Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law
34 Pages Posted: 23 Feb 2006 Last revised: 13 Jul 2019
Date Written: January 1, 2007
This Essay examines the contentions of U.S. government lawyers that the U.S. should abandon the provisions of the Geneva Conventions in favor of a de novo legal regime that would govern the capture, detention, treatment and trial of enemy prisoners taken in the Global War on Terrorism (GWOT), whether captured in the U.S. or abroad. In particular, it examines the question of extraordinary rendition - transferring detainees abroad for detention and interrogation either from the United States, on behalf of the United States, or from occupied Iraq. Although the numbers of prisoners rendered abroad has been relatively few, the covert nature of the operations, and the allegations of prisoner mistreatment raise very troubling questions about the wisdom and the legality of the U.S. rendition program. It concludes that extraordinary rendition is not permissible under existing, applicable and well-established norms of international law. Additionally, because renditions are carried out in secret, employ extralegal means, and often result in prisoner abuse, including cruel treatment, torture, and sometimes death - they appear to be emblematic of the larger human rights concerns that trouble many of the detention and interrogation practices employed by the U.S. government since September 11, 2001. Of particular concern is that rather than explicitly amending the law or articulating clear, narrowly tailored justifications for derogating from the law, derogations that would presumably be temporary and specific, such as the derogations permitted under international human rights treaties, government officials have sought to redefine legal norms in an exceptional burst of "executive activism" in ways that are neither particularly plausible or persuasive. This use of legal subterfuge is deeply troubling in and of itself, as well as in regards to it potentially harmful consequences. Finally, the Essay questions the efficacy, as well as the wisdom, of these extralegal policies.
Keywords: international law, war on terror, extraordinary rendition, Geneva Conventions, International Humanitarian Law, Iraq, Guantanamo Bay, torture
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