Order Code RL32890
Renditions: Constraints
Imposed by Laws on Torture
Updated October 12, 2007
Michael John Garcia
Legislative Attorney
American Law Division

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Renditions: Constraints Imposed by Laws on Torture
Summary
Persons suspected of criminal or terrorist activity may be transferred from one
State (i.e., country) to another 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. Both 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. The State Department has taken the
position that CAT’s provisions concerning the transfer of persons do not apply
extraterritorially, though as a matter of policy the United States does not transfer
persons in its custody to countries where they would face torture (U.S. regulations
and statutes implementing CAT, however, arguably limit the extraterritorial transfer
of individuals nonetheless). 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 (as amended by the Military Commissions Act (P.L. 109-366)), the
International Covenant on Civil and Political Rights (ICCPR), and the Universal
Declaration on Human Rights.
This report also discusses legislation introduced in the 110th Congress to limit
or bar U.S. participation in renditions, including S. 1876, the National Security with
Justice Act of 2007, and H.R. 1352, the Torture Outsourcing Prevention Act.

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Contents
Limitations Imposed on Renditions by the Convention Against Torture
and Implementing Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CAT Limitation on the Transfer of Persons to Foreign States for the
Purpose of Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Domestic Implementation of CAT Article 3 . . . . . . . . . . . . . . . . . . . . 10
The Role of Diplomatic Assurances in Removal Decisions . . . . . . . . 11
Criminal Penalties for Persons Involved in Torture . . . . . . . . . . . . . . . . . . . 13
Domestic Implementation of CAT Articles 4 and 5 . . . . . . . . . . . . . . 13
Application of CAT and Implementing Legislation to the Practice of
Extraordinary Renditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Renditions from the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Renditions from Outside the United States . . . . . . . . . . . . . . . . . . . . . . . . . 15
Extraterritorial Application of CAT Article 3 . . . . . . . . . . . . . . . . . . . 15
Criminal Sanctions for Participation in Torture . . . . . . . . . . . . . . . . . . . . . . 20
Other Statutes and Treaties Relevant to the Issue of Renditions . . . . . . . . . . . . . 21
1949 Geneva Conventions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
War Crimes Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
International Covenant on Civil and Political Rights . . . . . . . . . . . . . . . . . 25
Universal Declaration of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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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
rendition typically have no access to the judicial system of the sending State by which
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 [hereinafter
“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. §§ 3181-3196. U.S. law
generally prohibits the extradition of individuals from the United States in the absence of
a treaty. 18 U.S.C. § 3181.
4 For example, via statutory authorization, the U.S. may in the exercise of comity surrender
a person to a foreign country to face criminal charges for committing a crime of violence
against a U.S. national, if the offense is non-political in nature and the person is not a U.S.
citizen, national, or permanent resident. 18 U.S.C. § 3181(b). Courts have also recognized
that an extradition may be effectuated pursuant to a statute rather than a treaty. See
Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999) (upholding surrender of Rwandan
citizen to international tribunal, when surrender was authorized via executive agreement and
implementing statute rather than treaty).

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CRS-2
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.6 Sometimes renditions occur with the formal consent of the
State where the fugitive is located; other times, they do not.7
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 2005, Khaled El-Masri, a German citizen of Lebanese descent, filed suit against a
former CIA director and other persons for their involvement in his alleged rendition from
Macedonia to a detention center in Afghanistan, where he was subjected to harsh
interrogation for several months on account of suspected terrorist activities. El-Masri
claimed that after the CIA discovered that its suspicions of El-Masri were mistaken, it
thereafter released him in Albania. Don Van Natta Jr.& Souad Mekhennet, “German’s
Claim of Kidnapping Brings Investigation of U.S. Link,” New York Times, January 9, 2005,
at 11. The federal district court dismissed El-Masri’s claim without evaluating its merits,
finding that the claim could not be fairly litigated without disclosure of sensitive information
protected by the state secrets privilege. El-Masri v. Tenet, 437 F.Supp.2d 530 (E.D.Va.
2006). The district court’s ruling was affirmed by the Fourth Circuit Court of Appeals in
2007, and the Supreme Court subsequently denied plaintiff’s petition for writ of certiorari.
El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, 75 U.S.L.W. 3663, 76
U.S.L.W. 3021 (U.S. Oct 09, 2007) (No. 06-1613).
7 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
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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.8 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, remain in, or pass in transit through the
United States. Although the deportation or exclusion of an alien under immigration
laws may have the same practical effect as an irregular rendition (especially if the
alien is subject to “expedited removal” under § 235 of the Immigration and
Nationality Act, in which case judicial review of a removal order may be very
limited), this practice is arguably distinct from the historical understanding of what
constitutes a rendition.9 Nonetheless, the term “extraordinary rendition” has
occasionally been used by some commentators to describe the transfer of aliens
suspected of terrorist activity to third countries for the purposes of detention and
interrogation, even though the transfer was conducted pursuant to immigration
procedures.10
7 (...continued)
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. In late 2006, a committee established by
the European Parliament (the parliamentary body of the European Union) to investigate
European governments’ participation in renditions by the CIA found evidence indicating the
involvement of European State agents or officials in a number of investigated renditions.
Temporary Committee on the Alleged Use of European Countries by the CIA for the
Transport and Illegal Detention of Prisoners, Eur. Parl., Working Doc. 7, November 16,
2006, available at [http://www.europarl.europa.eu/comparl/tempcom/tdip/working_docs/
pe380593_en.pdf] at 2. The final report by the committee was issued in January 2007.
Temporary Committee on the Alleged Use of European Countries by the CIA for the
Transport and Illegal Detention of Prisoners, Eur. Parl., Final Report, January 30, 2007,
available at [http://www.europarl.europa.eu/comparl/tempcom/tdip/final_report_en.pdf]. For
additional background, see CRS Report RL33643, Undisclosed U.S. Detention Sites
Overseas: Background and Legal Issues, by Jennifer K. Elsea and Julie Kim.
8 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).
9 See BASSIOUNI, supra note 1, at 183-248 (discussing deportation and exclusion as an
alternative to extradition).
10 Perhaps the most notable case of alleged rendition involved Maher Arar, a dual citizen of
(continued...)

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CRS-4
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
persons were seized, to answer criminal charges, including charges related to terrorist
activity.11 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 (though such “renditions” appear to have
been conducted pursuant to immigration removal procedures).12 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.13 On the other hand, the Supreme Court has found that
10 (...continued)
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. According to U.S. officials, Mr. Arar’s removal to Syria was done pursuant to §
235(c) of the Immigration and Nationality Act, which authorizes the “expedited removal”
of arriving aliens suspected of terrorist activity. U.S. Department of State, U.S. Views
Concerning Syrian Release of Mr. Maher Arar, October 6, 2003, available at
[http://www.state.gov/r/pa/prs/ps/2003/24965.htm]; see also 8 U.S.C. § 1225(c). 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. Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 2006). A notice of
appeal was subsequently filed in the Second Circuit. The Canadian government established
a commission to investigate Canada’s involvement in Arar’s arrest and transfer to Syria.
The final report of the Arar Commission, released in September 2006, concluded that Arar
had not been a security threat to Canada, but Canadian officials provided U.S. authorities
with inaccurate information regarding Arar that may have led to his transfer to Syria. Arar
Commission, Factual Inquiry, at [http://www.ararcommission.ca/eng/26.htm].
11 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 (March 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).
12 See supra note 10.
13 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
(continued...)

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the Constitution protects U.S. citizens abroad from actions taken against them by the
United States.14
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.15 Reportedly, the rendition of terrorist
suspects to other countries was authorized by President Ronald Reagan in 1986 and
has been part of U.S. counterterrorism efforts at least since the late 1990s.16 In
testimony before the House Foreign Affairs Committee in April 2007, former CIA
official Michael F. Scheuer claimed authorship of the CIA’s rendition program and
stated that it originally began in mid-1995. The initial goals of the rendition
program, according to Scheuer, were to ensure the detention of Al Qaeda members
posing a threat to U.S. security and to seize any documents in their possession.17
However,
[a]fter 9/11, and under President Bush, rendered al-Qaeda operatives have most
often been kept in U.S. custody. The goals of the program remained the same,
although ... Mr. Bush’s national security team wanted to use U.S. officers to
interrogate captured al-Qaeda fighters.18
13 (...continued)
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). Whether
the Rasul ruling meant only that federal habeas jurisdiction extended to Guantanamo or
more broadly found that non-citizens detained at Guantanamo possessed constitutional
rights has been subject to conflicting rulings by courts. In June 2007, the Supreme Court
granted certiorari to hear the consolidated cases of Boumediene v. Bush and Al Odah v.
United States, which concern the availability of habeas and constitutional protections to
persons detained in Guantanamo. See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007),
cert. granted by 127 S.Ct. 3078 (2007); Al Odah v. United States, 476 F. 3d 981 (D.C. Cir.
2007), cert. granted by 127 S.Ct. 3067 (2007). For further discussion, see CRS Report
RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by
Jennifer K. Elsea and Kenneth R. Thomas.
14 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
Constitution provide to protect his life and liberty should not be stripped away just because
he happens to be in another land.”).
15 For a historical discussion of U.S. policy and practice regarding rendition, see William
G. Weaver & Robert M. Pallitto, “The Law: ‘Extraordinary Rendition’ and Presidential Fiat,
36 PRESIDENTIAL STUD. Q. 102 (2006).
16 See Dana Priest, “CIA’s Assurances On Transferred Suspects Doubted,” Washington
Post, March 17, 2005, p. A1.
17 Statement of Michael F. Scheuer, Former Chief, Bin Laden Unit, Central Intelligence
Agency, House For. Affairs Comm. (April 17, 2007), Hearing, Extraordinary Rendition in
U.S. Counterterrorism Policy: The Impact on Transatlantic Relations, available at
[http://foreignaffairs.house.gov/110/sch041707.htm].
18 Id.

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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.”19 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.20 Although there are some reported estimates that the United States has
rendered more than 100 individuals following 9/11,21 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.22 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.23 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.”24 In testimony before the Senate Armed
Services Committee in 2005, acting CIA Director Porter Goss stated that in his
belief, “we have more safeguards and more oversight in place [over renditions] than
we did before” 9/11.25 Secretary of State Condoleezza Rice stated that “the United
States has not transported anyone, and will not transport anyone, to a country when
19 Statement of Director of Central Intelligence George Tenet, Joint Committee Inquiry into
Terrorist Attacks Against the United States (October 17, 2002), available online at
[http://www.cia.gov/cia/public_affairs/speeches/2002/dci_testimony_10172002.html].
20 Douglas Jehl and David Johnston, “Rule Change Lets CIA Freely Send Suspects Abroad
to Jails,” N.Y. Times, March 6, 2005.
21 See Priest, supra note 16.
22 See generally Jane Mayer, “Outsourcing Torture,” New Yorker, February 14, 2005, p. 106.
23 See, e.g., R. Jeffrey Smith, “Gonzales Defends Transfer of Detainees,” Washington Post,
March 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”).
24 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,
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”).
25 “McCain, Dems Press Goss On Torture Allegations,” Congressional Daily, March 18,
2005.

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we believe he will be tortured. Where appropriate, the United States seeks
assurances that transferred persons will not be tortured.”26
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.”27 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
Implementing Legislation
The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (CAT)28 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.29 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
26 Remarks of Secretary of State Condoleezza Rice Upon Her Departure for Europe,
December 5, 2005, online at [http://usinfo.state.gov/is/Archive/2005/Dec/05-978451.html]
[hereinafter “Rice Statement”].
27 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). Though U.S. law
expressly permits the surrender of certain fugitives to face criminal charges in the requesting
State in the absence of an extradition treaty , such persons (at least if found in the United
States) are provided with certain procedural protections under statute and the Constitution.
See 18 U.S.C. §§ 3181-3196; In re Kaine, 55 U.S. 103, 113 (1852) (“an extradition without
an unbiased hearing before an independent judiciary [is] highly dangerous to liberty, and
ought never to be allowed in this country”).
28 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).
29 Id., art. 2(1).

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color of law.30 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.31
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.32 CAT also established the Committee against Torture, a monitoring
body which has declaratory but non-binding authority concerning interpretation of
the Convention.33 State parties are required to submit periodic reports to the
Committee concerning their compliance with CAT.34
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.35
The express language of CAT Article 2 allows for no circumstances or
emergencies where torture could be permitted by Convention parties.36 On the other
30 Id., art. 1 (emphasis added).
31 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.
32 CAT art. 16(1).
33 See id., arts. 17-24.
34 Id., art. 19(1).
35 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”).
36 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
(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 arguably conflicts with the intent of the treaty.
CAT Limitation on the Transfer of Persons to Foreign States
for the Purpose of Torture37
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.38
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.”39
36 (...continued)
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.
[hereinafter “State Dept. Summary”].
37 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.
38 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).
39 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 36, p. 3. For example, the State Department suggested that
rough treatment falling into the category of police brutality, “while deplorable, does not
(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 3.40
Section 2242 of the act announced the 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.”41 The act further required all relevant federal agencies to adopt appropriate
regulations to implement this policy.42
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 § 241(b)(3)(B) of the Immigration and
Nationality Act (INA).43 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;44 or
! is believed, on the basis of reasonable grounds, to be a danger to the
security of the United States.
39 (...continued)
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.
40 P.L. 105-277 at § 2242(a)-(b).
41 Id., at § 2242(a) (emphasis added).
42 Id., at § 2242(b).
43 P.L. 105-277 at § 2242(c).
44 The distinction between political and nonpolitical crimes is occasionally unclear. For
more background, see CRS Report 98-958, supra note 1.

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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,45 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,46 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.47 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.48 Such assurances must then reportedly be
cabled to CIA headquarters before the rendition may occur.49
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.50 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.51 Article 3 does not provide guidelines for how these considerations
45 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).
46 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”).
47 8 C.F.R. § 208.18(c).
48 Priest, supra note 16.
49 Id.
50 CAT art. 3(2).
51 See Committee against Torture, Communication No 233/2003: Sweden. 24/05/2005
(continued...)

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should be weighed in determining whether substantial grounds exist to believe a
person would be tortured in the proposed receiving State.52 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.53
On the other hand, the Committee against Torture has expressed concern over
the use of diplomatic assurances by the United States. In 2006, it made a non-
binding recommendation that the United States:
should only rely on “diplomatic assurances” in regard to States which do not
systematically violate the Convention’s provisions, and after a thorough
examination of the merits of each individual case. The State party should
establish and implement clear procedures for obtaining such assurances, with
adequate judicial mechanisms for review, and effective post-return monitoring
arrangements.54
In addition, the United States has an obligation under customary international
law to execute its Convention obligations in good faith,55 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
51 (...continued)
(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).
52 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.
53 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].
54 Conclusions and Recommendations of the Committee against Torture regarding the
United States of America, July 25, 2006, available at [http://www.unhchr.ch/tbs/doc.nsf/
898586b1dc7b4043c1256a450044f331/e2d4f5b2dccc0a4cc12571ee00290ce0/$FILE/G0
643225.pdf] [hereinafter “Committee Recommendations”], at para. 21.
55 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”).

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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.56
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.57 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.58
Domestic Implementation of CAT Articles 4 and 5. In order to fulfill
its obligations under CAT Articles 4 and 5, the United States enacted §§ 2340-
2340B of the United States Criminal Code, which criminalize torture occurring
outside the United States.59 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.60 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
56 The CAT Committee has stated that unenforceable diplomatic assurances are insufficient
to meet Article 3 obligations. See supra note 51(Agiza v. Sweden).
57 CAT art. 4(1).
58 Id., art. 5.
59 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).
60 18 U.S.C. § 2340A. The USA PATRIOT Act amended the Federal Torture Statute to
criminalize conspiracies to commit torture outside the United States. P.L. 107-56, Title
VIII, § 811(g) (2001).

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statutes,”61 such as those statutes criminalizing assault, manslaughter, and murder.
The Federal Torture Statute criminalizes torture, as well as attempts and conspiracies
to commit torture.62
The Federal Torture Statute provides that the specific intent of the actor to
commit torture is a requisite component of the criminal offense.63 Specific intent is
“the intent to accomplish the precise criminal act that one is later charged with.”64
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).”65
Application of CAT and Implementing Legislation to
the Practice of Extraordinary Renditions
Although the express intent of CAT was to help ensure that no one would be
subjected to torture,66 it is arguably unclear as to whether CAT would in all
circumstances bar renditions to countries that practice torture, including possibly in
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, or whether criminal sanctions
would apply to a U.S. official who authorized a rendition without intending 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”
61 S.Rept. 103-107, at 59 (1993) (discussing legislation implementing CAT arts. 4 and 5).
62 18 U.S.C. § 2340A(a).
63 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).
64 BLACK’S LAW DICTIONARY 814 (7th ed. 1999).
65 Id., at 813.
66 CAT at Preamble.

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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,67 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.68
Extraterritorial Application of CAT Article 3. The territorial scope of
CAT Article 3 is a matter of debate. As a general matter, the United States has taken
the position that human rights treaties “apply to persons living in the territory of the
United States, and not to any person with whom agents of our government deal in the
67 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”).
68 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 & Barton Gellman, “U.S. Decries Abuse but Defends
Interrogations,” Washington Post, December 26, 2002, p. A1.

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international community.”69 In 2006, representatives of the U.S. State Department
informed the CAT Committee Against Torture that the United States does not believe
CAT Article 3 applies to persons outside U.S. territory.70 However, these
representatives also claimed that as a matter of policy, the United States accords CAT
Article 3 protections to all persons in U.S. custody, regardless of whether such
persons were found in U.S. territory.71
Although the scope of human rights treaties may generally be limited to conduct
occurring within the territorial jurisdiction of parties, it seems clear that at least some
CAT provisions are extraterritorial in scope. Most notably, CAT Articles 4-5 require
parties to criminalize all acts of torture, regardless of where they occur.72 Indeed, the
Federal Torture Statute implementing this obligation expressly covers torture
occurring “outside the United States.”73 Although several CAT provisions limit their
scope to acts occurring “in any territory under [the State Party’s] jurisdiction,”74 CAT
Article 3 does not contain a similar limiting provision. Accordingly it could be
argued that, like CAT Articles 4-5, CAT Article 3 is intended to be extraterritorial
in scope.
Nevertheless, it could still be argued that the express 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 formerly 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
69 JAG’s Legal Ctr. & Sch., Operational Law Handbook 50 (Maj. Derek I. Grimes ed.,
2006), available at [http://www.fas.org/irp/doddir/army/law2006.pdf].
70 United States Written Response to Questions Asked by the Committee Against Torture,
April 28, 2006, available at [http://www.state.gov/g/drl/rls/68554.htm] [hereinafter “Written
Responses”].
71 Id.; Second Periodic Report of the United States of America to the Committee Against
Torture, May 6, 2005, available at [http://www.state.gov/g/drl/rls/45738.htm][hereinafter
“Report to CAT Committee”], para. 30 (describing U.S. compliance with CAT Article 3,
and broadly stating that “The United States does not transfer persons to countries where the
United States believes it is ‘more likely than not’ that they will be tortured. This policy
applies to all components of the United States government.”). See also Rice Statement,
supra note 26 (describing U.S. rendition policy as complying with U.S. laws and treaties,
including CAT, and denying the transport of anyone to a country where he would face
torture).
72 CAT Article 5 requires each State to establish jurisdiction over some (but not all)
extraterritorial torture offenses, including when the offender is either a national of the State
or is found in the State’s territory and the State does not extradite him.
73 18 U.S.C. §2340A. See also Second Periodic Report of the United States of America to
the Committee Against Torture, May 6, 2005, available at [http://www.state.gov/g/drl/rls/
45738.htm], paras 44-46 (discussing U.S. implementation of obligations under CAT Articles
4-5, including through the Federal Torture Statute and the Military Extraterritorial
Jurisdiction Act, 18 U.S.C. §§ 3261 et seq., which extends U.S. criminal jurisdiction over
certain categories of individuals for conduct occurring outside the United States).
74 See CAT arts. 2, 6-7, 11-13, 16.

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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 a formal process, it could be
argued they did not constitute extraditions for the purposes of Article 3.75
Accordingly, it could be argued that the United States would not violate the express
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. 76
Critics of this view might argue that such a narrow interpretation of CAT Article
3 would contradict the Convention’s over-arching goal 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.77 Indeed, some of the drafters of CAT have taken the position that Article 3 was
75 See BASSIOUNI, supra note 1, at 29 (“Extradition in contemporary practice means a formal
process by which a person is surrendered by one state to another based on a treaty,
reciprocity, or comity.”).
76 In Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), the Supreme Court held that
the interdiction of Haitian refugees by the United States did not violate U.S. obligations
under the U.N. Convention Relating to the Status of Refugees. The Court concluded that
the Convention’s provisions providing that no Contracting Party “shall expel or return
(‘refouler’) a refugee” facing persecution applies only to refugees within a Party’s territory,
and not to those interdicted on the high seas. Id. at 179-183. Some have suggested that CAT
Article 3’s limitation on the transfer of persons should also be interpreted in a non-
extraterritorial fashion. John Yoo, Transferring Terrorists, 79 NOTRE DAME L. REV. 1183,
1229 (2004) (“Given the Supreme Court’s interpretation [in Sale] of identical language in
the Refugee Convention, it makes no sense to view the Torture Convention as affecting the
transfer of prisoners held outside the United States to another country.”). On the other hand,
the Sale Court’s interpretation of the Refugee Convention’s prohibition on the expulsion or
return of refugees was largely based on this prohibition’s interplay with other Convention
provisions. Reading this prohibition to apply extraterritorially would create “an absurd
anomaly” with a related Convention provision that only applied to refugees within a
Convention Party’s territory. Sale, 509 U.S. at 179-180. In contrast, reading CAT Article
3 as being extraterritorial in scope would not have an incongruous effect on the
interpretation of other CAT provisions.
77 See supra note 7.

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“intended to cover all measures by which a person is physically transferred to another
State.”78
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. In 1994, 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.”79 More recently in 2006, the Committee urged the United States to
apply the non-refoulement guarantee [of CAT Article 3] to all detainees in its
custody, cease the rendition of suspects, in particular by its intelligence agencies,
to States where they face a real risk of torture, in order to comply with its
obligations under article 3 of the Convention.80
Extraterritorial Application of Legislation Implementing CAT Article
3. Beyond 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.”81 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.82
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 although the Foreign Affairs Reform and Restructuring Act of 1998 generally
78 J. HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION AGAINST
TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER CRUEL,
INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT 126 (1988). On the other hand, the
State Department has claimed that “Neither the text of the Convention, its negotiating
history, nor the U.S. record of ratification supports a view that Article 3 of the CAT applies
to persons outside the territory of [a Party].” Written Responses, supra note 70.
79 Committee against Torture, Communication No 13/1993: Switzerland. 27/04/94
(Mutombo v. Switzerland), CAT/C/12/D/13/1993 (1994) at para. 10.
80 Committee Recommendations, supra note 54, at para. 20.
81 P.L. 105-277 at § 2242(a) (emphasis added).
82 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., rendering
persons captured in non-U.S. territory to other States).

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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.83 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 as well.
A second counter-argument 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 expulsion 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 exclusion of
persons from the territory of the receiving State, but also a State from “turning back”
persons at its borders and compelling their involuntary return to their country of
origin.84 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 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
83 Id. at § 2242(c).
84 For additional background on the concept of non-refoulement and its development in
international human rights law, see Elihu Lauterpacht & 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). It should be noted that the CAT-
implementing legislation prohibiting the return of any person to a country where he would
face torture, regardless of whether he was physically present in the United States, was
enacted five years after the Supreme Court’s decision in Sale v. Haitian Centers Council,
Inc., 509 U.S. 155 (1993). In Sale, the Court found that the Refugee Convention’s
prohibition on the refoulement of refugees was not intended to apply extraterritorially. Sale,
509 U.S. at 179-187. See also supra note 76.

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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.85
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.86 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.
85 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.
86 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).

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CRS-21
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 separate from those imposed by CAT. Each of the four
Conventions accords protections to specified categories of persons in armed conflict
or in post-conflict, occupied territory.87 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.88
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.”89
The Geneva Conventions impose limitations on the transfer of protected
persons. Civilians may not be forcibly (as opposed to voluntarily) transferred to
another State.90 A violation of this obligation represents a “grave breach” of the
relevant Geneva Convention and therefore constitutes a war crime.91 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.92

Neither civilians nor protected POWs may be transferred to penitentiaries for
disciplinary punishment.93 In addition, persons protected by the Conventions may
only be transferred to other Convention parties, and then only after the transferring
87 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 October 21, 1950). The United States, Iraq, and Afghanistan are all
parties to the Conventions.
88 See, e.g., Third Geneva Convention, arts. 3, 17, 87, 130; Fourth Geneva Convention, arts.
3, 32, 147.
89 Fourth Geneva Convention, art. 31
90 Id., art. 49.
91 Id., art. 147.
92 Id., art. 45.
93 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.

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Power “has satisfied itself of the willingness and ability of such transferee Power to
apply the Convention.”94 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.”95 Accordingly, in order to comply with its
Convention obligations, the United States may 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 the 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 minimis
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 protect designated categories of persons (though
other persons may nevertheless be owed certain protections under customary laws of
war). At least since early 2002, the Bush Administration took the position that the
Geneva Conventions did not apply to members of Al Qaeda.96 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.97
In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court held that Common
Article 3 of the Geneva Conventions applied to the armed conflict with Al Qaeda and
accorded Al Qaeda members certain minimal protections, even if such persons were
not otherwise covered by other Convention provisions (i.e., those covering “lawful
combatants” and civilians). Common Article 3 does not expressly prohibit the
transfer of persons to other countries, even if such persons might face cruel treatment
or torture there. Some have argued that Common Article 3 nevertheless prohibits
94 Third Geneva Convention, art. 12; Fourth Geneva Convention, art. 45.
95 Third Geneva Convention, art. 12; Fourth Geneva Convention, art. 45.
96 See White House Memorandum, Humane Treatment of Taliban and Al Qaeda Detainees
(February 7, 2002), available at [http://www.justicescholars.org/pegc/archive/White_House/
bush_memo_20020207ed.pdf].
97 See Dana Priest, “Memo Lets CIA Take Detainees Out of Iraq,” Washington Post,
October 24, 2004, p. A1.

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renditions committed to facilitate the rendered person’s torture or cruel treatment.98
However, it is unclear whether this interpretation is proper99 or that it would cover
all renditions to countries where the detainee would face torture or cruel treatment
(e.g., when the rendering country does not request the torture or cruel treatment of
the detainee by the party to which he is rendered).
For purposes of U.S. law, however, it does not appear that Common Article 3
is understood to cover renditions of persons to countries where they would face
torture. The Military Commissions Act of 2006 (P.L. 109-366), which was signed
into law on October 17, 2006, provides that for purposes of U.S. law it is generally
a violation of Common Article 3 to engage in conduct (1) inconsistent with the
Detainee Treatment Act of 2005 (sometimes referred to as the McCain Amendment),
which prohibits “cruel, inhuman, or degrading treatment” of persons in U.S. custody
or control;100 or (2) subject to criminal penalty under provisions of the War Crimes
Act, as amended, concerning “grave breaches” of Common Article 3 (the President
is authorized to subsequently interpret the Conventions more restrictively, subject to
certain limitations).101 Under this standard, torture and cruel treatment would only
be considered a violation of Common Article 3 in cases where the victim was in the
custody or control of the United States, not in circumstances where the victim was
transferred to the custody and control of a third-party and was subsequently treated
harshly. As discussed in the following paragraph, however, this standard might still
prohibit U.S. personnel from rendering a person covered by Common Article 3 when
they have conspired with the receiving party to intentionally cause the transferee
serious bodily injury.
War Crimes Act
The War Crimes Act imposes criminal penalties upon U.S. nationals or Armed
Forces members who commit listed offenses of the laws of war.102 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 “grave breaches” of the
Geneva Conventions,103 such as torture of protected POWs or civilians and the
98 See David Weissbrodt & Amy Bergquist, Extraordinary Rendition: a Human Rights
Analysis, 19 HARV. HUM. RTS. J. 123, 151-153 (2006).
99 As discussed, several Convention provisions specifically discuss and limit the transfer of
protected persons to third parties when such persons would face treatment prohibited by the
Conventions. See infra at 19-20. It could be argued that these provisions would be made
redundant if Convention provisions covering mistreatment were also read to cover the
rendition of detainees to third-parties who might subject them to mistreatment.
100 For background on the McCain Amendment, see CRS Report RL33655, Interrogation
of Detainees: Overview of the McCain Amendment, by Michael John Garcia.
101 For background, see CRS Report RL33662, The War Crimes Act: Current Issues, by
Michael John Garcia.
102 18 U.S.C. § 2441.
103 18 U.S.C. §§ 2441(c)(1).

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“unlawful deportation or transfer or unlawful confinement” of protected civilians, 104
as well as certain violations of Common Article 3.105
As discussed previously, following the Supreme Court’s ruling in Hamdan, it
is understood as a matter of U.S. law that Common Article 3 covers the conflict with
Al Qaeda and accords Al Qaeda members captured in that armed conflict with certain
protections.106 Accordingly, certain forms of treatment with respect to Al Qaeda
members is subject to criminal penalty, including torture, certain lesser forms of cruel
treatment, and the intentional infliction of serious bodily injury.
Although the War Crimes Act imposes criminal penalties for conspiring to
subject protected persons to torture or cruel treatment, such persons must be in the
offender’s custody or control. Accordingly, the provisions of the War Crimes Act
covering torture and cruel treatment do not appear to cover the rendition of persons
to countries for the purpose of cruel treatment or torture (though any U.S. personnel
who conspired with officials in other States to render a person so that he would be
tortured could still be prosecuted under the Federal Torture Statute).
However, the War Crimes Act may be interpreted as prohibiting some
renditions. As recently amended by the Military Commissions Act, the War Crimes
Act expressly prohibits persons from conspiring to commit such acts as rape,
mutilation or maiming, or causing “serious bodily injury” against persons protected
by Common Article 3. A person may be subject to criminal penalty for these
offenses regardless of whether the victim was in his custody or control. Accordingly,
any U.S. personnel who conspire with officials in other States to render a person so
that he would be subjected to serious bodily injury, rape, or sexual assault would
appear to be subject to criminal liability under the War Crimes Act. As a practical
104 E.g., Fourth Geneva Convention, art. 147.
105 18 U.S.C. § 2441(c)(3). Until October 17, 2006, the War Crimes Act prohibited any
violation of Common Article 3. The Military Commissions Act (P.L. 109-366) amended
this provision so that only certain, “grave” violations of Common Article 3 are subject to
criminal penalty. This amendment was retroactive in effect.
106 It is not clear that Common Article 3 is applicable to captured Al Qaeda agents in all
circumstances. The Geneva Conventions concern treatment owed to protected persons in
an armed conflict, and would arguably be inapplicable to law enforcement activities relating
to Al Qaeda agents. International terrorism is recognized as a criminal offense under both
domestic law and various international agreements. E.g., 18 U.S.C. § 2332b (concerning
certain terrorist activities transcending international boundaries); International Convention
for the Suppression of the Financing of Terrorism, S. Treaty Doc. No. 106.49, entered into
force for the United States on July 26, 2002; International Convention for the Suppression
of Terrorist Bombings, S. Treaty Doc. No. 106-6, entered into force for the United States
on July 26, 2002. Whether the Geneva Conventions are applicable to the arrest and
detention of Al Qaeda agents may depend upon whether such agents were (1) captured on
or away from the battlefield, (2) captured by military or law enforcement agents, and (3)
charged with a criminal offense, and if so, whether the offense relates to a violation of the
laws of war or some other activity.

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matter, it is unclear whether the War Crimes Act would prohibit renditions in any
circumstance not already prohibited under the Federal Torture Statute.107
International Covenant on Civil and Political Rights
Article 7 of the International Covenant on Civil and Political Rights (ICCPR),108
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.”109
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.”110 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).111 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.”112
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
107 Mutilation and maiming, the intentional causing of serious bodily injury (defined by
reference to 18 U.S.C. § 113b as bodily injury involving a substantial risk of death, extreme
physical pain, disfigurement, or loss or impairment of the function of a bodily member,
organ, or mental faculty), and rape have all been found by U.S. courts to constitute torture,
at least in some circumstances. See Zubeda v. Ashcroft, 333 F.3d 463 (3rd Cir. 2003) (“[r]ape
can constitute torture”); CRS Report RL33662, supra note 101, at 7-8. Whether sexual
assault rises to the level of torture depends on the particular nature of the assault. Cf.
Zubeda, 333 F.3d at 472-473 (discussing instances where courts have found rape or sexual
abuse to constitute torture).
108 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).
109 Id., art. 7.
110 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).
111 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 February 5, 2002).
112 Id.

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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,”113 and Member States have an obligation to work jointly and separately
to promote such rights and freedoms.114 In 1948, the U.N. General Assembly adopted
the Universal Declaration of Human Rights,115 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,116
as well as torture and cruel, inhuman, or degrading treatment.117
The Universal Declaration is not a treaty and accordingly is not technically
binding on the United States,118 though a number of its provisions are understood to
reflect customary international law.119 The Universal Declaration does not include
an enforcement provision.
Legislation in the 110th Congress
Legislation has been introduced in the 110th Congress that would limit the ability
of U.S. agencies to render persons to foreign States. S. 1876, the National Security
with Justice Act of 2007, introduced by Senator Biden on July 25, 2007, would bar
the United States from rendering or participating in the rendition of any individual
to a foreign State absent authorization from the Foreign Intelligence Surveillance
Court, except under limited circumstances in the case of enemy combatants held by
the United States (though renditions in such circumstances would still have to
comply with other legal requirements). For an order to be issued by the Foreign
Intelligence Surveillance Court authorizing a rendition, the requesting U.S. official
would need to provide evidence that the rendered person was (1) an international
113 U.N. CHARTER art. 55.
114 Id., art. 56.
115 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).
116 Id., art 9.
117 Id., art. 5.
118 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”).
119 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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CRS-27
terrorist; and (2) would not be subjected to torture or lesser forms of cruel, inhuman,
or degrading treatment — a more stringent limitation on the transfer of persons than
that expressly imposed by CAT Article 3, which only bars the transfer of persons to
countries where they would face torture.
H.R. 1352, the Torture Outsourcing Prevention Act, introduced by
Representative Markey on March 6, 2007, would require the State Department to
provide annual reports to appropriate congressional committees regarding countries
where there are substantial grounds for believing that torture or cruel, inhuman, or
degrading treatment is commonly used in the detention or interrogation of
individuals. Generally, persons could not be transferred to such countries, whether
through rendition or some other process. This prohibition could be waived by the
Secretary of State in limited circumstances, including, at a minimum, when
continuing access to each such person is granted to an independent humanitarian
organization. Written or oral assurances made to the U.S. government would be
deemed insufficient to demonstrate that a person would not face torture or cruel,
inhuman, or degrading treatment if rendered to a particular State.

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