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Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions”

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TORTURE BY PROXY: INTERNATIONAL AND DOMESTIC LAW APPLICABLE TO “EXTRAORDINARY RENDITIONS” The Committee on International Human Rights of the Association of the Bar of the City of New York and The Center for Human Rights and Global Justice, New York University School of Law © 2004 ABCNY & CHRGJ, NYU School of Law New York, NY Association of the Bar of the City of New York The Association of the Bar of the City of New York (www.abcny.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovating means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities. Center for Human Rights and Global Justice The Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law (http://www.nyuhr.org) focuses on issues related to “global justice,” and aims to advance human rights and respect for the rule of law through cutting-edge advocacy and scholarship. The CHRGJ promotes human rights research, education and training, and encourages interdisciplinary research on emerging issues in international human rights and humanitarian law. This report should be cited as: Association of the Bar of the City of New York & Center for Human Rights and Global Justice, Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions” (New York: ABCNY & NYU School of Law, 2004). - This report was modified in June 2006 - The Association of the Bar of the City of New York Committee on International Human Rights Martin S. Flaherty, Chair* Jeanmarie Fenrich, Secretary Patricia C. Armstrong* Nicole A. Barrett Hon. Deborah A. Batts** Aarthi Belani (student member)* Amy Christina Cococcia Eric O. Darko* Linda Ford Douglas C. Gray Alice H. Henkin Sharon K. Hom Miranda B. Johnson (student member) Mamta Kaushal Elise B. Keppler Katharine Lauer Sara E. Lesch Marko C. Maglich Nina Massen Sam Scott Miller David Eli Nachman Elena Dana Neacsu* Dyanna C. Pepitone Christina Marie Posa Robert J. Quinn Marny A. Requa Margaret L. Satterthwaite* Hina Shamsi* Mark R. Shulman Liza May Velazquez Katherine Zeisel (student member)* * Members of the Committee who participated in the preparation of the Report ** Took no part in preparation or consideration of this Report Acknowledgments The Committee and the Center for Human Rights and Global Justice at NYU School of Law thank the following people for their work and/or assistance in the preparation of the Report: Project director: Margaret Satterthwaite, Center for Human Rights and Global Justice, NYU School of Law Principal authors and researchers: Angelina Fisher, Center for Human Rights and Global Justice, NYU School of Law Hina Shamsi, Member, ABCNY International Human Rights Committee Contributing authors: Bassina Farbenblum, American Civil Liberties Union Yael Fuchs, Columbia University School of Law (student) David Lisson, University of Toronto School of Law (student) Research assistance was provided by: Aarthi Belani, Institute for International Law and Justice, NYU School of Law (student) James Boeving, Columbia University School of Law (student) Elena Dana Neacsu, Columbia University School of Law Allison Young, Georgetown University School of Law (student) Advice on the Report, or aspects of it, was provided by: Paul Chevigny, NYU School of Law Julia Hall, Human Rights Watch Smita Narula, Center for Human Rights and Global Justice, NYU School of Law Steven McPherson Watt, Center for Constitutional Rights Substantive review and comment on the Report was provided by: Natasha Balendra, Center for Human Rights and Global Justice, NYU School of Law John Cerone, New England School of Law Paul Chevigny, NYU School of Law James Cockayne, Institute for International Law and Justice, NYU School of Law (student) Olivier De Schutter, NYU School of Law Miles P. Fischer, Chair, ABCNY Military Affairs and Justice Committee Martin S. Flaherty, Fordham University School of Law; Chair, ABCNY International Human Rights Committee Scott Horton, Patterson, Belknap, Webb & Tyler, LLP; Chair, ABCNY International Law Committee Sidney Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Chair, ABCNY Civil Rights Committee Claudia Slovinsky, Law Offices of Claudia Slovinsky; Chair, ABCNY Immigration and Nationality Law Committee Principal copyeditor: Patricia Armstrong, Center for Human Rights and Global Justice, NYU School of Law Copyediting assistance: Eric O. Darko, International Center for Transitional Justice Elena Dana Neacsu, Columbia University School of Law NYU School of Law students: Marissa Alternelson, Ahmen Ghappour, Andrew Hagan, Bryan D. Kreyes, Erika Mae de Castro Lorenzana, Peter Nelson, Matthew Scott, Matthew Shrumpf, Derek Soler, and Kathy Zeisel Fordham University School of Law students: Lauren Attard, Kristen Hiensch, Brian Honermann, Jason N. Visco and Nicole Washienko. Web and distribution assistance: Larissa Annoual Vilas Dhar Joanna Pozen We are also grateful to Nicole Barrett and Sullivan & Cromwell LLP, Sam Scott Miller and Orrick, Herrington & Sutcliffe LLP, and Sidney Rosdeitcher and Paul, Weiss, Rifkind, Wharton & Garrison LLP for summer associate assistance on aspects of the Report. Acronyms and Other References 9-11 Commission National Commission on Terrorist Attacks Upon the United States ABCNY Association of the Bar of the City of New York ACLU American Civil Liberties Union ATCA Alien Torts Claims Act AUMF Authorization for Use of Military Force BIA Board of Immigration Appeals CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CAT Committee Committee against Torture CBP Bureau of Customs and Border Protection, Department of Homeland Security CCP Crimes and Criminal Procedure C.F.R. Code of Federal Regulations CIA Central Intelligence Agency CID Cruel, inhuman or degrading DCI Director of Central Intelligence DEA Drug Enforcement Administration DOD Department of Defense EOIR Executive Office of Immigration Review FARRA Foreign Affairs Reform and Restructuring Act FBI Federal Bureau of Investigation FOIA Freedom of Information Act FTCA Federal Tort Claims Act Geneva III Geneva Convention (III) relative to the Treatment of Prisoners of War Geneva IV Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War HRC UN Human Rights Committee INA Immigration and Nationality Act ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia ILC International Law Commission MCM Manual for Courts-Martial MEJA Military Extraterritorial Jurisdiction Act NLRA National Labor Relations Act NSC National Security Council OAS Organization of American States PDD Presidential Decision Directive POW Prisoner of war Refugee Convention Refugee Convention of 1951 TPA Torture Victims Protection Act of 1991 UCMJ Uniform Code of Military Justice U.S.C. United States Code TABLE OF CONTENTS I. INTRODUCTION 2 II. EXECUTIVE SUMMARY 5 III. RECOMMENDATIONS 7 IV. EXTRAORDINARY RENDITIONS: AN OVERVIEW 8 A. EXTRAORDINARY RENDITIONS – (NOT) A NEW PHENOMENON 8 B. EXTRAORDINARY RENDITIONS – CLOAKED IN SECRECY 13 1. “Off the Record”: United States Involved in Extraordinary Renditions 13 2. “On the Record”: United States Involved in “Renditions to Justice” 15 3. Summary: United States involved in Extraordinary Renditions 18 C. EXTRAORDINARY RENDITIONS VIOLATE U.S. LAW 20 1. Extraordinary Renditions and Existing Statutory Law (FARRA) 20 2. Extraordinary Renditions and the Courts 22 3. Extraordinary Renditions and Congress 23 4. Extraordinary Renditions and the Executive Branch 24 (a) The President’s general power as Commander-in-Chief 24 (b) Presidential power to authorize covert actions and issue national security directives 27 (c) Presidential power to make international agreements 29 5. Extraordinary Renditions and the CIA 29 V. EXTRAORDINARY RENDITIONS VIOLATE INTERNATIONAL LAW 31 A. THE UNITED STATES IS OBLIGATED TO PREVENT EXTRAORDINARY RENDITIONS UNDER THE UN CONVENTION AGAINST TORTURE 35 1. CAT Prohibits Torture and Cruel, Inhuman or Degrading Treatment 35 2. CAT Prohibits the Transfer of Individuals to States Where They May Be in Danger of Torture 37 (a) Prohibition against transfers to subsequent states 37 (b) Standards for determining application of non-refoulement obligation to persons in danger of torture 37 (c) Types of transfers to which non-refoulement obligation applies 40 (d) Development of international law on non-refoulement 41 3. CAT Requires States Parties to Prevent, Prosecute and Punish Torture and Complicity to Torture 44 4. Scope of Application of CAT Standards Under International Law 46 (a) Scope of obligations regarding torture 47 (b) Scope of obligations regarding non-refoulement 48 5. The United States’ Implementation of CAT 48 (a) Ratification 48 (b) Criminalization of torture 50 (c) FARRA Regulations 50 (i) Summary Removal 50 (ii) Removal 52 (iii) Extradition 53 B. THE UNITED STATES IS OBLIGATED TO PREVENT EXTRAORDINARY RENDITIONS UNDER THE ICCPR 55 1. The ICCPR Prohibits Torture, CID Treatment, and Refoulement 55 2. Scope of Application of ICCPR Standards under International Law 57 3. The United States’
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