| Extraordinary Rendition and the Rule of International Law
Texts: Rendered Meaningless:
“Extraordinary Rendition and the Rule of Law” by Margaret Satterthwaite
“After Terror, a Secret Rewriting
of Military Law” by Tim Golden
In their articles,
both Golden and Satterthwaite discuss the nature and the application of law on
torture and rendition. While Golden
traces the history and the development military law towards torture and other
treatments toward suspected and detained terrorist after 9/11, Satterthwaite examines
the strength and the application of international humanitarian and human rights
laws on rendition, advocating a legal frame work based on humanitarian laws and
human rights laws for rendition. Finding
loopholes in the laws and human rights treaties that oblige state to ensure
civil liberties to those “within its territory and subject to its
jurisdiction,” the U.S. government claims that human right treaties it has
ratified “are limited in their applications to U.S. territory,” and that “the
only space it considers to be ‘under jurisdiction’ are the fifty states plus
the insular areas, which include Puerto Rico, Guam, and other similar spaces”
(Satterthwaite 15-16). In other words, a kidnapped and suspected terrorist who
is brought to another country by American CIA agents isn’t under the
jurisdiction of the U.S.
However, the Human Rights Committee and others consistently interpret the human
rights treaties based on their intents of ensuring rights to everyone wherever
they are, since “in special circumstances, persons may fall under the
subject-matter jurisdiction of a State party even when outside that State’s
territory” (Satterthwaite 21-23).
Therefore, under this interpretation, the same suspected terrorist is
under the jurisdiction of the U.S.
government, since he is the hands of the CIA agents and is part of a plan
orchestrated by the U.S.
government itself. I think difference in
interpreting human rights treatises touches the letter and the spirit of the
law. It seems like the U.S government narrowly
obeys the literal phrase of the law (“within its territory and subject to its
jurisdiction”) by carrying out acts of torture in places outside of its
territories that are often conflated with its jurisdiction.
At the same time, Both
authors point out the justification of the U.S. for torture and rendition---the
idea that since 1) terrorists are unlawful combatants that threaten the
security of many states and 2) that no international laws seem to apply to or
protect them, the U.S., the government has the right to do whatever it see fits,
or there are no limits to what it could and would do. When new issues like terrorism or the “War on
Terrorism” seem to fall outside of the framework of international law, does one
need to base the treatment of terrorists on the spirit of the law, the intent
of the human rights laws and treaties, or formulate a set of new laws in order
to accommodate every emerging issue? In
other words, is this only a question of the letter of the law versus the spirit
of the law concerning human rights treatises that ban torture, or a question of
the need to formulate new and explicit guidelines and laws to accommodate new phenomenon
like terrorism, so that actors, such as the U.S., wouldn’t find loopholes in
order to justify their political agendas? 
When new phenomenon
like terrorism emerge and no laws—at least explicitly---seem to apply to them,
I think all the issues addressed on the questions above play an essential part
in examining legal controversy concerning rendition and in binding the U.S.
government with some legal constraints on its war on terrorism. On a philosophical and legal level, it is
about the letter of the law versus the spirit of the law, as shown by the
difference in the interpretations of the human rights treatises by the U.S.
and the HRC. Yet on a pragmatic or
strategic level, it is also about the need to explicitly draw new guidelines
and laws in order to accommodate a new and complex phenomenon that architects
of international law have never anticipated, and most importantly, in order to
prevent states from finding loopholes in the old or current laws to subtly
justify their political agendas. Golden
in his article points out that how some officials had noted that the strategy
concerning terrorism after 9/11 “was shaped by longstanding political agendas
that had relatively little do with fight terrorism.”
The administration
claim of authority to set up military commissions, as the tribunals are
formally known, was guided by a desire to strengthen executive power, officials
said. Its legal approach, including the
decision not to apply the Geneva Conventions, reflected the determination of
some influential officials to halt what they viewed as the United
States’ reflexive submission to
international law (Golden 2).
The
U.S.
government’s literal legal approach to rendition or interpretation of human
rights treatises illustrated by
Satterthwaite also sheds light on the U.S.
political motivation to avoid liability for torture and rendition. Golden also notes the inadequacy of justice for
defendants of alleged terrorist activities under U.S.
law in U.S.
courts. Under criminal law in federal
courts, evidence against terror suspects “would be difficult to air in court or
too sketchy to meet federal standards” ( Golden 5). However, under military commissions, Rumsfeld
has restricted the defense lawyer’s access to case information (Golden 9). While it is clear that terror suspects could
not be tried in federal courts due to the nature of the evidence against him,
they are also at a disadvantage under military commissions due to the
limitation on information their lawyers could obtain to present their cases and
defend them. Therefore, new guidelines
and rules in international law concerning terrorism might not only be useful in
giving legal constraints to the U.S. government and in curbing the influence of
political agendas and motivations, but at the same time 1) they must be geared
towards providing adequate justice---that is the right to due process and
access to information---- and 2) they
must be designed provide transparency on the availability of information or
evidences, especially those that are crucial for proving a defendant’s
innocence. It is clear that terror
suspects are at a disadvantage both under federal courts and military
commissions in the U.S. Therefore, should they be tried in
international courts instead?
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