a third sovereign state. The suspects were typically
Islamic extremists, and their destinations Middle East regimes with
dubious human rights records: Egypt, Syria, and so forth.

Unlike either extradition or “informal rendition,” then,
“extraordinary rendition” is not focused on criminal prosecution. The
justifications that advocates have offered for the practice are not
really legal justifications. Former CIA officer Michael Scheuer
(2005), for example, defended the practice as a necessary practical
innovation, and explained the focus in the following way:

> [T]here's kind of three tiers of importance. The most important
thing in '95 and as we talk in July of 2005 is to get these people
off the street. That's the single most important thing, the idea,
of course, being to protect America and Americans.

> The second most important is to grab, when they're arrested,
whatever paper, hardcopy documents or electronic media they have
with them, because in that media is going to be information they
never expected the Central Intelligence Agency to be
reading.

> The third thing is to talk to them. But anything we get in the
third level is gravy …

Legal concerns about prosecution, then, do not enter into Scheuer's
explanation of the purpose of the program. In addition, the
territorial focus of the practice is outward; on moving suspects not
within the territory of United States sovereignty and law, but rather
without.

After 9/11, the Bush Administration dramatically expanded the use
of extraordinary rendition, as well as shifted greater relative
attention to interrogation. They have also allegedly introduced a
new kind of extraordinary rendition. Rather than send detainees to
third-party states, they instead sent them to spaces of _de facto_
United States control, but otherwise ambivalent sovereignty. The
CIA-run prison in Afghanistan where Khalid El-Masri found himself
was but one example of the in-between legal status of these
rendition destinations. Guantánamo Bay is another. These spaces
provided the benefits of sovereign authority and control, without
the obligations of sovereignty either to domestic or to
international law.[^7]

[^7]: As I explain further below, this perspective relies on a
controversial reading of international human rights law that focuses
on one, obviously territorial, aspect of jurisdictional rights
obligations, while ignoring others.

Extraordinary rendition is a very specific kind of rendition, then,
which relies on spatial transformations in the geographies of enforced
disappearance. Extraordinary rendition involves the extra-legal
transfer of a person by a state to the jurisdiction of another state
or quasi-stateless jurisdiction for the purpose of detention and
interrogation. It is a way to suspend law for certain classes of
subjects by moving their bodies across territorial boundaries. By
using such tactics, the Bush Administration territorially barred these
suspects from access to domestic legal rights. By effecting such
movement covertly, the Bush Administration also denied them access to
the protections of international law. The active subject moving these
bodies across this global jurisdictional chessboard is a shadow state;
ideally completely invisible. The transfer, then, typically happens
by--or least in collaboration with--the labor of civilian
subcontractors.  While often front-companies for state agencies such
as the CIA, they nevertheless work though the networks of the formal
economy and civil society. These are legally civilian employees,
flying on legally civilian aircraft, through the nodal points of
civilian airports, within a network of civilian airspace (Grey, 2006).