When Obama first took office, he issued an executive order "ensuring lawful interrogations" establishing a Task Force that would, among other things:
[S]tudy and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.
The Task Force issued its recommendations in a report that has not been released, but the announcement that its work had been completed reiterated that it was meant to "ensure that U.S. practices in such transfers comply with U.S. law, policy and international obligations and do not result in the transfer of individuals to face torture." Perhaps I'm misreading that, and the government doesn't think that preventing "the transfer of individuals to face torture" is a part of complying with U.S. law, but it sure sounds that way, doesn't it? In any case, the administration's new rendition policy was greeted with suspicion because there wasn't much of a change -- while the black sites had been closed, the U.S. was merely relying on a revised system of "assurances" from other countries that the detainees in question wouldn't be mistreated.
As Jeff Stein reported, CIA Assistant General Counsel Daniel Pines recently wrote a law review article asserting that the practice of extraordinary rendition, or the transfer of detainees in American custody to other nations for torturous interrogations, is legal. Extraordinary renditions are distinct from renditions that involve U.S. agents taking someone into custody in a foreign country that either may be hostile or that lacks an extradition treaty with the U.S. and bringing them back here for trial.
Pines told Stein that he was expressing his personal opinion, but given the administration's relatively small changes to how it handles these transfers, Pines' piece begs the question of whether or not extraordinary renditions are actually continuing. In any case, Pines is right that extraordinary rendition is "legal" in the sense that the government has consistently blocked courts from considering the question of whether or not they actually are legal by invoking the state-secrets doctrine. But all that means is that the argument hasn't been settled.
Pines' argument for why the Convention Against Torture, signed by President Ronald Reagan, doesn't apply to extraordinary renditions is singularly unconvincing, however:
Article 3 of the CAT, which is the key provision in this area, provides that “[n]o 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.” However, the Supreme Court has held that acts of Congress, to include consent to international treaties, “do not have extraterritorial application unless such an intent is clearly manifested.” In this case, the Senate’s consent to the CAT did not “clearly manifest” an intention that the CAT have extraterritorial application. Thus, the United States interprets the CAT, including Article 3, as being non-extraterritorial. As several commentators have noted, this means that, under U.S. law, Article 3 does not apply to foreign-to-foreign rendition operations, as such activities naturally take place outside U.S. territory.
The idea that the CAT doesn't prohibit torture because the agents of the "State Party" don't control the territory they're operating on seems like a laughable exploitation of a verbal technicality. So the CAT prohibits the U.S. from transferring someone from U.S. soil to Egypt to be tortured, but if they're sending the person from Pakistan it's OK?
What that basically does is make it legal for any country to play hot potato with any detainee in their custody, knowingly sending them to be tortured as long as the individual in question never enters their own territory! It's hard to imagine that the authors of the Convention Against Torture actually meant to make knowingly sending someone to be tortured legal under a limited set of circumstances.
"There’s simply no way that the people who promulgated the convention against torture had in mind a distinction between kicking someone out of your own country to face torture, or kidnapping someone in a third country to face torture," says the ACLU's Ben Wizner. "The latter seems even more extreme.”
Torture defenders, on the other hand, might argue that it's simply "exceptional."
