Renditions: Constraints Imposed by Laws on Torture
Prepared for Members and Committees of Congress
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 first session of the 110th Congress to limit
or bar U.S. participation in renditions, including S. 1876, the National Security with Justice Act of
Introduc tion ..................................................................................................................................... 1
Limitations Imposed on Renditions by the Convention Against Torture and Implementing
Legi slation .................................................................................................................................... 6
CAT Limitation on the Transfer of Persons to Foreign States for the Purpose of
Tort ure .................................................................................................................................... 7
Domestic Implementation of CAT Article 3.......................................................................8
The Role of Diplomatic Assurances in Removal Decisions...............................................9
Criminal Penalties for Persons Involved in Torture................................................................10
Domestic Implementation of CAT Articles 4 and 5...........................................................11
Application of CAT and Implementing Legislation to the Practice of Extraordinary
Renditions from the United States..........................................................................................12
Renditions from Outside the United States.............................................................................12
Extraterritorial Application of CAT Article 3....................................................................13
Extraterritorial Application of Legislation Implementing CAT Article 3.........................15
Criminal Sanctions for Participation in Torture......................................................................16
Other Statutes and Treaties Relevant to the Issue of Renditions...................................................17
1949 Geneva Conventions......................................................................................................17
War Crimes Act.......................................................................................................................19
International Covenant on Civil and Political Rights..............................................................20
Universal Declaration of Human Rights.................................................................................21
Legislation in the 110th Congress..................................................................................................22
Author Contact Information..........................................................................................................22
Persons suspected of terrorist or criminal activity may be transferred from one State (i.e., country) 1
to another to answer charges against them. The surrender of a fugitive from one State to another 2
is generally referred to as rendition. 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 3
process, typically established by treaty between the countries. However, renditions may be 4
effectuated in the absence of extradition treaties, as well. 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 5
State by which they may challenge their transfer. 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 6
rendering State. Sometimes renditions occur with the formal consent of the State where the 7
fugitive is located; other times, they do not.
1 The surrender of persons to a requesting State to answer criminal charges was originally guided by principles of
comity and reciprocity. Beginning in the late eighteenth century, the surrender of persons to a requesting State to
answer charges increasingly became governed by formal extradition treaties between States (though the practice of
extradition can be traced back to antiquity). For background, see CRS Report 98-958, Extradition To and From the
United States: Overview of the Law and Recent Treaties, by Charles Doyle. In contrast to earlier practices, extradition
treaties established formal procedures governing the surrender of persons from one treaty party to another, facilitating
treaty parties’ shared interest in punishing certain crimes while providing persons with a legal means to challenge their th
proposed transfer to a requesting State. By the 20 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 th
1-3; M. BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE (4 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 th
v. Reno, 184 F.3d 419 (5 Cir. 1999) (upholding surrender of Rwandan citizen to international tribunal, when surrender
was authorized via executive agreement and implementing statute rather than treaty).
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, Extradition To and From the United States: Overview of the Law and Recent Treaties, by Charles
Doyle, supra footnote 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
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 8
or inadmissible and their removal complies with relevant statutory provisions. 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
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 th
certiorari. El-Masri v. United States, 479 F.3d 296 (4 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 th
and defined with a specificity comparable to the features of the 18 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
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).
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 10
conducted pursuant to immigration procedures.
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 11
criminal charges, including charges related to terrorist activity. 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 12
conducted pursuant to immigration removal procedures). 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 13
protections after they have effected entry into the United States. On the other hand, the Supreme
9 See BASSIOUNI, supra footnote 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 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 footnote 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 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
Court has found that the Constitution protects U.S. citizens abroad from actions taken against 14
them by the United States.
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 15
agencies. 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 16
the late 1990s. 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 17
any documents in their possession. 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 18
national security team wanted to use U.S. officers to interrogate captured al-Qaeda fighters.
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 19
world.” 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 20
States, though this allegation has not been publicly confirmed or denied by the White House.
Although there are some reported estimates that the United States has rendered more than 100 21
individuals following 9/11, the actual number is not a matter of the public record.
Recent controversy has arisen over the United States allegedly rendering suspected terrorists to 22
States known to practice torture for the purpose of arrest, detention, and/or harsh interrogation.
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.
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.
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/
20 Douglas Jehl and David Johnston, “Rule Change Lets CIA Freely Send Suspects Abroad to Jails,” N.Y. Times, March
21 See Priest, supra footnote 16.
22 See generally Jane Mayer, “Outsourcing Torture,” New Yorker, February 14, 2005, p. 106.
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 23
purpose of torture. 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 24
States receives “promise that they won’t be tortured...This country does not believe in torture.”
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 25
renditions] than we did before” 9/11. Secretary of State Condoleezza Rice stated that “the
United States has not transported anyone, and will not transport anyone, to a country when we
believe he will be tortured. Where appropriate, the United States seeks assurances that transferred 26
persons will not be tortured.”
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 27
the United States to stand trial.” 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.
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.
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”).
The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or 28
Punishment (CAT) 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 29
be tortured. Torture is a distinct form of persecution, and is defined for purposes of CAT as 30
“severe pain or suffering ... intentionally inflicted on a person” under the color of law.
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 31
torture, which is an extreme and particular form of mistreatment.
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 32
occurring within a State Party’s territorial jurisdiction. CAT also established the Committee
against Torture, a monitoring body which has declaratory but non-binding authority concerning 33
interpretation of the Convention. State parties are required to submit periodic reports to the 34
Committee concerning their compliance with CAT.
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 35
domestic implementing legislation to take effect.
The express language of CAT Article 2 allows for no circumstances or emergencies where torture 36
could be permitted by Convention parties. On the other hand, a number of CAT provisions
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).
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 th
permitted under domestic implementing legislation. See, e.g., Castellano-Chacon v. INS, 341 F.3d 533 (6 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”).
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 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 38
determining whether to withhold an alien’s removal for fear of persecution.
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 39
be severe enough to constitute “torture.”
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 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 footnote 36, p. 3. For example, the State
Department suggested that rough treatment falling into the category of police brutality, “while deplorable, does not
amount to ‘torture’” for purposes of the Convention, which is “usually reserved for extreme, deliberate, and unusually
cruel practices ... [such as] sustained systematic beating, application of electric currents to sensitive parts of the body,
and tying up or hanging in positions that cause extreme pain.” Id., p. 4 (presumably, police brutality of extreme severity
could rise to the level of “torture”). This understanding of torture as a particularly severe form of cruel treatment is
made explicit by CAT Article 16, which obligates Convention parties to “prevent in any territory under [their]
jurisdiction other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to acts of torture,”
The Foreign Affairs Reform and Restructuring Act of 1998 implemented U.S. obligations under 40
CAT Article 3. 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 41
whether the person is physically present in the United States.” The act further required all 42
relevant federal agencies to adopt appropriate regulations to implement this policy.
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 § 43
241(b)(3)(B) of the Immigration and Nationality Act (INA). 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 44
United States prior to arrival; or
• is believed, on the basis of reasonable grounds, to be a danger to the security of
the United States.
Thus far, however, U.S. regulations concerning the removal of aliens and extradition of fugitives
have prohibited the removal of all persons to States where they would more likely than not be 45
tortured, 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.
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, Extradition To and From the United States: Overview of the Law and Recent Treaties, by Charles
Doyle, supra footnote 1.
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
U.S. regulations implementing CAT Article 3 permit the consideration of diplomatic assurances in 46
removal/extradition decisions, 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 47
not be tortured. 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 48
country’s security service that a person will not be tortured if rendered there. Such assurances 49
must then reportedly be cabled to CIA headquarters before the rendition may occur.
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 50
particular State. 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 51
there, at least so long as the assurances are accompanied by a mechanism for enforcement.
Article 3 does not provide guidelines for how these considerations should be weighed in
determining whether substantial grounds exist to believe a person would be tortured in the 52
proposed receiving State. 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
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
47 8 C.F.R. § 208.18(c).
48 Priest, supra footnote 16.
50 CAT art. 3(2).
51 See Committee against Torture, Communication No 233/2003: Sweden. 24/05/2005 (Agiza v. Sweden),
CAT/C/34/D/233/2003 (2005) at para. 13.4., reprinted in 44 ILM 1103 (2005)(finding that diplomatic assurances
which provided no mechanism for their enforcement did not suffice to protect against the risk of torture and thus did
not absolve sending State of its responsibility under CAT art. 3).
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, th
Inhuman or Degrading Treatment or Punishment, U.N. General Assembly, 59 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.
transfer the person to the control of that government unless the concerns are satisfactorily 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-54
return monitoring arrangements.
In addition, the United States has an obligation under customary international law to execute its 55
Convention obligations in good faith, and is therefore required under international law to
exercise appropriate discretion in its use of diplomatic assurances. For instance, if a State
consistently violated the terms of its diplomatic assurances, the United States would presumably
need to look beyond the face of such promises before permitting the transfer of an individual to 56
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 57
complicity or participation in torture. 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
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/G0643225.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”).
56 The CAT Committee has stated that unenforceable diplomatic assurances are insufficient to meet Article 3
obligations. See supra footnote 51(Agiza v. Sweden).
57 CAT art. 4(1).
• 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 58
In order to fulfill its obligations under CAT Articles 4 and 5, the United States enacted §§ 2340-
States. Jurisdiction occurs when the alleged offender is either a national of the United States or 60
is present in the United States, irrespective of the nationality of the victim or alleged offender.
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 61
[U.S.] state statutes,” such as those statutes criminalizing assault, manslaughter, and murder.
The Federal Torture Statute criminalizes torture, as well as attempts and conspiracies to commit 62
The Federal Torture Statute provides that the specific intent of the actor to commit torture is a 63
requisite component of the criminal offense. Specific intent is “the intent to accomplish the 64
precise criminal act that one is later charged with.” This degree of intent differs from general
intent, which usually “takes the form of recklessness (involving actual awareness of a risk and the 65
culpable taking of that risk) or negligence (involving blameworthy inadvertence).”
Although the express intent of CAT was to help ensure that no one would be subjected to 66
torture, 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
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. §
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).
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)
64 BLACK’S LAW DICTIONARY 814 (7th ed. 1999).
65 Id., at 813.
66 CAT at Preamble.
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).
CAT Article 3 clearly prohibits the rendition of persons from the territory of a signatory State to
another State when there are substantial grounds for believing the person would be tortured. Even
if it could be technically argued that renditions do not constitute “extraditions” within the
meaning of CAT Article 3, and the rendition was to a country other than one where the person
previously resided (meaning that the person was not being “returned” to a country where he
would risk torture), such transfers would still violate the Convention’s requirement that no State
Party “expel” a person from its territory to another State where he is more likely than not to be
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 67
execute its CAT obligations in good faith, 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
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
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”).
applies to situations where a country seizes suspects outside of its territorial jurisdiction and 68
directly renders them to another country.
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 69
international community.” 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 70
persons outside U.S. territory. 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, 71
regardless of whether such persons were found in U.S. territory.
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 72
torture, regardless of where they occur. Indeed, the Federal Torture Statute implementing this 73
obligation expressly covers torture occurring “outside the United States.” Although several CAT
provisions limit their scope to acts occurring “in any territory under [the State Party’s] 74
jurisdiction,” 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,
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.
69 JAG’s Legal Ctr. & Sch., Operational Law Handbook 50 (Maj. Derek I. Grimes ed., 2006), available at
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 footnote 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
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.
return (‘refouler’) or extradite a person” to a country where there are substantial grounds to
believe that he or she will be tortured. It could be argued, however, that certain extraterritorial
renditions are not covered by this provision. Seizing a person in one country and transferring him
to another would arguably not constitute “expelling” the person, if a State is understood only to
be able to “expel” persons from territory over which it exercises sovereign authority. So long as
these persons were rendered to countries where they had not previously resided, it also could not
be said that the United States “returned” these persons to countries where they faced torture
(though persons rendered to countries where they had previously resided would presumably be
protected under CAT Article 3). In addition, if such renditions were not executed via a formal 75
process, it could be argued they did not constitute extraditions for the purposes of Article 3.
Accordingly, it could be argued that the United States would not violate the express language of
Article 3 if it rendered persons to countries where they faced torture, so long as no part of these 76
renditions occurred within the territorial jurisdiction of the United States.
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 77
arguably already understood to be impermissible under international law. Indeed, some of the
drafters of CAT have taken the position that Article 3 was “intended to cover all measures by 78
which a person is physically transferred to another State.”
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
75 See BASSIOUNI, supra footnote 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 footnote 7.
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 footnote 70.
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 79
returned to [his or her country of origin] or of being subjected to torture.” 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 80
obligations under article 3 of the Convention.”
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 81
in the United States.” 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 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 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] 83
consistent” with CAT obligations. 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
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 footnote 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
83 Id. at § 2242(c).
(‘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 84
its borders and compelling their involuntary return to their country of origin. 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 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.
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 85
could be criminally liable under the torture statute.
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 86
agreement between parties for a common purpose. Presuming that the United States received
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 footnote
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 ‘ that two or more persons agreed to violate the law,  that the
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.
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.
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 87
territory. The torture, inhumane, or degrading treatment of persons belonging to specified
categories—including civilians and protected prisoners of war (POWs)—is expressly prohibited 88
by the Conventions. In addition, “[n]o physical or moral coercion shall be exercised against 89
protected [civilians], in particular to obtain information from them or from third parties.”
The Geneva Conventions impose limitations on the transfer of protected persons. Civilians may 90
not be forcibly (as opposed to voluntarily) transferred to another State. A violation of this
obligation represents a “grave breach” of the relevant Geneva Convention and therefore 91
constitutes a war crime. 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, 92
who are charged with ordinary criminal law offenses.
Neither civilians nor protected POWs may be transferred to penitentiaries for disciplinary 93
punishment. In addition, persons protected by the Conventions may only be transferred to other
defendant knew at least the essential objectives of the conspiracy, ...  that the defendant knowingly and voluntarily
became a part of it,’ and  that the alleged coconspirators were interdependent”) (quoting United States v. Fox, 902 thth
F.2d 1508, 1514 (10 Cir. 1990)); United States v. Pearce, 912 F.2d 159, 161 (6 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).
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
Convention parties, and then only after the transferring Power “has satisfied itself of the 94
willingness and ability of such transferee Power to apply the Convention.” 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 95
effective measures to correct the situation.” 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 96
the position that the Geneva Conventions did not apply to members of Al Qaeda. 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 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 98
prohibits renditions committed to facilitate the rendered person’s torture or cruel treatment. 99
However, it is unclear whether this interpretation is proper or that it would cover all renditions
the transfer of such persons for non-disciplinary reasons.
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.
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
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
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 100
U.S. custody or control; 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 101
to subsequently interpret the Conventions more restrictively, subject to certain limitations).
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
The War Crimes Act imposes criminal penalties upon U.S. nationals or Armed Forces members 102
who commit listed offenses of the laws of war. Persons who commit applicable war crimes are
potentially subject to life imprisonment or, if death results from such acts, the death penalty. War 103
crimes include “grave breaches” of the Geneva Conventions, such as torture of protected
POWs or civilians and the “unlawful deportation or transfer or unlawful confinement” of 104105
protected civilians, as well as certain violations of Common Article 3.
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 106
Qaeda members captured in that armed conflict with certain protections. Accordingly, certain
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).
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
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
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 matter, it is unclear whether the War Crimes Act
would prohibit renditions in any circumstance not already prohibited under the Federal Torture 107
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, 109
inhuman, or degrading treatment or punishment.” 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
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.
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 rd
torture, at least in some circumstances. See Zubeda v. Ashcroft, 333 F.3d 463 (3 Cir. 2003) (“[r]ape can constitute
torture”); CRS Report RL33662, The War Crimes Act: Current Issues, by Michael John Garcia, supra footnote 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.
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 111
treaty remain binding under international law). 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 112
the United States.”
The United States has not enacted laws or regulations to comply with the Human Rights
Committee’s position that ICCPR Article 7 prohibits the transfer of persons to countries where
they would likely face torture or cruel, inhuman, or degrading treatment. CAT-implementing
regulations prohibit the transfer of persons to countries where they would more likely than not
face torture, but not cruel, inhuman, or degrading treatment that does not rise to the level of
The U.N. Charter provides that it is the duty of the United Nations to promote “universal respect 113
for, and observance of, human rights and fundamental freedoms,” and Member States have an 114
obligation to work jointly and separately to promote such rights and freedoms. In 1948, the 115
U.N. General Assembly adopted the Universal Declaration of Human Rights, to explicate the
“human rights and fundamental freedoms” that Member States were obliged to protect. The 116
Universal Declaration prohibits, inter alia, the arbitrary arrest, detention, or exile of persons, as 117
well as torture and cruel, inhuman, or degrading treatment.
The Universal Declaration is not a treaty and accordingly is not technically binding on the United 118
States, though a number of its provisions are understood to reflect customary international 119
law. The Universal Declaration does not include an enforcement provision.
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).
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
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
Legislation was introduced in the first session of 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 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
Michael John Garcia
certain provisions of the Universal Declaration did not in themselves constitute an international norm that would fulfill th
the criteria that existed in the 18 century for a norm to be customary international law).