Outsourcing A Real Nasty Job
Shipping terrorism suspects overseas for some tough questioning may make sense. But is it legal?
Despite such arguments, there are sound legal bases to challenge the rendition program. Perhaps the strongest is the United Nations Convention Against Torture. The treaty was ratified by the United States in 1994 and later codified into federal law. The convention specifically prohibits transferring a legal detainee abroad if there are "substantial grounds for believing" that he or she will be subjected to torture there. Even here, though, certainty is elusive. Some legal experts say the convention is applicable only if it can be proved that it is "more likely than not" that a suspect will be tortured if he is sent to a specific country. "It's true, by definition, that extraordinary rendition is unlawful," says Joseph Margulies, the lead counsel in one of the Guantanamo Bay detainee cases heard before the Supreme Court last year. "The question is whether that illegality can be addressed in court . . . because the claims themselves are subject to a myriad of procedural defenses that are being raised by the government."
Promises, promises. The administration says it is in compliance with the convention because of its practice of seeking diplomatic promises that suspects sent abroad won't be tortured. "We seek assurances," said President Bush, who has declared that torture is never acceptable, "that nobody will be tortured when we render a person back to their home country."
Assurances may have value, but even Attorney General Alberto Gonzales has acknowledged that Washington "can't fully control" what happens to detainees transferred abroad for interrogation. CIA Director Porter Goss agreed, testifying earlier this year that once a terror suspect is out of American control, "there's only so much we can do."
That may be true for some of the countries to which terrorism suspects have been rendered since 9/11, including Uzbekistan, Syria, and Egypt. The State Department has reported patterns of torture and abuse of prisoners in all three places. "Governments that engage in torture," said Kenneth Roth, executive director of Human Rights Watch, "always try to hide what they're doing, so their 'assurances' on torture can never be trusted."
Senate Democrats have called for a formal review of the rendition program. But Republicans on the intelligence committee say that's unnecessary because the CIA's inspector general is investigating the matter.
With so many thorny issues, many legal experts believe the issue will wind up before the Supreme Court. "This will be a long-term struggle," says Kim Lane Scheppele, who teaches constitutional and national security law at the University of Pennsylvania. "And these issues will be the big issues of our time."
Those who practice before the high court make a habit of never predicting how it will rule. Still, there are some clues. Last June, the court rejected the Bush administration's core legal argument of executive authority, saying that Americans detained as "enemy combatants" can challenge their detentions before a neutral judge while granting non-Americans held at the Pentagon's prison camp at Guantanamo Bay, Cuba, the right to contest their incarceration in U.S. courts. "A state of war," wrote Justice Sandra Day O'Connor, "is not a blank check for the president . . . ."