The law: "extraordinary rendition" and presidential fiat.

Renditions, the surrendering of persons to foreign jurisdictions, are commonplace in modern international affairs. When these transfers are made in accordance with treaty, and, if necessary, enabling statutes, and through a stipulated procedure, they are "ordinary" renditions. But in the last decade, the United States has pursued a policy of rendering people to nonjudicial authorities outside of treaty and legal processes, actions usually accomplished through kidnapping and forcible removal from an asylum country to the receiving jurisdiction. These transfers have become known as "extraordinary renditions," but they are certainly not renditions in the traditional sense. For one thing, the term "rendition" is a legal term of art, connoting conformance with an established line of legal precedent, authorization under treaty and enabling statutes, and accepted practice in international law. On the other hand, extraordinary rendition is not a legal term of art and is an act accomplished specifically and purposefully outside of legal venues. It is usually undertaken precisely because of a belief that legal processes will not yield the desired transfer to the receiving jurisdiction or will be too slow in coming to that result, or to effect the transfer of persons to nonjudicial authorities for interrogation or torture.

The use of the term rendition to describe these activities falsely clothes them with reference to a legal and processual history, implying that somehow they are actions recognized in, and sanctioned by, law. But the U.S. Supreme Court has never taken up the question of forcible removal of persons to foreign jurisdictions outside of treaty and on presidential authority alone. Neither has Congress ever authorized such activity. Here we are not interested in giving a wholly legal analysis of extraordinary renditions, for two recent publications have thoroughly and ably canvassed this issue (Committee on International Human Rights 2004; Garcia 2005). Rather, we investigate the historical development of presidential claims to power in this area, how those claims have been treated by the courts, and how that history informs present practices of the Bush administration.

Although renditions were contemplated from the beginnings of the republic, presidents have historically made no claim to authority to render persons outside of treaty processes. As recently as 1979, the Office of Legal Counsel of the Department of Justice opined that the Shah of Iran could not be extradited to his home country, because "the President cannot order any person extradited unless a treaty or statute authorizes him to do so" (Hammond 1979). Nevertheless, the administration of George W. Bush has, since the terrorist attacks of September 11, 2001, pursued extraordinary rendition as a policy tool to combat terrorism (Committee 2004; Mayer 2005). Bush administration acts include not only the forcible removal of persons from foreign countries, but the kidnapping of persons from U.S. soil and surrender to foreign jurisdictions to be tortured (Mayer 2005). In the case of Maher Arar, a Canadian citizen changing planes in New York City while returning from vacation, the United States seized Mr. Arar and flew him in a government jet to Jordan, where he was then delivered to Syria for torture (Arar v. Ashcroft 2004). (1) These acts are certainly extraordinary, both in terms of law and rendition history, and are part of what some see as an assault on the separation of powers by the Bush administration (Fisher 2005).

It is instructive to understand the historical backdrop behind these actions and how we managed to get to the point where President Bush may successfully, so far, claim plenary power to commit otherwise illegal acts in the alleged protection of U.S. national security. Extraordinary renditions present troubling issues that challenge our understandings of presidential authority, and implicate at least a serious discontinuity between presidential behavior and our accepted principles of law and fairness.

The Early Republic

At the founding of the United States, the understanding was that the president had no authority to render a person to a foreign jurisdiction without acting pursuant to a treaty and, if a non-self-executing treaty, without the authority of enabling legislation. In answering a request from the French minister to the United States for the rendition of certain people making war against France, Thomas Jefferson, then secretary of state, wrote, "The laws of this country take no notice of crimes committed out of their jurisdiction. The most atrocious offender, coming within their pale, is received by them as an innocent man, and they have authorized no one to seize or deliver him" (Jefferson 1793). He then noted, "When [renditions were discussed] we could agree to go no further than ... mutually to deliver up 'captains, officers, mariners, sailors, and all other persons being part of the crews of vessels,'" and "[u]nless ... the persons before named be part of the crew of some vessel of the French nation, no person in this country is authorized to deliver them up; but, on the contrary, they are under the protection of the laws" (ibid.). This view was confirmed by an opinion of U.S. Attorney General Charles Lee in a matter concerning a Spanish subject making haven in the United States against criminal charges in Spanish Florida. There, General Lee found that the "United States are in duty bound to comply [with the request]; yet, having omitted to make a law directing the mode of proceeding, I know not how ... a delivery of such offender could be effected.... This defect appears to me to require a particular law" (Lee 1797, 69-70).

And Roger Taney, also in the capacity of U.S. attorney general, found in 1833 that there was no presidential authority, absent a treaty, to render two men accused of piracy by Portugal. In that case, Taney wrote, "It is not in the power of the President to send them to any other tribunal, domestic or foreign.... There is no law of Congress which authorizes the President to deliver up [the prisoners,] and we have no treaty stipulations with Portugal for the delivery of offenders. In such a state of things, it has always been held that the President possesses no authority to deliver up the offender" (Taney 1833, 559).

Finally, in this line of attorney general opinions, in 1841, in a message to Secretary of State Daniel Webster, Attorney General Hugh Legare, characterizing the case of Holmes v. Jennison and the studied practice of his predecessors, wrote, "According to the practice of the executive department, as appears from the official correspondence both of Mr. Jefferson and Mr. Clay, your predecessors in office, the President is not considered as authorized, in the absence of any express provision by treaty, to order the delivering up of fugitives from justice" (Legare 1841, 661).

In Holmes v. Jennison (1840), Holmes, the asylee, petitioned the U.S. Supreme Court on a writ of error to determine whether a governor of a state may constitutionally seize a person and render that person to a foreign country (39 U.S. 540). Counsel for Holmes felt comfortable in stating that "no President of the United States, no Governor of Canada, and lastly, no King of England, has ventured to act in a case of this kind, except by legislative authority, or by treaty, which is tantamount to a law" (ibid., 560). While the matter concerning presidential authority was not an issue to be decided in Jennison, what comment there is supports the conclusion stated by Holmes's counsel. In particular, Chief Justice Taney found that "the treaty-making power must have authority to decide how far the right of a foreign nation ... will be recognised and enforced, when it demands the surrender of any one charged with offences against it" (ibid., 569). Therefore, without a treaty in force, the president is without power to sua sponte surrender fugitives or others to foreign powers.

Justice Smith Thompson spelled this out in Jennison by noting the "record shows that [rendition] power or authority has been expressly disclaimed by the President" (ibid., 582). The "express" disavowal referred to came in 1825 when a request from the acting governor of Canada met with the response from Secretary of State John Quincy Adams that "I am instructed by the President to express his regret to your Excellency, that the request ... cannot be complied with under any authority now vested in the executive government of the United States" (ibid., 582-83). The stated basis for this want of authority was that the "stipulation between [the United States] and the British government, for the mutual delivery over of fugitives from justice, being no longer in force, and the renewal of it by treaty, being at this time a subject of negotiation between the two governments" (ibid., 583).

Even when acting pursuant to treaty, the president was called to task. In the unpopular and contentious rendition of accused murderer and mutineer Jonathan Robbins to the West Indies for trial and possible execution under British court martial, the public roundly condemned President John Adams for making the return in the absence of enabling legislation and under circumstances where the United States had concurrent jurisdiction to try Robbins (Wedgwood 1990). Adams suffered vituperative and emotional attacks, even though Article 27 of the Jay Treaty required the signatories to "deliver up to justice all persons, who, being charged with murder or forgery, committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other." So the understanding that the president was without power to send asylum residents to foreign jurisdictions in the absence of treaty and statute seemed well settled in law prior to the Civil War.

Nevertheless, this clear history is either ignored or misunderstood by some federal courts. For example, in Eain v. Wilkes, a 1981 case out of the Seventh Circuit, the court found that, "Prior to the enactment of the original version of [the extradition statute], the Executive exercised complete control over extradition without reference to the courts. ... Thus, from 1794 to 1842 the Executive had unfettered discretion in this area" (641 F.2d 504, 513, Note 13). In support of this misconception the court cites an 1843 attorney general opinion, but that opinion makes clear that the rendition in question was made pursuant to treaty and a statutorily authorized legal process requiring a showing of evidence sufficient to sustain the charge against the asylee if the case were to be tried in the United States. Attorney General John Nelson noted in his opinion that "the case, then, is, within the treaty, sustained by the evidence prescribed by it, acted on by a magistrate having authority to entertain it, upon complaint duly and regularly made; the proceedings, with the judgment of the magistrate, have been certified to the executive authority, and the surrender of the fugitive authoritatively demanded" (Nelson 1843, 208). This particular case was made difficult not by the law, but by the fact that the asylee was a woman, who was sought for the murder of her husband in Scotland. It is certainly an inapposite opinion for the Seventh Circuit panel to rely upon, for the rigor in following treaty, statute, and legal decorum is marked in this case.

The Arguelles Affair

The first major break with the doctrine described above came during the Civil War, with a politically and emotionally charged case that vexed President Abraham Lincoln. Like the case of Arar, this action involved the seizure of a foreign citizen in New York City during a time of war and performed only on naked presidential authority.

In 1863, Jose Augustin Arguelles, a Spanish subject, and the lieutenant governor of Colon, Cuba, intercepted a ship transporting slaves from Africa in violation of Spanish law (J.F.B. 1864). Arguelles claimed a large reward for the interception and then conspired with others to have 141 of the slaves declared dead of smallpox and then sold to plantation owners. He then fled to New York City where he purchased a Spanish-language newspaper. Spain wanted Arguelles back for prosecution, and because of a curious flounce of Spanish law his presence was necessary to secure the release of the Africans he had sold into slavery (Russell 1863; Dulce 1864).

The United States at the time had no treaty concerning extradition with Spain, but President Lincoln nevertheless ordered Arguelles's seizure and return to Cuba. This caused cascades of both criticism and praise, with the Copperheads, or Peace Democrats, complaining that here was finally dispositive evidence of the tyranny of Lincoln and the abolitionists and moderates praising Lincoln's wise use of executive discretion. M. Du Pays, in the Liberator, exclaimed dramatically, "Liberty offers no complaint of this 'violation of the right of asylum.' She cries--'If there is no law for this process, then make one; meanwhile, serve me!'" (Du Pays 1864). And an article in the normally moderate New York Times exhorted, "Hurl him [Arguelles] over the Tarpeian rock" (J.F.B. 1864).

On the other side, General John Fremont, pursuing nomination for the presidency, proclaimed, "To-day we have in the country the abuses of military dictation without its unity of action and vigor of execution; an Administration marked at home by disregard of Constitutional rights, by its violation of personal liberty ... and, as a crowning shame, by its abandonment of the right of asylum clear to all free nations abroad" (Fremont 1864). The language of indignation crested even higher, with exclamations that "the Sultan of Turkey never exercised a more absolute despotism" (Harper's Weekly 1864) and "Napoleon committed no greater offence against national law when he sent the kidnapped Deputies to Cayenne" (Phillips 1864). The eruption over the incident threatened the Republican party and forced the U.S. Senate to put off an investigation in order to save Lincoln and the party from embarrassment (ibid.).

Lincoln's action took the law by surprise and exposed a decided lack of judicial opportunity or willingness to interfere with the executive fiat of the matter. But Secretary of State William H. Seward succumbed to congressional pressure to release correspondence concerning the rendition and to issue a legal defense of the president's actions. Seward's defense of Lincoln was long-winded but weak, for there was not much for him to rely upon. He invoked the law of nations as justification for the rendition, but gave little attention to why the president should be seen under the Constitution as possessing sole power to meet such international obligations (Seward 1864).

Seward also relied heavily upon Holmes v. Jennison, incorrectly characterizing it on all fours with the Arguelles case and claiming that Jennison "was decided [by the Vermont Supreme Court] in favor of the executive authority, that authority having been exercised by the governor of Vermont for the extradition of a Canadian murderer, before the treaty with Great Britain of 1842, and without any legislation of the State on the subject" (ibid., 41-42, emphasis in original). Seward conveniently neglected to note that after the appeal in Jennison to the U.S. Supreme Court was denied on a writ of error for lack of jurisdiction, the Vermont Supreme Court took the case up again. Although the U.S. Supreme Court had found it had no jurisdiction under Section 25 of the Judiciary Act to decide the case, a clear majority of the Court believed that the Vermont governor had no power to render Holmes to the British. On rehearing, the Vermont court held in Ex parte Holmes (1840) that "a different case is now presented," and that "on an examination of the case, as decided by the supreme court of the United States ... if the return had been as it now is, a majority of that court would have decided that Holmes was entitled to his discharge, and that the opinion of a majority of the supreme court of the United States was also adverse to the exercise of the power in question" (12 Vt. 631). The court ordered Holmes discharged.

In a rather uncomfortable argumentative turn, considering the nature of Arguelles's crimes in Cuba, Seward pointed to cases where escaped slaves from foreign countries were returned at executive discretion. In discussing the return of a slave who had stowed away aboard a U.S. ship to his Danish owners, Seward noted, "The point once conceded that Denmark alone has the right to pronounce upon the condition of this man, that she has pronounced him a slave, and the property of a Danish subject, I see no difference between the President's authority to restore a ship or any other property belonging to a subject of a foreign power, which has been improperly taken from his possession" (Seward 1864, 51). From this observation, Seward improbably claimed that "[t]he extradition of criminals, under the law of nations and the Constitution of the United States, 'is precisely and unequivocally the same' as that of the surrender of prizes, has never been refuted, and is believed to be impregnable" (ibid., 50). Other than Seward's assertion, there seems to be no serious legal analysis finding that persons and property are to be governed by the same standard of return or rendition, except in the unholy cases where a person is legally held to be property.

An element of drama and contretemps between federal and state authorities entered the Arguelles matter when New York indicted for kidnapping the U.S. marshal and four deputies who seized Arguelles. "Elegant" Oakey, A. Oakey Hall, who would eventually become mayor of New York City as part of the "Boss" Tweed ring, instigated the indictment, and the United States moved to have the case removed to federal court under a wartime statute enlarging presidential powers (New York Times 1864). Section 4 of the pertinent statute, which is clearly at odds with any notion of state sovereignty, read that "any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal" (Act Relating to Habeas Corpus 1863, 756). As part of a two-judge panel rendering an opinion against the government's motion to remove the case, the recorder of New York City observed, "[T]he strange picture [is] presented of a United States Judge administering the penal laws of the State of New York, and the President of the United States extending a pardon to one convicted of a crime against the laws of that State, which had been committed by his own order" (New York Times 1864). The recorder went on to caustically comment that "such a result would seem to be more appropriate to an act entitled, 'An Act to Prevent the Punishment of Any Man Who Shall Commit a Crime by Order of the President of the United States'" (ibid.). Although the indictment against the marshal and deputies quietly lapsed without prosecution, the calamity over the rendition of Arguelles clearly put presidents on notice that unilateral action outside of treaty and statute in rendering fugitives could involve substantial political and legal risk. There the matter stood until relatively recently, with no president claiming the unilateral power to extradite foreign citizens on U.S. soil in the absence of authorizing treaties or statutes.

The Twentieth Century

The Arguelles case is clearly an anomaly and not representative of an expansion of presidential power, for if it were it would have been used readily in the years and decades after the Civil War or in other periods of declared war by the United States. But the case stands alone for over 125 years, with Henry Wade Rogers, later to become a judge on the Second Circuit of the U.S. Court of Appeals, noting twenty years after Arguelles's rendition, "The action of the Executive in the case referred to is now generally regarded as having been an enormous usurpation of power" (Rogers 1884).

With advances in technology and personal mobility, new questions concerning extradition began to surface. While apparently there was no legal distinction explored during the eighteenth and nineteenth centuries between cases involving extradition from U.S. soil and the capture and rendition of people in foreign venues by agents of the United States, there is no evidence that these cases would be treated differently. It was certainly reasonable under the law of the time to assume that no matter where or how the United States was seized of a foreign national, it could only extradite or render that person in conformance with treaty and statute. But a line of cases under the Ker-Frisbie Doctrine began to develop, which clouded the issue of the requirement of conformance to treaty in extradition and rendition matters (Frisbie v. Collins, 342 U.S. 519 [1952]; Ker v. Illinois, 119 U.S. 436 [1886]). In these cases, it was generally held that the kidnap and presentation of criminal defendants in U.S. courts did not require the dismissal of prosecution for violation of due process rights guaranteed under the Constitution.

As the U.S. Supreme Court stated in Frisbie, "The power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction'" (342 U.S. 519, 522). This doctrine followed an ancient common law practice of judges in not inquiring as to how criminal defendants made their way to the courts, though the basis of this practice is often put into question by commentators and judges. (2) Taking the doctrine as claimed by its adherents, it does little to provide a legal ground for extraordinary renditions. Even after the establishment of the doctrine, beginning with Ker v. Illinois in 1886, the U.S. Supreme Court still adhered to the pre-Arguelles principle that extradition out of U.S. custody was to be performed only under treaty and statute. In a unanimous opinion, Chief Justice Charles Evans Hughes found in Valentine v. United States (1936) that "[t]he power to provide for extradition ... is not confided to the Executive in the absence of treaty or legislative provision" (299 U.S. 5, 8). In Valentine, two U.S. citizens were accused of crimes in France and were arrested awaiting extradition by U.S. authorities. The crimes allegedly committed were extraditable offenses under a bilateral treaty between the United States and France, but the arrestees filed a habeas corpus action "upon the ground that because the treaty excepted citizens of the United States, the President had no constitutional authority to surrender the respondents to the French Republic" (ibid., 6).

The Supreme Court was emphatic in its view that the president had no independent authority to render U.S. citizens without express authorization under treaty or statute. The Court made no indication that non-U.S. citizens not subject to extradition by treaty would be accorded any less protection and indeed stated, "It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power" (ibid., 9). And, it is manifest that the act "does not attempt to confer power upon the Executive to surrender any person, much less a citizen of the United States, to a foreign government where an extradition treaty or convention does not provide for such surrender" (ibid., 10).

It is true that in the Ker-Frisbie line of cases the U.S. Supreme Court has found that seizure of a foreign national in his or her home country, in the absence of treaty provisions, and delivery of that person to U.S. courts is normally not a violation of the seized person's rights to due process or an implied violation of treaties (United States v. Alvarez Machain, 504 U.S. 655 [1992]). But the facts in the Ker-Frisbie line of cases are substantially different from the circumstances surrounding extraordinary renditions.

First, in all of the cases in the Ker-Frisbie line, the criminal defendants were rendered to U.S. courts. These cases "rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards" (Frisbie v. Collins 1952, 522). In recent examples of extraordinary rendition, the seized persons were often not rendered to justice, to courts, and even when that is the case, the justice systems into which the persons are delivered often have questionable records of safeguarding rights of the accused (Committee 2004, 8-13).

Second, in many cases of extraordinary rendition, it appears that the seized persons are expressly delivered to foreign jurisdictions to circumvent the very constitutional rights that underlie the justification for the Ker-Frisbie Doctrine. In other words, they are rendered in a manner to specifically deprive them of due process and civil liberties protections.

Third, in all of the cases in this line, the seized parties were under formal accusation of criminal activity. In most recent extraordinary rendition cases, the seized persons often have not been charged with any criminal act in any jurisdiction.

As stated above, as recently as 1979, the executive branch adhered to the historical doctrine of abnegating presidential authority to extradite or render persons in the absence of treaty and statutory provisions. But beginning in the late 1980s, at first guarded and strongly vetted, kidnappings and "renditions to justice" were carried out with increasing frequency (Committee 2004, 15-17). Eventually, the practice of foreign seizure and rendition of suspected terrorists in the absence of treaty or statute became institutionalized in the Department of Justice and the Federal Bureau of Investigation, in conjunction with the Central Intelligence Agency. These actions were no longer "renditions to justice" (transfers into the hands of foreign judicial systems), but transfers of people to foreign powers for torture or warehousing. These institutionalized procedures, means and methods of transport, lines of authority, and U.S. networking with intelligence agencies of various countries sprang open after September 11, 2001, to lead to the present aggressive tactics of extraordinary rendition.

Extraordinary Rendition and Secrecy

The war on terror conducted by the George W. Bush administration relies on extraordinary rendition as a technique for obtaining information from persons thought to be terror suspects. Even though the administration has not admitted the existence of an extraordinary rendition program, representatives speaking for the administration, such as Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld, have provided oblique justifications for the practice. Cheney has said that when dealing with terrorists, "We're operating through sort of, you know, a dark side" (Mayer 2005). John Yoo, a deputy assistant attorney general under John Ashcroft, has spoken more openly and directly about the benefits, and even the necessity, of utilizing extrajudicial channels to interrogation that the process provides. Yoo and others at the Department of Justice advised that the president may unilaterally suspend operation of the Geneva Conventions (Bybee 2002, 13, 24), may violate customary international law without a presumption of such action's unconstitutionality (ibid., 32-35), and that Congress may not "tie the President's hands in regard to torture as an interrogation technique ... [t]hey can't prevent the President from ordering torture" (Mayer 2005).

In her article, Jane Mayer cites numerous cases of extraordinary rendition involving multiple nations, and she relies on various U.S. and international sources. For example, Bosnian national Hadj Boudella was allegedly rendered from Bosnia to the United States (Guantanamo Bay); Talaat Fouad Qassem was allegedly seized in Croatia and sent to Egypt; Shawki Salama Attiya was allegedly seized in Albania and sent to Egypt; and Maher Arar (a Canadian national) was allegedly seized in the United States and sent to Syria. All of these cases involve allegations of torture.

But unlike the Arguelles affair, which was carried out in the open with vigorous debate from all sides, the modern practice of extraordinary rendition is shielded by secrecy. The current practice of extraordinary rendition depends on secrecy in two important ways. Most obviously, the practice violates a number of legal prohibitions on torture and the facilitation of torture. The Human Rights Project of New York University Law School, together with the New York City Bar Association, thoroughly investigated and analyzed the legal status of extraordinary rendition and issued an excellent report detailing that analysis. The report, entitled "Torture by Proxy," found that the Geneva Convention (GC), the Convention against Torture (CAT), the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), the International Covenant on Civil and Political Rights (ICCPR), and the Immigration Act all prohibit "the practice of transferring an individual, with the involvement of the United States and its agents, to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment" (Committee 2004, 13). (3) The nexus with secrecy here is, simply put, that these legal prohibitions pose a problem for the open use of extraordinary rendition. To admit use of the practice risks exposure to negative public opinion (at the very least) and possibly to legal sanctions as well. Thus, some level of official denial is necessary to avoid such problems. (4)

Additionally, the actual process of extraordinary rendition depends on secrecy at both ends of a given operation. Subjects are seized extrajudicially, in what amounts to kidnapping in many of the cases: in the case of Maher Arar, he was taken from a U.S. airport, forced into an unmarked car, and placed on a secret flight to Syria (Arar v. Ashcroft 2004, 2). Other cases involved seizing individuals outside the United States, without permission of the asylum state, and sending them on to a third country. These seizure operations must be conducted in secret as they do not rely on (and actually avoid) use of state force by the nation where they occur. The torture facilities where rendition subjects wind up must also operate in secret in order to preserve their operation and desired effect. In addition to fear of public/legal opposition, then, the very purpose of extraordinary rendition missions is a reason for covering the process with a protective cloak of secrecy.

We have argued elsewhere that the George W. Bush administration relies on institutionalized secrecy to an unprecedented extent (Weaver and Pallitto 2005). Secrecy-related practices employed by this administration, including new and vastly strengthened antiterror laws, the state secrets doctrine, intelligence surveillance, and increased classification authority, are changing the presidency: it is becoming less accountable to the other branches, less susceptible to public criticism, and more threatening to individual rights. (5) By operating in secret and without oversight, extraordinary rendition compounds this change. In the remaining space, we will look at the sources of legal/political authority on which the administration draws to carry out its extraordinary rendition program, that is, the explicit and implicit justifications that interpose a barrier to further questioning or investigation of extraordinary rendition.

First, however, it is necessary to clarify the varieties of rendition that the executive branch of the U.S. government can be involved in. A subject can be rendered from the United States, from her country of citizenship, or from a foreign country (other than the United States or her country of citizenship). And the subject can be rendered to the United States, to her country of citizenship, or to a foreign country. These combinations generate nine outcomes, represented in Table 1 above. Two of them can be discounted for our purposes. Rendition within the United States (box 1) is not truly rendition, and the laws of the United States alone apply. Likewise, rendition within the subject's home country (box 8) is not rendition, as only the laws of that nation apply. Thus, we are left with seven relevant potential outcomes. Each of them has actually occurred: Maher Arar, for example, was rendered from the United States to a foreign country.

Extraordinary rendition cases fall into one of the preceding categories. Those involving the United States as place of origin or destination (boxes 1, 2, 3, 4, and 7) could arguably be covered by treaty. The others (boxes 5, 6, 8, and 9) constitute U.S. involvement in the affairs of a sovereign nation (e.g., Canada in the Arar case) and therefore cannot look to treaty law for support. We must repeat, at this point, the key distinction between rendition and extraordinary rendition: the former contemplates a subject delivered to the custody of the judicial system, while the latter scenario does not involve the judicial system. The rendition of a citizen to her home country from the United States so that the citizen can stand trial in her country might be governed by treaty. If so, the terms of the treaty would provide legal authority for the United States to effect rendition. But could treaty authority ever legalize the rendition of a citizen to her home country where she would remain outside of the judicial process?

It is here that the antitorture laws apply: the United States is legally barred, as noted above, from delivering an individual to a nation where she is likely to face torture. Thus, if the United States were to enter into a treaty providing for rendition with a country known to practice torture, then individual cases might arise where rendition (though authorized by the treaty) would violate other treaties or U.S. laws. The "Torture by Proxy" report cited above anticipates in its analysis an executive branch claim that, despite congressional action in the area of antitorture laws, the president retains emergency powers to act. The landmark case of Youngstown Sheet and Tube v. Sawyer governs questions of emergency presidential powers, and as the report's authors point out, Youngstown establishes categories for presidential emergency action. When Congress has legislated in the area where the president wishes to act contrary to congressional policy, his power is at its "lowest ebb," according to the Supreme Court in Youngstown. Such is the case with rendition: the report cites several instances of clear congressional action with regard to prevention of torture. Thus, it is difficult to argue that the president retains emergency powers that justify extraordinary rendition, for such an argument flies in the face of the Supreme Court's clear statement about the ebb of executive power in response to clear legislative action.

However, it is problematic to rely on Supreme Court precedent alone to analyze the legality of presidential action, because precedent can be changed. Recent cases arising in the context of the war on terror give reason to pause, because they suggest in various ways that the Supreme Court and lower federal courts may, in fact, be entertaining more expansive conceptions of executive power than those previously accepted by the courts. Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2005) require discussion: Hamdi because of the Supreme Court's gesturing toward greater implied executive powers, and Hamdan because of the DC Circuit's refusal to allow the petitioner to assert his rights under the Geneva Convention. The Hamdan ruling certainly gives the government a basis for arguing that human rights provisions in treaties do not create a right of action in individual petitioners and that therefore violation of those provisions entails no legal consequences.

Hamdi v. Rumsfeld is often described as a rebuke to the Bush administration, and there is certainly language in Justice Sandra Day O'Connor's opinion suggesting limits to the president's emergency powers (as well as a role for the Court in marking out those limits). The Court cautioned that the "state of war is not a blank check for the President when it comes to the rights of the Nation's citizens" (542 U.S. 507,592). Further, the opinion drew on earlier jurisprudence to reject "a heavily circumscribed role for the courts" in cases involving civil liberties during wartime (ibid., 603). Moreover, the portion of the holding setting out due process requirements for "enemy combatant" cases does indeed establish a limit on what the president can do with such cases. However, the Court's interpretation of the Authorization to Use Military Force (AUMF) to justify wide-ranging emergency action should give us pause, for while the Court stopped short of addressing the scope and nature of Article 2 emergency powers, they certainly showed a disinclination to look closely at the nexus between congressional authorization and presidential warmaking actions. Thus, the AUMF serves to authorize and justify things that go far beyond its terms.

The Court of Appeals for the DC Circuit decided Hamdan v. Rumsfeld in July of 2005. Two aspects of the Hamdan ruling have important implications for the future of extraordinary rendition. First, the court ruled that Hamdan could not assert rights under the Geneva Convention because the convention is not self-enforcing. Rather, it is an agreement between contracting parties (nations) who alone can seek remedies for its breach. As the Court put it, "This country has traditionally negotiated treaties with the understanding that they do not create judicially enforceable individual rights" (415 F.3d 33, 38). Thus, the executive branch is responsible for deciding whether and how to apply treaty provisions, but no one may complain to a court about what they decide. Second, the court ruled that the president, qua negotiator of a treaty, would be given almost complete deference in the interpretation of that treaty. The court ruled that "[t]o the extent there is ambiguity about the meaning of [Geneva Convention] Common Article 3 as applied to Al Qaeda and its members, the President's reasonable view of the provision must therefore prevail" (ibid., 42). The ruling obviously lends support to the practice of extraordinary rendition: it eliminates treaty-based arguments against the practice, and vests in the president the authority to interpret his actions as consistent with treaty obligations. Courts, then, will have limited ability to constrain (or even review) presidential actions in the rendition context because it is governed to a significant extent by treaty provisions.

With the exception of the Immigration Act, all of the prohibitions on facilitating torture listed above are potentially implicated by the DC Circuit's ruling on the legal status of human rights treaty provisions. Alongside the Geneva Convention, the CAT, the Refugee Convention (RC), and the ICCPR could all fail as sources of human rights protections, because all of them are treaty-based human rights protections and therefore do not create private rights of action. The FARRA, in turn, was passed by Congress to implement the CAT, but under Hamdan it, too, could fail if confronted with the president's contrary interpretation of the CAT treaty itself, for FARRA's purpose was to implement a presidentially negotiated treaty.

Congress has adopted treaty language related to human rights in other statutes as well. The Immigration Act and its various revisions constitute a more freestanding statutory scheme. However, the Patriot Act and the broadened use of the Material Witness Statute (8 U.S.C. [section] 3144) have changed the immigration laws in numerous ways (e.g., by empowering the attorney general to carry out what amounts to indefinite detention of aliens) that weaken its guarantees of humane treatment (Pallitto, forthcoming). In short, then, all of the legal prohibitions against torture and the facilitation of torture could be removed by the ruling in Hamdan. It remains to be seen whether the lower federal courts and the Supreme Court will allow this process to reach such a juncture.

Conclusion

President George W. Bush is expanding executive power beyond traditional limits, and is aided in his efforts by a judiciary squeamish at the prospect of enforcing law to the detriment of the executive branch. If treaties and statutes no longer constrain the exercise of presidential power to kidnap and send people to foreign jurisdictions for torture, and if treaties prohibiting torture and maltreatment may not be invoked by victims against the executive branch, then the president has taken a step into a land of unaccountable action. If the president decides when a treaty applies to executive action, then there is nothing to keep him or her from sweeping aside the provisions of any agreement that runs afoul of presidential policy desires. After the Arguelles affair the presidency was sufficiently chastened not to repeat the act for 125 years, but in the present circumstances, where secrecy and judicial timidity control, there is little to prevent a president's thoughts from becoming deeds.

References

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(1.) Eventually, contrary to what the United States claimed, the Syrians determined that Arar had no connection to Al Qaeda or any other terrorist organization.

(2.) The doctrine was first explained in substance in Ex parte Scott, 9 B. & C. 446, 109 E.R. 106 (1829), but has origins well before this case.

(3.) The GC, RC, CAT (implemented by 18 U.S.C. [subsection] 2340 and 2340A), and ICCPR are all treaties to which the United States is a signatory. The FARRA and the Immigration and Nationality Act are laws enacted by the U.S. Congress. All of them explicitly prohibit both the practice of torture and the practice of transferring individuals to countries where they are likely to face torture.

(4.) In addition to simply denying that an extraordinary rendition occurred, the executive may cite two distinctions which make a given case different from the extradition-to-torture scenario: reliance on a foreign court decision (in the Attiya case, there was a conviction in absentia) or claim of ignorance (they did not know what would happen to the subject upon arrival in the foreign country). Of course, this second justification is belied by the fact that extraordinary rendition actually is a weapon in the war on terror that depends on the use of vigorous interrogation. If such tactics were not needed, there would be no reason to send subjects overseas.

(5.) In the Arar litigation, the government has already relied on the state secrets doctrine to prevent disclosure of information about the incident.

WILLIAM G. WEAVER

University of Texas at El Paso 

ROBERT M. PALLITTO

University of Texas at El Paso

William G. Weaver is associate professor and director of academic programs in the Institute for Policy and Economic Development at the University of Texas at El Paso.

Robert M. Pallitto is assistant professor of political science at the University of Texas at El Paso.

TABLE 1
Varieties of Rendition

(1) Within United     (2) From United       (3) From United
    States:               States to             States to
    Authorized by         country of            foreign country
    Ker-Frisbie           citizenship           (Arar):
    Doctrine. U.S.        (Arguelles):          No legal
    laws apply.           Could be              authority.
                          authorized by
                          treaty, but
                          laws against
                          facilitating
                          torture apply.

(4) From foreign      (5) From foreign      (6) From one
    country to            country to            foreign country
    United States:        country of            to another
    Could be              citizenship: No       foreign country:
    authorized by         legal authority.      No legal
    treaty,                                     authority.
    but laws against
    facilitating
    torture apply.

(7) From country of   (8) Within            (9) From country
    citizenship           country of            of citizenship
    to United             citizenship:          to foreign
    States:               Laws of country       country:
    Could be              apply.                No legal
    authorized by                               authority
    treaty, but
    laws against
    torture apply.