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Posted at 4:50 PM ET, 11/ 3/2010

CIA lawyer: U.S. law does not forbid rendition

By Jeff Stein

Daniel Pines, an assistant general counsel at the CIA, has asserted in a law journal that the abduction of terrorism suspects abroad is legal under U.S. law, even when the suspect is turned over to countries notorious for torture.

“There are virtually no legal restrictions on these types of operations,” Pines asserts in the current edition of the Loyola University Chicago Law Journal.

“Indeed, U.S. law does not even preclude the United States from rendering individuals to a third country in instances where the third country may subject the rendered individual to torture. The only restrictions that do exist under U.S. law preclude U.S. officials from themselves torturing or inflicting cruel and unusual punishment on individuals during rendition operations, or rendering individuals from a place of actual armed conflict or occupation -- all of which prove to be narrow limitations indeed,” Pines writes.

Pines said he was expressing his own views in the article, and that “nothing in the contents should be construed as asserting or implying U.S. Government authentication of information or CIA endorsement of the author’s views.”

But his rank as a senior legal official at the spy agency is bound to attract widespread notice.

Asked for comment, the American Civil Liberties Union was predictably scornful of Pines’s assertions.

“The article does not even address the most extreme form of rendition carried out under the Bush administration: renditions to U.S.-run ‘black-site’ prisons, where Americans, not foreign intelligence services, were the jailers and the torturers,” Ben Wizner, litigation director of the ACLU’s National Security Project, told SpyTalk.

“Mr. Pines offers no arguments whatsoever for the legality of those operations, nor could he: forced disappearance, arbitrary detention, and torture are unequivocally prohibited under both U.S. and international law.”

Wizner continued, “The article does not properly distinguish between conduct that is legal and conduct that is legally redressable. To be sure, every case to date brought by a victim of the Bush administration’s rendition policies has been dismissed by U.S. courts -- but none of those courts addressed the legality of the challenged practices. Rather, the cases were dismissed on the basis of overbroad secrecy and immunity claims. Indeed, the CIA has invoked the state secrets privilege precisely to prevent courts from answering the very question that Mr. Pines contends remains unsettled: whether the extrajudicial transfer of prisoners to detention without charge and interrogation without legal restraint violates the law.”

In the article, Pines did not address the case in which nearly two dozen CIA operatives were brought to trial in connection with an extraordinary rendition: the February 2003 abduction in Milan of an al-Qaeda suspect known as Abu Omar. In that case, U.S. law turned out to be irrelevant: All but a few of the 23 defendants, whom the court granted diplomatic immunity, were convicted in absentia on charges of kidnapping.

Omar, whose true name is Hassan Mustafa Osama Nasr, was taken to Egypt, where he said he was tortured. Now free but under watch in Egypt, he has granted interviews and displayed his scars to reporters.

Michael Scheuer, former head of the CIA's Osama bin Laden unit, said three years ago that national security officials in the Clinton administration "had no qualms" about transferring al-Qaeda suspects to countries with reputations for torture.

"There were no qualms at all about sending people to Cairo," Scheuer told a House Foreign Affairs Subcommittee hearing on the treatment of terrorism suspects picked up by the CIA. There was a "kind of joking up our sleeves about what would happen to those people in Cairo in Egyptian prisons,” he said.

The Obama administration has not repudiated the practice of rendition but has said that it will never transfer suspects to countries if it believes they will be tortured there.

By Jeff Stein  | November 3, 2010; 4:50 PM ET
Categories:  Foreign policy, Intelligence, Lawandcourts  
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Snatching people off the street in another, non-USA country is not illegal under USA law, but it certainly is kidnapping under the laws of the country where the rendention occurs. It could also violate treaties that require coordination with the host country's security services when performing such operations within their borders.

In college I occasionally experienced anxiety fits during mid-term and final exams that made facts I had stored in memory unavailable to me. Once I turned in the exam booklet and stepped outside the classroom, the answers floated to the suface without delay. If you've ever had that similar experience, then how can you believe torture and stress-and-duress techniques can produce reliable intelligence?

The ordeal of torture can prohibit the recall essential facts. It's not that they couldn't remember it if their life depended on it... they cannot remember it because their life does depends upon it.

Posted by: blasmaic | November 3, 2010 6:00 PM | Report abuse

I was traveling in Italy some time after that incident. The Italians were not at all pleased that the US showed no respect for Italian sovereignty. I doubt that Daniel Pines cares about our allies laws either. Of course the US is arrogant.

Posted by: James10 | November 3, 2010 6:31 PM | Report abuse

I still can't believe people in this country have a problem with the treatment of suspected terrorists. These people are out to kill Americans and spend their days planning ways to hurt us. So what if they are roughed up a bit.

In regards to the legal aspects, if it happens elsewhere then it is fine. How can the ACLU even try and whine about this? It isn't happening on US soil and the majority of these suspected terrorists aren't US citizens.

Posted by: Jsuf | November 3, 2010 6:55 PM | Report abuse

Even if "rendition" is not specifically illegal under current US law, the idea that legal officers of our administration, such as Mr. Pines, see no moral dilemma, no inhumanity with this practice is very troubling. Is this how we lead the world by example? The results will surely be catastrophic to us and for the future of democracy everywhere. We should stop rendering human beings. Period.

Posted by: jlendvai | November 3, 2010 7:26 PM | Report abuse

If you think that torture of terrorist suspects is moral/legal/warranted at least have the guts to stand up and say so and do your own torture, instead of having the Syrians, Saudis or Egyptians do it for you.

Posted by: lawp | November 3, 2010 8:44 PM | Report abuse

I believe the Geneva Convention governs the treatment of prisoners. If true, since it is ratified by congress it is the law of the land.

Posted by: shnarg | November 3, 2010 8:59 PM | Report abuse

Preparation of a crime, whether by discussion, planning, ordering, authorizing, facilitating or whatever, is part of that crime. Where the act itself would be criminal if perpetrated in the USA, then anything done inside the USA to prepare for it can come within the jurisdiction of US courts. US judges have plenty of scope for dealing with foreign kidnapping, torture and murder, where any of the preparation has taken place in the USA. The thing is they don't have the stomach for it. As is often the case, the problem is not with the law, but with those who are meant to apply it.

Posted by: AlanCrocket | November 4, 2010 12:16 PM | Report abuse

I wonder of Price is English challenged. I say that as these laws are in English. And a Professor yet? Yes, Rendition is illegal both by direct US law as well as the relevant international provisions signed by the US.

First it is necessary for Price to understand that our Constitution is not limited to US Citizens. It protects all accused who fall under the jurisdiction of our federal government, regardless of geography. Specific laws are:

US Constitution, Article VI, item 2, “... and all treaties made ...shall be the supreme law ... “
US Constitution, Amendment VIII: “..., nor cruel and unusual punishments inflicted.”
“... no exceptional circumstances whatsoever, ... may be invoked as a justification ...”
War Crimes Act of 1966
1998 [FARRA ] of US Code: Title 8: Section 1231: Notes 10/21/1998
US Code: Title 18: Part I Chapter 113C Torture
US Code: Title 18: Section 2441: War crimes
Army Field Manual FM 34-52 Intelligence Interrogation
UN Declaration on the Protection of All Persons from Enforced Disappearance, Articles 1, 2, 6, 7, 8
United Nations Security Council (UNSC) Resolution 1546
UN Convention against Torture ... Cruel, Inhuman or Degrading ...
“... an act ... specifically intended to inflict severe physical or mental pain or suffering ... upon another person within his custody or physical control ... intentional infliction or threatened infliction of severe physical pain or suffering ... other procedures calculated to disrupt profoundly the senses or the personality ... the threat of imminent death ...”
Hague Convention IV, Article 23
Geneva Convention III, Articles 3,4,5,12,13,14,17
Geneva Convention IV, Article 31,32,147,148
Geneva Protocol I, Article 75

Posted by: coolfire | November 4, 2010 7:27 PM | Report abuse

Coolfire, you're mistaken. It's perfectly alright to do stuff for which you have hanged Japanese officers couple of decades ago. It's also perfectly o.k. to kill the sh.t out of random people thousands of miles away by unmanned aircraft while locking up indefinitely a 15 years old kid for allegedly throwing a grenade at an occupying force killing his own people. We're the chosen, after all (pardon me, Israel!)..

Posted by: anacephal | November 4, 2010 10:58 PM | Report abuse

Cuban-born terrorist Luis Posada Carriles was not deported to Venezuela, where he is wanted for blowing up a civilian airliner with 73 people on board, because an immigration judge, invoking the UN Convention Against Torture, found that he would have been tortured in Venezuela. There was no reason given to believe that he would have been tortured, except for "expert" testimony from a man who had been Posada's subordinate and, later, business partner and lawyer. Posada is now free in Miami.
Provisions in the Convention:
- No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
- No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
- Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
- Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Posted by: LatAm1 | November 5, 2010 3:43 AM | Report abuse

> I still can't believe people in this country have a problem with the treatment of suspected terrorists.

One problem there is with the word "suspected." Whether or not you think that it's ok to torture known terrorists to extract intelligence from them, it's a different thing to torture people who might or might not be terrorists to get them to say stuff.

Posted by: TexLex | November 5, 2010 4:17 PM | Report abuse

Jeff, I doubt very seriously if Mr. Pines can show anyone where such activity is allowed under the CIA Charter. The CIA is not a law enforcement agency.
Walt McIntosh, former working Case Officer

Posted by: alohamac | November 10, 2010 2:29 PM | Report abuse

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