Rendition Operations: Does U.S. Law Impose Any Restrictions?

Abstract:     
For centuries, the United States has seized individuals oversees and, outside any formal extradition process, brought such individuals to the United States to stand trial. A more recent wrinkle has been the transfer of such individuals to other countries for the purposes of prosecution or interrogation. Known as “rendition operations,” such transfers have often been criticized. Numerous commentators, asserting that many of these activities violate U.S. law, have called on the U.S. government to cease such operations and prosecute U.S. officials who engage in them. Nonetheless, a Special Task Force established by President Obama recently advocated the continued used of rendition operations, though with some policy changes. In order to effectuate such changes, and understand their impact, the Administration, as well as the critics and proponents of rendition operations, need to understand current U.S. law regarding renditions. Yet, despite all the focus, concern and criticism over rendition operations, no scholarly work to date has evaluated the entirety of U.S. law regarding such activities. This article proposes to do just that. It concludes that, upon close inspection of U.S. law, there are virtually no legal restrictions on these types of operations. Indeed, U.S. law does not even preclude the United States from rendering individuals to a third country in instances where the third country may subject the rendered individual to torture. The only restrictions that do exist under U.S. law preclude U.S. officials from themselves torturing or inflicting cruel and unusual punishment on individuals during rendition operations, or rendering individuals from a place of actual armed conflict or occupation – all of which prove to be narrow limitations indeed. Finally, few actual means exist to prosecute or sue U.S. officials engaged in rendition operations, due to limitations in civil and criminal statutory authority, as well as the courts’ continuous reluctance to consider such claims.

Number of Pages in PDF File: 46

Accepted Paper Series