Here’s my spec on this one (and it’s biased, bc it goes back to the things I’ve wanted to get unearthed for a long time).

If you go back to the beginning of the “extraordinary rendition” programs, you walk back to what Scheuer described for Jane Mayer. What he told Mayer is that, when Clinton told them to roll up terrorist suspects that did not have warrants outstanding against them here in the States, Scheuer went to Mary Jo White, then USAtty for S.D.NY.

In terms of DOJ authorization, that was a bit of an odd workaround, to go to White rather than to CIA lawyers or have CIA lawyers go to the OLC for authorization. Supposedly this was because Scheuer’s unit was working so closely with SDNY to start with. To my knowledge (which is way sketchier than yours – you always fill in things I wasn’t aware of) no one has ever pushed for or tracked down or released or had White testify with respect to the advice she gave. Presumably, it was in writing.

As Scheuer descibed it to Mayer, though, it was based on a kind of Yoovian logic. Since it was ok to have a branch of the US government go into other countries and extract suspects who had charges outstanding against them in the US, to face trial in the US (rendition), the it would be ok to have a branch of the US government go into other countries and extract suspects who had “charges” outstanding against them (or maybe had a lesser connection such as being a citizen of a country to which they were being sent) that were a different nation’s charges and then ship the extracted subjects to that foreign nation (extraordinary rendition – aka kidnapping with intent to transport over national boarders).

So apparently what they did originally under the White approvals was to work with other countries, in particular Egypt which was the sourcing for a lot of Zawahiri’s crew, and either began cherrypicking from the existing Egyptian warrant roles or, where there were people they wanted to get who didn’t have charges/convictions, the CIA/US persuaded Egypt to issue warrants (much easier there with the emergency powers and military trials where real courts were mostly cut out)

Going into the ramped up US gov sanctioned kidnap-renditions, we haven’t seen much yet from OLC releases or elsewhere that takes the White advice and endorses it or otherwise sets up the rendition policy. The closest is Goldsmith’s “draft” memo that endorsed taking detainees across national borders for abusive interrogation sessions as not being a violation of the Geneva conventions because, umm, well, because that’s what the Bush torture crew wanted said.

And if I’m recalling correctly, when the CIA grabbed al-Libi from the FBI to take him off for CIA requested torture in Egypt, someone (Cloonan maybe?) pointed out that the CIA tried to assert that al-Libi was Egyptian, even though the FBI corrected them that he was Libyan, and the CIA stuck with the Egyptian appellation. To me, that sounded as if they were still using the White authorizations in combination with the broad Egyptian “emergency powers” that sidestepped courts for detention authorizations.

Again if I’m recalling correctly, something similar happened with respect to the shipment of Ethiopian Binyam Mohamed to Morroco – where there were some weird assertions that he was Morrocan.

So my admittedly cynical take is that there was no big, in depth, Congressional investigation but rather something as simple as Congress looking at a couple of the really high profile cases like al-Libi and Binyam Mohamed (especially given the Padilla case where the FBI affidavit that resulted in Padilla’s arrest was apparently based on the torture of Zubaydah and Mohamed. So just looking at a couple of the high profile cases, the Congressional investigators would very quickly get to the questions of how/why al-Libi was taken to Egypt and how/why Binyam Mohamed was taken to Morocco.

My guess is that then the CIA offered up the completely disingenuous explanations that they thought al-Libi was Egyptian when they sent him there and they though Mohamed was Moroccan when they sent him there. The “faulty analysis” might be as simple as the made up information on nationality that was used to claim the White authorizations for the kidnappings. There was also Arar’s case, where, despite the fact that he ended up in Syria is Syrian, he was actually directly handed off by the US to Jordan – which had no nationality or warrant ties with respect to Arar.

So I, too, am interested in what they mean by saying that “the renditions would have been approved” (by whom, with what support, etc.) even if the “correct analysis” (that the renderees were being rendered to nations with which they had no ties whatsoever, to be disappeared and interrogated) was used. Especially since Obama has claimed over and over that he’s a happy boy when it comes to using kidnap to torture/disappearance. Wouldn’t it be nice to what kind of basis is used for the US gov employees to kidnap, (strip, involuntarily drug, threaten the life of –bc who volunteers for kidnapping without having their life threatened -destroy clothing, hood, etc. ) a targeted person (like a Wael Ghonim) and send them off to be disappeared into torture?

Obviously, if Egypt gets its act together and no longer resides such wide emergency powers in its dictator, it will put a crimp on the US renditions programs – but not a very large crimp if no one has bothered to put limits on our own President’s so far unenumerated, unexamined and unnatural claims of power.