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Rendition at RiskThe Bush administration's excesses have endangered a valuable tool.

By Daniel BenjaminUpdated Friday, Feb. 2, 2007, at 6:36 PM ET

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In the second type of rendition in this category—the kind that has attracted the most criticism—the United States helps arrange for the transfer of a suspect from the country he is located in to a third country, again without a formal legal process. In these operations before 9/11, the United States typically had intelligence that the individual was genuinely dangerous, but did not have an evidentiary basis for prosecution. The host government usually wants the person in question off its soil because he is involved terrorist activities. The United States, which has probably been in close contact with the host country's intelligence officials, recognizes the problem and checks with the individual's home country or others where he may have lived or whose citizens might have been targeted by his operations. If one of those countries has an arrest warrant or wants to indict, the United States helps arrange and perhaps carry out the transfer. The whole thing is done quietly because the host country officials don't want to be seen by their public as cooperating with the United States. Quite often, those officials are unelected, hated by their country's Islamist opposition, and fear an angry "street."

In a perfect world, every country would have democratically elected officials and solid institutions, including a functioning judiciary, and renditions would not be necessary. But renditions reflect the reality that dangerous people turn up with some frequency in countries with inadequate legal systems that need to shield their cooperation with the United States from domestic opposition.

What has made renditions so unpalatable is that after 9/11, when "the gloves came off," as some officials put it, so did the moral and legal standards that made rendition acceptable. In short, rendition has become a dirty word because it is now a shorthand for what some have called "the outsourcing of torture." That was not the case before the Twin Towers were destroyed. Before 9/11, 70 suspected terrorists were rendered, according to former CIA Director George Tenet. These operations were overseen by a small army of lawyers at the CIA and the Defense Department (whose planes were sometimes used) as well as White House officials. A key requirement was that the countries that took custody of the suspects guaranteed to the United States that the individuals would be treated in accordance with international human rights norms. That meant they would not be tortured. U.S. officials also monitored the practices of these countries to ensure those assurances were met.

Evidently, those curbs were not in place for a time, as Arar's transfer to Syria, a country notorious for torture, shows. There is no certainty that they are now. It is also not apparent that the United States still requires an indictment or warrant from the receiving country. According to CIA officials I've spoken with (as I discuss in my book, The Next Attack), the Arar rendition never would have happened before 9/11. ("We didn't do business with those people—it was off the table," was the way one former CIA lawyer put it.)

As the examples of Abu Omar, Khaled al-Masri, and Arar indicate, the government has also gone too far by rendering people who were located in countries with comprehensive, functioning legal systems. Rendition was meant to be a remedy for the inadequacies of states that haven't achieved the rule of law, not a shortcut in those that have.

One can only hope the administration has learned its lesson and there won't be any more bungling across the ocean in Europe. Some Democratic lawmakers have taken aim more broadly at the practice of rendition. With luck, they will recognize its value as a tool and limit their efforts to stopping the abuses, not rendition itself.

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Daniel Benjamin is director of the Center on the U.S. and Europe at the Brookings Institution. He served on the National Security Council staff 1994-1999 and is co-author of The Next Attack: The Failure of the War on Terror and a Strategy for Getting it Right.

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