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

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

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

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

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

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.

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

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

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.

f) Theoretical framework

According to Grant and Keohane (2005):

Accountability, as we use the term, implies that some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met. (p. 29)

So, the actions that the United States and the CIA took while the rendition program was active should have consequences. But they did not; neither in the domestic nor the international realms. They used denial to evade accountability, in other words, “the existence of the victims themselves may be hidden or denied, or the victims may be denied status as victims and turned into combatants. With denial, there is no official abuse and zero accountability.” (Mitchell, 2012). This happened to Khalid el-Masri and Abu Omar cases in which the American Civil Liberties Union attempted to pursue a suit against the U.S. government because of the rendition of those individuals. Nevertheless, those cases were dismissed due to the State Secrets Privilege, and there was no public trial or compensation for the CIA’s erroneous actions (Honigsberg, 2009).

On the other hand, Grant and Keohane (2005) explain that there are seven mechanisms of accountability in world politics (Hierarchical, Supervisory, Fiscal, Legal, Market, Peer, and Public reputational), however, none of them had any effect on the actions undertaken by the CIA. This is related to political accountability in a democratic system: according to Farley

(2012), the electoral process in a democracy is the way that voters exert accountability and political sanctions: based on whether their political leaders fulfill their expectations or not they decide to reelect or replace the politicians. However, voters have a disadvantage which is information, they do not have access to all the details of the government’s actions, and, therefore, accountability is limited. For the purposes of this study, it is an essential premise that the information that the CIA and the U.S. government hid about the rendition program and Black Sites, in other words, the lack of accountability because of scarce or inaccurate formation, undermines the democratic process of accountability and sanction in a State.

According to Posner and Vermeule (2010), the executive does not have imperial or tyrannical power. It operates within some social and political constraints, however, during times of crisis like after 9/11, the executive obtains more power to act faster than in a normal situation, the Congress and judicial checks are low. Posner and Vermeule (2010) explain that:

The system of elections, the party system, and American political culture constrain the executive far more than do legal rules created by Congress or the courts; and although politics hardly guarantees that the executive will always act in the public interest, politics at least limits the scope for executive abuses. (p.113)

Nevertheless, the constraints are still there, and the main constrain is the electoral process. The issue is that those constraints cannot act effectively if the information or the government’s actions are concealed. In Posner and Vermeule's formulation, the biggest constraints on executive power are popularity and credibility by the voters and the legislators because they decide in the electoral process if a government continue or its changed.

In relation with democracy and elections, Posner and Vermeule (2010) say that:

The major institutional mechanism for reducing the agency costs of leaders is the election. The election serves two purposes. First, it serves a selection or screening function. The public learns about various politicians over time and uses the election to

screen out those whose preferences are farthest from those of the public (and whose abilities are weakest). Second, it serves an incentive function. The leader will be more likely to act in the public interest if he knows that he may lose an election if he does not. (p. 115)

According to this explanation, these institutional measures cannot work with any degree of efficacy if the voters and legislators are not informed. This vacuum of information undermines the democratic process because the executive and its agencies could act freely, and the toughest constraint is rendered defunct.

However, this is not the only flaw in the democratic system that we see play out during the Bush administration: the chain of information within the government was broken too. Specifically, the CIA hid from and presented inaccurate information to the other branches such as the Department of State, the Office of Legal Counsel (OLC)1, and the White House. Moreover, even inside the CIA, some information regarding the Black sites and the methods used there were not presented to the highest ranks of the Agency (Senate Select Committee on Intelligence, 2014).

As Kantor (2019) explains, during the Bush administration, the OLC asserted in various legal memoranda that the President has the power as Commander in Chief to capture, transfer, and detain enemy belligerents as part of his authority over foreign affairs. Regardless of the applicable legal analysis or the Memorandum of Notification signed by President Bush which allowed the capture and detention of persons who were considered to pose a threat to the US or were planning a terrorist attack, I question the methods of the CIA rendition program. To wit, the CIA took the liberty to extend the program’s scope without clearly defined limits on their methods or targets (Senate Select Committee on Intelligence, 2014).

1 “By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides legal advice to the President and all executive branch agencies. The Office drafts legal opinions of the Attorney General and provides its own written opinions and other advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and other components of the Department of Justice.” (Department of Justice, 2021)

The President’s authorization of the program gave the agency freedom of action that resulted in the grim consequences I will review in this study.

In relation to foreign policy, there are two issues. The first one is the power that the CIA has to conclude arrangements with other countries. The Senate Report indicates that CIA officials talked directly to local authorities to help them with the rendition program. Moreover, they tried to hide their operations from high-ranking State Department officials (Senate Select Committee on Intelligence, 2014). While the growing influence of the CIA in foreign affairs can be traced back to the Cold War, after the 9/11 attacks, oversight decreased and the budget increased, allowing greater scope of action (Cameron, 2005). A good example of this change is presented by Bob Woodward (2002), who wrote that on September 17, 2001, President Bush signed a Memorandum of Notification (MON) modifying the previous one signed by President Ronal Reagan. This allowed the CIA more power to act against Al- Qaeda. Reagan’s executive order did not make any mention of detention or capture for intelligence purposes, and neither did it provide the authorization for covert facilities in other countries to hold such detainees (National Archives , 1981). Additionally, the foreign affairs agenda has been surpassed by national security, and the role of the State Department has declined. Therefore, the White House, the National Security Council, and other agencies like the CIA enjoyed special freedom and influence on foreign policy after the 9/11 attacks - President Bush’s authorization of the rendition program is an example of this trend (Murray & Adams, 2014).

The other issue with foreign policy is how the CIA managed to evade international responsibility regarding the rendition program and Black Sites. The keystone of this legal “shield” is the memoranda of the Office of Legal Counsel, which explained and defended several actions of the CIA with respect to international law and some treaties; nevertheless, the agency presented large amounts of inaccurate and misleading information about the rendition program and Black Sites (Senate Select Committee on Intelligence, 2014). Therefore, the CIA should have faced international responsibility for its actions during the programs mentioned above.

g) What are the rendition program and Black Sites?

The rendition program and the Black Sites are part of the counterterrorism program created by the Bush administration after the 9/11 attacks, this policy was authorized by the President with a secret Memorandum of Notification on September 17, 2001 (Senate Select Committee on Intelligence, 2014). This memorandum gave executive authorization to the CIA to develop the program with almost no oversight and full support from the government, that is the reason for the extensive use that the program had. This program is based on the extraordinary rendition authority from the Reagan administration but enhanced and more frequently used by the Bush administration (Honigsberg, 2009).

Honigsberg (2009) explains the rendition program as:

President George W. Bush took the concept of extraordinary rendition a giant leap forward. He increased tenfold the people seized by CIA agents and transported them to any number of countries. Beginning after the attacks of 9/11, CIA agents wearing black shirts, black pants, and black hoods or masks seized the suspects, cut off their clothes with knives and scissors, stuffed tranquilizers and enemas up their anuses, diapered them, manacled their hands and feet, loaded them onto a CIA-controlled aircraft (often a Gulfstream jet), and transported them to another country or to a CIA-controlled “black site” to be tortured and perhaps killed. (p.179)

According to the available information, more than one hundred people (119) was rendered between 2002 and 2007 (Black & Raphael, 2015). This program aimed to capture suspects of terrorism abroad without charges and they were transferred for interrogation to secret locations in other countries, such as Afghanistan, Poland, Thailand, Pakistan, among others. The prisoners were subjected to harsh interrogation methods, which is why they used Gulfstream jets to avoid international surveillance by the Red Cross (Honigsberg, 2009).

About the Black Sites Black and Raphael (2015) point out:

The black sites and other prisons did not exist in isolation from one other. They formed, rather, a network of secret detention facilities which operated across four continents, with individual sites operating for varying periods within the overall program. Rendition aircraft – civilian aircraft operated by or on behalf of the CIA – flew hundreds of flights to connect the sites, and were used to transfer prisoners, interrogators, and other US officials between prisons. These flights were undertaken in secret, and where they carried CIA prisoners they entailed multiple violations of international law. This was the case, not least, given the treatment to which they were subjected. Prisoners were drugged, shackled, hooded, and strapped to stretchers by rendition teams dressed entirely in black and communicating only in sign language. Some were placed in coffins during the flight; others were beaten repeatedly during their transfer. (p.18)

The intelligence gathered from the program was not worth all the budget that they had or the lives of the people that were subjected to this process, moreover, the CIA used the presidential authorization to run their program with excesses (Senate Select Committee on Intelligence, 2014). The CIA mistakenly captured innocent people that were tortured while captive and they never received compensation for this - a man even died in CIA custody in Afghanistan. The agency concealed information from the government and high-ranking officials, and it also presented inaccurate data regarding the program when Senate Intelligence Committee demanded information (Senate Select Committee on Intelligence, 2014). Finally, the CIA concluded agreements with foreign countries to maintain facilities and hold prisoners without the ambassador’s knowledge or using the ambassadors as intermediaries to bargain with local officials. In some cases, the rendition program and the Black Sites arose tension between the host country and the United States because of the risky performance of the CIA (Murray M. J., 2011). The program did not achieve the expectations of its architects, and it negatively impacted the international reputation of the U.S. on human rights and counterterrorism policy.

Black Sites or secrets prisons created within the program and operated by the CIA in foreign countries, were the places where individuals that were rendered as suspects of

terrorism for interrogation were rendered to in order to avoid oversight (Honigsberg, 2009). The location of these facilities was highly confidential, and they received code names (Blue, Black, Orange, Brown, Violet, etc.) to evade local or international scrutiny. Nevertheless, some newspapers and journalists researched and found the real locations of these prisons (Black & Raphael, 2015). The CIA made deals with local officials to host these places in exchange for money or political support. When some locations were exposed, the international community was shocked and the local governments had some problem such as lawsuits or sanctions for violations of Human Rights (Jones, 2018). Notwithstanding such revelations, the CIA always got away scot-free and never accepted international or domestic accountability.

According to the Senate Select Committee on Intelligence report (2014), during the transition from Bush to Obama, CIA director Hayden prepared a briefing with inaccurate information in order to maintain the rendition program. However, the CIA rendition program was terminated by President Barack Obama on January 22, 2009. Obama issued an executive order to the CIA to close all the facilities they run and never operate them again, also he prohibited the use of the enhanced interrogation techniques2.

2 The term “enhanced interrogation techniques” is used by the Senate select committee (2014) to gather all the procedures that the CIA proposed for the detainees of the rendition program, although some of them could be consider as torture, the term is widely used by scholars and the government.

2. Chapter 2: Legal basis

In order to evade domestic and international accountability, the CIA used the memoranda of the Office of Legal Counsel and the President’s authorization to support its actions with respect to the rendition program and the Black Sites. In the next two sections, I will explain how the agency received enough support to act without legal constraints.

a) Domestic legal basis

To discuss how the Bush administration supported the CIA rendition program with legal basis is necessary to understand what the Office of Legal Counsel (OLC) is and how does it operate. According to Garrison (2012)

The role of the OLC to provide dispositive opinions on the meaning of the law and to protect the rule of law requires that the OLC provide a specific type of advice that separates it from other types of legal advice from other quarters within the Executive Branch … Under the Judiciary Act of 1789, the Attorney General is authorized to provide legal advice to the President when requested. And under Presidential Executive Orders, the OLC has the responsibility to provide binding opinions on all branches of the Executive Branch, except the Office of the Solicitor General. (p.655)

The Attorney General and the OLC are counselors on legal opinions for the President, they advise the commander in chief when a policy or decision is made, and they should procure the rule of law in every case. As it is stated above, the opinions of the OLC are binding, therefore their role in the executive branch is key for governmental action. Then Garrison (2012) explains

The role of the Attorney General and the OLC is to defend the rule of law in times of crisis by taking the long-term institutional consequences into account when dealing with the hot short-term desires of the Executive Branch … In those situations, the OLC only has its institutional and moral standing to prevail over the powers of politics and policy. Part of that moral authority rises out of the institutional respect it commands

for producing legal opinions that are unbiased and neutral in protecting the rule of law and correctly asserting what the law rules. (p. 671)

Taking into account this explanation, the OLC and its opinions should be neutral and support the rule of law even in crisis situations such as after the 9/11 attacks. As the legal advisor to the President and the executive branch, no matter the scenario, the OLC is the legal conscience for any policy that would be implemented.

In the domestic realm, the CIA had some legal basis to run the rendition program and the Black Sites. This legal support helped them to avoid accountability, therefore, this is the backbone of their actions. The CIA relied on the President´s power as Commander in Chief to result in the capture of detainees without a warrant, charges, or any judicial proceeding. They also relied on the Vesting Clause of Article II for the same matter. This authorization is granted by the September 17, 2001, Memorandum of Notification, in which the President gave unprecedented counterterrorism authorities to the agency (Senate Select Committee on Intelligence, 2014). Thus, the President´s approval of all the activities that the CIA had planned for counterterrorism purposes shielded them from domestic accountability.

The President’s commander-in-chief authority is mainly understood as a domestic legal source; however, this is also related to the international realm, and in this case its scope is defined by the OLC memoranda. The opinion of the OLC is linked with the commander-in- chief authority, because the legal opinions are enforced by the President’s authority, for example, based on the memorandum over the Geneva Convention and the treatment of the prisoners of Al-Qaeda and the Taliban, the President accepted the opinion of the OLC saying that these individuals were not entitled as POW because their organizations are not High Contracting parties of the Convention (The White House, 2002). The reciprocity between the President and the OLC is a key aspect of the way the War on Terror and the CIA rendition program were conducted.

To show how the OLC opinions are grounded I will summarize some of the memos in a table with their main argument:

Title Date Argument MEMORANDUM September 25, 2001 The President has the constitutional OPINION FOR authority to carry on military THE DEPUTY operations against person, COUNSEL TO organizations and States supporting THE PRESIDENT terrorist attacks in the United States. The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them MEMORANDUM January 9, 2002 The laws of armed conflict do not FOR WILLIAM J, apply for Al-Qaeda or Taliban HAYNES II detainees, because they are part of GENERAL non-state terrorist organizations. COUNSEL, Also, Afghanistan was a failed State, DEPARTMENT and the Taliban members are not OF DEFENSE entitled as POW status under the RE: Application of Geneva Convention. Treaties and Laws to al Qaeda and Taliban Detainees MEMORANDUM January 25, 2002 The President as Commander in FROM ALBERTO Chief has the power to decide that GONZALES TO the Geneva Convention does not THE PRESIDENT apply to detainees of Al-Qaeda and RE: Application of Taliban, because they are terrorist the Geneva organizations, not states part of the Convention to Al treaty. Qaeda and the Taliban MEMORANDUM March 13, 2002 The President has the constitutional FOR WILLIAM J. power (Commander in Chief and HAYNES, II executive vesting clause) to transfer GENERAL Al-Qaeda or Taliban prisoners to COUNSEL, third countries. Likewise, the DEPARTMENT Torture Convention does not apply, OF DEFENSE because the detention and transfer of

RE: The the individuals were outside of the President’s power U.S. and the Geneva Convention as Commander in does not apply, because those Chief to transfer individuals are not part of a High captured terrorists Contracting Party of the treaty. to the control and custody of foreign nations MEMORANDUM August 1, 2002 In order to obtain more information FOR JOHN RIZZO from Abu Zubaydah, the OLC ACTING approved the enhanced interrogation GENERAL techniques and those methods do not COUNSEL OF violate the Section 2340A of Title 18 THE CENTRAL of the United States code that INTELLIGENCE prohibits torture. AGENCY RE: Interrogation of al Qaeda Operative MEMORANDUM March 14, 2003 The Fifth and Eighth do not apply to FOR WILLIAM J, alien unlawful combatants held HAYNES II, outside the United States. The main GENERAL benchmark for interrogation is the COUNSEL OF U.N. Convention Against Torture THE and other Cruel, Inhuman or DEPARTMENT Degrading Treatment or OF DEFENSE Punishment; and the sections RE: Military 2340A and 2441 of the Title 18 of Interrogation of the U.S. code. Alien Unlawful Combatants Held Outside the United States MEMORANDUM May 30, 2005 The enhanced interrogation FOR JOHN A. techniques used by the CIA are RIZZO SENIOR consistent with the Article 16 of the DEPUTY U.N. Convention Against Torture GENERAL and other Cruel, Inhuman or COUNSEL, Degrading Treatment or CENTRAL Punishment, if the techniques are INTELLIGENCE subjected to CIA’s careful screening AGENCY criteria and limitations and its RE: Application of medical safeguard. Although, the United States Article 16 is limited to within the

Obligations Under United States territory and the CIA’s Article 16 of the interrogation process did not happen Convention in such areas. Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees MEMORANDUM July 20, 2007 The CIA proposed six enhanced FOR JOHN A. interrogation techniques to be RIZZO ACTING applied in high value detainees, GENERAL those techniques were consistent COUNSEL, with the War Crimes Act, the CENTRAL Detainee Treatment Act and the INTELLIGENCCE Article 3 of the Geneva Conventions. AGENCY RE: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees Relevant OLC memoranda and main arguments To dismiss lawsuits against the agency or the U.S. government, they used the doctrine of state secrets privilege, arguing that a trial could expose critical information regarding national security such as sources and methods. Based on the state secrets privilege, the cases were dropped, and no one received any answer about what had happened or why. The State secrets privilege originated in the case United States vs Reynolds (1953), which involved an aircraft crash in which some civilians died, and their widows sued the government. However, the Air Force invoked a privilege not to reveal the information in a public court, because the plane and the crew were on a secret mission and the details could have exposed critical information of national security (Justia US Supreme Court, 1953). This privilege was widely used to

protect against revelations of details of the counterterrorism program during the Bush administration. His successor, President Obama, used it too, however, not with regard to CIA detainees or torture claims. Instead, the State secrets privilege was applied to some cases of the drone strikes when the government was questioned about their lawfulness or the authority of the President to execute so-called “targeted killings” (Jaffer, 2016).

b) International legal basis

Regarding the international legal basis, the CIA used two sources: The President’s authority as Commander in Chief for the detainee's transfer, and the opinion of the Office of Legal Counsel with respect to the international treaties signed by the U.S.

The first source is the power that the President as Commander in Chief has to transfer the prisoners or detainees captured during a military conflict, which is historically supported by previous armed conflicts such as the Civil War, World War II, and Vietnam (Office of Legal Counsel, 2002). Based on such historical precedent, the President has the constitutional authority to transfer Al-Qaeda or Taliban terrorists captured outside the U.S. to another country. Accordingly, the President granted this authority to the CIA, so it could run the rendition program without legal problems.

According to the OLC (2011):

The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to use military force in situations of emergency. Article II, Section 2 states that the “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” U.S. Const. art. II, § 2, cl. 1. He is further vested with all of “the executive Power” and the duty to execute the laws. U.S. Const. art. II, § 1. These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States. (p.190)

The next issue to analyze is whether the rendition program broke any international treaty signed by the U.S. According to the Office of Legal Counsel (2002), in the memorandum about the President’s power as commander in chief to transfer terrorist, it is explained in great detail that there is no violation of the Geneva Convention or the Torture Convention. The first thing that must be considered is that Al-Qaeda and Taliban members cannot be entitled to prisoner of war (POW) privileges because as non-state actors they are not a High Contracting Party and the Geneva Convention does not apply. The introduction of the Geneva Conventions (2020) explains that:

The High Contracting Parties therefore deemed it appropriate to explicitly reiterate the general principle that the Conventions are binding upon its Parties, which have ‘to respect’ them. Moreover, the High Contracting Parties commit themselves to do everything reasonably in their power ‘to ensure respect’ for the Conventions. The phrase ‘to respect and to ensure respect’ applies first and foremost to the High Contracting Parties themselves, their armed forces, other persons, and groups acting on their behalf, and their populations as a whole.

Regarding the Torture Convention, article 3 states that “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being tortured” (Office of the High Commissioner for Human Rights, 1987), the OLC in the transfer memo explains that the Senate added a reservation to this article stating that it is not self-executing and does not provide a prisoner the legal basis to ask a federal court to block his transfer to another country (Office of Legal Counsel, 2002). Moreover, the words expel, return and extradite only work if the prisoner is detained on U.S. soil, and the treaty does not have extraterritorial application (Office of Legal Counsel, 2002), therefore, detainees captured outside the territorial United States cannot invoke the protections of the treaty.

OLC mentions in the relevant memorandum that the section “substantial grounds for believing that he would be in danger of being tortured” has a Senate reservation too. Therefore, OLC understands this phrase as “it is more likely than not that he would be tortured” (Office of Legal Counsel, 2002). In the convention, it is not well explained who

should determine if a country is more likely or not to torture a prisoner, “[f]or the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations” (Office of the High Commissioner for Human Rights, 1987). This leaves it open to interpretation who those competent authorities are that may judge if a country is suitable for transferring a prisoner – and the CIA took advantage of this elision.

The legal basis internationally and domestically that supported the CIA rendition program are mainly produced by the Office of Legal Counsel, their opinions analyzed different situations and possible legal consequences of the program. When the CIA needed the support for any proceeding, they asked the OLC and this division answered and justified all the questions related to torture and interrogation, transfer of the detainees, application of the international treaties, and the dismissal of lawsuits against the U.S. Without the memoranda of the OLC the CIA would not have had the legal grounds to avoid accountability. On the other hand, the other legal basis is the presidential power granted by the constitution, the Commander in Chief clause and the Executive Vesting Clause are key for the President’s authority related to prisoner’s transfer policy and the issuing of executive orders.

3. Chapter 3: Study cases

As I mentioned above in the methodology section, I will use three levels of study cases to show how the CIA evaded accountability in the domestic and international realms. The levels are individual, national, and international.

a) Individual level

In this level I will show the cases of people mistakenly captured, transferred to Black Sites, and tortured by the CIA, after which they were released without an explanation of or compensation for what had happened. I will use six cases: Khalid el Masri, Abu Omar, Gul Rahman, Maher Arar, Donald Vance, and Jose Padilla. According to Murray (2011) “these failures do expose weaknesses of execution, such as poor tradecraft, public relations difficulties, and the challenges of identifying actual terrorists. The failures have also strained and jeopardized U.S. relations between key allies in the war against terrorism.” (p.20).

Khalid el Masri: He is a German citizen with Lebanese descent, he was captured in Macedonia on 31 December 2003, when he was crossing the border, then transferred to Skopje and detained for 23 days in a hotel (Honigsberg, 2009). There he was interrogated in English even though he did not speak well the language, additionally he was not allowed to contact anyone (lawyer, wife, translator, or consular officials). Subsequently, el Masri was sent to Afghanistan to the CIA´s orange detention facility “Salt Pit” in the north of Kabul, where he was interrogated by Americans (Honigsberg, 2009). On May 28, 2004, he was released in a forest in Albania, his passport was returned, and his captors gave him 14,500 Euros as a “compensation” (Senate Select Committee on Intelligence, 2014). However, el Masri lost his job and his family in Germany after the time he was under CIA custody. The CIA classified the el Masri case as wrongly detained or unjustified. The agency had thought that el Masri had high-value information about Al-Qaeda, but he did not pose any threat to be captured according to the Memorandum of notification from September 17, 2001 (Senate Select Committee on Intelligence, 2014).

Abu Omar: Hassan Mustafa Osama Nasr or Abu Omar is an Egyptian citizen who was an asylee in Italy when he was captured on 17 February 2003 in Milan and then transferred to Egypt from a military airbase in Italy (Honigsberg, 2009). In Egypt, he was tortured and interrogated in two different detention sites. In 2004, he was released by order of an Egyptian court, because there was not enough evidence that he was linked to terrorism activities, he was released and sent to his mother’s house (The Rendition Project, 2020). Additionally, he was told to not speak to his wife or any authorities about the torture that he received while he was in prison. Nevertheless, he did call his wife and some weeks later he was captured again. He sent information to Italy about what happened to him, and a prosecutor used this evidence to file a case against Italian authorities. Finally, he was released in 2007 (Rendition Research Team, 2020).

Gul Rahman: he was captured on 29 November 2002 in Islamabad in a joint US-Pakistani operation as a suspected terrorist of Hezb-e-Islami. Later, he was transferred to CIA custody from the 1st to the 9th of November. While held at detention site cobalt in Afghanistan, he was subjected to enhanced interrogation techniques because he was not cooperating with his captors to provide valuable information (Senate Select Committee on Intelligence, 2014). On 20 November 2002, he was found dead and the autopsy concluded that the likely cause of death was hypothermia and other factors, moreover the officers that conducted the interrogation and suggested the use of enhanced interrogation techniques, did not have any sanction for the death of Rahman, instead one of them remained as the manager of detention site COBALT and the other received a $2,500 reward for hard work (Senate Select Committee on Intelligence, 2014). This case was fundamental for a deeper investigation into the use of enhanced interrogation techniques at detention site COBALT. After the investigation, the Counter Terrorism Center Renditions group found that in detention site COBALT were used the enhanced interrogation techniques wider and there was less information about prisoners, than CIA agents reported to their higher officials previously (Senate Select Committee on Intelligence, 2014).

Maher Arar: on September 26, 2002, Arar was detained by FBI officers at New York’s JFK airport, because of his relationship with Abdullah Almaki who had been under investigation

for possible connections with Al-Qaeda. He was transferred to the Metropolitan Detention Center in Brooklyn and interrogated (Honigsberg, 2009). On October 8, he was sent to Jordan and then to Syria, where he was tortured and harshly interrogated. During the enhanced interrogation, he falsely confessed that he had trained with Almaki and Al-Qaeda in Afghanistan. He was threatened not to talk about his treatment to the Canadian officials who visited him in prison; but, after ten months, he revealed everything to the consular official. He was released on October 5, 2003 (Rendition Research Team, 2020).

Donald Vance: he is a Navy veteran who went to Iraq to work for the private contractor Shield Group Security. Sometime after, he became suspicious that the company was involved in illegal activities. He contacted the FBI and began to inform them about the corrupt activities that the company was carrying out. On April 14, 2006, Shield Group Security took his credentials to enter to the green zone in Baghdad. Vance become scared and asked his U.S. government contacts for help to. In response to his plea, some U.S. forces went for him and took him to the US embassy. Some hours later, he was arrested and sent to a military facility. The officers took all his belongings, and he was set in solitary confinement with harsh conditions. Two days after, he was sent to Camp Cropper, a U.S. military facility near Baghdad airport. There, he was subjected to physical and psychological torture; yet he was not charged or tried, and he was allowed no contact with his family or lawyer regardless of his American citizenship (Justia US law, 2020). Vance was released after ninety-seven days, and he was threatened not to contact the press or an attorney (Pfiffner, 2008).

Jose Padilla: Jose Padilla is an American citizen who was captured when he tried to enter the US on May 2002 (Pfiffner, 2008). He was believed to be in preparations to detonate a dirty bomb inside the country, according to some information that was obtained from Abu Zubaydah, another CIA prisoner. Padilla was detained on a material witness warrant, and in June 2002 he was designated as an enemy combatant by President Bush. In January 2006, after four years’ imprisonment without charges, he was transferred to law enforcement custody and tried in federal court: he was found guilty of supporting terrorist activities. Finally, on January 22, 2008, he was sentenced to 17 years in prison for terrorism and conspiracy charges (Senate Select Committee on Intelligence, 2014).

These cases are all related to individuals mistakenly captured by the CIA, but they differ in some respects that I will explain below. First, the cases could be divided into three groups, individuals captured inside or outside the U.S. and the exceptional case of Gul Rahman who died in CIA custody. The first group is composed of Maher Arar and Jose Padilla who were captured inside the country; the second one is formed by Khalid el Masri, Abu Omar and Donald Vance that were rendered abroad.

Maher Arar was transferred from the U.S. to Syria for further interrogation, where he was tortured by CIA officials, and later he was released. His detention was due to a mistake by the Royal Canadian Mounted Police, and the head of that agency resigned after the misapprehension was confirmed (Pfiffner, 2008). Barbara Olshansky, who had been working with the Center for Constitutional Rights, filed a suit on behalf of Arar against the U.S. government, but it was dismissed by the court because of state secrets privilege and other national security issues – any forward appeal ended the same way. However, the Canadian government gave him and his wife nearly 10 million Canadian dollars as compensation for its participation in his rendition (Honigsberg, 2009). Nevertheless, the U.S. or the CIA should have some responsibility for the participation in his rendition process. However, they managed to evade domestic and international accountability, and only the Canadian government indemnified Mr. Arar.

Jose Padilla is a more interesting case, he is an American citizen, and his right to due process under the 5th Amendment was violated while he was kept prisoner. In this case, the most important aspect is the President’s war power to hold someone captive: from the moment President Bush said that Padilla was an enemy combatant, he was subject to presidential detention authority. Moreover, he was not tried for any crime, he did not have a hearing, and his appeals were rejected while he was under custody (New York Civil Liberties Union, 2020). Padilla was subjected to physical and psychological torture while detained, but that evidence could not be used in court because it could expose the treatment of prisoners by the CIA and raise public and governmental concern. According to Pfiffner (2008), the evidence that the prosecution used in his case was vague and Padilla could not defend himself

with all the evidence he had. The executive power of the President was greater than the than the judicial review that Padilla could use in his defense.

The cases of Khalid el Masri and Abu Omar are somewhat of similar, both were captured abroad, and they were not American citizens. In both cases, the CIA and the U.S. government did not acknowledge their responsibility and appealed to the state secrets privilege to dismiss the lawsuits against the agency. El Masri was misidentified as an Al-Qaeda operative with the same name, the American Civil Liberties Union filed suit on his behalf, but it was dismissed because of the state secrets privilege: if the case had been litigated in a federal court, some key information of national security and the procedures of the CIA rendition program could have been disclosed (Honigsberg, 2009). In the Abu Omar case, accountability was only partially actualized, because five Italian secret service officers were sentenced to time served in prison for their role in the abduction of Abu Omar, but the American agents involved were not sentenced in Italy or the US, because the government did not cooperate with the Italian request, and the lawsuit filed in the US was dismissed because of the state secrets privilege (Rendition Research Team, 2020). Again, they avoided liability.

The case of Donald Vance is also complex, he is an American citizen and a veteran, he was captured in Iraq while he was gathering information for the FBI on a suspicious private contractor there. He did not receive the benefit of due process, he was captured and tortured for information as a traitor, and then he was released without explanations. He filed a suit against U.S. Secretary of Defense Donald Rumsfeld, but after a long process, it was dismissed, mainly because Rumsfeld was not directly responsible for the harsh interrogation methods that Vance received (Justia US Law, 2020). Also, under international law the principle of ratione materiae acts as immunity for State officials exercising State functions and that shields Rumsfeld from foreign jurisdiction in criminal cases (United Nations Office of Legal Affairs, 2015). No one held accountable for the Vance case, the chain of command did not respond, and the lower officials were impossible to track, that was the resolution of the case.

b) National level

At this level, I will show the cases that can be considered as rogue actions by the CIA within the U.S. government. This section is composed of cases where the agency concealed or presented inaccurate information to other government branches, to maintain support for its program. There are four cases to study: within the CIA, the Department of Justice, Congress, and the White House.

Within the CIA: The CIA did not have full records of the detainees at detention site COBALT (Afghanistan): their identity, the number of prisoners, and the techniques used in their interrogation. Moreover, after an internal investigation of the CIA, it was discovered that some practices used at this detention site were not being reported to higher officials (Senate Select Committee on Intelligence, 2014). In the same way, high-ranking officers such as the Director of Central Intelligence (Tenet), CIA General Counsel (Scott Muller), and Senior Deputy General Counsel (John Rizzo) stated that they were not aware of what was going on at site COBALT or that they were focused on another detention sites (Senate Select Committee on Intelligence, 2014). However, John Rizzo received several memos from the OLC that supported the CIA methods in the program, so he must have been somewhat aware of what was happening in the Black Sites, some of them are in the table above. The fact that high-ranking officials oversaw the legal aspects of the program makes it likely that they knew more about the program than what they confirmed.

Department of Justice: The Office of Legal Counsel produced various legal memoranda related to the CIA’s enhanced interrogation techniques and the rendition program. These opinions were valid only if the proceedings of the agency were identical to what was being reported to OLC; however, the CIA used extensively enhanced interrogation techniques to which the OLC memoranda did not apply. Moreover, they also used the rendition program more broadly than what was authorized by OLC and with several mistakes. Significantly, the agency concealed most of the details of the interrogation techniques and the rendition

program to gain legal support in the OLC’s opinions (Senate Select Committee on Intelligence, 2014). According to the Senate Select Committee on Intelligence (2014):

From 2002 to 2007, the Office of Legal Counsel (OLC) within the Department of Justice relied on CIA representations regarding: (1) the conditions of confinement for detainees, (2) the application of the CIA's enhanced interrogation techniques, (3) the physical effects of the techniques on detainees, and (4) the effectiveness of the techniques. Those representations were inaccurate in material respects. The Department of Justice did not conduct independent analysis or verification of the information it received from the CIA. The department warned, however, that if the facts provided by the CIA were to change, its legal conclusions might not apply. When the CIA determined that information it had provided to the Department of Justice was incorrect, the CIA rarely informed the department.

The opinions and memoranda from the OLC are intended to maintain the rule of law even in crisis situations, and this neutral analysis depends on the information that they receive to think of the legal consequences of certain policy or decision. Nevertheless, the CIA did not provide the Office correct and precise information about the rendition program and its methods used within the program. Therefore, the CIA received memos with the legal support of the OLC based on inaccurate facts, and this prevented further oversight and accountability for the program.

Congress: The CIA provided inaccurate or scarce information to the Senate Select Committee on Intelligence, for example, the agency presented their enhanced interrogation techniques as successful to obtain valuable information to prevent more terrorist attacks, however, the intelligence was already obtained by the CIA or from other sources, and not part of the detainees’ confessions (Senate Select Committee on Intelligence, 2014). Moreover, the agency also tried to hamper expanded investigations into or oversight of their operations by the Congress. According to the Senate Select Committee (2014) “The CIA did not brief the leadership of the Senate Select Committee on Intelligence on the CIA's enhanced interrogation techniques until September 2002, after the techniques had been approved and used”. Also, the CIA did not disclose the locations, how many prisoners they had, or the

techniques used on the detainees to the committee. This remained the case until a few hours before President Bush publicly acknowledged the CIA program, and CIA Director Hayden relayed a brief with some details to the Senate Committee (Senate Select Committee on Intelligence, 2014).

White House: The CIA provided extensive amounts of inaccurate and incomplete information on the CIA’s rendition and interrogation program to the White House, the National Security Council, and their staffs, intending to impede oversight and better comprehension of the program (Senate Select Committee on Intelligence, 2014). According to the 2014 Report of the Senate Select Committee on Intelligence, the President was not informed of the details of the program until April 2006, and the Secretaries of State and Defense were not briefed until September 2003. The CIA was mainly concerned about Secretary of State Powell’s reaction (Senate Select Committee on Intelligence, 2014). According to an e-mail quoted on the Senate Report (2014) “Powell would blow his stack if he were to be briefed on what's been going on”, the officials of the agency knew that Secretary Powell would not agree with the program, so they tried to hide the most critical details from the White House.

The CIA based a wide range of action on the September 17, 2001 presidential authorization. The agency appears to have been convinced that they had free rein to develop their program, thus (i) individuals were not rendered with accurate and carefully-reviewed intelligence, which led to mistaken captures; (ii) the chain of command was broken and high- ranking officials in the U.S. were not fully aware of what was happening in the oversee prisons; (iii) local CIA officials worked with or without the ambassadors to keep their facilities up and running in host countries, and all of this was hidden from the government.

The CIA acted as a rogue agency pursuing only their interests. It acted as if its program was an international experiment to retrieve information regardless of the consequences. Nevertheless, to ensure monetary, legal, and political support, they presented incomplete, misleading, and inaccurate information about the program to the other branches of the government. The OLC kept producing memoranda to prevent legal repercussions for the CIA, however, it was not completely informed about the actual methods and modus operandi

of the agency. The same happened at the Department of State: Secretary Powell was expected to reject the careless actions undertaken by the CIA, which is why the agency chose to deal with local officials and ambassadors, to avoid complications in foreign relations.

c) International level

In the Senate Report, there are eight black sites mentioned, each with a codename (Cobalt/Salt Pit, Orange, Brown, and Gray in Afghanistan; Green in Thailand; Blue in Poland; Black in Romania; and Violet in Lithuania), as well as Guantánamo Bay in Cuba (Senate Select Committee on Intelligence, 2014). The countries corresponding to the codenames were uncovered as part of an investigation conducted by the Bureau of Investigative Journalism (Black & Raphael, 2015). According to the Senate report, the CIA paid local officials to host the black sites. In some cases, the agency agreed to work jointly with the ambassador in the host country to gain leverage with local authorities; however, CIA agents asked the ambassadors not to talk to other State Department officials to avoid raising concerns about the program (Senate Select Committee on Intelligence, 2014). On the other hand, the CIA could also act on its own authority, and deal with local authorities directly.

As Tankel (2018) explains:

The covert prison system required cooperation from various partners, not all of which shared U.S. concerns about the threat. Some of them, like Poland, appear to have cooperated in an attempt to bolster bilateral relations with the United States. When the existence of CIA black sites became public, it caused domestic political difficulties for partners and in some cases negatively affected counterterrorism cooperation.

In the Report, there is a short chapter about tensions with a host country, in which detention site codename Green was located. The report mentions that Abu Zubaydah and Abd al-Rahim al-Nashiri were transferred there after being rendered to another country. According to the findings, the host country began to doubt the legality of the facility and the prisoners kept there, so the U.S. ambassador spoke with the local government on behalf of the CIA to keep the black site running. In exchange, the CIA provided monetary incentives to the local government (Senate Select Committee on Intelligence, 2014). According to the

BBC (2018), the country was Thailand, and the government was agitated because the local press was investigating the Black Site, and the CIA could not cover their operations thoroughly. Additionally, President Bush's acknowledgment of the CIA program in 2006 created tensions in the relationship between the two countries.

A case that is worth looking is that of Poland. In the Senate report, the codename of this facility is detention site BLUE, where many valuable detainees were transferred and interrogated, such as Khaled Sheik Mohamed who is believed to be the mastermind of the 9/11 attacks (Senate Select Committee on Intelligence, 2014). According to the Washington Post (2014), the location referred as detention site BLUE was in Poland, and the CIA paid $15 million to the Polish intelligence agency to use this Black Site. At this site, many of the enhanced interrogation techniques were used on the prisoners, and many of them were condemned as torture by the European Union (Goldman, 2014). After the details of the interrogation techniques used by the CIA became known in Europe, an investigation began, and the head of the Polish Intelligence Agency at that time was in the center of the inquiry with a real possibility of him facing legal proceedings. This case is remarkable, because he was the first high-ranking officer investigated and charged because of his cooperation with the CIA to run a Black Site (The Economist, 2014). However, the charges were dropped, coincidentally during the investigation some judicial twists happened and that could have changed the final decision. Also, the Polish government has on multiple occasions rejected the presence of a CIA prison in their country (Goettig, 2013).

The last two Black Sites mentioned in the report are detention site BLACK and detention site VIOLET. The location of the former is believed to be Romania: an office building in downtown Bucharest, where detainees were transferred and interrogated using enhanced techniques (Goldman & Apuzzo, 2011). This location raised a red flag for the U.S. ambassador in that country, so the CIA requested that Deputy Secretary of State Armitage intervene and calm the concerns of the ambassador. Nevertheless, but the agency should have reported to the US ambassador to Romania and to the Secretary of State about the detention facility (Senate Select Committee on Intelligence, 2014). Additionally, to reach an agreement with the local government, the CIA gave them a sizeable payment (millions of dollars) and a

wish list in exchange for their cooperation with the program (Senate Select Committee on Intelligence, 2014).

For the second location, the CIA offered money to the local government for its cooperation with the program. Moreover, the Bush administration proposed support for Lithuania in joining the North Atlantic Treaty Organization (NATO), if they accepted to host a Black Site (Lefebvre, 2012). This case is an exception because the government was involved in all the negotiation process for the operation of the secret prison, this tell us that not in every single case the executive branch was not involved or was not aware of the program, also the CIA did not operate completely without oversight. Lefebvre (2012) explains that:

On 18 November, it further revealed that the agreement which allowed the CIA to operate a detention center in Lithuania had been reached after U.S. President George W. Bush had visited the country and pledged to support Lithuania’s entry into the North Atlantic Treaty Organization (NATO). The CIA detention center was reportedly located in Antaviliai, about twenty kilometers outside Vilnius, in a privately owned riding academy and café that had been bought in 2004 by a now-defunct CIA front company, Elite LLC. (p.575)

After the information that the Bureau of Investigative Journalism exposed about the Black Sites in Romania and Lithuania, the European Court of Human Rights started an investigation of possible human rights violation in the secret prisons of the CIA in both European countries. The Court fined the countries with €100.000 for the treatment of Abu Zubaydah and Abd al-Rahim al-Nashiri, both of whom were subjected to harsh interrogation in those facilities (Jones, 2018). Abu Zubaydah was transferred to the Black Site in Poland without the consent of the Department of State and the local U.S. ambassador (Senate Select Committee on Intelligence, 2014).

These cases raise two main concerns, the first one is that in some instances the host countries of Black Sites such as Romania, Lithuania, and Poland were exposed and condemned for human rights violations. In the case of Poland, the head of the local

intelligence agency came under investigation and he was removed from his position. This case is somewhat similar to the Abu Omar case, in which some Italian officials were sentenced to prison for their participation in the rendition. However, the key point here is that the CIA which operated the Black Sites was not subjected to legal proceedings, nor did it have to pay monetary damages for its rendition program. While the agency controlled the whole operation, it was not held responsible for its actions. Even though the CIA executed the enhanced interrogation methods, the captured and rendered detainees, did not face any legal repercussions.

The other concern is that the CIA conducted a secret foreign policy with the host countries: they made payments to keep the local authorities under control and to sustain the Black Sites; sometimes the agency informed the local ambassadors about their operations but that was not the rule. The main concern is that the CIA did almost everything to avoid oversight by the Department of State in their operations. Additionally, the relationship between some of these countries and the U.S. was eroded because of the careless actions of the CIA and its program.

4. Chapter 4: Conclusions

I began this thesis by formulating that the CIA’s rendition program lacked accountability in the domestic and international realms. For this purpose, the CIA used legal and international basis provided by the Office of Legal Counsel. As a result, all the methods and the outcomes of the program affected the U.S. democracy and foreign policy. My findings based on the evidence consulted yielded the following results:

According to my general objective the strategies used by the CIA’s post-9/11 rendition program are explained in three levels: (i) some individuals were mistakenly captured, and they did not receive any compensation after their rendition to other countries and the torture they endured. As I pointed out above, one of them even died in CIA custody; (ii) the CIA acted as a rogue agency and concealed information from high-ranking officials and other branches of government to prevent oversight and assure the continuity of their program; (iii) finally, the CIA conducted its own foreign policy with other governments, without the mediation of the Department of State or the President, to maintain and expand the scope of the rendition program.

After analyzing the cases where the program lacked accountability, I conclude that the CIA was aware that a comprehensive investigation into their program could reveal problematic aspects, so, in order to avoid questions from the government, they showed misleading and incomplete information to high-ranking officials of the agency, the White House, the Department of Justice, and the Congress. The information that was concealed or presented inaccurately by the CIA was used to generate legal support by the OLC: everything taking place under the program received support because of the data that the agency presented. However not everyone in the government was unaware of the situation; some officials that received OLC’s legal memoranda knew more details of the program than what they admitted. They are no less guilty than the officers that conducted torture abroad because they were the ones who approved all the methods used in the program and provided the legal justification to avoid any kind of accountability.

The CIA used two main legal bases to avoid domestic and international accountability: first, the opinions of the Office of Legal Counsel and the state secrets privilege; second, the president’s executive and commander-in-chief authority. Those legal foundations helped the CIA to keep the rendition program operating with almost no oversight and to discard all the lawsuits that those affected filed against the US government. Put differently, they used these legal “shields” to support their actions and to remove any domestic obstacles. Moreover, they dodged any legal accountability domestically and internationally by presenting deceptive information to assure judicial, congressional, and presidential support, and to prevent the disclosure of their methods and sources.

The CIA’s rendition program threatened the democracy and the foreign policy of the United States because the agency acted wrongfully with their extended power under the applicable executive authorization, leading to mistaken captures, torture, as well as concealed information from the government. If vital information is hidden from the government, how is a system of checks and balances supposed to operate? If the lawmakers, the executive, and “we the People” did not have access to information about how the CIA was acting, was it possible to trust government? Posner and Vermeule said that the liberal legalism has Tyrannophobia: an executive with no constraints that could lead to a “plebiscitary presidency” that only responds to periodic plebiscites. This is not true, they tell us that even if the executive is acting with almost no constraints, always the polls and the mass opinion influence its decisions and behavior. Ultimately, the loss of accountability weakened democracy and invalidated Posner &Vermeule’s theory of the plebiscitary presidency.

On the other hand, the CIA directed a foreign policy under the radar, leading to worsening relations with some countries and the deterioration of the international perception of the U.S. If an intelligence agency is conducting foreign relations, relegating traditional diplomacy to a secondary position, there is no more “national interest” involved in those situations; instead, the aim of that foreign policy was the sustainment of their program, which is highly questionable. In this scenario the Secretary of State and the President are no longer at the helm of foreign policymaking, they authority is also undermined by this hidden policy, and so is the image of the U.S.

To conclude, the CIA’s rendition program had a wide scope and affected three levels: individual, national, and international. The U.S. government used the Office of Legal Counsel’s binding opinions and the President’s constitutional authority as legal grounds to support the program and avoid accountability both internationally and domestically. The CIA presented misleading information to assure support within the government; however, some high-ranking officials did have knowledge of the details of the program, and this is a problem for checks and balances in a democracy. Finally, the CIA conducted its own foreign policy to establish and maintain the Black Sites, subverting the authority of the Department of State and the President, and the United States international image was thereby tarnished.

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