A Rogue Agency: the CIA's Post-9/11 Rendition Program and The

1 A Rogue Agency: The CIA’s post-9/11 rendition program and the lack of international and domestic accountability Pontificia Universidad Javeriana Facultad de Ciencias Políticas y Relaciones Internacionales Relaciones Internacionales Bogotá 2020 2 A Rogue Agency: The CIA’s post-9/11 rendition program and the lack of international and domestic accountability David Andrés Martínez Cruz Pontificia Universidad Javeriana Facultad de Ciencia Política y Relaciones Internacionales Relaciones Internacionales Bogotá 2020 3 1. Chapter 1: Introduction a. Problem b. Research question c. Objectives d. Justification e. Methodology f. Theoretical framework g. What are the rendition program and the Black Sites? 2. Chapter 2: Legal basis a. Domestic legal basis b. International legal basis 3. Chapter 3: Study cases a. Individual level b. National level c. International level 4. Chapter 4: Conclusions 5. References 4 1. Chapter 1: Introduction On July 26, 2007, the U.S. Senate Committee on Foreign Relations met to discuss extraordinary rendition and extraterritorial rendition. The chairman of the committee was the current President-Elect, Joseph R. Biden, and he was concerned about the use of this practice, the methods to obtain information from detainees in custody of the CIA, and the international image of the U.S. that was being tarnished. Many countries claimed that the extraordinary rendition program was outside of the law, and that prisoners were being transferred to states that were condemned for torture or abuse of human rights; Canada, Italy, Germany, and some other European countries had taken measures against extraordinary rendition, undermining their coalitions with the U.S. and discrediting the War on Terror. For these reasons, Biden wanted a rendition program based on a solid legal foundation with greater oversight as part of an international effort against terrorism (Committee on Foreign Relations, 2007). Seven years later, the Senate Select Committee on Intelligence published an executive summary on the CIA’s detention and interrogation program and the concerns that has been discussed in 2007 were confirmed and proved to be greater than Biden’s committee could foresee. The Senate report offered was rich in detail about all the issues in the CIA’s methods, the failures, and the dark side of the program. This study undertakes an examination of consequences of the CIA’s rendition program for the foreign policy of the United States, its democracy and the lack of accountability. I will focus on the cases in which the agency acted wrongfully, the information that they concealed from the other branches of the government, a double foreign policy conducted by the agency, and the domestic and international legal grounds that supported the program. Finally, some conclusions will point out the link between the rogue agency’s harm to US democracy and foreign policy, and the absence of domestic and international accountability. a) Problem After the 9/11 attacks, the United States government took a wide range of measures to fight a global war against terror, one of those was the CIA’s rendition program. This program was approved by the President for the detention and capture of persons involved with terrorist 5 groups like Al-Qaeda and those who were planning to attack the U.S. The rendition program included the detention and capture of individuals abroad and the transfer of them to CIA secret facilities (Black Sites) for interrogation with enhanced methods, some of which qualified as torture. In that period in the U.S., the executive had greatly enhanced power because of the commotion after commercial airliners were turned into guided missiles against the World Trade Center and the Pentagon. Thus, the executive branch became the center of decision-making, and they gave the CIA almost free rein according to a Memorandum of Notification signed by President Bush on September 17, 2001. The CIA took advantage of this authorization and increased the scope of its detention and interrogation program. There are two main concerns about the CIA’s rendition program, the first one is that the agency hid information and presented inaccurate data to the other branches of the government, intending to avoid any sanction for their actions. While the CIA realized that, in many respects, the program had gotten out of hand, they did not want any interference by their government or the disclosure of information about their methods that could lead to international sanctions. The second concern is that the CIA settled agreements with foreign countries for the operation of Black Sites: this changed the foreign policy process because the Department of State or the President were not involved, so the agency took the liberty of concluding some accords with host countries and local authorities without the knowledge of their superiors. b) Research question How did the CIA act out of legal constraints and evade international and domestic accountability for Black Sites and the rendition program? c) Objectives General objective: to identify the strategies that the CIA used to evade domestic and international accountability for the rendition program. 6 Specific objectives: • To analyze the cases where the CIA rendition program lacked accountability both in the domestic realm and internationally. • To determine the legal basis that helped the CIA to elude accountability both in the domestic realm and internationally. • To establish a causal link between the lack of accountability by the CIA and the undermining of democracy and foreign policy in the U.S. d) Justification This study is relevant because the conjunction of the 9/11 attacks allowed the executive branch within the US government to increase its relative power, and as a result, the CIA obtained unprecedented authorization for highly questionable counterterrorism measures. In this study, I will use three levels of case studies to understand the scope of the CIA's power and their program to evade any legal repercussions for their actions. Previous studies only focused on the individual victims of the program or its effects on foreign policy, but no study has thus far evaluated the reach of the consequences in the individual, domestic, and international levels. Nevertheless, the CIA’s rendition program was a risk for democracy, they hid information from the government and presented erroneous information to avoid control of their actions or oversight of their methods, while the agency wanted the support of the other branches to continue its program. In a democratic system, the rogue actions of an intelligence agency without almost any limitation by their political superiors should not be allowed. Furthermore, concerning foreign policy, the CIA also took advantage of its power to act on its authority and establish settlements with other countries without the mediation of the Department of State or the ambassadors concerned. e) Methodology For this study, I will use the case study method divided into three distinct levels: individual, national, and international. These cases should explain the strategies that the CIA 7 used to evade domestic and international accountability. According to Van Evera (1997), this study is an outlier case because it has not been sufficiently explained, and I will endeavor to show how the avoidance of legal accountability by the CIA could harm the democracy and the foreign policy of the United States. This case is important because the grounds and the outcomes of the CIA rendition program have not been studied widely or together, I will analyze the program and its effects on the American democracy and foreign policy to show how great was the impact on these realms. The exceptionality of this case is described by Martinez (2012): What the 1993 bombing had failed to achieve, the 2001 attacks completed, namely the collapse of three buildings in the World Trade Center complex. The attacks also changed the way Americans and their government officials thought about terrorism. It had always been a possibility in the American landscape. High-profile terrorists such as the other men discussed throughout this book often captured headlines, but their work tended to be piecemeal, and their victim pool was small. The September 11 attacks were dramatic and on a scale heretofore unimaginable. (p.394) The CIA rendition program was created to detain and obtain information from the individuals that were part of the organizations that supported the 9/11 attacks, without this extraordinary event the program would not have existed. The scale of the 9/11 attacks has no other parallel in the American history, that is the reason why the response was also unprecedent. The exceptionality of this case is worthy of study to understand its scope and the consequences for democracy and foreign policy in the United States. In the same way, this case gives strong conclusions based on the uniqueness of itself, that I will intend to reach throughout this study. In this study, I will use three levels of analysis to explain how the CIA acted almost freely and without legal constraints, and it did not submit itself to any accountability about the rendition program. The first is the individual level: in this section, I will approach the cases of individuals mistakenly detained by the CIA, tortured, and then released without any compensation or explanation. Six cases will be considered at this level. The plaintiffs’ cases were dismissed by federal courts either because of the state secrets privilege or another 8 national security-based excuse. The second level is the national level: in this section, I will focus on the information that was manipulated and hidden from the White House, higher CIA officials, the Congress, and the Department of Justice (Office of Legal Counsel). Finally, the third or international level explores the tensions with foreign nations due to the rendition program. At this level of analysis, I will show that the CIA was making international agreements with local officials, effectively changing the way foreign policy is conducted.

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