Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2006 Extraordinary Rendition and the Torture Convention David Weissbrodt University of Minnesota Law School, [email protected] Amy Bergquist Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation David Weissbrodt and Amy Bergquist, Extraordinary Rendition and the Torture Convention, 46 VA. J. INT'L L. 585 (2006), available at https://scholarship.law.umn.edu/faculty_articles/283. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Extraordinary Rendition and the Torture Convention t DAVID WEISSBRODT AMY BERGQUISTt 1. Extraordinary Rendition Violates the Convention Against Torture and the Federal Torture Statute .................................... 599 A. U.S. Acceptance of the Convention Against Torture ...... 600 B. Scope of the Statutory Prohibition of Torture ................. 606 C. Extraordinary Rendition Constitutes a Criminal Conspiracy to Commit Torture ........................................ 611 D. Defenses of Extraordinary Rendition Are Inadequate ..... 621 II. Mechanisms in U.S. Law Can Challenge the Practice of Extraordinary Rendition ............................................................ 625 A . Crim inal Prosecution ....................................................... 625 B . H abeas C orpus ................................................................. 626 1. Jurisdiction ........................................................... 626 a. Territorial Jurisdiction ............................... 627 b. The "In Custody" Requirement ................. 629 2. Merits of the Habeas Claim .................................. 631 a. Constitutional Claims ................................ 631 b. Treaty C laim s ............................................ 632 c. Claims Based in Federal Law .................... 636 3. Practical Considerations ....................................... 639 C . A dditional M easures ........................................................ 641 III. C onclusion ................................................................................. 647 t Regents Professor and Fredrikson & Byron Professor of Law, University of Minnesota Law School. © 2006 David Weissbrodt & Amy Bergquist. I J.D. anticipated, University of Minnesota Law School, May 2007. The authors would like to thank Mary Rumsey for her invaluable assistance with this Article. 586 VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 46:4 Criminals have historically crossed boundaries in an effort to escape the reach of law enforcement. In response, governments have pursued extradition policies whereby a person who is charged with a crime in one jurisdiction may be brought to justice with the aid of the jurisdiction where the accused is found.' While such solutions are generally effective in a domestic context, international extradition has been more problematic.3 Because of the absence of extradition treaties, delays in effecting extradition, or other barriers, prosecutors and their proxies have devised an alternative strategy to bring persons accused of crimes to justice.4 In the United States, officials dubbed the strategy 5 "extraordinary rendition," an officially recognized but covert policy authorized by several presidential directives, whereby the U.S. government or its agents could capture a person accused of a crime and bring the person to the United States to stand trial.6 There were two 1. For a thorough examination of U.S. extradition policy and practice, see MICHAEL ABBELL, EXTRADITION TO AND FROM THE UNITED STATES (2004); M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE (4th ed. 2002). For a historical perspective on U.S. extradition law, see CHRISTOPHER H. PYLE, EXTRADITION, POLITICS, AND HUMAN RIGHTS (2001). 2. A legal basis for inter-state extradition is found both in the U.S. Constitution and in federal statute. See U.S. CONST. art. IV, § 2, cl.2; 18 U.S.C. § 3182 (2006). But see Frisbie v. Collins, 342 U.S. 519, 520 (1952) (relating that Michigan police officers, in violation of the Federal Kidnapping Act, came into Chicago and "forcibly seized, handcuffed, [and] blackjacked" the defendant and then took him to Michigan); Austin W. Scott, Jr., CriminalJurisdiction of a State over a Defendant Based upon Presence Secured by Force or Fraud, 37 MINN. L. REv. 91, 91 (1953) (noting that "the police practice of out-of-state kidnapping" is "flourishing with some vigor"). 3. The Supreme Court's first modem encounter with government-sanctioned transnational kidnapping as an alternative to extradition was the case of United States v. Alvarez-Machain, 504 U.S. 655 (1992). For purposes of this Article, it is no small irony that Alvarez-Machain was accused of facilitating the torture of a DEA agent in Mexico. Id. at 657. 4. See, e.g., Alvarez-Machain, 504 U.S. at 657; Ker v. Illinois, 119 U.S. 436, 437-38 (1886). In Alvarez-Machain, the Mexican government evidently intended to prosecute the defendant itself, and therefore did not wish to extradite him. 504 U.S. at 670-71 (Stevens, J., dissenting). But see PYLE, supra note 1, at 282 (suggesting that Mexican officials withdrew cooperation after a deal fell apart that would have called for the United States to deport to Mexico a person wanted by the Mexican government for stealing $500 million from Mexican politicians). 5. The term is, of course, a euphemism for abduction and subsequent transfer designed to circumvent ordinary extradition procedures. The term was apparently in use at the Department of Justice by the late 1980s. See Richard Sisk & Patrice O'Shaughnessy, Streetwise Safir's Turn, DAILY NEWS (N.Y.), Apr. 14, 1996, at 7; see also M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 189-90 (2d rev. ed. 1987). 6. See PYLE, supra note 1, at 275; DeNeen L. Brown & Dana Priest, Deported Terror Suspect Details Torture in Syria; Canadian'sCase Called Typical of CIA, WASH. POST, Nov. 5, 2003, at Al; Dana Priest, Jet Is an Open Secret in Terror War, WASH. POST, Dec. 27, 2004, at Al. The directives authorizing rendition remain classified. See Douglas Jehl & David Johnston, Rule Change Lets CIA Freely Send Suspects Abroad, N.Y. TIMES, Mar. 6, 2005, at 1.It is unclear 2006] EXTRAORDINARY RENDITION 587 categories of renditions: (1) renditions in which agents of the state where the person was present seized the individual and surrendered him or her to agents of another state without using formal or legal processes and (2) renditions in which other persons conducted the seizure with or without the awareness or approval of that state.7 The Supreme Court has long held that the use of means that are illicit, illegal, or in circumvention of an existing extradition treaty to bring a person into a court's jurisdiction poses no inherent impediment to assertion of in personam jurisdiction in criminal cases.8 Perhaps the most famous international case to affirm this principle was Attorney- General of Israel v. Eichmann,9 in which Israeli courts cited U.S. case law to support the conclusion that Adolf Eichmann's abduction in Argentina did not strip Israeli courts of jurisdiction to try him for war crimes.'" In the 1992 case of United States v. Alvarez-Machain,1 the Supreme Court's most recent decision validating this traditional form of extraordinary rendition, the Court was dismissive of the relevance of the principles of international law: Respondent.. .may be correct that respondent's abduction was "shocking," and that it may be in violation of general international law principles. Mexico has protested the abduction of respondent through diplomatic notes.... We conclude, however, that respondent's abduction was not in violation of the exactly who initiated the rendition program. Compare National Security Threats, Hearing Before the Senate Armed Servs. Comm., 109th Cong. (Mar. 17, 2005) (statement of CIA Director Porter Goss) [hereinafter National Security Threats] (observing that rendition "is a process that's been going on for more than 20 years"), and Bruce Zagaris, U.S. Extraordinary Renditions Subject to Foreign and U.S. Investigations and Oversight, 21 INT'L ENFORCEMENT L. REP. 188 (2005) (stating that Reagan first authorized rendition in 1986), with Stephen Grey, America's Gulag, NEW STATESMAN, May 17, 2004 [hereinafter Grey, Gulag] (contending that rendition was "invented" by President Clinton's National Security Adviser, Sandy Berger). 7. See BASSIOUNI, supra note 1, at 249. 8. Alvarez-Machain, 504 U.S. at 657 (1992). The doctrine applied in the case is "mala captus bene detentus," defined as the process "whereby national courts will assert in personam jurisdiction without inquiring into the means by which the presence of the defendant was secured." BASSIOUNI, supra note 1, at 250. 9. Attorney-General v. Eichmann, [1961] IsrDC 45(3), translated in 36 INT'L L. REP. 5 (1968), affd Attorney-General v. Eichmann, [1962] IsrSC 16(2033), translated in 36 INT'L L. REP. 277 (1968). 10. Id. at 45-52; see also PYLE, supra note 1, at 272-73. The court's jurisdiction over Eichmann was facilitated, because West Germany used his alleged involvement in crimes against humanity as "a welcome pretext for withholding the customary protection due its citizens