COMMENTARY

Peter Burgess

Did Congress Just Endorse Rendition for Americans?

You've heard about indefinite detention in the defense bill. But it also contains some eyebrow-raising language regarding the transfer of terrorist suspects to foreign countries.

A defense spending bill that passed both houses of Congress overwhelmingly and is set to be signed by President Barack Obama as early as this week could make it easier for the government to transfer American terrorist suspects to foreign regimes and security forces.

The National Defense Authorization Act (PDF) contains a section that says the president has the power to transfer suspected members and supporters of Al Qaeda, the Taliban, or 'associated' groups 'to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.'

That means if the president determines you're a member or supporter of Al Qaeda or 'associated forces,' he could order you to be handed over to the Saudis, the Egyptians, the Yemenis ('any other foreign country'), any of their respective security forces, or even the United Nations ('any other foreign entity').

Many legal experts consider the NDAA a congressional codification of war powers the Bush and Obama administrations have claimed they already possess. David Glazier, a professor at Loyola Law School in Los Angeles and expert on the law of war, argues that Obama already had the power to transfer suspected Al Qaeda members (even Americans) to foreign custody, and the NDAA simply endorses that view. '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.

But turning the Bush and Obama administrations' interpretations of their war powers into an actual law is 'no small thing,' as Benjamin Wittes, a legal expert at the Brookings Institution, explains. Under this law, the government has far-reaching powers to detain and try terrorist suspects inside or outside the civilian justice system—or, if necessary, to transfer them to the custody of foreign powers—and it will serve as a signal to judges. 'When you put all that in a statute, it becomes a much more permanent fixture of the US justice system,' says Daphne Eviatar, a lawyer with Human Rights First. 'It's not necessarily changing the authority the US government has today, but it's institutionalizing it.'

Eviatar adds that there are 'a whole lot of scenarios' where the government might want to transfer a suspected terrorist—even a US citizen—to foreign custody. For example, the administration might not want to go through the political mess of determining whether to send a suspect to Gitmo, try him in a military commission, or use the civilian system. The administration might also want to avoid the mandatory habeas corpus review that would come if the US held the suspect itself. In such a case, transferring the suspect to a foreign security force might present an appealing option.

An amendment sponsored by Sen. Dianne Feinstein (D-Calif.) says the relevant section of the NDAA doesn't change 'existing law' with regards to the detention of US citizens, permanent legal residents, and terrorist suspects captured in the United States. The problem is that there's a debate over what 'existing law' is.

Civil liberties advocates and some members of Congress argue that the government can only indefinitely detain an American if he is, as Feinstein explained on the Senate floor, 'taken an active part in hostilities against the United States and is captured outside the United States in an area of 'active combat operations,' such as 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 'substantially supported' Al Qaeda, the Taliban, or associated forces. (You can see an Obama administration argument on this subject here.) The Supreme Court has yet to issue a definitive ruling on the issue.

As I reported in the September/October issue of Mother Jones, the US government has a longstanding program it uses to facilitate the detention and interrogation of US-born terrorist suspects captured abroad. Through the program, which critics refer to as 'proxy detention,' the US government encourages foreign regimes to detain and interrogate Americans it suspects of involvement in terrorist activity. The country holding the American terror suspect often receives questions from and transmits answers back to US authorities. Although the program raises civil liberties concerns, especially in cases where American detainees claim to have been abused in foreign custody, it's not necessarily illegal—and now, with the passage of the NDAA, the transfer of terrorist suspects to foreign countries has formal congressional sanction.