New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

75 Geo. Wash. L. Rev. ____ (2007)

Abstract

In recent years, the practice of “extraordinary rendition” by the U.S. government has come in for strong critique by human rights advocates, the United Nations, and other governments. Despite the avalanche of protest, U.S. government officials and some scholars have defended rendition, relying on a number of legal arguments. These arguments do not explicitly support the practice of informal transfer to a risk of torture; instead, they imply that the practice is legal by pointing to what defenders claim are lacunae in the relevant legal frameworks. Where lacunae are found, the Administration suggests, prohibitions give way to permission: territories outside the United States are conceptualized as locations where the U.S. may act as it pleases; informal promises between countries replace the absolute prohibition of certain transfers; and the war paradigm is used to deprive individuals of the protection of the law. This Article examines these arguments in close detail, suggesting that they are not only incorrect; they also hide a dangerous shift in policy: a practice purportedly developed to uphold the rule of law against lawless terrorists – rendition to justice – has become a lawless practice aimed at perverting the rule of law in relation to terrorism – extraordinary rendition.

The first Section of the Article discusses the information that is publicly available about the practice of extraordinary rendition. It provides a snapshot of the procedure and its elements as reported by human rights organizations, European investigations, and the media.

The second Section examines the U.S. government’s legal arguments related to extraordinary rendition. Not unlike its approach to the torture debate, where the Bush Administration has stated repeatedly that the United States “does not torture” while redefining the norms at issue, the Administration has not constructed legal arguments that explicitly defend extraordinary rendition. Instead, it has worked hard to clear a space for actions free of the legal constraints placed on it by human rights and humanitarian law. In constructing its arguments, the U.S. government has identified and exploited several unresolved dilemmas in human rights law: the challenge of extraterritoriality, the difficult relationship between substantive norms and procedural guarantees, and the indeterminate rule of lex specialis. While the Administration’s official positions concerning these challenging areas are not new, the exploitation of the legal uncertainty involved is: as the practice of extraordinary rendition demonstrates, the Administration has constructed anti-terror techniques that are intentionally aimed at skirting the rule of law.

The final Section of the Article will suggest that the government’s arguments – which purport to expose the limits of human rights law and thus reveal lacunae in that law – instead underline the importance of returning to basic principles when limits are in sight. The foundational rules of human rights and humanitarian law – the protection of human dignity and the principle of humanity – should guide interpretations as we make our way in the post-9/11 world.

Date of Authorship for this Version

November 2006

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