Extraordinary rendition, torture, and other nightmares from the war on terror

George Washington Law Review

Volumn 75, Issue 5-6, 2007, Pages 1200-1248

  Sadat, Leila Nadya ^a  

^a WASHINGTON UNIVERSITY   (United States)

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EID: 36048986655     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (23)

1. Craig S. Smith & Souad Mekhennet, Algerian Tells of Dark Odyssey in U.S. Hands, N.Y. TIMES, July 7, 2006, at Al (reporting the case of Laid Saidi, who was captured in Tanzania by U.S. persons and ultimately rendered to Afghanistan where he was allegedly tortured).
2. President's Remarks on the War on Terror, 42 WEEKLY COMP. PRES. DOC. 1569, 1570 (Sept. 6, 2006), available at http://www.whitehouse.gov/news/releases/2006/09/print/ 20060906-3.html.
3. See, e.g., THE COALITION INFORMATION CENTERS, THE GLOBAL WAR ON TERRORISM: THE FIRST 100 DAYS (2001), available at http://www.whitehouse.gov/news/releases/2001/12/ 100dayreport.pdf. This Article does not address the threshold question whether it is possible to characterize the use of military force against terrorist groups as a "war" in the legal sense. Given that the Iraq and Afghanistan conflicts were clearly international armed conflicts within the meaning of international humanitarian law, that determination is unnecessary to the discussion of the issues raised here. I have expressed my views on that subject elsewhere.
4. See Leila Nadya Sadat, Terrorism and the Rule of Law, 3 WASH. U. GLOBAL STUD. L. REV. 135, 136 (2004) (arguing that "rather than viewing the attacks of September 11th as acts of war, they should have been treated as international crimes").
5. The definition of "extraordinary rendition" varies depending upon the source. The New York City Bar Association Report uses the following definition: "the transfer of an individual, with the involvement of the United States or its agents, to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment." COMM. ON INT'L HUMAN RIGHTS OF THE ASS'N OF THE BAR OF THE CITY OF N.Y. & CTR. FOR HUMAN RIGHTS AND GLOBAL JUSTICE, N.Y. UNIV. SCH. OF LAW, TORTURE BY PROXY: INTERNATIONAL AND DOMESTIC LAW APPLICABLE TO " EXTRAORDINARY RENDITIONS" 4 (2004), available at http://www.chrgj.org/docs/TortureByProxy.pdf [hereinafter N.Y. CITY BAR REPORT]. On the other hand, the term is sometimes applied to any extra-judicial transfer of a prisoner from U.S. custody to a country other than the United States.
6. See, e.g., Extraordinary Rendition, http://en.wikipedia.org/wiki/ Extraordinary_rendition (last visited June 14, 2007).
7. For an earlier treatment of some of the legal and policy issues raised by the U.S. rendition program, see generally Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law, 37 CASE W. RES. J. INT'L L. 309 (2006).
8. President's Remarks, 42 WEEKLY COMP. PRES. DOC. at 1573.
9. See generally Jane Mayer, Outsourcing Torture: The Secret History of America's "Extraordinary Rendition" Program, NEW YORKER, Feb. 14 & 21, 2005, at 106, available at http://www.newyorker.com/fact/content/7050214fa_fact6 (describing specific instances of torture and interrogation in secret rendition programs).
10. See, e.g., Seth Hettena, Navy Secretly Contracted Jets Used by CIA, ST. LOUIS POST-DISPATCH, Sept. 25, 2005, available at http://www.usatoday.com/news/washington/2005-09-24- navy-cia_x.htm (detailing U.S. Navy contracts used to transport terror suspects for rendition programs).
11. ACLU, FACT SHEET: EXTRAORDINARY RENDITION (Dec. 6, 2005), http://www.aclu.org/safefree/ extraordinaryrendition/22203res20051206.html.
12. The government arguably retreated from some of the more controversial policies adopted regarding the treatment of prisoners captured in the GWOT, particularly the explicit use of torture and cruel, inhuman, and degrading treatment of detainees in U.S. custody. One of the most controversial memoranda of the war was the August 1, 2002 memorandum from Jay Bybee to Alberto Gonzales that took the position that "[p]hysical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Memorandum from Jay S. Bybee, Assistant Att'y Gen., U.S. Dep't of Justice, to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter THE TORTURE PAPERS]. Additionally, the memorandum asserted that "[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of Commander-in-Chief authority in the President." Id. at 207.
13. This memorandum was ultimately repudiated by a memorandum dated December 30, 2004, to James B. Comey, Deputy Attorney General, from Daniel Levin, Acting Assistant Attorney General. Memorandum from Daniel Levin, Acting Assistant Att'y Gen., U.S. Dep't of Justice, to James B. Comey, Deputy Att'y Gen. (Dec. 30, 2004), http://www.usdoj.gov/olc/18usc23402340a2.htm (regarding the legal standards applicable under 18 U.S.C. §§ 2340-2340A). The December 30 memorandum states "[t]his opinion . . . supersedes in its entirety the August 1, 2002 opinion of this Office." Id. It concluded that "severe pain under the statute is not limited to excruciating or agonizing pain or pain equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death." Id. (quotations omitted).
14. The Detainee Treatment Act of 2005 prohibits the use of cruel, inhuman, or degrading treatment or punishment against any "individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location . . . ." Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1003(a), 119 Stat. 2680, 2739 (to be codified at 42 U.S.C. § 2000dd(a)). President Bush "threatened to veto the bill, arguing that it too greatly limited the techniques of American interrogators." Congresspedia, War on Terror Detainee Legislation, http://www.sourcewatch.org/index.php?title= war_on_Terror_detainee_legislation#McCain_torture_ban_amendment (last visited June 16, 2007).
15. The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. President's Statement on Signing the Department of Defense, Emergency Supplemental Appropriations Act of 2006, 41 WEEKLY COMP. PRES. DOC. 1918, 1919 (Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051230-8. html.
16. In November 2006, the existence of a memorandum, signed by President Bush and authorizing the CIA to detain and interrogate terror suspects overseas, became public, although the contents of the memorandum are not yet available. David Johnston, C.I.A. Tells of Bush's Directive on the Handling of Detainees, N. Y. TIMES, NOV. 15, 2006, at A14.
17. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (to be codified in scattered sections of 10, 18, and 28 U.S.C).
18. Id. § 6(b)(2). The MCA does not criminalize outrages upon personal dignity, including humiliating and degrading treatment, which are prohibited by Common Article 3 of the four Geneva Conventions of 1949. If these amendments were determined to be an amnesty provision of the law, as some have asserted, they may be inconsistent with international law given the status of certain war crimes, including grave breaches, torture, and cruel, inhuman, and degrading treatment, as jus cogens norms. These norms give rise to a duty to try or extradite individuals accused of committing such crimes and allow all states to exercise universal jurisdiction under certain conditions. The amendments may also violate U.S. obligations under the Torture Convention, International Covenant on Civil and Political Rights, and Geneva Conventions of 1949.
19. See Leila Nadya Sadat, Exile, Amnesty and International Law, 81 NOTRE DAME L. REV. 955, 970-72 (2006). The MCA also strips the federal courts of habeas review, leaving those detained indefinitely without charge no meaningful opportunity to assert their innocence. Military Commissions Act, § 7(a), 120 Stat, at 2635.
20. The term was employed by the U.S. army in Iraq and relayed in the report of Major General Antonio M. Taguba on the alleged abuse of prisoners by members of the 800th Military Police Brigade at the Abu Ghraib Prison in Baghdad, Iraq. ANTONIO M. TAGUBA, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY POLICE BRIGADE 26-27 (2004) [hereinafter TAGUBA REPORT]. According to General Taguba's report, the individuals in question were apparently held by military police without knowing their identities or the reason for their detention. Id. These prisoners were apparently "moved around within the facility to hide them from a visiting International Committee of the Red Cross ("ICRC") survey team." Id.
21. See generally, e.g., WENDY PATTEN, HUMAN RIGHTS WATCH, REPORT TO THE CANADIAN COMMISSION OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR, 3, 11, 28-29 (2005) [hereinafter HRW REPORT].
22. Arar filed and lost a lawsuit in U.S. District Court. See Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006).
23. Temporary Committee on the Alleged Use of European Countries by the CIA for the Transport and Illegal Detention of Prisoners, EUR. PARL. DOC. PE 380.593V04-00 4 (2006) (quotation omitted).