Order Code RL32890
CRS Report for Congress
Received through the CRS Web
Renditions: Constraints
Imposed by Laws on Torture
Updated April 5, 2006
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 are not publicly 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 by 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 . . . . . . . . . . . . . . . . . . . . . . . . 6
CAT Limitation on the Transfer of Persons to Foreign States
for the Purpose of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Criminal Penalties for Persons Involved in Torture . . . . . . . . . . . . . . . 11
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
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. (Hereafter
cited as “CRS Report 98-258”.) 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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otherwise specified). Unlike in extradition cases, persons subject to this type of
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. These protections do not apply in situations where an alien is being removed
from the United States for immigration purposes. 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,” Washington
Post
, June 25, 2005, p. 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,” Washington Post, June 30, 2005, p. A1. However, Italian authorities have denied
any such knowledge or consent. Craig Whitlock, “Italy Denies Complicity in Alleged CIA
Action,” Washington Post, July 1, 2005, p. 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 those
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
States
, 1993-2001 (May 21, 2002), available at
[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
York, can be viewed at [http://www.ccr-ny.org/v2/legal/september_11th/
docs/ArarComplaint.pdf] On February 16, 2006, the U.S. District Court for the Eastern
District of New York dismissed Arar’s civil case on a number of grounds, including that
certain claims raised against U.S. officials implicated national security and foreign policy
considerations, and assessing the propriety of those considerations was most appropriately
reserved to Congress and the executive branch. It remains to be seen whether the district
court’s ruling will be appealed. The order of dismissal can be viewed at
[http://www.ccr-ny.org/v2/legal/september_11th/docs/Arar_Order_21606.pdf]. 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
(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)
punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the
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,” Washington
Post
, Mar. 17, 2005, p. 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 Abroad
to Jails,” N.Y. Times, Mar. 6, 2005.
14 See Dana Priest, “CIA’s Assurances On Transferred Suspects Doubted,” Washington
Post
, Mar. 17, 2005, p. A1.
15 See generally Jane Mayer, “Outsourcing Torture,” New Yorker, Feb. 14, 2005, p. 106.
16 See, e.g., R. Jeffrey Smith, “Gonzales Defends Transfer of Detainees,” Washington Post,
Mar. 8, 2005, p. 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, Mar. 16, 2005,
(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 Secretary of State Condaleezza Rice stated that “the United States has not
transported anyone, and will not transport anyone, to a country when we believe he
will be tortured. Where appropriate, the United States seeks assurances that
transferred persons will not be tortured.”19
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.”20 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.
17 (...continued)
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, Apr. 28, 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,” Congressional Daily, Mar. 18,
2005.
19 Remarks of Secretary of State Condoleezza Rice Upon Her Departure for Europe,
December 5, 2005, at [http://usinfo.state.gov/is/Archive/2005/Dec/05-978451.html].
20 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).

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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)21 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.22 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.23 Accordingly, many forms of persecution — including certain harsh
interrogation techniques that would be considered cruel and unusual under the U.S.
Constitution — do not necessarily constitute torture, which is an extreme and
particular form of mistreatment.24
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.25 CAT also established the Committee against Torture, a monitoring
body which has declaratory but non-binding authority concerning interpretation of
the Convention.26 State parties are required to submit periodic reports to the
Committee concerning their compliance with CAT.27
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.28
21 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc.
A/39/51 (1984).
22 Id., art. 2(1).
23 Id., art. 1 (emphasis added).
24 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.
25 CAT art. 16(1).
26 See id., arts. 17-24.
27 Id., art. 19(1).
28 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
(continued...)

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The express language of CAT Article 2 allows for no circumstances or
emergencies where torture could be permitted by Convention parties.29 On the other
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.30 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.31
28 (...continued)
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”).
29 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
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 cited as “State Dept. Summary”.)
30 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.
31 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
(continued...)

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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.”32
Domestic Implementation of CAT Article 3. The Foreign Affairs Reform
and Restructuring Act of 1998 implemented U.S. obligations under CAT Article 3.33
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.”34 The
act further required all relevant federal agencies to adopt appropriate regulations to
implement this policy.35
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).36 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;
31 (...continued)
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).
32 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 29, p. 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., p. 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 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.
33 P.L. 105-277 at § 2242(a)-(b).
34 Id., at § 2242(a) (emphasis added).
35 Id., at § 2242(b).
36 P.L. 105-277 at § 2242(c).

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! 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;37 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,38 regardless of whether they are
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,39 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.40 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.41 Such assurances must then reportedly be
cabled to CIA headquarters before the rendition may occur.42
37 The distinction between political and nonpolitical crimes is occasionally unclear. For
more background, see CRS Report 98-958, supra note 1.
38 See 8 C.F.R. §§ 208.16-18, 1208.16-18 (relating to the removal of aliens); 22 C.F.R. §95.2
(relating to extradition of persons).
39 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”).
40 8 C.F.R. § 208.18(c).
41 Dana Priest, “Italy Knew about Plan to Grab Suspect,” Washington Post, June 30, 2005,
p. A1.
42 Id.

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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.43 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, at least so long as the assurances are accompanied by a mechanism
for enforcement.44 Article 3 does not provide guidelines for how these considerations
should be weighed in determining whether substantial grounds exist to believe a
person would be tortured in the proposed receiving State.45 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.46
The United States has an obligation under customary international law to
execute its Convention obligations in good faith,47 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.48
43 CAT art. 3(2).
44 See Committee against Torture, Communication No 233/2003: Sweden. 24/05/2005
(Agiza v. Sweden), CAT/C/34/D/233/2003 (2005) at para. 13.4., reprinted in 44 ILM 1103
(2005)(finding that diplomatic assurances which provided no mechanism for their
enforcement did not suffice to protect against the risk of torture and thus did not absolve
sending State of its responsibility under CAT art. 3).
45 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.
46 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].
47 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”).
48 The CAT Committee has stated that unenforceable diplomatic assurances are insufficient
(continued...)

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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.49 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
! 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.50
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.51 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.52 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,”53 such as those statutes criminalizing assault, manslaughter, and murder.
The federal torture statute criminalizes torture, as well as attempts and conspiracies
to commit torture.54
48 (...continued)
to meet the obligation. See supra note 44 (Agiza v. Sweden).
49 CAT art. 4(1).
50 Id., art. 5.
51 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).
52 18 U.S.C. § 2340A(b).
53 S.Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT arts. 4 and 5).
54 18 U.S.C. § 2340A(a).

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The federal torture statute provides that the specific intent of the actor to commit
torture is a requisite component of the criminal offense.55 Specific intent is “the
intent to accomplish the precise criminal act that one is later charged with.”56 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).”57
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,58 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
55 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).
56 BLACK’S LAW DICTIONARY 814 (7th ed. 1999).
57 Id., at 813.
58 CAT at Preamble.

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its CAT obligations in good faith,59 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
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.60
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.61 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.62 For example,
59 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”).
60 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,” Washington Post, Dec. 26, 2002, p. A1.
61 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).
62 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
(continued...)

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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
.”63
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
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
62 (...continued)
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.
63 CAT art. 2(1) (emphasis added).

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impermissible under international law.64 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.”65
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
the United States
.”66 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.67
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
64 See supra note 6.
65 Committee against Torture, Communication No 13/1993: Switzerland. 27/04/94
(Mutombo v. Switzerland), CAT/C/12/D/13/1993 (1994) at para. 10.
66 P.L. 105-277 at § 2242(a) (emphasis added).
67 Ivid., at § 2242(c).

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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.68 Unlike CAT Article 3, CAT-implementing legislation enacted
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
68 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
Feller, Volker Türk and Frances Nicholson eds., 2003).

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to torture the rendered individual, that official could be criminally liable under the
torture statute.69
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.70 Presuming that the United States received assurances before
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.71 The torture, inhumane, or degrading
treatment of persons belonging to specified categories — including civilians and
69 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.
70 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
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).
71 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
[hereinafter “Third Geneva Convention”]; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, 6 U.S.T. 3516 [hereinafter “Fourth Geneva Convention”]
(entered into force Oct. 21, 1950). The United States, Iraq, and Afghanistan are all parties
to the Conventions.

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protected prisoners of war (POWs) — is expressly prohibited by the Conventions.72
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.”73
The Geneva Conventions impose limitations on the transfer of protected
persons. Civilians may not be forcibly (as opposed to voluntarily) transferred to
another State.74 A violation of this obligation represents a “grave breach” of the
relevant Geneva Convention and therefore constitutes a war crime.75 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.76

Neither civilians nor protected POWs may be transferred to penitentiaries for
disciplinary punishment.77 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.”78 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.”79 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.”
72 See, e.g., Third Geneva Convention, arts. 3, 17, 87, 130; Fourth Geneva Convention, arts.
3, 32, 147.
73 Fourth Geneva Convention, art. 31
74 Id., art. 49.
75 Id., art. 147.
76 Id., art. 45.
77 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.
78 Third Geneva Convention, art. 12; Fourth Geneva Convention, art. 45.
79 Third Geneva Convention, art. 12; Fourth Geneva Convention, art. 45.

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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,80
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.81 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
Iraq following the U.S.-led invasion, or bar the temporary removal of persons from
Iraq for the purposes of interrogation.82
War Crimes Act. The War Crimes Act imposes criminal penalties upon U.S.
nationals or Armed Forces members who commit severe war crimes.83 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,84 such as torture of protected POWs or civilians and the “unlawful
deportation or transfer or unlawful confinement” of protected civilians.85
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 Covenant on Civil and Political Rights (ICCPR),86 ratified by the United
States in 1992, prohibits the State Parties from subjecting persons “to torture or to
80 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.
81 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.
82 See Dana Priest, “Memo Lets CIA Take Detainees Out of Iraq,” Washington Post, Oct.
24, 2004, p. A1.
83 18 U.S.C. § 2441.
84 18 U.S.C. §§ 2441(c)(1),(3).
85 Fourth Geneva Convention, art. 147.
86 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).

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cruel, inhuman, or degrading treatment or punishment.”87 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.”88 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).89 The United States also declared that it considered Article 7
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.”90
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,”91 and Member States have an
obligation to work jointly and separately to promote such rights and freedoms.92 In
1948, the U.N. General Assembly adopted the Universal Declaration of Human
Rights,93 to explicate the “human rights and fundamental freedoms” that Member
States were obliged to protect. The Universal Declaration prohibits, inter alia, the
87 Id., art. 7.
88 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).
89 See United Nations Treaty Collection, Declarations and Reservations to the International
Covenant on Civil and Political Rights, at [http://www.unhchr.ch/html/menu3/b/
treaty5_asp.htm] (last updated Feb. 5, 2002).
90 Id.
91 U.N. CHARTER art. 55.
92 Id., art. 56.
93 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

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arbitrary arrest, detention, or exile of persons,94 as well as torture and cruel, inhuman,
or degrading treatment.95
The Universal Declaration is not a treaty and accordingly is not technically
binding on the United States,96 though a number of its provisions are understood to
reflect customary international law.97 The Universal Declaration does not include an
enforcement provision.
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.”98 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.99 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.100
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.101
94 Id., art 9.
95 Id., art. 5.
96 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”).
97 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).
98 P.L. 109-13, § 1031 (2005).
99 H.R. 2862, § 807 (2005) (House-passed version).
100 H.R. 2862 (2005) (Senate-passed version).
101 H.R. 2863, § 9013 (2005) (House-passed version).

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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
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.
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