Irregular Rendition's Variation on a Theme by Hamdi

Abstract

I apply the pragmatic approach of Justice O'Connor's opinion in Hamdi v. Rumsfeld to propose a better legal (and political) framework for irregular rendition. Following Justice O'Connor, I try to split the difference between the civil liberties camp and the executive supremacy camp on a contentious issue of national security law. My proposal, less restrictive of CIA practices than Senator Biden's proposed legislation in 2007, includes a FISA-type court and adds more process and oversight to the transfers of suspected terrorists outside the formalities of extradition. With better controls, there is still room for irregular rendition between intelligence services as a part of American counterterrorism.

Keywords: irregular rendition, extraordinary rendition, torture, interrogation, transfers, oversight, assurances, post-transfer monitoring, FISA review, and intelligence agencies