A defense spending bill that passed both houses of Congress is ready for President Barack Obama to sign as early as this week. The bill could make it easier for the government to transfer American terrorist suspects to foreign regimes and security forces. That is to say, it facilitates "extraordinary rendition".
In the post-9/11 Bush-era, everyone learned about extraordinary rendition, also known as "torture by proxy", which enabled the American president to go beyond domestic laws to punish suspects, including people who simply had Arab-sounding last names or Arab heritage. To be fair, extraordinary rendition has been used as far back as the early 1980s. But it only became famous enough to spawn a Reese Witherspoon movie in the 21st century.
Part of the National Defense Authorization Act (NDAA), which identifies the budget and expenditures of the US Department of Defense, says that the president has the power to transfer suspected members and supporters of Al Qaeda, the Taliban, or associated groups to a foreign country or entity to punish them. In other words, should the president suspect you to be a member or supporter of Al Qaeda or associated groups, he could hand you over to the Saudis, the Egyptians, the Yemenis, any of their respective security forces, or even the United Nations, the preferred option being any country that can legally torture its prisoners. The country holding the American terror suspect often receives questions from and transmits answers back to US authorities.
Legal experts consider the NDAA a congressional codification of war powers the Bush and Obama administrations claim they already have. David Glazier, an expert on the law of war, argues that Obama already had the power to transfer suspected Al Qaeda members, including Americans citizens, to foreign custody, and the NDAA simply supports that idea. "If the president could lawfully transfer a German prisoner of war to a foreign country, then in theory he could do the same thing with an American prisoner of war," Glazier explains.
Not Necessarily Illegal
Another legal expert says that the new defense spending bill does not necessarily change the authority that the US government already has regarding rendition, but it institutionalizes it. As with most of the acts and programs enforced in the post-9/11 era, the existing law applied to the government's authority is undefined.
Civil liberties advocates and some members of Congress argue that the government can only detain an American indefinitely if he has, as Senator Dianne Feinstein (D - Calif.) explained on the Senate floor, participated actively in hostilities against the US and is captured in an area of active combat operations outside the US. This would include the battlefields of Afghanistan.
But many legal experts, members of Congress, and both the Bush and Obama administrations have argued that existing law allows the US to indefinitely detain all people, including American citizens, who the president determines are part of or have substantially supported Al Qaeda, the Taliban, or associated forces.
The Supreme Court has not ruled definitively on the issue.
Although the passage of the NDAA may not seem like an immediate threat, it is a somewhat ominous holiday gift: let's remember that 2012 is an election year and President Obama is not faring so well. Advocates for a stronger president who employs stronger tactics in the fight against terrorism are more present than most would care to believe. Now, extraordinary rendition will have formal congressional sanction.