No longer secret: overcoming the state secrets doctrine to explore meaningful remedies for victims of extraordinary rendition.

AuthorNatalie, Daniel Joseph

"If the Government becomes a lawbreaker, it breeds contempt for the law...." (1)

Many, if not all, Americans would likely agree that state-sponsored torture is wrong. The very notion of state-sponsored torture brings to mind countless atrocities committed during the Twentieth Century. On the other hand, many Americans would equally agree that the United States, in its national security interests, should use all means necessary to discover terrorist plots and uncover the whereabouts of wanted terrorists. To suggest that the United States itself would engage in questionable methods of interrogation (2) that would rise to the level of state-sponsored torture in its fight against terrorism would almost certainly elicit reactions of denial, disgust, anger, and disbelief. Such techniques, however, lie at the heart of the government's use of extraordinary rendition.

Extraordinary rendition is a controversial program that the executive branch, particularly the Central Intelligence Agency, has allegedly used in its ongoing campaign against post-September 11 terrorist plots. It involves the detention, both domestically and abroad, of individuals who are suspected of having information about Al-Qaeda and other terrorist groups. After the government detains these suspects, it then allegedly sends these individuals to secret U.S. detention facilities abroad, or foreign prisons. American or foreign officials then subject these suspects to harsh interrogation techniques that arguably rise to the level of torture. (3)

Victims of extraordinary rendition have attempted to sue U.S. officials for damages based on abuses that they sustained either directly at the hands of U.S. officials (4) or at the hands of foreign governments acting in collaboration with the United States. (5) Generally, they have brought their claims either as a Bivens action (6) or under the Torture Victim Protection Act. (7) These plaintiffs have encountered various obstacles to their claims in the federal courts, which have either refused to extend a Bivens action to the context of extraordinary rendition or dismissed their cases based on the "state secrets doctrine." (8) The result is that the federal courts have essentially created a class of victims of harsh interrogation techniques, arguably rising to the level of torture, for which relief is not currently available in the federal judicial system.

This Note explores the implications of how the federal courts have treated claims by victims of extraordinary rendition. Part I articulates an overview of the definitions and legal principles underlying the practice of extraordinary rendition, with particular emphasis on how it has changed since September 11, 2001. Part II addresses current "remedies" available to victims: the Convention Against Torture, the Foreign Affairs Reform and Restructuring Act, the Torture Victim Protection Act, and the Bivens claim. Part III examines the state secrets doctrine, the most significant obstacle to plaintiffs bringing a cause of action under one of the aforementioned theories. Part IV then discusses two recent extraordinary rendition cases in which plaintiffs' cases were dismissed: Arar v. Ashcroft (9) and Mohamed v. Jeppesen Dataplan, Inc. (10) Finally, Part V completes the analysis of this Note by: (1) offering a re-evaluation of current remedies that federal courts have wrongly applied; (2) examining two precedents where victims of state abuse received compensation through a formal commission of inquiry: the compensation of Maher Arar by the Canadian government and the compensation of Japanese Americans interned during the Second World War by the American government; and (3) proposing that Congress establish a commission of inquiry into the extraordinary rendition program in light of the limitations of judicial relief to victims of extraordinary rendition reinforced by the holdings of Arar and Jeppesen.


    1. Evolution of the Doctrine of Extraordinary Rendition

      One of the challenges of approaching the subject of extraordinary rendition is the confusion that the term creates in modern parlance. Indeed, the term "extraordinary rendition" is different from the traditional definition of "rendition," which is "[t]he return of a fugitive from one state to the state where the fugitive is accused or was convicted of a crime." (11) Margaret Satterthwaite incorporates this baseline definition when she defines "extraordinary rendition" as "the transfer of an individual, without the benefit of a legal proceeding in which the individual can challenge the transfer, to a country where he or she is at risk of torture." (12) This would seem to imply that, at the very least, the removal of a person by the government of one country to another country involves a definite legal process, ordinarily requiring explicit congressional authorization. (13) As the American legal system developed and foreign relations evolved, Attorneys General took the position that "extradition and rendition require congressional action by statutes or treaties." (14) They reiterated time and again that without the express authorization by Congress or treaty, the President had no inherent power to render foreign nationals to another country. (15) Subsequent "[a]dministrations that did depart from those principles paid a political price." (16)

      The idea that the President needs authorization from Congress or a treaty in order to render someone in U.S. custody to another country began to change during the Clinton administration. In 1995, President Clinton signed Presidential Directive 39, authorizing the Secretary of State and the Attorney General to "use all legal means available to exclude from the United States persons who pose a terrorist threat and deport or otherwise remove from the United States any such aliens." (17) Then, in 1998, terrorist organizations working in collaboration with Osama bin Laden bombed the U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. (18) In response, the Clinton administration "pioneered the use of extraordinary rendition ... [although the

      administration] also pressed allied intelligence services to respect lawful boundaries in interrogations." (19) In this way, extraordinary rendition became a power directly and independently claimed by the executive branch.

    2. Extraordinary Rendition and Practices After September 11, 2001

      "We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them." (20)

      The government's approach to extraordinary renditions changed in the wake of September 11 and the initiation of the George W. Bush administration's "war on terror." Given the classified nature of the information surrounding extraordinary renditions, it is difficult to know precisely how many suspected terrorists that the government has processed throughout the course of its extraordinary rendition program. In 2002, however, Dana Priest and Barton Gellman wrote one of the first investigative stories for the Washington Post about the extraordinary rendition program. Their article reported:

      According to U.S. officials, nearly 3,000 suspected al Qaeda members and their supporters have been detained worldwide since Sept. 11, 2001. About 625 are at the U.S. military's confinement facility at Guantanamo Bay, Cuba. Some officials estimated that fewer than 100 captives have been rendered to third countries. Thousands have been arrested and held with U.S. assistance in countries known for brutal treatment of prisoners, the officials said. (21) Likewise, other than firsthand accounts from victims who have brought claims in federal court for abuses they experienced as a result of the government targeting them in its extraordinary rendition program, little verifiable, unclassified evidence exists with respect to detention and interrogation tactics. As one official has reported,'" [t]his is a very highly classified area.... There was a before 9/11, and there was an after 9/11.... After 9/11 the gloves [came] off.'" (22) Unlike Guantanamo Bay, "the CIA's overseas interrogation facilities are off-limits to outsiders, and often even to other government agencies ... [and the CIA] often uses the facilities of foreign intelligence services." (23)

      The election of President Barack Obama in 2008 did not bring an end to the extraordinary rendition program, although the Obama Administration indicated that practices of interrogating terrorist suspects would be in full compliance with domestic and international law. (24) On his second day in office, President Obama signed an executive order purporting to ensure the lawful interrogation of terrorist suspects. (25) The executive order, entitled Ensuring Lawful Interrogations, expressly limited interrogation techniques to those listed in the Army Field Manual, emphasized the humane treatment of detainees, and ordered the closure of CIA detention facilities. (26) This "humane approach" to the extraordinary rendition program appears on the surface to help the United States meet its obligations under international law; however, the executive order has only solidified extraordinary rendition as an institution of the executive branch.


    The developing doctrine of extraordinary rendition consolidates executive power to detain, remove, and interrogate terrorist suspects. Juxtaposed against this is a legal framework recognizing the need to protect and compensate victims of torture or abuse by the state or its agents. The United States is a party to international conventions prohibiting the use of torture and provides statutory remedies to torture victims. (27) Additionally, the Supreme Court of the United States has recognized the need to provide judicial remedies to victims of abuse by public officials. (28) Victims of extraordinary rendition have attempted...

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