Ch-Ch-Ch-Changes

Ch-Ch-Ch-Changes

This morning I read a piece by Darren Hutchinson at Dissenting Justice about rendition, which has been linked by Instapundit and others. It contained the following passage:

“Hilzoy also argues that absent torture and indefinite detention, rendition includes practices like extradition. This patently false assertion has floated around the web. Unlike rendition, extradition contains the procedural protections that liberals demanded Bush utilize, but which they now say are unnecessary.”

I bookmarked this to write about when I got home from work, since while I’m reluctant to argue with a law professor about these things, rendition, as used in the law, does include practices like extradition. FindLaw cites, as one meaning of ‘rendition’, “extradition of a fugitive who has fled to another state”. Article IV, Sec. 2, clause 2 of the Constitution is sometimes referred to as the Interstate Rendition Clause; it reads:

“A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”

A quick Google search revealed a whole bunch of statutes governing rendition, all of which govern the legal extradition of people from one state to another: Delaware, New York, Missouri, New Hampshire, Indiana (pdf), Alaska, Massachusetts, Tennessee, Iowa. I could have looked further, but this seemed like enough to make the point. I could also have searched for more cases like the one I cited yesterday, in which ‘rendition’ is plainly used to mean the extradition of someone to Puerto Rico, but I thought I had enough evidence already.

I found all this after I got back from work. But lo! even though the copy of the post I had bookmarked this morning contained the passage I quoted above, by this evening that paragraph had changed to the following:

“Hilzoy also argues that absent torture and indefinite detention, the CIA’s removal of individuals becomes synonymous with extradition. This patently false assertion has floated around the web. Unlike the CIA’s version of rendition, extradition contains the procedural protections, like judicial oversight, that liberals demanded Bush utilize, but which they now say are unnecessary.”

If I hadn’t already copied the bit from the original version, I would have put this down to my bad memory. My version of the original is gone (I noticed the change after I refreshed the page to see the comments.) But it’s quoted here, and if you google the first sentence of the original, the post comes up.

The new version of the “patently false assertion” is, in fact, false, as far as I know: to my knowledge, the CIA does not do extraditions. In this it’s an advance over the original “patently false assertion”, which was true. On the other hand, the claim he attributes to me in the revised version is not one that I actually made in the post Prof. Hutchinson links, nor have I seen it floating around the web.

When I noted the different kinds of rendition, what I was arguing, basically, was this: while most people use the term ‘rendition’ to mean ‘the Bush program of sending people abroad to be tortured’, it has a broader meaning within the law. Not all rendition is extraordinary rendition, and not all extraordinary rendition is “rendition to torture”.

This matters when you’re interpreting the remarks of a person who might be using ‘rendition’ in its technical sense: for instance, when someone from Human Rights Watch says that “”Under limited circumstances, there is a legitimate place” for renditions”. If you assume that ‘rendition’ just means ‘sending someone overseas to be tortured’, then you’d wonder how on earth anyone who claimed to be a human rights advocate could possibly say what this HRW person is quoted as saying. But if you recognize that extraordinary rendition covers not just ‘rendition to torture’, but also, e.g., capturing Eichmann and taking him to Jerusalem to stand trial, then whether you agree with the HRW spokesman or not, what he says is a lot less puzzling.

That was what I meant to argue in the passage Prof. Hutchinson seems to be referring to. The CIA and its programs did not come into it. They do come up elsewhere in that post, but Prof. Hutchinson does not address those points.

Different people seem to have different views about changing posts. (My own view is that I have about five minutes after a post to make changes; after that, no changing anything except spelling mistakes without indicating that I have, absent some incredibly compelling reason.) I thought this one was worth noting, however, since this post got a fair amount of play on the right, and since the change was substantial and not (as far as I can tell) noted in the text. What Prof. Hutchinson originally said was mistaken on the law. What he now says is right on the law, but wrong about the arguments that I and others have made.

I know it’s a bit on the “Someone Is Wrong On The Internets!” side; sorry for that.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation