JURIST Guest Columnist Afsheen John Radsan, former CIA assistant general counsel now at William Mitchell College of Law, says that instead of categorically rejecting rendition as a US strategy, new CIA chief Leon Panetta and President Obama will likely conclude on due consideration that it is one of those tactics, somewhere in the gray between war and the criminal justice system, which may be necessary to get bad guys off the street before they do us real harm…

Leon Panetta’s confirmation as Director of the Central Intelligence Agency was assured from the day President Barack Obama announced the nomination in early January. What has been less sure is how Panetta, once confirmed, will handle the transition away from the Bush Administration’s most aggressive tactics against suspected terrorists.

When Panetta’s nomination was announced, Senator Diane Feinstein, head of the Senate Intelligence Committee, grumbled at first that she would have preferred an intelligence insider. (She did not have advance notice of the nomination.) Even so, by the time of the hearings in early February, she as well as most Republicans supported Panetta. Put in place were the characters for a staged performance. In her opening statement, Feinstein laid down two markers which Panetta easily accepted: one, to keep Steve Kappes, an experienced intelligence officer, as the deputy director; two, to reduce the CIA’s reliance on outside contractors to do the work of espionage and covert action. Senator Kit Bond, the senior Republican on Committee, used much of his time at the hearings to debate Panetta about the CIA’s practice of “extraordinary rendition.” Whether this practice continues and, if so, under what supervision will provide another interesting marker of how far the CIA will go in rejecting President Bush’s national security agenda from the dark side.

President Obama himself simplified Panetta’s confirmation by answering a few questions about the CIA’s program. Through a series of executive orders on January 22, Obama made several things clear. First, Guantanamo will be closed as a detention center within a year. Second, the CIA’s secret prisons will also be closed. Third, the CIA will abide by the same standards for interrogation as the Department of Defense’s Army Field Manual, no longer relying on a loophole in the 2006 Military Commissions Act for “enhanced” interrogation techniques. Further, actions on the ground in Pakistan show that Obama supports Predator strikes—missiles fired from a drone aircraft—against suspected terrorists whose remote and hidden location make their capture especially difficult. Thus, with so much of the CIA picture filled in, the Senators and Panetta used the confirmation hearings to focus on rendition, an apparently open area for development under the new administration.

Panetta, early in the hearings, defined the Bush practice of rendition as transfers to torture. No one, of course, could continue to favor that. Yet when Senator Bond pressed Panetta, the CIA’s new leader admitted that his assessment was based not on inside sources but on media accounts. So, like a good professor, Panetta promised the Senate Committee to study more about rendition when he was read into the CIA’s secret programs. Bond, trying to convince Panetta that rendition is not always bad, noted that the practice also took place under the Clinton Administration.

Senator Bond would have performed better, however, if he had been careful to offer his own definition of rendition: the state practice of transferring people without the formalities of extradition involving courts and foreign ministries. American officials have used rendition to take control of suspects overseas, bringing them back to the United States to face criminal charges. Call this rendition to American justice. Plus, American officials have used rendition to transfer suspects to other countries either for interrogation or to face criminal charges. Call this rendition to foreign justice. There are actually legitimate reasons for such renditions. Sometimes a foreign jurisdiction can perform a better interrogation because its interrogators are more fluent than American interrogators in the suspect’s native tongue or because witnesses and other items of evidence are more available in the foreign jurisdiction. Sometimes a foreign jurisdiction considers the suspect to be more of a threat than we do. It is true that the Clinton Administration practiced fewer renditions than the Bush Administration. But the Clinton Administration did not rule out renditions to foreign justice. Michael Scheuer, who takes credit for launching the CIA’s rendition program, and other former officials have admitted this in print and on panels.

The Obama Administration should not be categorical about rendition. The realistic question is not whether to conduct any renditions at all. Who, after all, would oppose snatching Osama bin Laden in Pakistan to bring him back to the United States to stand trial? There are better questions for us. Should we continue renditions to foreign justice? If so, how useful are the receiving country’s promises not to mistreat the suspect? How effective is monitoring by the Red Cross or other groups after a suspect’s transfer? Should the CIA accept a change in law that would create a role for the judiciary to review the value of diplomatic assurances and post-transfer monitoring in renditions? Along the lines of the Foreign Intelligence Surveillance Court, should a special rendition court conduct its proceedings in secret to protect diplomatic and intelligence interests related to renditions?

Political posturing from both parties, while entertaining for confirmation hearings, does not produce reasonable answers to difficult questions about rendition. Deeper thinking is needed. For this reason, Panetta was wise to seek more time from the Senate, and Obama was wise to set up various task forces to make recommendations about our nation’s counterterrorism policies. Informed by Steve Kappes and other CIA professionals, Panetta and Obama will see that rendition cannot be swatted away by equating it, in all circumstances, with torture. They are likely to conclude that it is one of those tactics, somewhere in the gray between war and the criminal justice system, which may be necessary to get bad guys off the street before they do us real harm.

Afsheen John Radsan, associate professor at William Mitchell College of Law, is a former federal prosecutor and was CIA assistant general counsel from 2002-2004.

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