Rendered Meaningless: The Rule of Law in the US 'War on Terror'

[struggle4progress]

Since 9/11, the U.S. government has used the discourse and authorizing rules of the laws of war while simultaneously flouting the limiting and protective rules of that regime, labeling them “quaint” and inapplicable. At the same time, the Administration insists that human rights law is not applicable to this new “war,” arguing alternatively that the relevant norms do not apply to extraterritorial conduct, that there is no relevant implementing legislation requiring the U.S. to abide by its international obligations, and that human rights law does not apply in situations of armed conflict. As to those standards it does concede applicability – such as the prohibition on torture – the Administration has largely defined away the practice. The effect is to take U.S. actions in the “War on Terror” outside of both frameworks, dealing a blow to the rule of law.

Among U.S. strategies are practices aimed at avoiding the due process rules included both in the Geneva Conventions and in human rights treaties to which the U.S. is a party. Through extraordinary renditions and secret detentions, the U.S. attempts to avoid norms concerning due process by avoiding any process at all. Instead, it opts for procedures in which individuals are unilaterally and secretly determined to be a danger to the U.S. On the basis of this determination, the U.S. sends individuals to be interrogated under torture by other governments, places them in secret detention, or ships them to Bagram air base, where it presumably believes U.S. courts may not exercise jurisdiction. In the process, our government is rejecting not only the human rights norms against prolonged incommunicado detention, non-refoulement, and the prohibition on torture; it is also rejecting the framework of international justice that insists on accountability and the rule of law.

With the Council of Europe, the European Union and a variety of their Member States now focusing attention on these practices, the Administration may be heading into trouble. At the beginning of March, the Secretary-General of the Council of Europe, Terry Davis, reported publicly on the responses his office had received from 45 of the 46 States Parties to the European Convention on Human Rights concerning extraordinary rendition and secret detention. Under a mandatory procedure, the Council asked States to answer a short list of questions aimed not only at assessing each Member’s potential involvement in the practices, but also – more crucially – their procedures for ensuring that intelligence services stay within the bounds of human rights law. As the “war on terror” becomes the “long war,” this is one discussion that the legal community should focus on with diligence.

“Extraordinary rendition” is not a legal term; it describes the perverted form of a practice already defined by its informality. Used by the U.S. since the Reagan era, rendition involves the extra-legal transfer of an individual from one state to another. While originally used to bring suspected terrorists into the United States so they could stand trial before federal courts, it morphed during the Clinton presidency into a procedure through which the U.S. would effect the transfer of suspects from one country to another where they were expected to stand trial. After 9/11, the process apparently took on a new purpose: intelligence-gathering. Instead of focusing on suspects with pending charges, the U.S. sent detainees to States known to “employ interrogation techniques that will enable them to obtain the requisite information,” as one alarmed F.B.I. agent explained. These were States that the U.S. had itself accused of widespread and systematic torture, including Syria, Egypt, and Morocco. Rendition to justice had become rendition to torture, or extraordinary rendition. <snip>

http://jurist.law.pitt.edu/forumy/2006/03/rendered-meaningless-rule-of-law-in-us.php