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Exporting Torture – The Legal Loophole of Extraordinary Rendition

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On September 26, 2002, Maher Arar, a dual citizen of Canada and Syria, was en route from Tunisia to Montreal in order to attend a business function.[1]While switching planes at Kennedy Airport in New York, Arar was stopped and detained by Federal Bureau of Investigation (“FBI”) officials under the belief that he might have ties to Al Qaeda.[2] After 12 days, FBI officials ultimately decided that he was inadmissible to the United States and concluded that the best course of action would be to transport Arar to Syria to allow their government to question and interrogate him.[3] Upon his arrival, Arar was jailed, interrogated, beaten, and tortured with electrical cables by Syrian officials. He was held in their custody for nearly a year before he was ultimately released to the Canadian embassy in Damascus and returned home to Ottawa.[4]

One of the most harrowing dilemmas this nation has faced in the wake of 9/11 has been the question of how we should treat suspected terrorists upon their capture. This question often forces us to decide between two seemingly undesirable options: Do we as a nation endorse our government’s use of torture, at the cost of our own inherent individual rights, in order to gain intelligence and protect American lives? Or do we reaffirm our country’s fundamental beliefs about human rights at the risk of limiting ourselves from gaining valuable intelligence?

While the Eighth Amendment and the Torture Victim Protection Act may ban the use of torture within the United States, this has not stopped the Central Intelligence Agency (“CIA”) and other intelligence gathering agencies from seeking loopholes that would allow them to subject detainees to interrogation methods that would otherwise not be allowed. One of these tactics is known extraordinary rendition. Extraordinary rendition is the practice of government sponsored detainment and extrajudicial transfer of an individual from one country to another. In many instances this practice has been used to circumvent U.S. and International law to allow suspected terrorists to be transferred to nations that allow for the use of torture in order to conduct otherwise illegal interrogation techniques.[7] The practice is widespread and an Open Society Justice Initiative report in 2013 alleged that over 50 nation states had participated in the CIA’s secret detention and extraordinary rendition program.[8]

Proponents of the practice are likely to argue that the United States government has a right to export detainees to other countries. In these instances even if we wanted to avoid the use of torture, the most we could do is demand diplomatic assurances from other nations that torture would not be used and then take these assurances at their word. Other proponents, who endorse the use of enhanced interrogation tactics, would likely go even further and argue that the practice of exporting suspected terrorists to nations that might engage in torture is necessary to save American lives. They would argue that the executive branch has a duty to protect the lives of its citizens and that the President has the authority to use whatever means available to stop suspected terrorists.

Opponents of the practice would argue that the use of extraordinary rendition is a clear violation of both the U.S. and International law. Title 22 of The U.S. Code of Federal Regulations explicitly states that the United States shall not, “expel, return, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”[9] It is also clearly prohibited by the United Nations Convention Against Torture and Other Forms of Cruel and Unusual Punishment and numerous other international treaties.[10]

In Arar’s case, the U.S. Court of Appeals for the Second Circuit ultimately decided to dismiss the case, concluding that if the court made a ruling on the practice of extraordinary rendition, it would breach the separation of powers outlined by the Constitution and would expose highly sensitive national security material to the public.[11] Six years removed from the decision in Arar, the practice of extraordinary rendition continues today in nations across the world. With the regional instability continuing to plague the Middle East and terrorist organizations such as ISIS continuing to threaten attacks on the United States, there is little doubt that we will continue to face the moral and legal challenges that come with the practice of enhanced interrogation tactics and the exportation of detainees to countries that engage in those practices.

 

 

 

 

 

 

[1] Arar v. Ashcroft, 585 F. 3d 565-67 (2d. Cir. 2009).

[2] Id. at 565.

[3] Id.

[4] Id. at 567.

[5] 28 U.S.C. § 1350

[6] Max Fisher, A staggering map of the 54 countries that reportedly participated in the CIA’s rendition program, Washington Post (Feb. 5, 2013) https://www.washingtonpost.com/news/worldviews/wp/2013/02/05/a-staggering-map-of-the-54-countries-that-reportedly-participated-in-the-cias-rendition-program/.

[7] Id.

[8] Id.

[9] 22 C.F.R § 95.2.

[10] See CRS Report RL32890, Renditions: Constraints Imposed By Laws On Torture, https://www.fas.org/sgp/crs/natsec/RL32890.pdf

[11] Arar, 585 F.3d at 581


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