Rendition, Extraordinary

To better understand the concept of extraordinary rendition, it is best to first understand the meaning of the term rendition, which is defined in Black's Law Dictionary as the “return of a fugitive to the State in which he is accused of having committed a crime.” In the United States, rendition is based on the legal concept of extraterritorial jurisdiction, which presupposes that some persons who are in other countries fall under the reach of the U.S. government (e.g., a U.S. soldier in a foreign land). As U.S. law has evolved, extraterritorial jurisdiction has come to mean that the American government has authority over any person in a foreign land who is a suspect in a U.S. criminal proceeding. Although this may appear to have immediate negative consequences in international law, rendition has become an accepted and often cooperative practice in many nations. However, the practice of extraordinary rendition, meaning the forcible taking of a person from one jurisdiction to another for interrogation by extreme measures or torture, is a matter of hot debate in political circles, both inside and outside the United States.

The precedent in law dates to 1886, when a detective working on behalf of the U.S. government delivered an extradition order to the government of Peru, demanding that Peru give over a criminal suspect, Frederick Ker, for return to the United States. After several months of fruitless waiting, on his own initiative the detective located and apprehended Ker and returned him to the United States to stand trial. In the proceeding that followed, Ker asserted that he was denied constitutionally guaranteed due process because the government failed to follow its own extradition laws. Upholding Ker's conviction, the U.S. Supreme Court wrote, “forcible abduction is [not a] sufficient reason why the party should not answer when brought within the jurisdiction of the court … and [defendant Ker] presents no valid objection to his trial in such court.” More than half a century later, a criminal suspect was apprehended by government agents in Chicago and forcibly returned to stand trial in Michigan. In its 1952 decision in Frisbie v. Collins, the U.S. Supreme Court affirmed its decision in Ker v. Illinois, thwarting federal kidnapping charges brought by the defendant (Frisbie) against those who had abducted him. Combining these two decisions, the Ker-Frisbie doctrine was created. This doctrine states that abduction rather than extradition to deliver a defendant before a court is insufficient reason to dismiss a criminal case.

In a more recent case, Sosa v. Alvarez-Machain, et al., the Ker-Frisbie doctrine was further narrowed. An agent of the Drug Enforcement Agency (DEA) was working undercover in Mexico when he was kidnapped by drug lords and tortured to death. During this time, the plaintiff, Humberto Alvarez-Machain, a physician, was tasked with keeping the agent alive to endure more torture. Ultimately, Mexican agents killed the drug lords, but Alvarez-Machain escaped. A warrant charging the doctor with murder was issued in the United States. Soon thereafter, Mexican mercenaries kidnapped Alvarez-Machain and returned him to the United States to stand trial. Acquitted of the charge, Alvarez-Machain filed a civil suit against the DEA under the Federal Tort Claims Act for, among other things, violation of the “headquarters doctrine,” which states that an agency is liable for the unlawful conduct of its agents when they are acting in an official capacity. In 2004 the U.S. Supreme Court, reversing a Ninth Circuit decision, that found for Alvarez-Machain, writing that an exception to the headquarters [Page 513]doctrine applied in Sosa v. Alvarez-Machain, et al., because the injury to Alvarez-Machain occurred outside the United States. This being the case, according to the U.S. Supreme Court, government agents are generally immune from civil or criminal litigation for their official conduct abroad, even if the conduct originates at home.

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