Lawyers Against the War


 

 

THE UNITED STATES GOVERNMENT'S PRACTICE OF "EXTRAORDINARY RENDITION"
REPRESENTS A CONSISTENT PATTERN OF GROSS AND RELIABLY ATTESTED VIOLATIONS OF HUMAN RIGHTS
AND THEREFORE
WARRANTS CONSIDERATION BY THE UNITED NATIONS COMMISSION ON HUMAN RIGHTS
UNDER THE 1503 PROCEDURE

Submitted by
Professor Francis A. Boyle
And
Lawyers Against War
3220 West 13th Avenue
Vancouver, British Columbia
Canada V6K 2V5
23 November 2005

OF COUNSEL:
Charlotte Delano Bales
TABLE OF AUTHORITIES
Cases
Beazley v. Johnson, 242 F.3d 248 (2001).
Ehrlich v. Am. Airlines, Inc., 360 F.3d 366 (2d Cir. 2004).
Kennett v. Chambers, 55 U.S. 38 (1852).
U.S. v. Davis, 905 F.2d 245 (9th Cir. 1990).
U.S. v. Rasheed, 802 F. Supp. 312 (D. Haw. 1992).

Treaties
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994), (adopted by the United States on November 20, 1994) [hereinafter Torture Convention].
International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992).
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force Oct. 21, 1950).
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct. 21, 1950).
Vienna Convention on the Law of Treaties, May 23, 1969, art. 19, 1155 U.N.T.S. 331.

Constitutional Provisions
U.S. Const. art. VI, §2, cl. 2.

News Reports
Editorial: Legislation Would Tell World U.S. Supports Torture:
Would You Trust the Word of Syria, Jordan, Morocco or Egypt?
, Chicago Sun-Times, October 23, 2004.
Halt C.I.A Shuttle Service, Milwaukee Journal Sentinel, March 24, 2005.
Meet the Press, (NEB television broadcast, September 16, 2001)
On Language, New York Times, June 20, 2004 . . . . .
One of Them Made Cuts In My Penis; I Was In Agony, Guardian Unlimited, August 2, 2005.
Outsourcing a Real Nasty Job, U.S. News & World Report, May 23, 2005.
Outsourcing Torture, The New Yorker, February 14, 2005 . . . . .
Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York Times, March 6, 2005.
Renditions Cast Their Shadow, Washington Times, March 21, 2005.
Revealed: Western Nations That Send Terror Suspects to Torturing Regimes, Independent, April 15, 2005.
Sixty Minutes (CBS television broadcast, March 6, 2005)
Sweet Land of Liberty: Torture Doublespeak, Secret Orders and Torture Air, Incorporated, Counterpunch.org, April 9, 2005
U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002 .
World News Tonight (ABC television broadcast, March 7, 2005).

Statutes
18 U.S.C.A. §3181 et seq..

United Nations Documents
General Comment on Issues Relating to Reservations Made upon
    Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, U.N. GAOR, Hum. Rts. Comm. 53d Sess. 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995).
Complaints to the Commission on Human Rights and the Commission on
    the Status of Women: The 1503 Procedure of the Commission on Human Rights, available at http://www.ohchr.org/english/about/publications/docs/fs7.htm#1503.
Books
Black’s Law Dictionary, 8th Ed., 2004.
Jordan J. Paust, International Law as Law of the United States 368 (1996).

Secondary Sources
24 A.L.R. Fed. 940
Model Penal Code 2.02(7).
16 Am. Jur. 2d Con. Law §41
Charles H. Dearborn III, The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self Executing, 57 Tex. L. Rev. 233, 233 (1979).
Thomas A. Hagemann and Joseph Grinstein, The Mythology of Aggregate Corporate Knowledge, A Deconstruction, 65 Geo. Wash. L. Rev. 210, 247 n.69 (1997).
Louis Henkin, U.S. Ratification of Human Rights Covenants: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346-8 (1995).
Douglas N. Husak and Craig A. Callendar, Willful Ignorance, Knowledge, and the ‘Equal Culpability’ Thesis: A Study of the Deeper Significance of the Principle of Legality, 1994 Wis. L. Rev. 29
Jordan J. Paust, Avoiding ‘Fraudulent’ Executive Policy: Analysis of on Civil and Political Rights, 42 DePaul L. Rec. 1257 (1993).
Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 Colum. J. Transnat’l Law 811, 817-18 (2005).
William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still A Party?, 21 Brook. J. Int’l L. 277 (1995).
David Sloss, The Domestication of International Human Rights:
Non-Self-Executing Declarations and Human Rights Treaties
, 24 Yale J. Int’l L. 129, 133 (1999).

United States Government Publications
Final Report of the Independent Panel to Review DOD Detention Operatives (Aug. 2004), Appendix C, available at http//wid.ap.org/documents/iraq/040824finalreport.pdf.
U.S. Department of State, Country Reports on Human Rights Practices, available at http://www.state.gov/g/drl/rls/hrrpt/2004.
138 Cong. Rec. S4781-84 (1992).
136 Cong. Rec. S17, 492 (1990).

QUESTIONS PRESENTED

1. Whether the United States government is bound not to engage in the use of cruel, inhuman or degrading treatment due to its status as a signatory to the Torture Convention, the ICCPR, and the Third and Fourth Geneva Conventions.
2. If so, whether the United States government remains bound by these international treaty obligations not to engage in the use of cruel, inhuman or degrading treatment when extraordinary renditions are conducted outside its’ borders, by and/or on non-U.S. citizens, and amidst government claims of ignorance of the treatment of suspects once they leave the custody of the United States government.
3. Whether the United States government’s use of so-called “extraordinary rendition” procedure constitutes cruel, inhuman or degrading treatment and should therefore be proscribed.
4. Alternatively, whether the United States government-acknowledged uncertainties associated with the extraordinary rendition process precludes its use as a legal investigatory tool.

BACKGROUND

“We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.” Official directly involved in rendering captives into foreign hands, quoted in The Washington Post, December 26, 2002.

The Evolution of the Term and Its’ Practice

The term “extraordinary rendition” as it has become known in recent years, is, in the words of one recent report, “a deliberately bland bureaucratic euphemism.” Outsourcing a Real Nasty Job, U.S. News & World Report, May 23, 2005. The term has been used since the late 1970’s, according to a former member of the United States Marshals Service, to describe when “we would go overseas and kidnap fugitives and bring them back to the U.S.” On Language, New York Times, June 20, 2004. Yet since the 1970s, the term’s meaning seems to have reversed: in 2004 the Associated Press defined it as “the covert practice of expelling subjects to countries known to use torture to extract information.” Id. The customary and internationally recognized channel for handling disputes over international criminal custody is the practice of extradition. Black’s Law Dictionary defines extradition as “the official surrender of an alleged criminal by one state or nation to another having jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by the authorities where the fugitive resides.” Black’s Law Dictionary, 8th Ed., 2004. Extradition is a process regulated by a complex web of international treaties, either bilateral or multilateral. Generally these treaties require countries seeking extradition to make minimum showings of the seriousness of the crime, the strength of the case against the individual to be extradited, the status of the accusation as a crime in both countries, the fairness of a trial in the receiving country, and the proportionality of the likely penalty to the crime. See 24 A.L.R. Fed. 940; 18 U.S.C.A. 3181 et seq.

In contrast, the former United States Marshal described extraordinary rendition as an end-run around failed extradition attempts: “after extradition attempts fail, extraordinary rendition could range from luring a fugitive to a friendly country, or ‘an outright snatch.’ On Language, New York Times, June 20, 2004.

In terms of the recent past, the Clinton administration pioneered the use of extraordinary renditions in response to the bombings at the U.S. embassies in Kenya and Tanzania in 1998 by suspected Al-Qaeda operatives. According to Michael Scheuer, a former CIA counter-terrorism expert who helped establish the practice of extraordinary rendition, the program was “‘begun in desperation’” in order to “‘detect, disrupt, and dismantle’” Al Qaeda operations. Outsourcing Torture, The New Yorker, February 14, 2005. While Scheuer’s group obtained an indictment against Osama bin Laden which would have allowed U.S. agents to bring him to the United States for trial, they were concerned that the transparency required by the judicial system would force disclosure of their intelligence sources and methods. Id. Additionally, in the United States the State Department could obstruct the CIA’s plans, such as when they refused to allow a joint CIA/FBI undertaking to question one of bin Laden’s cousins in the United States because he held a diplomatic passport. Id. These concerns with judicial transparency and intragovernmental obstacles led Scheuer and his CIA group to conclude that “‘we had to come up with a third party.’” Id. The ideal third-party for these purposes was Egypt, due to it’s status as a U.S. ally and its police force’s reputation for brutality. Id. Egypt embraced the rendition program when it was proposed in 1995, due to a few key facts that allied American and Egyptian interests: Egypt is both a substantial recipient U.S. foreign aid, Egyptian President Hosni Mubarak’s prime political enemies were radical Islamists, and many senior Al-Qaeda operatives were, and are, Egyptian. Id.

However, while the roots of today’s extraordinary renditions were developed in the mid-1990s, at that time the Clinton administration strongly urged the intelligence services involved “to respect lawful boundaries in interrogations,” even going so far as to “cut off funding and cooperation with the directorate of Egypt’s general intelligence service” due to torturing of suspects. U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002.

In examining the history of extraordinary rendition, it is critical to note that there is a very clear division between extraordinary renditions conducted before and after the terrorist attacks of September 11, 2001. Before these attacks, “the CIA had been authorized by presidential directive to carry out renditions, but under much more restrictive rules.” Id. For instance, “the transfers of individual prisoners required review and approval by interagency groups led by the While House, and were usually authorized to bring prisoners to the United States or other countries to face criminal charges.” Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York Times, March 6, 2005. Further, these suspects subjected to extraordinary rendition prior to September 11, 2001 generally already had outstanding foreign arrest warrants to their name. Outsourcing Torture, The New Yorker, February 14, 2005. The former director of the CIA has testified that there were about 70 renditions prior to September 11, all authorized by the White House. Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York Times, March 6, 2005. However, since September 11, 2001, the extraordinary rendition program has expanded from its original form “beyond recognition” into what a former CIA official now deems “‘an abomination.’” Outsourcing Torture, The New Yorker, February 14, 2005.

The post-9/11 shift in the U.S. Government’s use of extraordinary rendition can be observed in Vice President Dick Cheney’s comments made a few days following the attacks:
654456"" A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so its going to be vital for us to use any means at our disposal, basically, to achieve our objective.
Meet the Press, (NEB television broadcast, September 16, 2001).

Subsequent testimony from U.S. intelligence officials corroborate the Bush administration’s no-holds-barred approach to counterterrorism post-9/11. Speaking to a joint hearing of the U.S. House and Senate intelligence committees, Cofer Black, a CIA counterterrorism official said “‘this is a very highly classified area, but I have to say that all you need to know: there was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off.’” U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002. A recent CBS news investigation tends to support this characterization, reporting that “it appears the number of flights [conveying terrorism suspects to countries with deplorable human rights records for interrogation] increased greatly in the Bush administration after 9/11.” Sixty Minutes (CBS television broadcast, March 6, 2005).

Torture Mechanics

Those who have survived this clandestine process tell remarkably similar stories: masked men in a Gulfstream V jet seize them, cut off their clothes, place them in blindfolds and jumpsuits, shackle them, tranquilize them, and fly away. Sixty Minutes (CBS television broadcast, March 6, 2005); World News Tonight (ABC television broadcast, March 7, 2005); Counterpunch.org, Torture Air, Incorporated, April 9, 2005. To the suspects’ families, they effectively vanish; alarmingly for the suspects themselves they resurface in countries that have been identified by the U.S. State Department in its annual human rights reports as employing brutal means of interrogation: Morocco, Egypt, Jordan, Iraq, Afghanistan, Saudi Arabia and Uzbekistan. (http://www.state.gov/g/drl/rls/hrrpt/2004). Not only are these suspects held “without resort to legal process,” the suspects are subject to some of the most brutal forms of torture imaginable. U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002.

Thus what began as a program “aimed at a small discrete set of suspects – people against whom there were outstanding foreign arrest warrants” in the days prior to September 11, 2001 has been estimated by international law experts at 150 renditions since then. Outsourcing Torture, The New Yorker, February 14, 2005. Yet while members of the U.S. Congress have asked the CIA for more precise numbers to no avail, the results of a CBS news investigation presented on a Sixty Minutes broadcast indicate that one of the jets employed in carrying out the extraordinary renditions (recognizable from its tail number) has made at least 600 flights to 40 countries since September 11, 2001. Sixty Minutes, (CBS television broadcast, March 6, 2005). Further, “[the jet’s] major destinations read like a road map to the war on terror: 30 trips to Jordan, 19 to Afghanistan, 17 to Morocco, 16 to Iraq.” Id. Another of the CIA’s jets transporting suspected terrorists has made 10 trips to Uzbekistan. Sweet Land of Liberty: Torture Doublespeak, Secret Orders and Renditions Cast Their Shadow, Washington Times, March 21, 2005.

SUMMARY OF THE ARGUMENT

The United States is bound by its international treaty obligations that prohibit the use of torture for any purpose. It may not make reservations that defeat the purpose of these treaties.

First, the International Covenant on Civil and Political Rights (ICCPR) instructs signatories that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992).

Second, the Convention Against Torture prohibits the use of torture for any purpose, explicitly stipulating that “no exceptional circumstances whatsoever . . may be invoked as a justification for torture.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994), (adopted by the United States on November 20, 1994) [hereinafter Torture Convention]. It further instructs that “No party shall expel, return or extradite a person to another States where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Id. Third, the Third and Fourth Geneva Conventions seek to extend humane treatment to both prisoners of war and civilians. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force Oct. 21, 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct. 21, 1950).

The United States Government remains bound by its treaty obligations regardless of where torture is carried out, the citizenship of the torturees/torturers, or claims of ignorance as to the treatment of suspects in U.S. custody.

The practice of extraordinary rendition forces suspects to endure cruel, inhuman and degrading treatment and outright torture. Reports of survivors and investigations of this secret practice indicate a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. Therefore, this practice represents a violation of the United States’ obligations under the Torture Convention, ICCPR, and Third and Fourth Geneva Conventions and should be proscribed.

ARGUMENT

The United States deposited its instrument of ratification for the Torture Convention on October 21, 1994; for the International Covenant on Civil and Political Rights on June 8, 1992; and the Third and Fourth Geneva Conventions entered into force on October 21, 1950.

Under the U.S. Constitution, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const. art. VI, §2, cl. 2. These above treaties are therefore part of the Supreme Law of the Land, and are hence binding on the United States government.

However, the United States’ approach to human rights treaties tends to conceive of them as sieves into which holes for incomplete compliance, or outright noncompliance, may be freely poked. For instance, the U.S. approach was, and remains, to make illegal reservations to the ICCPR. See generally William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still A Party?, 21 Brook. J. Int’l L. 277 (1995). For instance, while the rights outlined in the ICCPR are “[derived] from the inherent dignity of man,” the United States accompanied its acceptance of the treaty with “no less than five reservations, four interpretive declarations, and five ‘understandings’ – an unprecedented number.” Id. at 278. In particular, the U.S. instruments of ratification to the ICCPR as well as the Torture Convention contained non-self-executing (NSE) declarations. See 138 Cong. Rec. S4781-84 (1992); 136 Cong. Rec. S17, 492 (1990). Scholarly criticisms of U.S. NSE declarations range from characterizations as “against the spirit of the Constitution,” “of dubious validity, probably [having] no binding effect on United States courts,” to “[bringing] serious dishonor to the United States and should be abandoned.” Louis Henkin, U.S. Ratification of Human Rights Covenants: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346-8 (1995); Charles H. Dearborn III, The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self Executing, 57 Tex. L. Rev. 233, 233 (1979); Jordan J. Paust, Avoiding ‘Fraudulent’ Executive Policy: Analysis of on Civil and Political Rights, 42 DePaul L. Rec. 1257 (1993). While there has been much thoughtful scholarly debate on the question of the meaning and effect of NSE declarations on their respective treaties, it is well established law that reservations and interpretive declarations which are incompatible with the object and purpose of a treaty are per se invalid. See Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001); see also Jordan J. Paust, International Law as Law of the United States 368 (1996) (“an attempted ‘reservation’ or declaration which conflicts with a jus cogens norm must also be void”); Vienna Convention on the Law of Treaties, May 23, 1969, art. 19, 1155 U.N.T.S. 331 (reservations to a treaty ratification are prohibited where they are "incompatible with the object and purpose of the treaty"); Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 373 n. 5 (2d Cir.2004) (while the United States has not adopted the Vienna Convention on the Law of Treaties, U.S. courts have looked to it "as an authoritative guide to the customary international law of treaties").

Normally NSE declarations are regarded as “[precluding] U.S. courts from applying human rights treaty provisions directly to resolve cases involving alleged human rights treaty violations by federal, state or local governments or officials.” David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129, 133 (1999). However, in the particular cases of the Torture Convention and the ICCPR, this purpose is at odds with the treaties themselves: both base the rights they enumerate on “the inherent dignity of the human person.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994); International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967). Certainly the “inherent dignity of the human person” that forms the basis of the Torture Convention and the ICCPR is the same throughout the world; therefore U.S. efforts to avoid being held to its obligations under these treaties via NSE declarations rise to the level of incompatibility with the treaties’ object and purpose under customary international law. These NSE declarations must therefore be invalid under customary international law.

Despite U.S. efforts to designate the Torture Convention and the ICCPR as NSE, the United Nations Human Rights Committee has expressed a preference for a severability approach: i.e., that “reservations that offend peremptory norms” “will generally be severable, in the sense that the Covenant will be operative for the reserving party without the benefit of the reservation.” General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, U.N. GAOR, Hum. Rts. Comm. 53d Sess. 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), in Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir. 2001). Therefore, the United States NSE declarations that are offensive to peremptory norms and violate peremptory norms are severable from its acceptance of the terms of the Torture Convention and the ICCPR.

In their present forms, the Third and Fourth Geneva Conventions entered into force on October 21, 1950. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force Oct. 21, 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct. 21, 1950).

With the Third and Fourth Conventions, aimed at the Treatment of Prisoners of War and Protection of Civilian Persons in Time of War, respectively, the drafters intended to extend human rights to all persons involved in armed conflict situations. These Conventions are intended to be exhaustive: in terms of coverage, they apply to persons involved in armed conflict, either directly or indirectly.

The United States has recently taken the position that in it’s undeclared “war on terror” it is not bound to abide by the Geneva Conventions in how it treats suspected terrorists in its custody. This bald assertion is premised on the basis that suspected terrorists don’t fit into one of the categories of the Geneva Conventions: on February 7, 2002 the White House announced that “none of the provisions of Geneva apply to our conflict with al Qaeda . . . because, among other reasons, al Qaeda is not a High contracting Party to Geneva.” Memorandum of President George W. Bush (Feb. 7, 2002), in Final Report of the Independent Panel to Review DOD Detention Operatives (Aug. 2004), Appendix C, available at http//wid.ap.org/documents/iraq/040824finalreport.pdf.

This position is completely at odds with the intent of the drafters of the Conventions, as “there is no gap in the reach of at least some forms of protections and rights of persons . . . Common Article 3 assures that any person detained has certain rights ‘in all circumstances’ and ‘at any time and in any place whatsoever’ whether the detainee is a prisoner of war, unprivileged belligerent, terrorist, or noncombatant.” Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 Colum. J. Transnat’l Law 811, 817-18 (2005). See also Outsourcing Torture, The New Yorker, February 14, 2005 (according to a former state department lawyer, “there is no such thing as a non-covered person under the Geneva Conventions. It’s nonsense. The protocols cover fighters in everything from world wars to local rebellions”).

Further, the United States position on the applicability of the Geneva Conventions “demonstrates remarkable ignorance of the nature and reach of treaties and customary international law”: first, any national of a state that has ratified a treaty is protected by its terms; second, the 1949 Geneva Conventions are a part of customary international law “that is universally applicable in times of armed conflict and, as such, protect[s] all human beings according to their terms;” third, Common Article 3 of the Geneva Conventions “provides non-derogable protections and due process guarantees for every human being who is captured, and like Common Article 1, assures their application in all circumstances.” Jordan J. Paust, Executive Plans and Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 Colum. J. Transnat’l Law 811, 829 (2005).

Therefore, for the foregoing reasons, the United States is bound as both a signatory to the Geneva Conventions as well as a member of the community of nations who are bound by customary international law.

The Torture Convention was enacted with the specific desire “to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world” and to give effect to Article 5 of the Universal Declaration of Human Rights and Article 7 of the ICCPR, both of which provide that “no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.” Universal Declaration of Human Rights, art. 5, G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., Supp. No. 71, U.N. Doc. A/810 (adopted Dec. 10, 1948);International Covenant on Civil and Political Rights, art. 7, G.A. Res. 2200, U.N. GAOR, 21sth Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted June 8, 1992).
Specifically, Article 1 of the Torture Convention defines the term “torture” as
[A]ny act which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The Torture Convention further frames this commitment to eradicate the use of torture in terms of a positive obligation to avert torture: Article 2 commands signatory nations to “take effective . . . measures to prevent acts of torture in any territory under its jurisdiction.” Article 3 specifically commands “No State Party shall expel, return 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.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994).
The Third and Fourth Geneva Conventions also prohibit the use of torture in the strongest terms. With reference to prisoners of war, the Third Convention “[prohibit[s] violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular, humiliating and degrading treatment.” Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135, 6 U.S.T. 3316 (entered into force Oct. 21, 1950). Further, the Third Convention imposes positive duties of humane treatment and protection. See Article 13 (“Prisoners of war must at all times be humanely treated” and “Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”). Id. The Fourth Convention provides similar prohibitions against torture and violence for civilian persons as well as positive duties for their humane treatment as well as additional safeguards against brutal measures. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, 6 U.S.T. 3516 (entered into force Oct. 21, 1950). (According to Article 32, “the High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents”).
The standard U.S. government response to reports of extraordinary rendition is to neither publicly acknowledge the program nor the facts that it has both resulted in torture, and is extremely likely to continue to do so. According to then-White House counsel Alberto Gonzales’ written congressional testimony from January, 2005, “the policy of the United Sates is not to transfer individuals to countries where we believe they likely will be tortured . . .”. Rule Change Lets C.I.A. Freely Send Suspects Abroad, New York Times, March 6, 2005. However, both current and former government officials depart from this standard line considerably. According to these officials, the process of extraordinary rendition is justified method for saving lives due to cost and manpower advantages achieved via the ‘cultural affinity’ that captives share with their foreign interrogators. See Id.; U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002. Further, and most startlingly, U.S. Attorney General Gonzales has made comments to suggest that the U.S. is no longer bound by its obligations under international treaty or its own Constitution when conducting interrogations of suspects outside its borders. Halt C.I.A Shuttle Service, Milwaukee Journal Sentinel, March 24, 2005. However, there is case law support that the U.S. Constitution may have extraterritorial effect with respect to American citizens. See 16 Am. Jur. 2d Con. Law §41, U.S. v. Davis, 905 F2d 245 (9th Cir. 1990); U.S. v. Rasheed, 802 F. Supp. 312 (D. Haw. 1992). Further, individual U.S. citizens are bound by treaty obligations, not simply the U.S. government. Kennett v. Chambers, 55 U.S. 38 (1852). Additionally, the very text of the Torture Convention itself specifies “throughout the world” in the preamble as the scope of its mission “to make more effective the struggle against torture and other cruel, inhuman or degrading treatment.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994), (adopted by the United States on November 20, 1994) Further, “no exceptional circumstances whatsoever . . . may be invoked as a justification of torture,” which would seem to include territorial or personal jurisdiction challenges. Id., art. 2. The United States has endeavored to distance itself from any potential consequences for its extraordinary rendition program with techniques of diversion and feigned ignorance of the realities of the extraordinary rendition program. However, neither of these techniques successfully relieve the U.S. government of its international obligations to avoid torture under the terms of the Torture Convention and the ICCPR. First, the United States government seeks to avoid public outcry for their complicity in a program that results in torture by denying that “torture is the intended result of its rendition policy.” U.S. Decries Abuse But Defends Interrogations, The Washington Post, December 26, 2002. Second, the United States government emphasizes procedures that supposedly safeguard against the torture of extraordinarily rendered suspects. For instance, President Bush contends that “we seek assurances . . . that nobody will be tortured when we render a person back to their home country.” Outsourcing a Real Nasty Job, U.S. News and World Report, May 23, 2005. See also, Editorial: Legislation Would Tell World U.S. Supports Torture: Would You Trust the Word of Syria, Jordan, Morocco or Egypt?, Chicago Sun-Times, October 23, 2004. Presumably, the intent behind such statements is to keep the United States in line with its treaty obligations to avoid the use of torture.
Yet despite the diligence that these statements suggest concerning the U.S. government’s position on preventing torture, when pressed government officials have admitted that such assurances, sought from countries with problematic records on human rights, are “flimsy” at best. Revealed: Western Nations That Send Terror Suspects to Torturing Regimes, Independent, April 15, 2005. For instance, “even Attorney General Alberto Gonzales has acknowledged that Washington ‘can’t fully control’ what happens to detainees transferred abroad for interrogation. CIA Director Porter Goss agreed, testifying earlier this year that once a terror suspect is out of American control, ‘there’s only so much we can do.’” Outsourcing A Real Nasty Job, U.S. News & World Report, May 23, 2005. See also Rule Change Lets C.I.A. Send Suspects Abroad, New York Times, March 6, 2005 (according to a government official involved in extraordinary renditions, while assurances are made that suspects rendered abroad will not be tortured, “nothing is 100 percent unless we’re sitting there staring at them 24 hours a day”); U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002 (“If we’re not in the room, who is to say?” [whether suspects are tortured]).
Further, the United States government seeks to employ this engineered uncertainty surrounding the extraordinary rendition process in order to avoid triggering violations of its international obligations to abstain and prevent torture, effectively hiding from responsibility in a cloak of willful blindness. According to a C.I.A. official, “we’re not aware of any torture.” Id. Fred Hitz, a former C.I.A. Inspector General, said that “we don’t do torture, and we can’t countenance torture in terms of we can’t know of it.” Id.
While the Torture Convention requires “substantial grounds for believing,” a suspect would be subjected to torture if extradited to another state for a violation of its terms, willful blindness can be no defense for the failure to comply with any treaty obligation. Even in United States criminal law, the Model Penal Code equates willful blindness with positive knowledge. See Model Penal Code 2.02(7). Further, “the judicial and academic consensus . . . accepts that willful blindness equals knowledge,” Thomas A. Hagemann and Joseph Grinstein, The Mythology of Aggregate Corporate Knowledge, A Deconstruction, 65 Geo. Wash. L. Rev. 210, 247 n.69 (1997). See also Douglas N. Husak and Craig A. Callendar, Willful Ignorance, Knowledge, and the ‘Equal Culpability’ Thesis: A Study of the Deeper Significance of the Principle of Legality, 1994 Wis. L. Rev. 29 (“virtually all courts and commentators agree that a mental state they alternatively describe as ‘wilful [sic] ignorance’ or wilful [sic] blindness’ is sufficient to satisfy the requirement of knowledge).”
Therefore, in light of the fact that the Torture Convention requires only “substantial grounds for believing” a suspect would be subjected to torture if extradited, and under U.S. domestic law officials involved in extraordinary renditions would be deemed to have the mens rea of knowledge willful blindness, the U.S. does not have a plausible defense to for their violations of the Torture Convention.

The Torture Convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession . . . ”. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 23 ILM 1027 (1994). Reports of survivors of the United States government’s extraordinary rendition procedure describe the following: Survivors of extraordinary rendition also describe being deprived of sleep with 24-hour bombardment of lights, held in awkward, painful positions and subjected to “‘water-boarding’ in which a suspect is bound and immersed in water until he nearly drowns” (Outsourcing Torture, The New Yorker, February 14, 2005). Craig Murray, a former British ambassador to Uzbekistan has publicly acknowledged that in this country, “partial boiling of a hand or an arm is quite common” and knows of “at least three” U.S. extraordinary renditions to that country as well as “two cases in which prisoners had been boiled to death.” Id. This same ambassador has also acknowledged that the Uzbeks routinely use suffocation and rape as interrogation techniques.
The techniques outlined here ipso facto meet the Torture Convention’s definition of “act[s] by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for the purpose of obtaining information or confessions. Moreover, these techniques shock the conscience and the humanity of reasonable people.

For the United States government to claim ignorance of the likely consequences of its extraordinary rendition program is disingenuous at best. The recent destinations of the planes identified by CBS news as those involved in extraordinary renditions “read like a roadmap to the war on terror - 30 trips to Jordan, 19 to Afghanistan, 17 to Morocco, 16 to Iraq. Other stops include Egypt, Libya, Guantanamo Bay, Cuba.” Sixty Minutes (CBS television broadcast, March 6, 2005). It seems unreasonable to believe that the U.S. Executive Branch did not read its own annual human rights report prepared by the State Department that lists many of these U.S. partners in the extraordinary rendition program, which also includes Morrocco, Jordan, Afghanistan, Saudi Arabia, and Uzbekistan, as employing brutal means of interrogation (http://www.state.gov/g/drl/rls/hrrpt/2004).
Further bolstering the claim that the United States government has the requisite “substantial grounds for believing” that surrendered suspects will be tortured under the Torture Convention is the fact that in the mid-1990s not only was the Executive Branch of the United States government aware of the tendency of other governments to engage in brutalizing suspects, President Clinton went so far as to “cut off funding and cooperation with the directorate of Egypt’s general intelligence service” due to torturing of suspects. U.S. Decries Abuse But Defends Interrogations, Washington Post, December 26, 2002 (see supra page 9). As far as the knowledge of torture exists in the present-day extraordinary rendition program, “one official who has had direct involvement in renditions said he knew they were likely to be tortured. ‘I . . . do this with my eyes open’ he said.” U.S. Decries Abuse But Defends Interrogations, The Washington Post, December 26, 2002.

CONCLUSION

The United States Government’s use of “extraordinary rendition” to forcibly disappear and torture suspected terrorists violates that nation’s international treaty obligations. Given the veil of extreme secrecy surrounding the extraordinary rendition program, credible news reports suggesting the same plane known to have served in this process in the past has made a large number of flights to countries with problematic human rights records in recent years, and survivors’ reports of agonizing torture and extreme cruelty, the United States government’s practice of extraordinary rendition in violation of its international treaty obligations rises to the level of “a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.” Complaints to the Commission on Human Rights and the Commission on the Status of Women: The 1503 Procedure of the Commission on Human Rights, available at http://www.ohchr.org/english/about/publications/docs/fs7.htm#1503. Therefore, the United States government's practice of extraordinary rendition merits consideration on the United Nations’ Commission on Human Rights 1503 agenda. This court should not allow the United States government to continue its unrepentant prosecution of “the war on terror” without any regard for those whom it terrorizes with enforced disappearances and torture.

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Posted by Night's Lantern Dec. 22, 2005