54. “Extraordinary Rendition: The United States’ Solution to Prevent Terrorism that Resulted in Countless Violations of the Convention Against Torture”

Author: Madeline Obler-Grill, 3 Year Law

I. Introduction


On September 11, 2001, a series of four terrorist attacks by the Islamist group al-Qaeda, which ultimately killed 2,753 people, were launched on the United States.  Later that day, in an address to the American people, then president, George W. Bush vowed to bring those who committed these terrorist attacks to justice stating, “[w]e will make no distinction between the terrorists who committed these acts and those who harbor them.”  Within days of the attacks on the World Trade Center and the Pentagon, the President signed a still-classified directive providing the Central Intelligence Agency (CIA) broad authority to transport suspected terrorists to foreign counties for interrogation purposes.  The CIA interpreted this directive as granting them authority to engage in what has become known as “extraordinary rendition,” which is defined as “transfer – without legal process – of a detainee to the custody of a foreign government for the purposes of detention and interrogation.”  The CIA also began a secret detention program under which alleged terrorists were held in CIA prisons, which have become known as “black sites,” and subjected to extensive interrogation that often involved methods of torture.


Now, more than a decade after the September 11 attacks, hundreds of human rights violations associated with black sites and extraordinary rendition have been largely ignored.  In 2013, the human rights organization Open Society Justice Initiative (OSJI) reported that the United States, with the assistance of as many as fifty-four foreign governments, participated in these various operations.  Most of the victims of the human rights violations associated with these operations have been denied justice, particularly in courts of the United States.  Other states, however, have begun to take action to remedy these human rights violations. In a landmark case decided on February 1, 2013, the Milan Appeals Court upheld the convictions of twenty-two former United States Central Intelligence Agency officers for violating human rights associated with the detention and torture of Abu Omar, a previously suspected terrorist, in 2003.  An Amnesty International expert on human rights stated, “[s]tate secrets should never be invoked to shield governments, including their intelligence officials, from accountability for such serious human rights violations.”  This decision, making clear that the actions taken by the CIA in association with the black sites and extraordinary rendition program are human rights violations,  should signal to other countries, including the United States, that the victims of these violations should be provided justice for the actions taken against them.


The paper will first explore the history of rendition, beginning with the relevant sections of the Convention Against Torture that establish torture and extraordinary rendition to be violations of international law, the statutes enacted by the United States to fulfill its obligations under the Convention, and several examples of recent violations. This section of the paper will also discuss the creation of the rendition program during the Clinton administration, its escalation during the Bush administration, and where it currently stands under the Obama administration. The next section of the paper will discuss the state secrets privilege, various defenses used by the government to dismiss extraordinary rendition cases brought against individuals responsible for its execution, and examples of recent cases that have been denied a chance to obtain remedies for human rights violations stemming from the extraordinary rendition program. Finally, the paper will discuss recent decisions and changes taking place outside the United States and the actions the United States should take to properly fulfill its obligations under the Convention Against Torture.


II. History of Rendition


A. Prohibitions Against Torture and Rendition
Since at least 1991, the United States has openly condemned torture and prohibited the transfer of anyone to a country that is known to practice torture.  The United States became a signatory to the Convention Against Torture (CAT) in 1988, and ratified it in 1994.  The Convention Against Torture unequivocally states, “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”  One of the more relevant pieces of the Convention is found in Article 3:


“No State Party shall 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. For the purpose of determining whether there are substantial grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.” 

Article 4 of the Convention Against Torture requires party states to criminalize instances of torture, including attempts, complicity and participation in torture.  In response to Article 4 of the Convention Against Torture, Congress enacted a federal criminal statute that provides penalties such as imprisonment or fines on those who commit torture, and, if the torture results in death, penalties such as life in prison or death.  These penalties also apply to an individual who has conspired to commit torture.  This statute applies if the offender is a United States citizen or if the offender is present in the United States, regardless of his or her nationality. 


In addition, Article 12 requires party states to promptly investigate instances of torture where there are “reasonable grounds” to believe it has occurred.  Finally, Article 14 of the Convention Against Torture requires party states to create a means through which victims of torture can obtain redress, including a right to compensation and the means to rehabilitation, if necessary. 
In response to the remedy requirement in Article 14 of the Convention Against Torture, Congress enacted the Torture Victim Protection Act of 1991.  Under the Torture Victim Protection Act, anyone from a foreign nation who subjects an individual to torture is liable for damages to that person in a civil action.  In addition, in 1998, Congress enacted the Foreign Affairs Reform and Restructuring Act.  The FARR Act provides:


“It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subject to torture, regardless of whether the person in physically present in the United States.”

The FARR Act, like the Torture Victim Protection Act, was enacted “to meet [the United States’] obligations under the Convention Against Torture by prohibiting the removal of a person to a foreign country where he or she would be tortured.” 


Plaintiffs in extraordinary rendition cases have also attempted (so far unsuccessfully) to obtain a remedy that stems from common law: the Bivens remedy.  In Bivens, the allegation was that agents of the Federal Bureau of Narcotics entered the plaintiff’s home without a warrant and treated him abusively in front of his family.  The Court held the plaintiff’s Fourth Amendment rights had been violated and entitled him to recover money damages as a result of this violation.  This result established the Bivens remedy, which is in place to prevent federal officials from committing constitutional violations.  Since the case was decided in 1971, however, the Bivens remedy has only been permitted outside the Fourth Amendment context twice.


Arar v. Ashcroft is an example of an unsuccessful use of the Bivens remedy.  Maher Arar, a dual citizen of Syria and Canada, was detained in New York’s JFK Airport in 2002.  Agents from the Federal Bureau of Investigation (FBI) questioned Arar about alleged terrorist affiliations, which Arar denied.  Arar was given an opportunity to return to Syria, however, Arar refused citing a fear of being tortured.  Several days later, despite Arar’s expressed concern regarding torture, the Immigration and Nationalization Service (“INS”) ordered his removal to Syria and found him inadmissible to the United States for five years.  Arar spent one year in Syria.  He was beaten with electric cables and forced to live in an underground cell six feet by three and seven feet high.  Arar filed suit under the Fifth Amendment against federal officials “seeking damages . . . for harms suffered as a result of his detention and confinement.” 


The Second Circuit “analyzed [his] claim in the context of extending a Bivens remedy to cases involving extraordinary rendition.”  The court was reluctant to extend the Bivens remedy  to certain situations when “special factors [counsel] hesitation.”  Due to these “special factors,” which related to national security and foreign relations, the court ultimately chose not to extend the Bivens remedy in the context of extraordinary rendition.  The court held that “such an action would have the natural tendency to affect diplomacy, foreign policy, and the security of the nation, and that fact counsels hesitation.”  Arar did not receive any compensatory damages.


The United States has blatantly violated international law and the human rights of countless individuals. The numerous instances of torture and inhumane treatment on detainees in secret CIA detention facilities  are in direct violation of the obligations the United States promised to uphold when it ratified the Convention Against Torture.  The transport of individuals to foreign governments where the potential of torture and cruel treatment existed is also a violation of the Convention.  In addition, the United States, pursuant to its obligations under the Convention Against Torture, enacted several statutes to penalize instances of torture and extraordinary rendition and provide remedies to individuals subjected to these human rights violations.  Victims, however, have not been able to pursue actions against the United States or the CIA; most actions are barred from being heard due to the potential revelation of state secrets,  which effectively makes these statutes useless to victims of extraordinary rendition.


B. Extraordinary Rendition and Torture Under the Clinton Administration
In the mid-1990s, faced with the terrorist threat of al-Qaeda, Michael Scheuer, the former chief of the CIA’s Bin Laden Unit, followed through on a request from President Clinton “that the CIA begin to attack and dismantle al-Qaeda.”  According to Scheuer, the CIA, under his management, began operating its rendition program in the summer of 1995.  There were two goals for the program: “to take men off the street who were planning or had been involved in attacks on the United States or its allies . . . [and] to seize hard copy or electronic documents in their possession when arrested.”  Scheuer made it clear that “interrogation was never a goal under President Clinton”  because the CIA would not be present for the interrogation,  and the report from the foreign intelligence conducting the interrogation would likely be distorted  “and because torture might be used and the information might be simply what an individual thought we wanted to hear.”  It is important to note that under President Clinton, the administration recognized, as early as 1995, the likelihood of torture in situations where an alleged terrorist, under the direction of the CIA, was transported to and interrogated by foreign intelligence.


A restriction on the rendition program under the Clinton administration was that the CIA could only “take each captured al-Qaeda leader to the country which had outstanding legal process for him.”  This restriction prevented the CIA from capturing any al-Qaeda leader who did not have outstanding legal process against him, which left many known, dangerous al-Qaeda leaders free.  Further, after warnings from the CIA, President Clinton, in an attempt to prevent human rights violations, asked the CIA to require any country receiving a captured al-Qaeda leader to guarantee it would treat him according to its own laws. 


President Clinton took the actions described above in an attempt to reduce human rights violations, however, it is important to note that these restrictions did not solve the problem of preventing human rights violations caused by torture when the CIA transferred a suspect to a country that was not a party to the Convention Against Torture or known to torture suspects.  CIA Director Porter Goss acknowledged that the United States was limited in its ability to enforce this policy stating, “once they’re out of our control, there’s only so much we can do.”  It is highly likely suspects were transferred to countries not party to the Convention Against Torture, therefore, President Clinton’s administration likely violated Article 3 of the Convention.  These potential violations, however, were mild in light of what was to come under the Bush Administration.


C. Extraordinary Rendition Post-September 11th
September 11, 2001 changed everything. The biggest change to the rendition program after the September 11 attacks was President Bush’s authorization of the CIA to “transfer [suspected terrorists] to other countries solely for the purpose of detention and interrogation.”  Previously, President Clinton only authorized the CIA to transfer prisoners to countries in which the prisoner had outstanding legal process.  In January 2005, Alberto Gonzales, then White House counsel, stated in Congressional testimony, “the policy of the United States is not to transfer individuals to countries where we believe they likely will be tortured, whether those individuals are being transferred from inside or outside the United States.”  Gonzales went on to state he was “not aware of anyone in the executive branch authorizing any transfer of a detainee in violation of that policy.”  According to Michael Scheuer, “the Rendition Program has been the single most effective counterterrorism operation ever conducted by the United States government. Americans are safer today because of the program.”  Scheuer went on to say he could not “speak with authority” about how the prisoners were treated,  however, he also stated, “[t]his is a matter of no concern as the Rendition Program’s goal was to protect America.” 


To detain suspected terrorists, the CIA relied primarily on the Counterterrorism Center, or CTC who, in turn, operated the Rendition Group.  Under the direction of the CIA, the Rendition Group detained and transported suspected terrorists following a standard procedure: blindfolding and cutting the clothes off their captive,  administering an enema and sleeping drug,  and outfitting the prisoner in a diaper, as the trips would often span for an entire day.  Ultimately, the prisoner would end up in a detention facility operated by countries in the Middle East or in one of the CIA’s black sites.  These final destinations often included countries such as Egypt, Morocco, Jordan and Syria, all of which had been identified by the U.S. State Department as consistent human rights violators. 
 

The New York Times reported several victims’ accounts of the CIA’s detention methods.  Khaled el-Masri was pulled from a bus at the Macedonia border.  He was flown to Afghanistan where he was beaten and drugged, then released five months later without being charged with a crime.  Mamdouh Habib was arrested in Pakistan several weeks after the 9/11 attacks and transported to Egypt, Afghanistan, and Guantanamo.  During his forty-month detention, he was beaten, humiliated and subjected to electric shocks before being released without being charged for any crime.  The transport of suspects, like El-Masri and Habib, to these countries directly contradicts the statement made by Alberto Gonzales that the CIA avoids transporting suspects to countries known to torture prisoners.  Further, the transport of prisoners to those countries is a direct violation of Article 3 of the Convention Against Torture.


In 2004, the media began reporting on the CIA’s detention of suspected terrorists to various locations to conduct brutal interrogations that were outside the reach of federal courts, which caught the attention of various human rights organizations.  The CIA called their activity “rendition.”  As the media brought to light the inhumane ways in which suspects were being transported and the countries they were being transferred to, human rights organizations began to object believing that the CIA’s purpose was to transfer captives to countries that used torture as an interrogation method.  Many victims of the rendition program under the Bush Administration sought remedies in United States courts, with the assistance of various human rights organizations, for the violation of their human rights, but to no avail.  By not investigating these alleged instances of torture, the Bush Administration violated Article 12 of the Convention Against Torture;  in addition, if the victims were tortured during their captivity, the Bush Administration also violated Article 14 of the Convention, as the party state must create and enforce a means by which a victim of torture can obtain compensation and the means to rehabilitation, if necessary.


By 2005, it was now being called “extraordinary rendition” to encompass the possibility of transferred detainees being harshly interrogated, sent to trial, or imprisoned.  Also in 2005, the Washington Post reported that between the 2001 attacks and March 2005, the CIA had “rendered more than 100 people from one country to another without legal proceedings.”  In response, the Bush Administration began defending the practice. President Bush, not yet acknowledging the existence of the program, stated that it was the duty of the United States to protect its people from attack,  “[a]nd one way to do so is to arrest people and send them back to their country of origin with the promise that they won’t be tortured. That’s the promise we receive. This country does not believe in torture. We do believe in protecting ourselves.”  In addition, CIA Director Porter Goss insisted an accountability program was in place that allowed the U.S. Government to verify treatment of detainees;  however, any accountability program in place would be completely ineffective if the country to which the victims were transferred was not a party to the Convention Against Torture and had no legal obligation to uphold a promise not to torture.  Goss’s statements were further contradicted by claims of torture from various released suspects, like Khaled el-Masri and Mamdouh Habib, mentioned above.


In late 2005, Secretary of State Condoleezza Rice released a statement in response to the criticism of extraordinary rendition.  Rice carefully framed her statements saying things such as, “[t]he United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.”  Rice does not state that interrogation by torture does not occur; simply that it is not the purpose of the United States when transporting detainees. At this point, the statements by Rice were the closest the Bush administration had come to admitting the existence of the CIA’s extraordinary rendition program.


On June 9, 2006, President Bush explicitly confirmed the existence of the CIA program.  Bush explained that in situations where the CIA is unable to extradite a suspected terrorist, sometimes renditions take place in order to protect people.  In September 2006, President Bush again defended the rendition program stating that the information obtained from the interrogations saved lives and that the “procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations.”  Yet, despite these statements, individuals subjected to the CIA’s extraordinary rendition program continued to come forward with allegations of torture during their detention. With the backing of human rights organizations, victims continued to file lawsuits citing the various statutes enacted by the United States pursuant to their ratification of the Convention Against Torture.  In response to these lawsuits, the United States would intervene as a defendant  and argue to the court that the detainees should not be permitted to reveal the interrogation methods used to obtain information for fear of revealing state secrets and exposing the United States to more danger.  The state secrets defense worked, the CIA’s extraordinary rendition program continued, and the victims of its mistakes were precluded from seeking a remedy for the harms done to them.


The rendition program under President Clinton was a problem; it is highly likely that the Clinton Administration violated Article 3 of the Convention Against Torture by transferring suspected terrorists to countries not party to the Convention, or to countries known to torture.  The Bush Administration, however, took the rendition program to an extreme and dangerous level. By granting the CIA broad authority to transfer suspected terrorists to other countries for the purpose of detention and interrogation, the Bush Administration unquestionably violated Article 3 of the Convention Against Torture,  as many of these countries to which victims were transferred (Egypt, Syria, Afghanistan) were known to torture during interrogation proceedings. The Bush Administration further violated the Convention by not investigating claims of torture as a result of rendition  and by intervening to dismiss lawsuits by victims seeking a remedy for the actions taken against them.  In his haste to protect the United States, President Bush took the rendition program to a dangerous level that resulted in countless violations of human rights that, to this day, have been denied the opportunity to obtain a remedy.


D. Extraordinary Rendition Under President Obama
During his campaign in 2007, President Obama wrote that in order to be “decent,” it was the obligation of the American people to “[end] the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law.”  Shortly after taking office in January 2009, President Obama issued an executive order requiring secret prisons run by the CIA to be shut down;  however, later that same year he announced he would “continue the Bush administration’s practice of sending terrorism suspects to third countries for detention and interrogation.”  The Obama administration vowed to obtain diplomatic assurances (promises of humane treatment) from the countries where suspects were transferred,  and to closely monitor their treatment to ensure they are not tortured.  In order to fulfill this promise, Obama established an interagency task force “to review interrogation and transfer policies and issue recommendations on the practice of transferring individuals to other nations.” 


While the closure of CIA “black sites” and the establishment of the interagency task force reduced the potential number of human rights violations that were so high under the Bush Administration, it did not stop the practice entirely. The executive order did not completely eliminate extraordinary rendition,  and it was carefully constructed to allow the CIA to detain suspected terrorists on a short-term basis before transferring them to another country for interrogation.  Further, as was the case under both the Clinton and Bush administrations, diplomatic assurances from other countries do nothing to prevent torture if the country is not a party to the Convention Against Torture.  If suspects are transferred to countries not party to the Convention Against Torture, the Obama administration continues to violate Article 3 of the Convention. 


In March 2013, a United Nations special rapporteur on protecting human rights within efforts to combat terrorism, Ben Emmerson, called on the United States to account for the use of “black sites” and interrogation techniques.  Emmerson stated that, “failure to prosecute those responsible would breach international law.”  On March 5, 2013, at a UN human rights council meeting in Geneva, Emmerson demanded the United States release reports detailing the CIA’s secret detention, extraordinary rendition, and torture that resulted from harsh interrogations of suspected terrorists in other countries.  Based on his investigation, Emmerson believes the American government is withholding reports that reveal the extent of their involvement in these violations of international law.  Further, Emmerson stated, “[t]here is now credible evidence to show that CIA ‘black sites’ were located on the territory of Lithuania, Morocco, Poland, Romania and Thailand and . . . at least 49 other states allowed their airspace or airports to be used for rendition flights.” 


III. The State Secrets Doctrine and Case Examples


A. State Secrets Privilege
There are two different principles that govern the state secrets doctrine: the Totten bar  and the Reynolds privilege.  The biggest difference between them is that the Totten bar dismisses a case completely based on subject matter alone,  while the Reynolds privilege may only remove an evidentiary piece of the case that is considered secret information.  In more recent cases, however, courts have used the Reynolds privilege to dismiss a case entirely.  This section will explain the Reynolds privilege and will conclude with a recent case example  that describes the modern way courts interpret these doctrines.


1. The Reynolds Privilege
In 1953, the Supreme Court established the evidentiary-based privilege of the state secrets doctrine.  In United States v. Reynolds, an Air Force aircraft crashed while testing secret electronic equipment and killed three civilian observers.  The widows of the three civilians sued the United States.  The widows requested the Air Force release their accident investigation report and statements of three surviving crewmembers, but, “[t]he Government . . . claim[ed] that these matters were privileged against disclosure.”  The Supreme Court held that the United States might invoke the state secrets privilege to prevent the disclosure of information if “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”


When faced with a state secrets privilege question, there is a three-part analysis used by the court to resolve the issue.  First, “the court must ascertain that the procedural requirements for invoking the state secrets privilege have been satisfied.”  The procedural requirements are also threefold: “[f]irst, the state secrets privilege must be asserted by the United States.”  Next, “[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter.”  Finally, the formal privilege claim can only be made “after actual personal consideration by that officer.”

 
The second part of the state secrets analysis involves the court deciding, “whether the information sought to be protected qualifies as privileged under the state secrets doctrine.”  This requires the court to balance “the . . . search for truth against the Executive’s duty to maintain the nation’s security.”  Further, “[t]he Executive bears the burden of satisfying a reviewing court that the . . . reasonable danger standard is met.”


“Finally, if the subject information is determined to be privileged, the ultimate question to be resolved is how the matter should proceed in light of the successful privilege claim.”  Once information has been deemed privileged, the court does not consider a party’s need for the disclosure of the information; when the court determines the military secrets at stake are privileged, that piece of evidence is removed from the proceedings entirely.  If the case can be litigated without resorting to the privileged information, it may continue.  If, however, the privileged information “will be so central to the subject matter of the litigation that any attempt to proceed will threaten to disclose privileged matters, dismissal is the proper remedy.”  In Reynolds, the Supreme Court held that some matters are incapable of resolution because they are so entrenched with state secrets, and dismissed the case. 


An example of the court using the Reynolds privilege to dismiss a case entirely is El Masri v. United States.   In 2005, El-Masri, a German citizen of Lebanese descent, brought a civil claim against George Tenet, former Director of Central Intelligence, three corporate defendants, and ten employees of the CIA.  El-Masri alleged that while traveling in Macedonia in 2003, he was detained by Macedonian officials and, after twenty-three days in their custody, handed over to the CIA.  While in CIA custody, El-Masri claimed he had been “beaten, drugged, bound and blindfolded during transport; confined in a small, unsanitary cell . . . and consistently prevented from communicating with anyone outside the detention facility.”  On May 28, 2004, he was released in a remote area of Albania where Albanian officials transported him to an airport from which he traveled to his home in Germany.


Shortly after El-Masri filed his lawsuit, the United States filed a Statement of Interest asserting a claim of the state secrets privilege.  Eventually, the United States moved to intervene as a defendant  and sought to dismiss El-Masri’s complaint arguing that the state secrets doctrine precluded the litigation.  El-Masri responded that because CIA rendition operations, including his, were discussed publicly, the state secrets doctrine could not be used to dismiss his litigation.  Steven Watt, a human rights advisor to the American Civil Liberties Union (ACLU), assisted El-Masri with his response.  The district court granted the United States’ motion to dismiss, and El-Masri appealed. 


On appeal, El-Masri again argued, “that the subject of this action is simply a rendition and its consequences,”  and that critical facts had “been so widely discussed that litigation concerning them could do no harm to national security.”  The Fourth Circuit disagreed holding that El-Masri was mistaken about the central facts of the case.  The facts central to the resolution of the litigation were not that he had been detained and interrogated under abusive conditions, but rather the roles that the defendants played in the events alleged.  El-Masri could not establish a prima facie case without producing evidence that the defendants were involved in his detention and interrogation,  and such evidence could expose “how the CIA organizes, staffs, and supervises its most sensitive intelligence operations.”  The Fourth Circuit affirmed the district court’s ruling, and the Supreme Court denied a grant of a writ of certiorari on October 9, 2007.  The Fourth Circuit’s ruling effectively denied El-Masri of a remedy to which he was legally entitled under international law for the human rights violations against him.  By not allowing litigation to proceed due to the state secrets doctrine, the United States violated its obligations under the Covenant Against Torture because it did not fully investigate a reasonable legal claim alleging torture.


2. Mohamed v. Jeppesen Dataplan, Inc.
In 2011, the Supreme Court denied to grant a writ of certiorari to hear Mohamed v. Jeppesen Dataplan, Inc.  After the Ninth Circuit decided the case in 2010, an attorney for the ACLU put it best when he said, “[i]f this decision stands, it may close to the door to all torture victims while providing blanket immunity to their torturers.”


The case involved five foreign nationals who brought claims against a United States corporation, Jeppesen Dataplan, Inc., alleging the corporation “provided direct and substantial services to the United States for its so-called ‘extraordinary rendition program’ . . . enabling the . . . transportation of terrorism suspects to secret overseas detention facilities.”  The plaintiffs further alleged that Jeppesen had “knowledge of the objectives of the rendition program, including knowledge that the plaintiffs would be subject to forced disappearance, detention and torture by U.S. and foreign government officials.”  While being detained, the plaintiffs alleged they were forced to wear diapers,  subjected to loud music day and night that prevented them from sleeping,  severely beaten,  and shocked with electrodes attached to their ears, nipples and genitals.   The plaintiffs brought suit against Jeppesen under seven theories of liability that were combined under two claims:  one for forced disappearance  and the second for torture and other cruel, inhumane or degrading treatment.


The government asserted the Reynolds privilege and the Totten bar in its petition to have the case dismissed.  The Ninth Circuit majority, however, chose to rely on the Reynolds privilege in order to avoid “difficult questions about the precise scope of the Totten bar.”  The majority believed it could conduct a more thorough judicial review under the Reynolds privilege.  Though the plaintiffs argued that under the Reynolds privilege that some claims should survive,  the court chose, using the Reynolds privilege analysis, to completely dismiss the case “because state secrets are so central to this case that permitting further proceedings would create an intolerable risk of disclosure that would jeopardize national security.”  The court held, “dismissal is . . . required under Reynolds because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” 


In its conclusion, the court suggested alternative remedies for the plaintiffs including a petition to the executive branch to “honor . . . the fundamental principles of justice,”  and a suggestion that Congress has the power to investigate and remedy claims such as the ones brought by the plaintiffs.  The remedies suggested by the court are virtually useless suggestions. When the government is intervening to protect state secrets in lawsuits, it is unlikely it would later redress claims by victims of the extraordinary rendition program, as it would likely be perceived as an admission of guilt. Further, in the case of Mohamed, the claims were not brought against the government, but against a private corporation. The corporation, after having the suit dismissed, would be even less likely to compensate the victims for similar reasons.


In 2013, the Government should no longer be permitted to use the state secrets doctrine as a defense in extraordinary rendition cases, particularly those involving torture. In light of the extensive report published in February 2013 by the Open Society Justice Initiative detailing the program and specific abuses by the United States and other foreign governments on 136 victims,  it is time for courts to recognize the secrets they believe to be protecting are no longer unknown. Foreign governments have begun to convict CIA officials involved in the human rights violations,  and the United States should follow suit.


IV. Present Solutions


In 2012, other countries began taking steps to remedy human rights violations against extraordinary rendition victims. On December 13, 2012, the European Court of Human Rights held Macedonia had violated Khaled El-Masri’s  rights under the European Convention.  As discussed previously,  the United States successfully used the state secrets privilege to prevent El-Masri’s case from being litigated in court.  Despite an extensive amount of evidence proving otherwise, the Macedonian government denied playing any role in El-Masri’s detention and subsequent torture.  The European Court of Human Rights, however, found that Macedonia had violated El-Masri’s rights under the European Convention by failing to prevent the CIA from detaining him at the airport and transferring him to the custody of the CIA “in the face of a risk of ill-treatment.”  This holding by the European Court of Human Rights required both Macedonia and the United States to issue El-Masri a public apology, and Macedonia must provide compensation to El-Masri.  The lawyer representing Macedonia in the case stated that the country would pay the damages.  Nine years after his detention and torture,  El-Masri finally received some justice.


The decision by the European Court of Human Rights was historic; it was the first time a court held the CIA’s rendition techniques amounted to torture and a violation of human rights.  This decision was followed two months later by another historic decision from the Milan Court of Appeals involving the case of Abu Omar.  Abu Omar, an Egyptian native residing in Italy, was forcibly taken from the streets of Milan.  He was flown on a CIA leased plane to Egypt where he was tortured with electric shocks and detained for fourteen months.  In 2009, a lower Italian court convicted twenty-two American CIA officials for complicity in the abduction and subsequent torture of Omar.  At the time, the decision was thought to have little practical effect because the officials were tried in absentia and were not likely to spend time in prison, and it seemed likely the appeals court would overturn the decision.  In 2012, however, the Milan Court of Appeals upheld the convictions.  In addition, the Court of Appeals sentenced Italy’s former military intelligence chief to ten years in prison,  his deputy nine years in prison,  and three other Italian secret service officials to six years in prison for their role in Omar’s disappearance.  They were also ordered to collectively pay damages worth one million to Omar, and $500,000 to his wife.


Julia Hall, Amnesty International’s expert on counter-terrorism and human rights, stated, “[Abu Omar’s] kidnapping and subsequent rendition and enforced disappearance were crimes, not national security secrets, and those responsible should be brought to justice.”  Though courts in the United States have repeatedly refused justice to victims of human rights violations due to extraordinary rendition, other countries are beginning to convict those responsible for the crimes against the victims. As of February 2013, “other legal challenges to extraordinary rendition operations are pending against Italy, Lithuania, Poland, and Romania before the European Court of Human Rights; against Djibouti before the African Commission on Human and Peoples’ Rights; and against domestic authorities or officials in Egypt, Hong Kong, Italy, and the United Kingdom.”


V. Conclusion


In the wake of action by other countries across the world, the United States can no longer turn a blind eye to the victims of extraordinary rendition. It should follow suit with the many other countries across the world and expose its involvement in detention and rendition that has ultimately led to torture for many individuals. In order to fulfill its obligations under the Convention Against Torture, the United States must do two things: first, President Obama should not longer permit the CIA to transfer suspected terrorist to other countries with a diplomatic assurance from the country that it will treat the suspect humanely; the likelihood of torture is still high, particularly if the country is not party to the Convention Against Torture. Second, the United States, in order to properly fulfill its obligations under the Convention Against Torture,  must conduct investigations to hold those responsible to the victims of their human rights abuses. In order to property conduct an investigation, the United States must release the reports that detail its involvement in the rendition program. This will likely permit victims of extraordinary rendition to seek redress in United States courts using statutes and remedies set up pursuant to the Convention Against Torture,  as the release of the reports will make the state secrets defense moot and allow the victims to obtain compensation, if warranted, from those who were instrumental in their torture. Only after these actions are taken will the United States truly be fulfilling its obligations under the Convention Against Torture.

Footnotes:

  L. Madeline Obler, J.D., Elon University School of Law (expected May 2014).
  9/11 by the Numbers, N.Y. MAGAZINE, http://nymag.com/news/articles/wtc/1year/numbers.htm (last updated Sept. 2012).
  Text of Bush’s address, CNN U.S. (Sept. 11, 2001), http://articles.cnn.com/2001-09-11/us/bush.speech.text_1_attacks-deadly-terrorist-acts-despicable-acts?_s=PM:US.
  Douglas Jehl & David Johnston, Rule Change Lets C.I.A. to Freely Send Suspects Abroad to Jails, N.Y. TIMES, Mar. 6, 2005, http://www.nytimes.com/2005/03/06/politics/06intel.html?_r=0.
  Globalizing Torture: CIA Detention and Extraordinary Rendition, OPEN SOCIETY JUSTICE INITIATIVE 5 (Feb. 5, 2013), http://www.opensocietyfoundations.org/sites/default/files/globalizing-torture-20120205.pdf [hereinafter Open Society Justice Initiative].
  Id.
  Id. at 6.
  Id.
  Id. at 8; see, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (holding litigation regarding foreign nationals transported to other countries to be detained and interrogated under CIA’s extraordinary rendition program could not be held because it could reveal state secrets).
  Former Italian intelligence officials sentenced in Abu Omar case, AMNESTY INTERNATIONAL (Feb. 12, 2013), http://www.amnesty.org/en/news/former-italian-intelligence-officials-sentenced-abu-omar-case-2013-02-12 [hereinafter Amnesty International Article].
  Id.
  Id.
  See 28 U.S.C § 1350 (2006) [hereinafter Torture Victim Protection Act].
  Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter Convention Against Torture].
  Id. at art. 2.
  Id. at art. 3.
  Id. at art. 4.
  18 U.S.C. § 2340A(a) (2006).
  Id. § 2340A(c).
  Id. § 2340A(b)(1), (2).
  Convention Against Torture, supra note 14, at art. 12.
  Id. at art. 14.
  Torture Victim Protection Act, supra note 13.
  Id. § 1350(a)(1).
  8 U.S.C. § 1231 (2006) [hereinafter FARR Act].
  Id.
  Daniel Joseph Natalie, No Longer Secret: Overcoming the State Secrets Doctrine to Explore Meaningful Remedies for Victims of Extraordinary Rendition, 62 Case W. Res. L. Rev. 1237, 1244 (2012).
  See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
  Id. at 389-90.
  Id. at 397.
  Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009).
  See Davis v. Passman, 442 U.S. 228 (1979) (extending Bivens remedy for an employment discrimination claim in violation of the Due Process Clause); see also Carlson v. Green, 446 U.S. 14 (1980) (extending Bivens remedy to an Eighth Amendment violation by prison officials).
  See Arar, 585 F.3d at 559.
  Id. at 565.
  Id.
  Id.
  Id. at 566.
  Id.
  Id.
  Id. at 567.
  Natalie, supra note 27, at 1254.
  Arar, 585 F.3d at 573.
  Id. at 574.
  Id.
  See id.
  These instances will be discussed in more detail in section III.
  Convention Against Torture, supra note 14, at art. 2.
  Id. at art. 3.
  See, e.g., Torture Victim Protection Act, supra note 13.
  This will be discussed in more detail in section III.
  Extraordinary Rendition in U.S. Counterterrorism Policy: The Impact on Transatlantic Relations: J. Hearing Before the Subcomm. on International Organizations, Human Rights, and Oversight and the Subcomm. on Europe of the H. Comm. on Foreign Affairs, 110th Cong. 12 (2007) (statement of Michael F. Scheuer, former Chief of Bin Laden Unit, Central Intelligence Agency) [hereinafter Extraordinary Rendition Hearing].
  Id. at 12.
  Id.
  Id.
  Id.
  Id.
  Id.
  Id.
  Id.
  Id. This is known as a diplomatic assurance. Id.
  See generally Convention Against Torture, supra note 14.
  Jehl & Johnson, supra note 4.
  Convention Against Torture, supra note 14, at art. 3 (“No State Party shall 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.”).
  Jehl & Johnson, supra note 4.
  Id.
  Id.
  Id.
  Extraordinary Rendition Hearing, supra note 51, at 14.
  Id.
  Id.
  Dana Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake, WASH. POST, Dec. 4, 2005, http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html.
  Id.
  Id.
  Id.
  Id.
  Robert Johnson, Extraordinary Rendition: A Wrong Without a Right, 43 U. Rich. L. Rev. 1135, 1142 (2009).
  See Jehl & Johnston, supra note 4.
  Id.
  Id.
  Id.
  Id.
  R. Jeffrey Smith, Gonzales Defends Transfer of Detainees, WASH. POST, Mar. 8,  2005, http://www.washingtonpost.com/wp-dyn/articles/A15130-2005Mar7.html.
  Convention Against Torture, supra note 14, at art. 3.
  Dana Priest, Memo Lets CIA Take Detainees Out of Iraq, WASH. POST, Oct. 24, 2004, http://www.washingtonpost.com/wp-dyn/articles/A57363-2004Oct23.html.
  Dana Priest, Jet Is and Open Secret in Terror War, WASH. POST, Dec. 27, 2004, http://www.washingtonpost.com/wp-dyn/articles/A27826-2004Dec26.html.
  Natalie, supra note 27, at 1421.
  This will be discussed further in section III.
  Convention Against Torture, supra note 14, at art. 12.
  Id. at art. 14.
  Smith, supra note 82.
  Dana Priest, CIA’s Assurances On Transferred Suspected Doubted, WASH. POST, Mar. 17, 2005, http://www.washingtonpost.com/wp-dyn/articles/A42072-2005Mar16.html.
  Id.
  Id.
  Id.
  See Convention Against Torture, supra note 14.
  Condoleezza Rice, U.S. Sec’y of State, Remarks Upon Her Departure for Europe (Dec. 5, 2005), http://2001-2009.state.gov/secretary/rm/2005/57602.htm.
  Id. (emphasis added).
  President’s News Conference With Prime Minister Anders Fogh Rasmussen of Denmark, 42 Weekly Comp. Pres. Doc. 1105, 1111 (June 9, 2006), http://www.gpo.gov/fdsys/pkg/WCPD-2006-06-12/html/WCPD-2006-06-12-Pg1105.htm.
  Id.
  Remarks on the War on Terror, 42 Weekly Comp. Pres. Doc. 1569, 1570 (Sept. 6, 2006), http://www.gpo.gov/fdsys/pkg/WCPD-2006-09-11/html/WCPD-2006-09-11-Pg1569-2.htm.
  Convention Against Torture, supra note 14, at arts. 4, 14.
  The procedural details of the state secrets privilege is discussed more thoroughly in section III.
  Carol D. Leonnig & Eric Rich, U.S. Seeks Silence on CIA Prisons, WASH. POST, Nov. 4, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/11/03/AR2006110301793.html.
  Convention Against Torture, supra note 14, at art. 3.
  Id.
  Id. at art. 12.
  Id. at art. 14.
  David Johnston, U.S. Says Rendition to Continue, but With More Oversight, N.Y. TIMES, Aug. 24, 2009, http://www.nytimes.com/2009/08/25/us/politics/25rendition.html?_r=0.
  Id.
  Id.
  Id.
  Id.
  Open Society Justice Initiative, supra note 5, at 7.
  Id.
  Id.
  See Convention Against Torture, supra note 14.
  Id. at art. 3.
  Nick Cumming-Bruce, Inquiry on C.I.A. Detentions to Be Unveiled, N.Y. TIMES, Mar. 4, 2013, http://www.nytimes.com/2013/03/05/world/americas/inquiry-on-cia-detentions-to-be-unveiled.html?ref=extraordinaryrendition.
  Id.
  Peter Walker, Britain and US asked to release secret torture reports, The Guardian (Mar. 5, 2013, 9:48 PM), http://www.guardian.co.uk/law/2013/mar/05/britain-us-secret-torture-reports.
  Id.
  Id.
  See Totten v. United States, 92 U.S. 105 (1875).
  See United States v. Reynolds, 345 U.S. 1 (1953).
  Totten, 92 U.S. at 105.
  Reynolds, 345 U.S. at 1.
  Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010). The court in this case expanded the Reynolds privilege to the extent that it has become the functional equivalent of the Totten bar. This case will be discussed in more detail in part three of this section.
  Id.
  Id. at 1.
  Id. at 3.
  Id.
  Id. at 3-4.
  Id. at 10.
  El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).
  Id.
  Reynolds, 345 U.S. at 7.
  Id. at 7-8.
  Id. at 8.
  El-Masri, 479 F.3d at 304.
  Id.
  Id. at 305.
  Id. at 304.
  Reynolds, 345 U.S. at 11.
  El-Masri, 479 F.3d at 306.
  Id.
  Reynolds, 345 U.S. at 11.
  El-Masri, 479 F.3d at 296.
  Id. at 299.
  Id. at 300.
  Id.
  Id.
  Id. at 301.
  Note that the United States intervened as a defendant in order to satisfy the first procedural requirement of invoking the state secrets privilege. See Reynolds, 345 U.S. at 7.
  El Masri, 479 F.3d at 301.
  Id.
  Id.
  Id. at 302.
  Id. at 308.
  Id. at 308.
  Id.
  Id. at 308-09.
  Id. at 309.
  Id.
  El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), cert. denied, 552 U.S. 947 (2007).
  Convention Against Torture, supra note 14, at art. 14.
  Id. at art. 12.
  See Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010), cert. denied, 79 USLW 3370 (U.S. May 16, 2011) (No. 10-778).
  Ginny LaRoe, 9th Circuit Backs Government’s State Secrets Claim in Rendition Cases, Law.com (Sep. 9, 2010), http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202471800262.
  Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1074-75 (9th Cir. 2010).
  Id. at 1075.
  Id. at 1074-75.
  Id.
  Id.
  Id.
  Id. at 1075.
  Id.
  Id.
  Id. at 1085.
  Id.
  Id.
  Id. at 1084.
  Id. at 1083-84.
  Id. at 1087.
  Id. at 1091.
  Id. at 1091-92.
  See Open Society Justice Initiative, supra note 5.
  Amnesty International Article, supra note 10.
  Discussed in section III part two, above.
  Amrit Singh, European court of human rights finds against CIA abuse of Khaled el-Masri, The Guardian (Dec. 13, 2012, 10:38 PM), http://www.guardian.co.uk/commentisfree/2012/dec/13/european-court-human-rights-cia-abuse-khaled-elmasri.
  Id.
  See El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).
  Singh, supra note 189.
  Id.
  Id.; see also Nicholas Kulish, Court Finds Rights Violation in C.I.A. Rendition Case, N.Y. TIMES, Dec. 13, 2012, http://www.nytimes.com/2012/12/14/world/europe/european-court-backs-cia-rendition-victim-khaled-el-masri.html.
  Kulish, supra note 194.
  Id.
  Singh, supra note 189.
  Amnesty International Article, supra note 10.
  Open Society Justice Initiative, supra note 5, at 51.
  Id.
  Rachel Donadio, Italy Convicts 23 Americans for C.I.A. Renditions, N.Y. TIMES, Nov. 4, 2009, http://www.nytimes.com/2009/11/05/world/europe/05italy.html?ref=hassanmustafaosamanasr.
  Id.
  Gaia Pianigiani, Italy Jails Ex-Officials for Rendition, N.Y. TIMES, Feb. 12, 2013, http://www.nytimes.com/2013/02/13/world/europe/former-italian-military-officials-sentenced-in-abduction-of-abu-omar.html?ref=hassanmustafaosamanasr.
  Id. The American agents are considered to be fugitives. Id.
  Id.
  Id.
  Amnesty International Article, supra note 10.
  Id.
  Open Society Justice Initiative, supra note 5, at 119.
  Convention Against Torture, supra note 14, at art. 12.
  Examples include the Torture Victim Protection Act, supra note 13, and the FARR Act, supra note 25. These statutes were established pursuant to the Convention Against Torture, supra note 14, at art. 14.
 

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