Order Code RL32890


CRS Report for Congress
Received through the CRS Web



Renditions: Constraints
Imposed by Laws on Torture




Updated September 22, 2005





Michael John Garcia
Legislative Attorney
American Law Division
















________________________________________________________________________________________________________________________________________________________
Congressional Research Service ˜ The Library of Congress


Renditions: Constraints Imposed by Laws on Torture


Summary

Persons suspected of terrorist activity may be transferred from one State (i.e., country)
for arrest, detention, and/or interrogation. Commonly, this is done through extradition, by
which one State surrenders a person within its jurisdiction to a requesting State via a
formal legal process, typically established by treaty. Far less often, such transfers are
effectuated through a process known as “extraordinary rendition” or “irregular rendition.”
These terms have often been used to refer to the extrajudicial transfer of a person from
one State to another. In this report, “rendition” refers to extraordinary or irregular
renditions unless otherwise specified.

Although the particularities regarding the usage of extraordinary renditions and the
legal authority behind such renditions is not publically available, various U.S. officials
have acknowledged the practice’s existence. Recently, there has been some controversy
as to the usage of renditions by the United States, particularly with regard to the alleged
transfer of suspected terrorists to countries known to employ harsh interrogation
techniques that may rise to the level of torture, purportedly with the knowledge or
acquiescence of the United States.

This report discusses relevant international and domestic law restricting the transfer
of persons to foreign states for the purpose of torture. The U.N. Convention against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and
its domestic implementing legislation (the Foreign Affairs Reform and Restructuring Act
of 1998) impose the primary legal restrictions on the transfer of persons to countries
where they would face torture. CAT and U.S. implementing legislation generally prohibit
the rendition of persons to countries in most cases where they would more likely than not
be tortured, though there are arguably limited exceptions to this prohibition. Under U.S.
regulations implementing CAT, a person may be transferred to a country that provides
credible assurances that the rendered person will not be tortured. Neither CAT nor
implementing legislation prohibits the rendition of persons to countries where they would
be subject to harsh interrogation techniques not rising to the level of torture. Besides
CAT, additional obligations may be imposed upon U.S. rendition practice via the Geneva
Conventions, the War Crimes Act, the International Covenant on Civil and Political
Rights (ICCPR) and the Universal Declaration on Human Rights.

This report also discusses legislative proposals to limit the transfer of persons to
countries where they may face torture, including the Emergency Supplemental

Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief (P.L.
109-13); the House-passed version of H.R. 2862, the Science, State, Justice, Commerce,
and Related Agencies Appropriations Act, 2006, introduced by Representative Frank
Wolf on June 10, 2005 and passed the House on June 16, 2005; H.R. 2863, the
Department of Defense Appropriations Act, 2006, introduced by Representative C.W.
Bill Young on June 10, 2005 and passed the House on June 20, 2005; H.R. 952, the
Torture Outsourcing Prevention Act, introduced by Representative Edward Markey on
February 17, 2005; and S. 654, the Convention Against Torture Implementation Act of
2005, introduced in the Senate by Senator Patrick Leahy on March 17, 2005.




Contents

Limitations Imposed on Renditions by the Convention Against Torture and

Domestic Implementing Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CAT Limitation on the Transfer of Persons to Foreign States for the


Purpose of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Criminal Penalties for Persons Involved in Torture . . . . . . . . . . . . . . . .10
Application of CAT and Implementing Legislation to the Practice of

Extraordinary Renditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Renditions from Outside the United States . . . . . . . . . . . . . . . . . . . . . . 13
Other Statutes and Treaties Relevant to the Issue of Renditions . . . . . . . . . . . .17

War Crimes Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Universal Declaration of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . 20
Legislative Developments Concerning Renditions . . . . . . . . . . . . . . . . . . . . . . 21












































Renditions: Constraints Imposed by Laws
on Torture

Persons suspected of terrorist or criminal activity may be transferred from one State
(i.e., country) to another to answer charges against them.1 The surrender of a
fugitive from one State to another is generally referred to as rendition.2 A distinct
form of rendition is extradition, by which one State surrenders a person within its
territorial jurisdiction to a requesting State via a formal legal process, typically
established by treaty between the countries.3 However, renditions may be effectuated
in the absence of extradition treaties, as well.4 The terms “irregular rendition” and
“extraordinary rendition” have been used to refer to the extrajudicial transfer of a
person from one State to another, generally for the purpose of arrest, detention,
and/or interrogation by the receiving State (for purposes of this report, the term
“rendition” will be used to describe irregular renditions, and not extraditions, unless
otherwise specified). Unlike in extradition cases, persons subject to this type of

________________________________________________________________________

1 The surrender of persons to a requesting State to answer criminal charges was originally guided
by principles of comity and reciprocity. Beginning in the late eighteenth century, the surrender of
persons to a requesting State to answer charges increasingly became governed by formal
extradition treaties between States (though the practice of extradition can be traced back to
antiquity). For background, see CRS Report 98-958, Extradition to and from the United States:
Overview of the Law and Recent Treaties
, by Charles Doyle. In contrast to earlier practices,
extradition treaties established formal procedures governing the surrender of persons from one
treaty party to another, facilitating treaty parties’ shared interest in punishing certain crimes while
providing persons with a legal means to challenge their proposed transfer to a requesting State.
By the 20th century, extradition treaties became the predominant means of permitting the transfer
of persons from one State to another to answer charges against them. For background, see id. at 1-
3; M. BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE (4th ed.
2002).

2 BLACK’S LAW DICTIONARY 1298-99 (7th ed. 1999).

3 U.S. extradition procedures for transferring a person to another State are governed by the
relevant treaty with that State, as supplemented by 18 U.S.C. §§ 3184-3195. U.S. law prohibits
the extradition of an individual in the absence of a treaty. 18 U.S.C. § 1394.

4 Besides irregular rendition and extradition, aliens present or attempting to enter the United
States may be removed to another State under U.S. immigration laws, if such aliens are either
deportable or inadmissible and their removal complies with relevant statutory provisions. See,
e.g.
, 8 U.S.C. §§ 1182 (providing grounds for alien inadmissibility into the United States), 1227
(describing classes of deportable aliens), 1251 (providing guidelines for removal of deportable
and inadmissible aliens). Unlike in the case of rendition and extradition, the legal justification for
removing an alien from the United States via deportation or denial of entry is not so that he can
answer charges against him in the receiving State; rather, it is because the U.S. possesses the
sovereign authority to determine which non-nationals may enter or remain within its borders, and
the alien fails to fulfill the legal criteria allowing non-citizens to enter or remain in the United
States.

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rendition typically have no access to the judicial system of the sending State by which
they may challenge their transfer.5 Sometimes persons are rendered from the territory of
the rendering State itself, while other times they are seized by the rendering State in
another country and immediately rendered, without ever setting foot in the territory of the
rendering State. Sometimes renditions occur with the formal consent of the State where
the fugitive is located; other times, they do not.6

Over the years, a number of persons have reportedly been rendered into the
United States by U.S. authorities, often with the cooperation of the States where such


________________________________________________________________________

5 Before the United States may extradite a person to another State, an extradition hearing must be
held before an authorized judge or magistrate, during which the judge or magistrate must
determine whether the person’s extradition would comply with the terms of the extradition treaty
between the United States and the requesting State (federal statute prohibits the extradition of an
individual in the absence of a treaty). Even if the magistrate or authorized judge finds extradition
to be appropriate, a fugitive can still institute habeas corpus proceedings to obtain release from
custody and thereby prevent his extradition, or the Secretary of State may decide not to authorize
the extradition. See CRS Report 98-958, supra note 1, at 15-20. These protections do not apply in
situations where an alien is being removed from the United States for immigration purposes. See
supra
note 4. Nevertheless, separate procedural and humanitarian relief protections do pertain.

6 In 1980, the Department of Justice’s Office of Legal Counsel issued an opinion that irregular
renditions absent the consent of the State where the fugitives are seized would violate customary
international law because they would be an invasion of sovereignty for one country to carry out
law enforcement activities in another without that country’s consent. Extraterritorial
Apprehension by the Federal Bureau of Investigation
, 4B. OP. OFF. LEGAL COUNSEL 543 (1980).
Additionally, Article 2(4) of the U.N. Charter prohibits Member States from violating the
sovereignty of another State. In 1989, the Office of Legal Counsel constrained the 1980 opinion,
though not on the grounds that such renditions are consistent with customary international law.
Authority of the Federal Bureau of Investigation to Override International Law in
Extraterritorial Law Activities
, 13 OP. OFF. LEGAL COUNSEL 163 (1989) (finding that
extraterritorial law enforcement activities authorized by domestic law are not barred even if they
contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations
Charter, as well as customary international law). Further, while upholding court jurisdiction over
a Mexican national brought to the United States via rendition, despite opposition from the
Mexican government, the Supreme Court nevertheless noted that such renditions were potentially
“a violation of general international law principles.” United States v. Alvarez-Machain, 505 U.S.
655, 669 (1992). In a related case twelve years later, however, the Court held that any such
principle — at least as it related to the rights of the rendered individual — did not “rest on a norm
of international character accepted by the civilized world and defined with a specificity
comparable to the features of the 18th century paradigms.” Sosa v. Alvarez-Machain, 124 S.Ct.
2739, 2761-62 (2004). In June 2005, Italian authorities issued arrest warrants for thirteen persons
who were allegedly American intelligence operatives who rendered an Islamic cleric from Italy to
Egypt without the consent of the Italian government. Craig Whitlock and Dafna Linzer, Italy
Seeks Arrests of 13 in Alleged Rendition
, WASH. POST, Jun. 25, 2005, at A1. There have been
some reports that Italian authorities were aware of and consented to the rendition. See Dana
Priest, Italy Knew about Plan to Grab Suspect, WASH. POST, Jun. 30, 2005, at A1. However,
Italian authorities have denied any such knowledge or consent. Craig Whitlock, Italy Denies
Complicity in Alleged CIA Action
, WASH. POST, Jul. 1, 2005, at A14.




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persons were seized, to answer criminal charges, including charges related to terrorist
activity.7

Currently, there have been no widely-reported cases of persons being rendered from
the interior
of the United States, though there have been cases where non-U.S. citizens
were allegedly rendered at U.S. ports of entry but had yet to legally enter/be admitted into
the United States.8 Noncitizens arriving at ports of entry have no recognized
constitutional rights with regard to their admission into or removal from the United
States. More generally, noncitizens are only considered to receive constitutional
protections after they have effected entry into the United States.9 On the other hand, the
Supreme Court has found that the Constitution protects U.S. citizens abroad from actions
taken against them by the United States.10


___________________________________________________________________________________________________________________________

7
See generally State Department, Office of the Coordinator of Counterterrorism,
Patterns of Global Terrorism, Appendix D: Extraditions and Renditions of Terrorists
to the United S t a t e s
, 1 9 9 3 - 2 0 0 1 ( M a y 2 1 , 2 0 0 2 ) , a v a i l a b l e a t
[http://www.state.gov/s/ct/rls/pgtrpt/2001/html/10256.htm]. See also State Department, Bureau
for International Narcotics and Law Enforcement Affairs International Narcotics Control Strategy
Report, 2005: Southeast Asia (Mar. 2005), available at
[http://www.state.gov/g/inl/rls/nrcrpt/2005/vol1/html/42367.htm] (mentioning Vietnam and
Cambodia as countries that have permitted the rendition of persons to the United States to answer
drug charges).

8 Perhaps the most notable case of alleged rendition involved Maher Arar, a dual citizen of
Canada and Syria. Mr. Arar filed suit in January 2004 against certain U.S. officials that he claims
were responsible for rendering him to Syria, where he was allegedly tortured and interrogated for
suspected terrorist activities with the acquiescence of the United States. Arar was allegedly first
detained by U.S. officials while waiting in New York’s John F. Kennedy International Airport for
a connecting flight to Canada after previously flying from Tunisia. Arar’s complaint, filed with
the U.S. District Court for the Eastern District of New Yor k, c a n be viewe d at [h t t p : /
/www.cc r -n y. o r g/ v2 / l e ga l /september_11th/docs/ArarComplaint.pdf] (last viewed Sept.
20, 2005). The Department of Justice has moved to dismiss the case, asserting state secrets
privilege and alleging that litigating Arar’s case would require the disclosing of classified
information that would threaten national security. The assertion of state secrets privilege can be
viewed at [http://www.ccr-ny.org/v2/legal/september_11th/docs/Arar_StateSecrets.pdf] (last
viewed Sept. 20, 2005). A decision by the District Court judge is pending. The Canadian
government has also established a commission to investigate Canada’s involvement in Arar’s
arrest and transfer to Syria. Arar Commission, Homepage, at
[http://www.ararcommission.ca/eng/index.htm].

9 See, e.g., Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“aliens receive
constitutional protections when they have come within the territory of the United States and
developed substantial connections with the country”). But see Rasul v. Bush, 124 S.Ct. 2686, n.15
(2004) (noting in dicta that petitioners’ allegations that they had been held in Executive detention
for more than two years “in territory subject to the long-term, exclusive jurisdiction and control of
the United States, without access to counsel and without being charged with any wrongdoing —
unquestionably describe ‘custody in violation of the Constitution or laws or treaties of the United
States’”) (citing federal habeas statute 28 U.S.C. § 2241(c)(3), under which petitioners challenged
their detention).

10 See, e.g., Reid v. Covert, 354 U.S. 1, 6 (1957) (“When the Government reaches out to
punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the
(continued...)


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Besides receiving persons through rendition, the United States has also rendered
persons to other countries over the years, via the Central Intelligence Agency (CIA) and
various law enforcement agencies. Reportedly, renditions were authorized by President
Ronald Reagan in 1986, and the rendition of terrorist suspects to other countries has been
part of U.S. counterterrorism efforts at least since the late 1990s.11 In a 2002 written
statement to the Joint Committee Inquiry into Terrorist Attacks Against the United States,
then-CIA Director George Tenet reported that even prior to the 9/11 terrorist attacks, the
“CIA (in many cases with the FBI) had rendered 70 terrorists to justice around the
world.”12 The New York Times has reported that following the 9/11 attacks, President
Bush issued a still-classified directive that broadened the CIA’s authority to render
terrorist suspects to other States, though this allegation has not been publicly confirmed
or denied by the White House.13 Although there are some reported estimates that the
United States has rendered more than 100 individuals following 9/11,14 the actual number
is not a matter of the public record.

Recent controversy has arisen over the United States allegedly rendering
suspected terrorists to States known to practice torture for the purpose of arrest,
detention, and/or harsh interrogation.15 Critics charge that the United States is
rendering persons to such States so that they will be subjected to harsh interrogation
techniques prohibited in the United States, including torture. While the Bush
Administration has not disputed charges that persons have been rendered to foreign
States believed to practice torture, officials have denied rendering persons to States
for the purpose of torture.16 Answering a question regarding renditions in a March
16, 2005 press conference, President Bush stated that prior to transferring persons to
other States, the United States receives “promise that they won’t be tortured...This
country does not believe in torture.”17 In testimony before the Senate Armed
________________________________________________________________________
10 (...continued)
Constitution provide to protect his life and liberty should not be stripped away just because he
happens to be in another land.”).

11 See Dana Priest, CIA’s Assurances On Transferred Suspects Doubted, WASH. POST, Mar. 17,
2005, at A1.

12 Statement of Director of Central Intelligence George Tenet, Joint Committee Inquiry into
Terrorist Attacks Against the United States (Oct. 17, 2002), available at
[http://www.cia.gov/cia/public_affairs/speeches/2002/dci_testimony_10172002.html].

13 Douglas Jehl and David Johnston, Rule Change Lets CIA Freely Send Suspects Abroadto Jails,
N.Y. TIMES, Mar. 6, 2005.

14 See Priest, supra note 11.

15 See generally Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106.

16 See, e.g., R. Jeffrey Smith, Gonzales Defends Transfer of Detainees, WASH. POST, Mar. 8,
2005, at A3 (quoting Attorney General Gonzales as stating that it is not U.S. policy to send
persons “to countries where we believe or we know that they’re going to be tortured”).

17 White House, Office of the Press Secretary, President’s Press Conference, March 16,
2005, available at [http://www.whitehouse.gov/news/releases/2005/03/20050316-3.html].
This position was reiterated by President Bush in another press conference the following
month. White House, Office of the Press Secretary, President’s Press Conference, April 28,
(continued...)

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Services Committee, CIA Director Porter Goss stated that in his belief, “we have more
safeguards and more oversight in place [over renditions] than we did before” 9/11.18

Little publicly available information from government sources exists regarding the
nature and frequency of U.S. renditions to countries believed to practice torture, or the
nature of any assurances obtained from them before rendering persons to them. To what
extent U.S. agencies have legal authority to engage in renditions remains unclear. The
only provision within the United States Code appearing to expressly permit an agency’s
participation in a rendition is 10 U.S.C. § 374(b)(1)(D), as amended in 1998, which
permits the Department of Defense (DOD), upon request from the head of a federal law
enforcement agency, to make DOD personnel available to operate equipment with respect
to “a rendition of a suspected terrorist from a foreign country to the United States to stand
trial.”19 On the other hand, given that the United States apparently participates in
renditions, there would appear to be legal limits on the practice, especially with regard to
torture. This report describes the most relevant legal guidelines limiting the transfer of
persons to foreign States where they may face torture, as well as recent legislation
seeking to limit the rendition of persons to countries believed to practice torture.

Limitations Imposed on Renditions by the Convention Against
Torture and Domestic Implementing Legislation

The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT)20 and U.S. domestic implementing legislation
impose the primary legal restrictions on the transfer of persons to countries where
they would face torture. CAT requires signatory parties to take measures to end
torture within territories under their jurisdiction, and it prohibits the transfer of
persons to countries where there is a substantial likelihood that they will be
tortured.21 Torture is a distinct form of persecution, and is defined for purposes of
CAT as “severe pain or suffering...intentionally inflicted on a person” under the color
of law.22 Accordingly, many forms of persecution — including certain harsh

interrogation techniques that would be considered cruel and unusual under the U.S.


________________________________________________________________________

17 (...continued)
2005, available at [http://www.whitehouse.gov/news/releases/2005/04/20050428-9.html]
(remarking that the United States “operate[s] within the law and we send people to countries
where they say they’re not going to torture the people.”

18 McCain, Dems Press Goss On Torture Allegations, CONG. DAILY, Mar. 18, 2005.

19 10 U.S.C. § 374(b)(1)(D), added by Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, P.L. 105-277, Div. B, Title II, § 201(2) (1998).

20 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984) (hereafter,
“CAT”).

21 Id. art. 2(1).

22 Id. art. 1 (emphasis added).



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Constitution — do not necessarily constitute torture, which is an extreme and particular
form of mistreatment.23

CAT also obligates parties to take measures to prevent “other acts of cruel, inhuman
or degrading treatment or punishment which do not amount to torture,” but this obligation
only extends to acts occurring within a State Party’s territorial jurisdiction.24 CAT also
established the Committee against Torture, a monitoring body which has declaratory but
non-binding authority concerning interpretation of the Convention.25 State parties are
required to submit periodic reports to the Committee concerning their compliance with
CAT.26

The United States ratified CAT in 1994, subject to certain declarations, reservations,
and understandings, including that the Convention was not self-executing and therefore
required domestic implementing legislation to take effect.27

The express language of CAT Article 2 allows for no circumstances
or emergencies where torture could be permitted by Convention parties.28 On the other

________________________________________________________________________

23 For further background on the applicability of CAT to interrogation techniques, see CRS Report
RL32438; U.N. Convention Against Torture (CAT): Overview and Application to Interrogation
Techniques
, by Michael John Garcia.

24 CAT art. 16(1).

25 See id. arts. 17-24.

26 Id. art. 19(1).

27 It could be argued that despite its declaration that CAT was not self-executing and required
implementing legislation to take effect, such legislation was actually unnecessary in the case of
certain CAT provisions, including those related to the removal of persons to countries where they
would likely face torture. However, U.S. courts hearing cases concerning the removal of aliens
have regularly interpreted CAT provisions prohibiting alien removal to countries where an alien
would likely face torture to be non-self executing and judicially unenforceable except to the
extent permitted under domestic implementing legislation. See, e.g., Castellano-Chacon v. INS,
341 F.3d 533 (6th Cir. 2003) (applicant for withholding of removal could not invoke CAT
directly, but could rely upon implementing regulations); Akhtar v. Reno, 123 F.Supp.2d 191
(S.D.N.Y. 2000) (rejecting challenge made by criminal alien to removal pursuant to CAT, and
stating that “[g]iven the apparent intent of the United States that the Convention not be self-
executing, this Court joins the numerous other courts that have concluded that the Convention is
not self-executing”).

28 CAT Article 2(2) declares that “[n]o exceptional circumstances whatsoever, whether a
state of war or a threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture.” According to the State Department’s
analysis of CAT, which was included in President Reagan’s transmittal of the Convention
to the Senate for its advice and consent, this explicit prohibition of all torture, regardless of the
circumstances, was viewed by the drafters of CAT as “necessary if the Convention is to have
significant effect, as public emergencies are commonly invoked as a source of extraordinary
powers or as a justification for limiting fundamental rights and freedoms.” President’s
Message to Congress Transmitting the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of the Convention
(continued...)



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hand, a number of CAT provisions limiting the acts of Convention parties does not use
language coextensive as that contained in CAT Article 2. The following paragraphs
describe the relevant provisions of CAT and implementing statutes and regulations that
restrict the rendition of persons to countries when there is a substantial likelihood that
such persons will be tortured. As will be discussed below, while CAT imposes an
absolute prohibition on the use of torture by Convention parties, the plain language of
certain CAT provisions may nevertheless permit parties in limited circumstances to
transfer persons to countries where they would likely face torture, though such an
interpretation of CAT arguably conflicts with the intent of the treaty.

CAT Limitation on the Transfer of Persons to Foreign States for the
Purpose of Torture.
29 CAT Article 3 provides that no State Party “shall expel, return
(‘refouler’) 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.” The U.S. ratification
of CAT was contingent on its understanding that this requirement refers to situations
where it would be “more likely than not” that a person would be tortured if removed to a
particular country, a standard commonly used by U.S. courts when determining whether
to withhold an alien’s removal for fear of persecution.30

It is important to note that CAT does not prohibit a State from transferring a person to
another State where he or she would likely be subjected to harsh treatment that, while it
would be considered cruel and unusual under the standards of the U.S. Constitution,
would nevertheless not be severe enough to constitute “torture.”31

___________________________________________________________________________________________________________________________


28 (...continued)
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, May 23,
1988, S. Treaty Doc. No. 100-20 at 5, reprinted in 13857 U.S. Cong. Serial Set (hereafter “State
Dept. Summary”).

29 For additional information, see CRS Report RL32276, The U.N. Convention Against Torture:
Overview of U.S. Implementation Policy Concerning the Removal of Aliens
, by Michael John
Garcia.

30 Sen. Exec. Rpt. 101-30, Resolution of Advice and Consent to Ratification, (1990) at II.(2). See
generally INS v. Stevic, 467 U.S. 407, 429-30 (1984). This standard is in contrast to the lower
standard for determining whether an alien is eligible for consideration for asylum based on a
“well-founded fear of persecution” if transferred to a particular country. To demonstrate a “well-
founded” fear, an alien only needs to prove that the fear is reasonable, not that it is based on a
clear probability of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

31 According to the State Department’s analysis of CAT, the Convention’s definition of
torture was intended to be interpreted in a “relatively limited fashion, corresponding to the
common understanding of torture as an extreme practice which is universally condemned.”
State Dept. Summary, supra note 28, at 3. For example, the State Department suggested that
rough treatment falling into the category of police brutality, “while deplorable, does not
amount to ‘torture’” for purposes of the Convention, which is “usually reserved for extreme,
deliberate, and unusually cruel practices...[such as] sustained systematic beating, application
of electric currents to sensitive parts of the body, and tying up or hanging in positions that
cause extreme pain.” Id. at 4 (presumably, police brutality of extreme severity could rise to
the level of “torture”). This understanding of torture as a particularly severe form of cruel
(continued...)




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Domestic Implementation of CAT Article 3.
The Foreign Affairs Reform and
Restructuring Act of 1998 implemented U.S. obligations under CAT Article 3.32 Section
2242 of the act announced U.S. policy “not to expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there are substantial grounds for
believing the person would be in danger of being subjected to torture, regardless of
whether the person is physically present in the United States
.”33 The act further required
all relevant federal agencies to adopt appropriate regulations to implement this policy.34

In doing so, however, Congress opened the door for administrative action limiting
CAT protection by requiring that, “to the maximum extent consistent” with Convention
obligations, regulations adopted to implement CAT Article 3 exclude from their
protection those aliens described in section 241(b)(3)(B) of the Immigration and
Nationality Act (INA).35 INA § 241(b)(3)(B) acts as an exception to the general U.S.
prohibition on the removal of aliens to countries where they would face persecution
(which may or may not include actions constituting torture). An alien may be removed
despite the prospect of likely persecution if the alien:

• assisted in Nazi persecution or engaged in genocide;
• ordered, incited, assisted, or otherwise participated in the persecution of an
individual because of the individual’s race, religion, nationality, membership
in a particular social group, or political opinion;
• having been convicted of a particularly serious crime, is a danger to the
community of the United States;
• is strongly suspected to have committed a serious nonpolitical crime outside
the United States prior to arrival;36 or
• is believed, on the basis of reasonable grounds, to be a danger to the security
of the United States.

Thus far, however, U.S. regulations concerning the removal of aliens and
extradition of fugitives have prohibited the removal of all persons to States where
they would more likely than not be tortured,37 regardless of whether they are

________________________________________________________________________

31 (...continued)
treatment is made explicit by CAT Article 16, which obligates Convention parties to “prevent in
any territory under [their] jurisdiction other acts of cruel, inhuman, or degrading treatment or
punishment which do not amount to acts of torture,” thereby indicating that not all forms of
inhumane treatment constitute torture.

32 P.L. 105-277 at § 2242(a)-(b).

33 Id. at § 2242(a) (emphasis added).

34 Id. at § 2242(b).

35 P.L. 105-277 at § 2242(c).

36 The distinction between political and nonpolitical crimes is occasionally unclear. For more
background, see CRS Report 98-958, supra note 1, at 6-7.

37 See 8 C.F.R. §§ 208.16-18, 1208.16-18 (relating to the removal of aliens); 22 C.F.R. §
(continued...)



CRS-9

described in INA § 241(b)(3)(B). CIA regulations concerning renditions — i.e.,
renditions where a person is seized outside the United States and transferred to a third
country — are not publicly available. Nevertheless, such regulations would presumably
need to comply with the requirements of the Foreign Affairs Reform and Restructuring
Act of 1998.

The Role of Diplomatic Assurances in Removal Decisions.
U.S.
regulations implementing CAT Article 3 permit the consideration of diplomatic
assurances in removal/extradition decisions,38 and reportedly in rendition decisions made
by the CIA concerning persons seized outside the United States and transferred to a third
country. Pursuant to removal and extradition regulations, a person subject to removal or
extradition may be transferred to a specified country that provides diplomatic assurances
to the Secretary of State that the person will not be tortured if removed there. Such
assurances must be deemed “sufficiently reliable” before a person can be transferred to a
country where he or she would otherwise more likely than not be tortured.39 Again,
because CIA regulations regarding the transfer of persons are not publicly available, the
role that assurances play in assessing whether to render someone to another country
remains unclear. The Washington Post reports that the CIA Office of General Counsel
requires the CIA station chief in a given country to obtain verbal assurances from that
country’s security service that a person will not be tortured if rendered there.40 Such
assurances must then reportedly be cabled to CIA headquarters before the rendition may
occur.41

CAT Article 3 itself (as opposed to U.S. regulations implementing CAT)
provides little guidance as to the application of diplomatic assurances to decisions
to transfer a person to another country. Although CAT Article 3 obligates signatory
parties to take into account the proposed receiving State’s human rights record, it also
provides that the proposed sending State should take into account “all relevant
considerations” when assessing whether to remove an individual to a particular
State.42 A State’s assurances that it will not torture an individual would appear to be
a “relevant consideration” in determining whether or not it would be appropriate to
render him there. Article 3 does not provide guidelines for how these considerations
should be weighed in determining whether substantial grounds exist to believe a



________________________________________________________________________

37 (...continued)
95.2 (relating to extradition of persons).

38 8 C.F.R. § 208.18; 22 C.F.R. § 95.3(b) (describing authority of Secretary of State to surrender
fugitive “subject to conditions”).

39 8 C.F.R. § 208.18(c).

40 Priest, supra note 11.

41 Id.

42 CAT art. 3(2).


CRS-10

person would be tortured in the proposed receiving State.43 In its second periodic report to
the Committee against Torture, the United States claimed that it:

obtains assurances, as appropriate, from the foreign government to which a detainee
is transferred that it will not torture the individual being transferred. If assurances
[are] not considered sufficient when balanced against treatment concerns, the United
States would not transfer the person to the control of that government unless the
concerns are satisfactorily resolved.44

The United States has an obligation under customary international law to execute its
Convention obligations in good faith,45 and is therefore required under international law
to exercise appropriate discretion in its use of diplomatic assurances. For instance, if a
State consistently violated the terms of its diplomatic assurances, the United States would
presumably need to look beyond the face of such promises before permitting the transfer
of an individual to that country.

Criminal Penalties for Persons Involved in Torture. One of the central
objectives of CAT is to criminalize all instances of torture, regardless of whether they
occur inside or outside a State’s territorial jurisdiction. CAT Article 4 requires signatory
States to criminalize all instances of torture, as well as attempts to commit and complicity
or participation in torture.46 While CAT does not necessarily obligate a State to prevent
acts of torture beyond its territorial jurisdiction, State Parties are nevertheless required to
criminalize such acts and impose appropriate penalties.

CAT Article 5 establishes minimum jurisdictional measures that each State Party
must adopt with respect to offenses described in CAT Article 4. A State Party to CAT
must establish jurisdiction over CAT Article 4 offenses when:

• the offenses are committed in any territory under its jurisdiction or on board
a ship or aircraft registered in that State;
• the alleged offender is a national of that State;
• ! the victim was a national of that State if that State considers it appropriate;
or
________________________________________________________________________

43 The U.N. Special Rapporteur, an expert assigned by the U.N. Commission on Human Rights to
examine issues related to torture, has stated that while diplomatic assurances “should not be ruled
out a priori,” they should be coupled with a system to monitor the treatment of transferred
persons to ensure that they are not inhumanely treated. Interim Report of the Special Rapporteur
of the Commission on Human Rights on the Question of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, U.N. General Assembly, 59th Sess., A/59/324. While the
Rapporteur’s opinion may provide persuasive guidance in the interpretation of CAT obligations,
the Rapporteur is not part of the CAT Committee and his opinions are not legally binding under
the terms of CAT.

44 Second Periodic Report of the United States of America to the Committee Against Torture,
submitted May 6, 2005, available at [http://www.state.gov/g/drl/rls/45738.htm].

45 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 321 (1987) (recognizing that “every
international agreement in force is binding upon the parties to it and must be performed by them
in good faith”).

46 CAT art. 4(1).


CRS-11


the alleged offender is present in any territory under its jurisdiction and
the state does not extradite him in accordance with CAT Article 8,
which makes torture an extraditable offense.47

Domestic Implementation of CAT Articles 4 and 5. In order to fulfill its
obligations under CAT Articles 4 and 5, the United States enacted sections 2340 and
2340A of the United States Criminal Code, which criminalize torture occurring outside
the United States.48 Jurisdiction occurs when the alleged offender is either a national of
the United States or is present in the United States, irrespective of the nationality of the
victim or alleged offender.49 Congress did not enact legislation expressly prohibiting
torture occurring within the United States, as it was presumed that such acts would “be
covered by existing applicable federal and [U.S.] state statutes,”50 such as those statutes
criminalizing assault, manslaughter, and murder. The federal torture statute criminalizes
torture, as well as attempts and conspiracies to commit torture.51


The federal torture statute provides that the specific intent of the actor to commit
torture is a requisite component of the criminal offense.52 Specific intent is “the intent to
accomplish the precise criminal act that one is later charged with.”53 This degree of intent
differs from general intent, which usually “takes the form of recklessness (involving
actual awareness of a risk and the culpable taking of that risk) or negligence (involving
blameworthy inadvertence).”54














___________________________________________________________________________________________________________________________

47 Id. art. 5.

48 Pursuant to an amendment made by the Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005, “United States” is defined as “the several States of the United States, the
District of Columbia, and the commonwealths, territories, and possessions of the United States.”
Previously, the statute had defined “United States” as including all areas under U.S. jurisdiction,
including U.S. special maritime and territorial jurisdiction. 18 U.S.C. § 2340(3).

49 18 U.S.C. § 2340A(b).

50 S.Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT arts. 4 and 5).

51 18 U.S.C. § 2340A(a).

52 For purposes of the federal criminal statute, “torture” is defined as “an act committed by a
person acting under the color of law specifically intended to inflict severe physical or mental pain
or suffering (other than pain or suffering incidental to lawful sanctions) upon another person
within his custody or physical control.” 18 U.S.C. § 2340(1) (emphasis added).

53 BLACK’S LAW DICTIONARY 814 (7th ed. 1999).

54 Id. at 813.



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Application of CAT and Implementing Legislation to the
Practice of Extraordinary Renditions

While the express intent of CAT was to help ensure that no one would be subjected
to torture,55 it is arguably unclear as to whether CAT would in all circumstances bar
renditions to countries that practice torture, including possibly certain cases where the
rendering State was aware that a rendered person would likely be tortured. Clearly, it
would violate U.S. criminal law and CAT obligations for a U.S. official to conspire to
commit torture via rendition, regardless of where such renditions would occur. However,
it is not altogether clear that CAT prohibits the rendering of persons seized outside the
United States and transferred to another country, or whether criminal sanctions would
apply to a U.S. official who authorized a rendition without the intent to facilitate the
torture of the rendered person (as opposed to, for instance, the harsh mistreatment of the
rendered person to a degree not rising to the level of torture).

Renditions from the United States. CAT Article 3 clearly prohibits the
rendition of persons from the territory of a signatory State to another State when there are
substantial grounds for believing the person would be tortured. Even if it could be
technically argued that renditions do not constitute “extraditions” within the meaning of
CAT Article 3, and the rendition was to a country other than one where the person
previously resided (meaning that the person was not being “returned” to a country where
he would risk torture), such transfers would still violate the Convention’s requirement
that no State Party “expel” a person from its territory to another State where he is more
likely than not to be tortured.

If the United States were to receive diplomatic assurances from a State that it would
not torture a person rendered there, and such assurances were deemed sufficiently
credible, the rendition would not facially appear to violate either CAT Article 3 or
domestic implementing legislation. U.S. regulations permit the use of assurances in
removal and extradition decisions, and CAT does not discuss their usage. As mentioned
previously, however, the United States is obligated to execute its CAT obligations in
good faith,56 and therefore must exercise appropriate discretion in its use of diplomatic
assurances. If a State consistently violated the terms of its diplomatic assurances, or the
United States learned that a particular assurance would not be met, the United States
would presumably need to look beyond the face of such promises before permitting the
transfer of an individual to that country.

Again, neither CAT nor U.S. implementing regulations prohibit the United
States from transferring persons to States where they would face harsh treatment —
including treatment that would be prohibited if carried out by U.S. authorities — that
does not rise to the level of torture. Indeed, the United States could conceivably
render a person to a State after receiving sufficient diplomatic representations that the

________________________________________________________________________

55 CAT at Preamble.

56 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 321 (1987) (recognizing that “every
international agreement in force is binding upon the parties to it and must be performed by them
in good faith”).



CRS-13

rendered person could be accorded cruel and inhumane treatment not rising to the level of
torture without violating CAT or CAT-implementing regulations.

Renditions from Outside the United States. As mentioned earlier, while
CAT Article 2(2) provides that there are “no ... circumstances whatsoever” allowing
torture, certain other CAT provisions do not use language coextensive in scope when
discussing related obligations owed by Convention parties. While CAT Article 3 clearly
limits renditions from the United States, it is not altogether certain as to what extent CAT
applies to situations where a country seizes suspects outside of its territorial jurisdiction
and directly renders them to another country.57

Some commentators have alleged that the position of recent U.S. Administrations
appears to be that protections afforded under CAT and other human rights treaties do not
apply extraterritorially.58 Indeed, it could be argued that, based on the explicit language of
CAT, its provisions do not apply to certain actions taken by signatory parties outside of
territories under their jurisdiction.59 For example, while CAT Article 2 requires each
signatory party to take effective measures to prevent torture, this obligation is only with
respect to “acts of torture in any territory under its jurisdiction.”60


It could be argued that the provisions of CAT Article 3 do not apply to
extraordinary renditions occurring outside the United States, at least so long as the

________________________________________________________________________

57 The Washington Post has alleged that U.S. intelligence and law-enforcement officials have, on
occasion, seized a terrorist suspect abroad and rendered him to a foreign intelligence service
known to employ torture with a list of questions that these U.S. officials want answered. Dana
Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations, WASH. POST, Dec.
26, 2002, at A1.

58 See Joan Fitzpatrick, Rendition and Transfer in the War against Terrorism: Guantanamo and
Beyond
, 25 LOYOLA INT’L & COMP. L. REV. 457, 480-81 (Summer 2003); Theodor Meron,
Extraterritoriality of Human Rights Treaties, 89 AM. J. INT’L LAW 78 (1995) (discussing human
rights treaty application with respect to U.S. action towards Haiti in 1994).

59 Some ambiguity arises as to whether to interpret CAT language concerning party requirements
with regard to “territory under its jurisdiction” to include both a State’s territorial jurisdiction and
other areas where a State claims jurisdiction. For example, the U.S. special maritime and
territorial jurisdiction (SMTJ) statute asserts U.S. jurisdiction over acts occurring at U.S. military
bases abroad and registered U.S. aircraft and vessels operating over the high seas. 18 U.S.C. § 7.
However, CAT appears to view a State’s obligations in “territory under [a signatory State’s]
jurisdiction” as something separate from those things outside a State’s territorial jurisdiction that
are nonetheless covered by its SMTJ. For example, CAT Article 5 obligates each party to
establish criminal jurisdiction over acts of torture “in any territory under its jurisdiction or on
board a ship or aircraft registered in that State” (emphasis added). Other CAT provisions, such as
those restricting the transfer of aliens to countries where they would likely face torture or
requiring States to undertake to prevent non-torturous acts of cruel, inhuman or degrading
treatment or punishment, impose obligations only with reference to “any territory under [a
signatory State’s] jurisdiction,” and not explicitly with respect to registered ships or aircraft
registered to the State operating outside such territory.

60 CAT art. 2(1) (emphasis added).



CRS-14

person is not rendered to a country where he has formally resided. Article 3 states that no
party shall “expel, return (‘refouler’) or extradite a person” to a country where there are
substantial grounds to believe that he or she will be tortured. It could be argued, however,
that certain extraterritorial renditions are not covered by this provision. Seizing a person
in one country and transferring him to another would arguably not constitute “expelling”
the person, if a State is understood only to be able to “expel” persons from territory over
which it exercises sovereign authority. So long as these persons were rendered to
countries where they had not previously resided, it also could not be said that the United
States “returned” these persons to countries where they faced torture (though persons
rendered to countries where they had previously resided would presumably be protected
under CAT Article 3). In addition, if such renditions were not executed via an extradition
agreement, it could be argued they did not constitute extraditions for the purposes of
Article 3. Accordingly, it could be argued that the United States would not violate the
explicit language of Article 3 if it rendered persons to countries where they faced torture,
so long as no part of these renditions occurred within the territorial jurisdiction of the
United States.

Critics of this interpretation would argue that such a narrow interpretation of CAT
Article 3 would contradict the over-arching goal of the Convention to prevent torture.
The fact that CAT requires parties to take legal steps to eliminate torture within their
respective territories and to impose criminal penalties on torture offenders, coupled with
the Convention’s statement that “no exceptional circumstances whatsoever” can be used
to justify torture, arguably imply that a State Party may never exercise or be complicit in
the use of torture, even when it occurs extraterritorially. It could be further argued that
the drafters of CAT did not explicitly discuss extraterritorial renditions because they were
either not contemplated or, in cases where such renditions might occur absent the consent
of the hosting country, because these actions were arguably already understood to be
impermissible under international law.61 Opponents of a narrow interpretation of CAT
would likely argue that it is contrary to the purpose of CAT to interpret the Convention as
prohibiting formal transfers of persons to States where they face torture while still
allowing such transfers through irregular forms of transfer. The CAT Committee against
Torture declared in a non-binding opinion that Article 3 prevents not only the return of a
person to a country where he or she is in danger of being tortured, but also prohibits the
person’s transfer to “any other country where he runs a real risk of being expelled or
returned to [his or her country of origin] or of being subjected to torture.”62

Beyond the express language of CAT, it is important to note that given the
express language of CAT-implementing legislation, the United States cannot “expel,
extradite, or otherwise effect the involuntary return of any person to a country in
which there are substantial grounds for believing the person would be in danger of
being subjected to torture, regardless of whether the person is physically present in

________________________________________________________________________



61 See supra note 6.

62 Committee against Torture, Communication No 13/1993: Switzerland. 27/04/94 (Mutombo v.
Switzerland), CAT/C/12/D/13/1993 (1994) at para. 10.



CRS-15

the United States.”63 It may be argued that this express statutory language prohibits
renditions from outside the United States, even if such renditions would not otherwise be
in violation of CAT obligations. Though it generally could be argued that a State can only
“expel” someone from a territory over which the State exercises sovereign authority, the
language of the U.S. legislation implementing CAT may suggest an intent by Congress to
broadly define the prohibition on “expel[ling]” persons to countries where they would
likely face torture, so that this prohibition covers not only expulsions from areas over
which the United States exercises sovereign authority, but also “expulsions” from all
other areas (e.g., capturing persons in non-U.S. territory and rendering them to other
States). At the very least, it could be argued that U.S. legislation implementing CAT
Article 3 evidences an understanding that CAT universally prohibits renditions of persons
to countries where they would face torture, rather than only in cases where persons are
rendered from the CAT Member State’s territory.

Two possible counter-arguments could be made to this position, at least in certain
circumstances. The first and perhaps most compelling counter-argument is that, as
mentioned previously, although the Foreign Affairs Reform and Restructuring Act of
1998 generally prohibits persons from being expelled, extradited, or involuntarily
returned regardless of whether the person is physically present in the United States,
section 2243(c) of the act makes an exception requiring federal agencies to exclude from
the protection of CAT-implementing regulations any aliens who, inter alia, are
reasonably believed to pose a danger to the United States, “to the maximum extent [such
exclusions are] consistent” with CAT obligations.64 Accordingly, presuming for the sake
of argument that CAT does not protect persons believed to be security dangers from
being rendered from outside the United States, the Foreign Affairs Reform and
Restructuring Act of 1998 would require such persons to be excluded from the protection
of any CAT-implementing regulations that would otherwise prohibit their rendition.

A second counter-argument that could be made is that the clause “regardless of
whether the person is physically present in the United States” should be read only in
reference to the prohibition contained in the CAT-implementing legislation upon the
“involuntary return” of persons to countries where they would more likely than not
be tortured, and not be read in reference to the prohibition on the extradition or
expelling of persons. CAT Article 3 obligates States not to “expel, return (‘refouler’)
or extradite a person” to a State where he would be at substantial risk of torture. The
principle of non-refoulement is commonly understood to prohibit not simply the
return of persons from the territory of the receiving State, but also bars a State from
“turning back” persons at its borders and compelling their involuntary return to
their country of origin.65 Unlike CAT Article 3, CAT-implementing legislation enacted

________________________________________________________________________

63 P.L. 105-277 at § 2242(a) (emphasis added).

64 Id. at § 2242(c).

65 For additional background on the concept of non-refoulement and its development in
international human rights law, see Elihu Lauterpacht and Daniel Bethlehem, The Scope and
Content of the Principle of Non-refoulement
, in REFUGEE PROTECTION IN INTERNATIONAL
LAW: UNHCR’S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION 78-177 ( Erika
(continued...)


CRS-16

by the United States does not use the term “refouler.” However, its use of the phrase
“involuntary return...regardless of whether the person is physically present in the United
States” appears to reflect the principle of non-refoulement expressed in CAT. It could be
argued that the use of the phrase “regardless of whether the person is physically present
in the United States” in CAT-implementing legislation was only intended to be read in
reference to the “involuntary return” phrase that precedes it (a reading that reflects the
non-refoulement obligation imposed by CAT), and not meant also to be read in reference
to the prohibition imposed upon the expulsion and extradition of persons to countries
where they would likely face torture, as this alternative reading would arguably go
beyond the non-refoulement obligations imposed upon the United States by the express
language of CAT.

Regardless of whether or not renditions that occur outside of the United States are
covered under CAT Article 3 and CAT-implementing legislation and regulations, CAT
Article 4 and corresponding domestic law criminalizing all acts of torture and complicity
therein would be controlling. Accordingly, U.S. officials could not conspire with officials
in other States to render a person so that he would be tortured. As discussed below,
however, criminal penalties may not necessarily attach to a person who renders another
with the knowledge that he will likely be tortured.

Criminal Sanctions for Participation in Torture. CAT Article 4 and the
federal torture statute do not expressly prohibit the transfer of a person to a State where
he is more likely than not to face torture. Indeed, the federal torture statute only imposes
criminal penalties for acts or attempts to commit torture and, most relevantly to the
subject of renditions, conspiracies to commit torture. Clearly, if a U.S. official rendered a
person to another country with instructions for the country to torture the rendered
individual, that official could be criminally liable under the torture statute.66

However, it appears unlikely that a U.S. official would be found criminally
liable for conspiracy to commit torture if he authorized a rendition after receiving
assurances that the rendered person would not be tortured. It is generally understood
that a conspiracy to commit a crime requires an agreement between parties for
a common purpose.67 Presuming that the United States received assurances before

________________________________________________________________________

65 (...continued)
Feller, Volker Türk and Frances Nicholson eds., 2003).

66 Such an official might also be charged under the federal statute governing accomplice liability,
which makes it a criminal offense to willfully cause an act to be done which, if directly performed
by him or another, would be a criminal offense. 18 U.S.C. § 2.

67 See, e.g., Iannelli v. United States, 420 U.S. 770, 777 (1975) (“[c]onspiracy is an inchoate
offense, the essence of which is an agreement to commit an unlawful act”); United States
v. Evans, 970 F.2d 663, 668 (10th Cir. 1992) (“[to] prove conspiracy, the government must
show ‘[1] that two or more persons agreed to violate the law, [2] that the defendant knew
at least the essential objectives of the conspiracy, ... [3] that the defendant knowingly and
voluntarily became a part of it,’ and [4] that the alleged coconspirators were
interdependent”) (quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.
1990)); United States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990) (“the essential element of
(continued...)


CRS-17

rendering a person to another country, it would be difficult to argue that the official
“agreed” to facilitate the rendered person’s subsequent torture.

Other Statutes and Treaties Relevant to the Issue of
Renditions

Although CAT and its implementing legislation provide the primary legal constraints
upon the rendition of persons to countries believed to engage in torture, some other
treaties and statutes are also potentially relevant. The following paragraphs briefly
discuss a few of them.

1949 Geneva Conventions. In certain situations, the 1949 Geneva Conventions
may impose limitations on the use of renditions. Each of the four Conventions accords
protections to specified categories of persons in armed conflict or in post-conflict,
occupied territory.68 The torture, inhumane, or degrading treatment of persons belonging
to specified categories — including civilians and protected prisoners of war (POWs) — is
expressly prohibited by the Conventions.69 In addition, “[n]o physical or moral coercion
shall be exercised against protected [civilians], in particular to obtain information from
them or from third parties.”70


The Geneva Conventions impose limitations on the transfer of protected persons.
Civilians may not be forcibly (as opposed to voluntarily) transferred to another State.71 A
violation of this obligation represents a “grave breach” of the relevant Geneva
Convention and therefore constitutes a war crime.72 However, it is not a violation of the
Geneva Conventions to extradite such persons, in compliance with extradition treaties
concluded before the outbreak of hostilities, who are charged with ordinary criminal law
offenses.73

________________________________________________________________________
67 (...continued)
conspiracy is that ‘the members of the conspiracy in some way or manner, or through some
contrivance, came to a mutual understanding to try to accomplish a common and unlawful plan’”)
(internal citation omitted).

68 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 6 U.S.T. 3114; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3217; Geneva
Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316 (hereafter “Third
Geneva Convention”); Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, 6 U.S.T. 3516 (hereafter “Fourth Geneva Convention”) (entered into force Oct. 21,
1950). The United States, Iraq, and Afghanistan are all parties to the Conventions.

69 See, e.g., Third Geneva Convention arts. 3, 17, 87, 130; Fourth Geneva Convention arts. 3, 32,
147.

70 Fourth Geneva Convention, art. 31

71 Fourth Geneva Convention, art. 49.

72 Fourth Geneva Convention art. 147.

73 Id. art. 45.




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Neither civilians nor protected POWs may be transferred to penitentiaries for
disciplinary punishment.74 In addition, persons protected by the Conventions may only be
transferred to other Convention parties, and then only after the transferring Power “has
satisfied itself of the willingness and ability of such transferee Power to apply the
Convention.”75 If the transferee Power fails to abide by the Convention in any important
respect (e.g., torturing a transferred person), upon notification the transferring Power is
required to either request their return or “take effective measures to correct the
situation.”76 Accordingly, in order to comply with its Convention obligations, the United
States could only render a protected person if (1) the State to which the person was being
rendered was a member of the Convention; (2) the United States had received assurances
that the person would not be tortured if rendered there; and (3) the United States
requested the return of a rendered person or took other effective measures if the rendered
individual was subsequently tortured.

In the case of armed conflicts that are not of an international character and occur in
the territory of a High Contracting Party, each party is obligated under Article 3 of each
of the 1949 Geneva Conventions (Common Article 3) to accord de minimus protections
to “[p]ersons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause.” Parties are required to treat such persons “humanely,” and
are prohibited from subjecting such persons to “violence to life and person...mutilation,
cruel treatment and torture ... [and] [o]utrages upon personal dignity, in particular
humiliating and degrading treatment.”

As
mentioned
previously,
the
Geneva
Conventions
apply
in
limited
circumstances. Besides only applying in armed conflict or in post-conflict occupied
territory, the Conventions also only expressly protect designated categories of
persons (though such persons may nevertheless be owed certain protections under
customary laws of war). Though its determinations have been subject to criticism,77
the Bush Administration has posited that while the Conventions apply in Iraq and
Afghanistan, Al Qaeda members (outside of Iraq, at least) are not covered under the
Conventions, as they are neither a State nor a party to the treaties.78 Reportedly, the
Administration has also concluded that the Geneva Convention prohibition on
the “forcible transfer” of civilians does not apply to “illegal aliens” who have entered
________________________________________________________________________
74 Third Geneva Convention art. 97; Fourth Geneva Convention art. 124. The Conventions do not
expressly prohibit the transfer of such persons for non-disciplinary reasons.

75 Third Geneva Convention art. 12; Fourth Geneva Convention art. 45.

76 Third Geneva Convention art. 12; Fourth Geneva Convention art. 45.

77 Some critics argue that all persons are covered by the Geneva Conventions, even if only under
Common Article 3. For additional background regarding the protections accorded to wartime
detainees and conflicting views as to the legal rights accorded to them under the Geneva
Conventions, see CRS Report RL32395, U.S. Treatment of Prisoners in Iraq: Selected Legal
Issues
; and CRS Report RL31367, Treatment of “Battlefield Detainees” in the War on Terrorism,
both by Jennifer K. Elsea.

78
See Fact Sheet, White House Press Office, Feb. 7, 2002, available at
[http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html]. It is not clear whether Al
Qaeda members in Iraq are deemed excluded from Geneva Convention coverage.

CRS-19

Iraq following the U.S.-led invasion, or bar the temporary removal of persons from
Iraq for the purposes of interrogation.79

War Crimes Act. The War Crimes Act imposes criminal penalties upon U.S.
nationals or Armed Forces members who commit severe war crimes.80 Persons who
commit applicable war crimes are potentially subject to life imprisonment or, if death
results from such acts, the death penalty. War crimes include violations of Common
Article 3 of the Geneva Conventions, as well as “grave breaches” of the Conventions,81
such as torture of protected POWs or civilians and the “unlawful deportation or transfer
or unlawful confinement” of protected civilians.82

As discussed previously, the Bush Administration has taken the position that Geneva
Convention protections do not necessarily extend to persons who would perhaps most
likely be subject to renditions (i.e., Al Qaeda members, “illegal aliens” in Iraq).

International Covenant on Civil and Political Rights. Article 7 of the
International Convenant on Civil and Political Rights (ICCPR),83 ratified by the United
States in 1992, prohibits the State Parties from subjecting persons “to torture or to cruel,
inhuman, or degrading treatment or punishment.”84 The Human Rights Committee, the
monitoring body of the ICCPR, has interpreted this prohibition to prevent State Parties
from exposing “individuals to the danger of torture or cruel, inhuman or degrading
treatment or punishment upon return to another country by way of their extradition,
expulsion or refoulement.”85 Although the Committee is charged with monitoring the
compliance of parties with the ICCPR and providing recommendations for improving
treaty abidance, its opinions are not binding law.

U.S. ratification of the ICCPR was contingent upon the inclusion of a
reservation that the treaty’s substantive obligations were not self-executing (i.e., to
take effect domestically, they require implementing legislation in order for courts to
enforce them, though U.S. obligations under the treaty remain binding
under international law).86 The United States also declared that it considered Article 7

________________________________________________________________________

79 See Dana Priest, Memo Lets CIA Take Detainees Out of Iraq, WASH. POST, Oct. 24, 2004, at
A1.

80 18 U.S.C. § 2441.

81 18 U.S.C. §§ 2441(c)(1),(3).

82 Fourth Geneva Convention, art. 147.

83 International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, 3rd
Comm., 21st Sess., 1496th plen, mtg. at 49, U.N. Doc. A/RES/ 2200A (XXI) (1966).

84 Id. art. 7.

85 Human Rights Committee, General Comment 20, Article 7, UN Doc. A/47/40 (1992) reprinted
in Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 30 (1994).

86
See United Nations Treaty Collection, Declarations and Reservations to the
International Convenant on Civil and Political Rights, at [http://www.unhchr.ch/html/menu3/b/
(continued...)


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binding “to the extent that ‘cruel, inhuman or degrading treatment or punishment’
[prohibited by ICCPR Article 7] means the cruel and unusual treatment or punishment
prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the
United States.”87

The United States has not enacted laws or regulations to comply with the Human
Rights Committee’s position that ICCPR Article 7 prohibits the transfer of persons to
countries where they would likely face torture or cruel, inhuman, or degrading treatment.
CAT-implementing regulations prohibit the transfer of persons to countries where they
would more likely than not face torture, but not cruel, inhuman, or degrading treatment
that does not rise to the level of torture.

Universal Declaration of Human Rights. The U.N. Charter provides that it is
the duty of the United Nations to promote “universal respect for, and observance of,
human rights and fundamental freedoms,”88 and Member States have an obligation to
work jointly and separately to promote such rights and freedoms.89 In 1948, the U.N.
General Assembly adopted the Universal Declaration of Human Rights,90 to explicate the
“human rights and fundamental freedoms” that Member States were obliged to protect.
The Universal Declaration prohibits, inter alia, the arbitrary arrest, detention, or exile of
persons,91 as well as torture and cruel, inhuman, or degrading treatment.92

The Universal Declaration is not a treaty and accordingly is not technically binding
on the United States,93 though a number of its provisions are understood to reflect
customary international law.94 The Universal Declaration does not include an enforcement
provision.




86 (...continued)
treaty5_asp.htm] (last updated Feb. 5, 2002).

87 Id.

88 U.N. CHARTER art. 55.

89 Id. art. 56.

90 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

91 Id. art 9.

92 Id. art. 5.

93 See Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2767 (2004) (declining to apply protections
espoused by the Universal Declaration of Human Rights because it “does not of its own force
impose obligations as a matter of international law”).

94 See Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980). But see Sosa, 124 S.Ct. at 2761-
62 (finding that certain provisions of the Universal Declaration did not in themselves constitute
an international norm that would fulfill the criteria that existed in the 18th century for a norm to be
customary international law).




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Legislative Developments Concerning Renditions

A number of proposals have been introduced in the 109th Congress to that would
either directly or indirectly provide additional oversight over the rendering of persons to
other countries. The Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief, 2005 (P.L. 109-13) provides that no funds
appropriated under the act shall be obligated or expended to “subject any person in the
custody or under the physical control of the United States to torture or cruel, inhuman, or
degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties
of the United States.”95 Other appropriations bills currently being considered that may
implicate the practice of renditions. The version of H.R. 2862, the Science, State, Justice,
Commerce, and Related Agencies Appropriations Act, 2006, which was introduced by
Representative Frank Wolf on June 10, 2005, and passed the House by a vote of 418-7 on
June 16, 2005, prohibits the funds it makes available from being used in contravention of
CAT-implementing statutes and regulations.96 However, the version of H.R. 2862 which
passed the Senate on September 15, 2005, by a vote of 91-4 does not include this
language.97 A conference is being held to resolve differences between the two versions of
the bill. H.R. 2863, the Department of Defense Appropriations Act, 2006, which was
introduced by Representative C.W. Bill Young on June 10, 2005, and passed the House
on a vote of 398-19 on June 20, 2005, also prohibits the funds it would make available
from being used in violation of CAT-implementing statutes and regulations.98

Two proposals — H.R. 952, the Torture Outsourcing Prevention Act, introduced
by Representative Edward Markey in the House on February 17, 2005, and S. 654,
the Convention Against Torture Implementation Act of 2005, introduced in the
Senate by Senator Patrick Leahy on March 17, 2005 — would impose additional
limitations on the transfer of persons to countries suspected of practicing torture.
Both bills would direct the Secretary of State to submit to appropriate congressional
committees an annual list of countries where there are substantial grounds for
believing that torture or cruel or degrading treatment of detained/interrogated
individuals occurs. Transfer of persons to listed countries would be generally
prohibited, subject to waiver by the Secretary of State in limited circumstances,
including if verifiable mechanisms assure the United States that a person will not be
tortured if transferred to a particular country. Written or verbal assurances would be
insufficient grounds to permit a person’s transfer to such countries. Both bills would
also require relevant agencies to modify their CAT-implementing regulations, with
H.R. 952 requiring such agencies to establish a process by which a person could raise
and adjudicate claims in an independent judicial forum that his or her transfer would
be violate CAT Article 3. While H.R. 952 would amend the CAT-related provisions
of the Foreign Affairs Reform and Restructuring Act of 1998, S. 654 would repeal
such provisions and require the promulgation of new CAT-implementing regulations

________________________________________________________________________
95 P.L. 109-13, § 1031 (2005).

96 H.R. 2862, § 807 (2005) (House-passed version).

97 H.R. 2862 (2005) (Senate-passed version).

98 H.R. 2863, § 9013 (2005) (House-passed version).




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which would generally prohibit persons from being expelled, returned, or extradited to
another country where they would likely face torture. Notably, S. 654 would define
“expelled persons” protected under CAT-implementing regulations to include persons
involuntarily transferred from the territory of any country.