Renditions: Constraints Imposed by Laws on Torture

Publication Date: January 2009

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Human rights

Type:

Abstract:

Persons suspected of terrorist activity may be transferred from one State (i.e., country) for arrest, detention, and/or interrogation. Commonly, this is done through extradition, by which one State surrenders a person within its jurisdiction to a requesting State via a formal legal process, typically established by treaty. Far less often, such transfers are effectuated through a process known as "extraordinary rendition" or "irregular rendition." These terms have often been used to refer to the extrajudicial transfer of a person from one State to another. In this report, "rendition" refers to extraordinary or irregular renditions unless otherwise specified.

Although the particularities regarding the usage of extraordinary renditions and the legal authority behind such renditions are not publicly available, various U.S. officials have acknowledged the practice's existence. Recently, there has been some controversy as to the usage of renditions by the United States, particularly with regard to the alleged transfer of suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture, purportedly with the knowledge or acquiescence of the United States.

This report discusses relevant international and domestic law restricting the transfer of persons to foreign states for the purpose of torture. The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and its domestic implementing legislation (the Foreign Affairs Reform and Restructuring Act of 1998) impose the primary legal restrictions on the transfer of persons to countries where they would face torture. CAT and U.S. implementing legislation generally prohibit the rendition of persons to countries in most cases where they would more likely than not be tortured, though there are arguably limited exceptions to this prohibition. Under U.S. regulations implementing CAT, a person may be transferred to a country that provides credible assurances that the rendered person will not be tortured. Neither CAT nor implementing legislation prohibits the rendition of persons to countries where they would be subject to harsh interrogation techniques not rising to the level of torture. Besides CAT, additional obligations may be imposed upon U.S. rendition practice via the Geneva Conventions, the War Crimes Act, the International Covenant on Civil and Political Rights (ICCPR), and the Universal Declaration on Human Rights.

This report also discusses legislative proposals to limit the transfer of persons to countries where they may face torture, including the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief (P.L. 109-13); the House-passed version of H.R. 2862, the Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, introduced by Representative Frank Wolf on June 10, 2005 and passed the House on June 16, 2005; H.R. 2863, the Department of Defense Appropriations Act, 2006, introduced by Representative C.W. Bill Young on June 10, 2005, and passed by the House on June 20, 2005; H.R. 952, the Torture Outsourcing Prevention Act, introduced by Representative Edward Markey on February 17, 2005; and S. 654, the Convention Against Torture Implementation Act of 2005, introduced in the Senate by Senator Patrick Leahy on March 17, 2005.