an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In my many postings to this blog about the torture scandal, I haven't written much about the Administration's practice of "rendition," whereby it secretly transfers detainees to foreign nations (e.g., Egypt, Syria, Uzbekistan) that have an established history of torture. (The best single account remains Jane Mayer's piece in the New Yorker back in February.)
1. Article 3 of the Convention Against Torture provides that "[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture," and further specifies that "[f]or the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."
The U.S. Senate ratified this obligation on the understanding that "the phrase 'where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in Article 3 of the Convention, [is] to mean 'if it is more likely than not that he would be tortured.'"
Thus, as a matter of U.S. law (as opposed to international law), Article 3 applies only if there is a greater than 50% likelihood that the transferee will be tortured. And recall that the definition of "torture" in U.S. law is also substantially narrowed as a result of Senate understandings at the time of ratification. For a more detailed explanation of these legal standards, see the recent decision of the U.S. Court of Appeals for the Third Circuit in a case involving a deportation to Haiti, Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), and the decision of the Bureau of Immigration Appeals in In re J-- E--, 23 I&N Dec. 291. The court in In re J—E— concludes that this standard can be satisfied upon proof that "deliberately inflicted acts of torture are pervasive and widespread" in the nation in question, or that the authorities "use torture as a matter of policy," or "routinely."
2. It appears the Administration's view is that Article 3 applies only to cases in which a person is sent from the United States to another country, and that the treaty obligation does not apply to cases in which a detainee is transferred from one location outside the U.S. (e.g., Guantanamo) to another nation. This argument is made in an article written by John Yoo shortly after he left the Department of Justice (see 79 Notre Dame L. Rev. at 1229-1232), and is strongly suggested in Alberto Gonzales's written answer to Question No. 11 of Senator Kennedy's supplemental questions during the (now) Attorney General's confirmation proceedings.
3. Nevertheless, the Attorney General stated that as a matter of "policy" the U.S. refuses to render detainees to nations where it is more likely than not they will be tortured. This is how the State Department recently described that U.S. policy, in a Report to the United Nations on the Convention Against Torture:
The United States is aware of allegations that it has transferred individuals to third countries where they have been tortured. The United States does not transfer persons to countries where the United States believes it is "more likely than not" that they will be tortured. This policy applies to all components of the United States government. The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred. If assurances were not considered sufficient when balanced against treatment concerns, the United States would not transfer the person to the control of that government unless the concerns were satisfactorily resolved.
4. Michael Scheuer, a former CIA officer who claims to have originated the al Qaeda detainee rendition program under the Clinton Administration, has written that despite the fact that renditions are vetted very carefully in order to ensure that the proper "assurances" are in hand ("I never a saw a set of operations that was more closely scrutinized by the director of central intelligence, the National Security Council and the Congressional intelligence committees. Nor did I ever see one that was more blessed (plagued?) by the expert guidance of lawyers."), the whole operation is shot through with a serious case of willful blindness:
[T]he non-C.I.A. staff members . . . knew that taking detainees to Egypt or elsewhere might yield treatment not consonant with United States legal practice. How did they know? Well, several senior C.I.A. officers, myself included, were confident that common sense would elude that bunch, and so we told them—again and again and again. Each time a decision to do a rendition was made, we reminded the lawyers and policy makers that Egypt was Egypt, and that Jimmy Stewart never starred in a movie called "Mr. Smith Goes to Cairo." They usually listened, nodded, and then inserted a legal nicety by insisting that each country to which the agency delivered a detainee would have to pledge it would treat him according to the rules of its own legal system.
5. It has been widely assumed that under the post-9/11 rendition program, the U.S. is rendering detainees to foreign nations precisely for the purpose of having them tortured (or of credibly threatening them with torture). How else to explain the extensive, highly secretive programs of wisking detainees away to foreign nations where torture is ubiquitous? As one reporter asked the President at his March 16th press conference, "What is it that Uzbekistan can do in interrogating an individual that the United States can't?" (The President's non sequitur in response was probably more revealing than he intended: "We seek assurances that nobody will be tortured when we render a person back to their home country.") (Scheuer suggests that the rendition program was initiated in the Clinton Administration not so much so that the detainees could be subjected to torture and other coercive interrogation, but instead because it was easier to detain and convict the detainees in the foreign legal systems. The function of post-9/11 renditions, by contrast, does not appear to be to subject the detainees to legal process such as trial, but instead to interrogate them. Because all the evidence of the program under both Administrations is classified, however, it's difficult to know whether the objectives and practices have changed.)
6. Even if the 50%-likelihood-of-torture threshold is not met in a particular case, such a rendition for the purpose of facilitating torture would nevertheless be unlawful to the extent it constituted a conspiracy or attempt to torture. (Even John Yoo agrees with this—see 79 Notre Dame L. Rev. at 1232-1233—although he apparently would permit the President to supersede this statutory prohibition pursuant to his Commander-in-Chief authority, id. at 1198-1204.)
7. The Isikoff article discusses this memorandum, written in November 2002 by an FBI supervisory special agent (a former New York City prosecutor) from the bureau's behavioral analysis unit who was assigned to Guantanamo. The memo, forwarded to a senior FBI lawyer on Nov. 27, 2002, discussed a special interrogation plan for a detainee who we now know to have been Mohammed al-Qahtani. On that same day, DoD General Counsel Haynes sent a memo to Secretary Rumsfeld attaching a request to use interrogation techniques in three "Categories." Those Categories appear virtually verbatim in the FBI memo, but the FBI memo further indicates that an additional "Category IV" was also being discussed at GTMO. Category IV read as follows:
Detainee will be sent off GTMO, either temporarily or permanently, to Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.
The FBI agent writes concerning this "Category":
In as much as the intent of this category is to utilize, outside the U.S., interrogation techniques which would violate 18 U.S.C. s. 2340 if committed in the U.S., it is a per se violation of the U.S. Torture Statute. Discussing any plan which includes this category, could be seen as a conspiracy to violate [the Torture Statute]. Any person who takes any action in furtherance of implementing such a plan, would inculpate all persons who were involved in creating this plan. This technique can not be utilized without violating U.S. federal law.
It's difficult to know just quite what to make of this. On the one hand, it indicates that the purpose of a transfer to countries such as Egypt and Jordan is precisely to allow for the possibility of using interrogation techniques that would violate U.S. law. This could shed light on the rendition practice that the U.S. has subsequently developed, and undermine the notion that such renditions are not for the purpose of permitting or threatening torture. On the other hand, we have no further indication whether Secretary Rumsfeld ever approved such a rendition from GTMO, or even that it was proposed to him.
* * * *
Much more on the practice and law of "extraordinary rendition" can be found in reports written by the Committee on International Human Rights of the Association of the Bar of the City of New York and the NYU Center for Human Rights and Global Justice, here and here. Posted
by Marty Lederman [link]
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