The secret arrests and detentions came to light Dec. 21 when the suspects made a brief appearance in a Brooklyn courtroom.
The men are the latest example of how the Obama administration has embraced rendition — the practice of holding and interrogating terrorism suspects in other countries without due process — despite widespread condemnation of the tactic in the years after the Sept. 11, 2001, attacks.
Renditions are taking on renewed significance because the administration and Congress have not reached agreement on a consistent legal pathway for apprehending terrorism suspects overseas and bringing them to justice.
Congress has thwarted President Obama’s pledge to close the military prison at Guantanamo Bay, Cuba, and has created barriers against trying al-Qaeda suspects in civilian courts, including new restrictions in a defense authorization bill passed last month. The White House, meanwhile, has resisted lawmakers’ efforts to hold suspects in military custody and try them before military commissions.
The impasse and lack of detention options, critics say, have led to a de facto policy under which the administration finds it easier to kill terrorism suspects, a key reason for the surge of U.S. drone strikes in Pakistan, Yemen and Somalia. Renditions, though controversial and complex, represent one of the few alternatives.
“In a way, rendition has become even more important than before,” said Clara Gutteridge, director of the London-based Equal Justice Forum, a human rights group that investigates national security cases and that opposes the practice.
Because of the secrecy involved, it is not known how many renditions have taken place during Obama’s first term. But his administration has not disavowed the practice. In 2009, a White House task force on interrogation and detainee transfers recommended that the government be allowed to continue using renditions, but with greater oversight, so that suspects were not subject to harsh interrogation techniques, as some were during the George W. Bush administration.
Scarce details in case
The U.S. government has revealed little about the circumstances under which the three alleged al-Shabab supporters were arrested. Most court papers remain under seal.
In a statement, the FBI and federal prosecutors for the Eastern District of New York said the defendants were “apprehended in Africa by local authorities while on their way to Yemen” in early August. The statement did not spell out where they were detained or why.