Rendition Operations: Does U.S

Loyola University Chicago Law Journal Volume 42 Article 5 Issue 3 Spring 2011 2011 Rendition Operations: Does U.S. Law Impose Any Restrictions? Daniel L. Pines Central Intelligence Agency Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Law Commons Recommended Citation Daniel L. Pines, Rendition Operations: Does U.S. Law Impose Any Restrictions?, 42 Loy. U. Chi. L. J. 523 (2011). Available at: http://lawecommons.luc.edu/luclj/vol42/iss3/5 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Rendition Operations: Does U.S. Law Impose Any Restrictions? DanielL. Pines* For centuries, the United States has seized individuals oversees and, outside any formal extraditionprocess, brought such individuals to the United States to stand trial. A more recent wrinkle has been the transfer of such individuals to other countries for the purposes of prosecution or interrogation. Known as "rendition operations," such transfers have often been criticized. Numerous commentators, asserting that many of these activities violate U.S. law, have called on the U.S. government to cease such operations and prosecute U.S. officials who engage in them. Nonetheless, President Barack Obama established a Special Task Force, which recently advocated the continued use of rendition operations, though it suggested some policy changes. In order to effectuate such changes and understand their impact, the Administration, as well as the critics and proponents of rendition operations, need to understand current U.S. law regarding renditions. Yet, despite all the focus, concern, and criticism over rendition operations, no scholarly work to date has evaluated the entirety of U.S. law regardingsuch activities. This articleproposes to do just that. It concludes that, upon close inspection of U.S. law, there are virtually no legal restrictions on these types of operations. Indeed, U.S. law does not even preclude the United States from rendering individuals to a third country in instances where the third country may subject the rendered individualto torture. The only restrictionsthat do exist under U.S. law preclude U.S. officials from themselves torturing or inflicting cruel and unusual punishment on an individual during rendition operations, rendering that person to a country with the specific intent of having the person tortured,or rendering an individualfrom a place of actual armed conflict or occupation-all of which prove to be narrow * Assistant General Counsel, Office of General Counsel, Central Intelligence Agency ("CIA"). All statements of fact, opinion, or analysis expressed are those of the author and do not reflect the official positions or views of the CIA or any other U.S. government agency. Nothing in the contents should be construed as asserting or implying U.S. government authentication of information or CIA endorsement of the author's views. This material has been reviewed by the CIA to prevent the disclosure of classified information. 523 524 Loyola University Chicago Law Journal [Vol. 42 limitations indeed. Finally,few actual means exist to prosecute or sue U.S. officials engaged in rendition operations, due to limitations in civil and criminal statutory authority, as well as the courts' continuous reluctance to considersuch claims. TABLE OF CONTENTS I. INTRODUCTION. .................................... ...... 525 II. BACKGROUND.......................................... 530 III. POTENTIAL LEGAL RESTRICTIONS ON RENDITION OPERATIONS..... 540 A. U.S. Constitution ................... ........ 541 B. Torture and Other Abuses ................. ..... 544 1. Torture ................................ 544 2. Cruel and Unusual Punishment ........... ..... 551 3. Other Abuses ............................ 551 C. Extradition Treaties and Other Bilateral Accords................ 552 D. International Law ................................ 555 E. 1949 Geneva Conventions ................. ..... 559 F. Mansfield Amendment ........................ 562 G. Summary ........................ .............. 564 IV. POTENTIAL CRIMINAL CLAIMS AGAINST U.S. GOVERNMENT EMPLOYEES INVOLVED IN RENDITION OPERATIONS............ 564 A. Kidnapping Statutes................................... 565 B. Anti-Torture Statute ..................................... 568 C. McCain Amendment. .................... ...... 570 D. War Crimes. .......................... ...... 571 V. POTENTIAL CIVIL CLAIMS AGAINST U.S. GOVERNMENT EMPLOYEES INVOLVED IN RENDITION OPERATIONS ....... ..... 571 A. Tort Claims............... .................. 572 B. Alien Tort Statute............................ 573 C. Torture Victim Protection Act ............. ......... 574 D. Constitutional Claims . ......................... 576 E. Civil Claims Based on Criminal Acts or Violations of International Law.................. ......... 578 F. Reluctance of Courts to Permit Civil Claims to Go Forward. .................................. 580 VI. CONCLUSION ..................................... ..... 582 2011] Rendition Operations 525 I. INTRODUCTION On January 25, 1993, Pakistani national Mir Aimal Kasi parked his car outside the headquarters of the Central Intelligence Agency ("CIA" or "Agency") in Langley, Virginia.1 Brandishing an AK-47 assault rifle, Kasi proceeded to open fire on the automobiles waiting to turn into the CIA's entrance. Two Agency employees were killed; three others were wounded. At the end of his shooting spree, Kasi escaped, eventually making his way back to Pakistan. For the next four and a half years, the CIA and the Federal Bureau of Investigation ("FBI") engaged in an extensive manhunt to find Kasi. Finally, in June 1997, FBI agents located Kasi in a hotel in Pakistan. The United States decided against seeking to formally extradite Kasi to the United States. Instead, the FBI snatched him from his hotel room, transported him by military aircraft back to the United States, and delivered him to the Commonwealth of Virginia, which had an outstanding warrant for his arrest.2 The abduction and transfer of Kasi to the United States represents an example of what is known as a "rendition" operation.3 At its base, a ''rendition" is the forcible movement of an individual from one country to another, without use of a formal legal process, such as an extradition mechanism.4 Such operations are alternatively described as "abductions," "kidnappings," "seizures," or "transfers," depending on the sentiment of the commentator describing such activities.5 1. Kasi v. Angelone, 300 F.3d 487, 490 (4th Cir. 2002). 2. Id at 490-91. A jury eventually convicted Kasi of capital murder, and he was executed in 2002. Maria Glod & Eric M. Weiss, Kasi Executed for CIA Slayings; U.S. Cautions ofPossible Attacks in Retaliation,WASH. POST, Nov. 15, 2002, at Al. 3. ASHLEY S. DEEKS, COUNCIL ON FOREIGN RELATIONS, C.S.R. No. 35, AvOIDING TRANSFERS TO TORTURE 17 n.24 (2008). 4. See id. at 16 ("A rendition is the transfer of an individual from one state to another, without the use of traditional processes such as extradition, deportation, or expulsion."); John T. Parry, The Shape of Modern Torture: ExtraordinaryRendition and Ghost Detainees, 6 MELB. J. INT'L L. 516, 528 (2005) ("At the most basic level, the term 'rendition' refers to the practice of seizing a person in one country and delivering her to another country, usually for the purpose of criminal prosecution."). But see Louis Fisher, ExtraordinaryRendition: The Price of Secrecy, 57 AM. U. L. REV. 1405, 1406-07 (2008) (asserting, with little support, that a "rendition" requires ajudicial process and does not apply to transfers for interrogation purposes). 5. Critics tend to refer to such operations as "abductions" or "kidnappings." See, e.g., Abraham Abramovsky, ExtraterritorialAbductions: America's "Catch and Snatch" Policy Run Amok, 31 VA. J. INT'L L. 151 (1991); Louis Henkin, A Decent Respect to the Opinions of Mankind, 25 J. MARSHALL L. REv. 215, 230-31 (1992) (using the terms "abduction," "kidnapping," and "seizure" in condemning rendition operations). Supporters of the practice, and more neutral observers, tend to use the term "transfers." See, e.g., DEEKS, supra note 3; Robert M. Chesney, Leaving Guantanamo: The Law of InternationalDetainee Transfers, 40 U. RICH. L. 526 Loyola University Chicago Law Journal [Vol. 42 The United States has engaged in rendition operations since the late 1800s.6 Indeed, the United States has been conducting rendition operations longer than it has engaged in formal extraditions.7 Such operations can take various forms, from snatch-and-grabs in a foreign country, to luring culprits into international waters and seizing them there, to actual armed invasion of a foreign country for the purpose of apprehending the wanted individual. They are conducted by a slew of different U.S. government organizations-the FBI, CIA,9 Department of Defense ("DoD"), and Drug Enforcement Administration ("DEA")- and are utilized by both Democrat and Republican administrations.' 0 Regardless of when conducted, and by whom, American Administrations have constantly considered rendition operations to be a "vital tool" of U.S. foreign policy.I However, questions are often raised as to the legality of such operations. 12 Some commentators assert that the United States is restricted or prohibited from rendering individuals to the United States for trial.

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