A More Regular Process for Irregular Rendition

Abstract:     
This article assesses the transfer of terrorism suspects outside the United States to other countries for detention and interrogation. The focus is on the CIA's alleged program of irregular rendition on non-U.S. citizens. Article 3 of the Convention Against Torture sets a standard for irregular rendition, precluding transfers in which there are substantial grounds for believing the suspect will be tortured in the receiving country. Beyond an argument that commander-in-chief powers may override American law on rendition, two means for complying with Article 3 are obtaining official assurances from the receiving country before transfer and monitoring the conditions of the suspect's confinement after transfer. The assurances, oral or in writing, could come from heads of state, through diplomatic channels, or from intelligence officials. And the monitoring could be done by human observers or by technical means. Assurances and monitoring are not necessary on renditions to countries with excellent human rights records. On renditions to countries whose human rights records are at the bottom of the list, assurances and monitoring will not be enough to reach legality. Assurances and monitoring do, however, make a difference on close calls. Accordingly, several combinations of assurances and monitoring are assessed against the records of countries, including Romania, Jordan, and Uzbekistan, which have been mentioned as possible recipients of CIA renditions. The conclusion, in disagreement with Human Rights Watch and the New York City Bar Association, is that irregular rendition can be carried out under the rule of law with care, caution, and a bit more transparency.

Keywords: terrorism, rendition, interrogation, torture, intelligence, CIA

Accepted Paper Series