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?