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Revised.

On the quiet first day of the New Year, the Washington Post published a quiet little story about the renditions of 3 young men from Somalia to the US shortly before Christmas. I wrote about them last week, in particular about Mahdi Hashi, whose British citizenship was stripped for “Islamic extremism,” shortly before he disappeared from near his home in August. At the time, I could find little to confirm whether the other two, Mohamed Yusuf and Ali Yasin Ahmed, were Swedish citizens.

WaPo confirms that they are indeed Swedish citizens. It also confirms that the US allowed them visits from Swedish diplomats. Strikingly absent was protest or objection by Sweden to the illegal rendering of their citizens. Rather, they insisted that

This does not mean that the Swedish government has taken any position on the issue of their guilt or innocence…That is a question for the U.S. judicial system.

What makes Sweden’s refusal to lodge a protest even more egregious is the following statement:

Authorities in Sweden and Britain had monitored the three men for years as they traveled back and forth to Somalia, but neither country assembled enough evidence to press criminal charges.

Insufficient evidence to press criminal charges—despite the fact that the Swedish authorities were following them for years. It is possible that that they were being followed before Al-Shabab was declared a “terrorist organization”in 2008.

And still, there is no interest from Swedish authorities to object to their renditions.

Over on Lawfareblog, Matthew Waxman insists that there is NO confirmation that the renditions occurred at the direction of the U.S. government. One wonders how these men found their way to a US Federal Court in Brooklyn.  Despite his analytical caution, Waxman nevertheless insists that US cooperation with Europeans has to be carefully managed—since the US will “handle particular suspects”—presumably in otherwise objectionable ways. Thus, as Waxman concludes, there is a good

…reason to allow the President significant flexibility, especially to use civilian criminal justice avenues…

These two positions appear to be in serious tension. Moreover, as Waxman points out there is no good reason to believe that

these detainees even had due process rights to invoke in a foreign interrogation. That, in turn, depends upon two distinct issues: (1) Whether the Due Process Clause could ever apply to the interrogation of non-citizens overseas (I think it could; plenty of others don’t); and (2) even if it does, whether the interrogation was a “joint venture” for purposes of the Miranda doctrine (i.e., whether U.S. officials were sufficiently involved in the interrogation to trigger constitutional constraints).

Clearly then, if they didn’t have American due process rights, it’s probably just fine to interrogate them without a lawyer present.

On the same blog, Stephen Vladeck points out that these are hardly “extraordinary” renditions, since those are defined as kidnapping a suspected terrorist and sending him to another country to be tortured. By contrast, these men were already on Somali soil—so there was no need to kidnap them. So they were just rendered. Not extraordinarily. But ordinarily.

We are also to take, according to Vladeck, the absence of a claim that the arrest and rendition are illegal—as confirmation that they were not illegal.  But isn’t the rendition of any citizen of another country—without warrants and extradition procedures—illegal?

The following certainly seems illegal according to international law:

Sweden’s security agencies have cooperated in the past with U.S. officials on rendition cases by sharing intelligence about targets. Mark Vadasz, a spokesman for the Swedish Security Police Service, declined to comment on whether the agency played a role in the cases involving Yusuf and Ahmed.

As Kevin Gosztola points out,

Sweden has cooperated with the United States on renditions before. In 2005, a parliamentary investigator, according to the Post, concluded “CIA operatives violated Swedish law by subjecting the prisoners to ‘degrading and inhuman treatment’ and by exercising police powers on Swedish soil.” Sweden covered up the rendition of Egyptians from Stockholm to Cairo in 2001 for three years before, in 2004, unofficial reports of CIA involvement began to surface. No Swedish officials were charged by the parliamentary investigator in 2005, but it was concluded the Swedish security police had been “remarkably submissive to the American officials.”

That these men have been trailed, kidnapped and rendered—despite the fact that Sweden could not find sufficient evidence to press criminal charges against them—suggests a number of interesting implications:

  1. Sweden’s standard of criminal evidence is much more stringent than that of the US.
  2. They are willing to be “flexible” about the standards of evidence of other countries that want to render their citizens..
  3. They are willing to abnegate their own standard at the request of the U.S.
  4. They may be just as willing to abnegate that standard for Julian Assange, if they have the opportunity.

Hashi’s story also suggests some sort of collaboration between the US and the UK. As Bureau of Investigative Journalism reported, Hashi had reported being harassed by British intelligence agents to become an informant. He finally left for Somalia, after continually refusing.  He also is charged with collaborating with Al-Shabab which, despite its recent placement on the US’s list of terrorist organizations, is reported to be a group challenging the UN-backed Ethiopian government in Somalia, and thus is part of Somalia’s internal civil war.

As WaPo reports,

Still, Obama administration officials acknowledge that most al-Shabab fighters are merely participants in Somalia’s long-running civil war and that only a few are involved in international terrorism.

Moreover, Al-Shabab is also one of the primary organizations that distributes funds for a variety of purposes, including charity.

Neither of these facts appear to have given the UK pause before stripping Hashi of his citizenship. Nor have these facts stopped the US Department of Justice from prosecuting a young Somali woman for having sent $1450 to Al-Shabab for charitable purposes. She was convicted of violating US material support statutes. In comparison, HSBC was involved in similar, but systematic and deliberate activities to a much higher degree. Coincidentally, HSBC bankers received no jail time. The bank was fined less than 1 month’s profits for their activities.

So far, the UK and Sweden have illustrated their intentions to cooperate fully with the United States in rendering Muslim men even with insufficient evidence. Is Julian Assange is paranoid to believe that if he were to leave the Ecuadorian Embassy, where he has sought refuge after having been granted political asylum, he would easily be whisked to the United States with the cooperation of the Swedish and British governments?