By Margaret Satterthwaite of the New York University School of Law, writing in the Jurist

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.

Unlike extraordinary rendition, secret detention does not have clear predecessors in U.S. intelligence history. Instead, it appears to be a new practice for the U.S., in which individuals are held in “black sites” run entirely off the radar of normal civilian or military procedures. Such detentions are not monitored by the International Committee of the Red Cross, and they apparently involve transfers of prisoners from site to site to evade detection. Thus far, no one has argued that unacknowledged incommunicado detention by U.S. agents was authorized by presidents of a bygone era, or that the practice has long been an essential tool in the fight against terrorism. This is not surprising – clear norms exist to proscribe secret detentions under international human rights law. In the European, Inter-American, and United Nations human rights systems, a deep jurisprudence has developed against this practice – based on the lessons of Latin America’s “dirty war” – a practice more properly called enforced disappearance.

Neither extraordinary rendition nor secret detention can be carried out without the cooperation of allied governments. This cooperation may range from involvement through intelligence-gathering or detainee handover to passive cooperation in the form of a blind eye turned to the real reason behind CIA flights or a no-questions-asked policy toward the use of military installations that could house detainees in secret. Suspicions that the latter two forms of acquiescence were being practiced by the Member States of the Council of Europe led to the Secretary-General’s inquiry initiated in November 2005.

With a striking uniformity, States from across the many spectrums of the enlarged Europe appear to have inadequate safeguards for ensuring that intelligence services abide by the human rights obligations of their home States or the countries where they operate. As Terry Davis explained, “We need an appropriate regulatory framework providing for effective safeguards against abuse, democratic oversight by national Parliaments and judicial control in cases of alleged human rights violations.” Without such mechanisms, governments can answer, sometimes honestly, that they were not aware of the activities of their own agencies, or that they could not be held responsible for the actions of the U.S. CIA for missions conducted on their territory.

If core rights, such as due process and the right to be free from torture, are to have any real meaning, they must apply to the actions of those we have often thought of as operating “outside” the law. Intelligence services have been asked to take on new and expanded roles in this untraditional “war”: they are detectives, investigating crimes and collecting evidence, and they are jailers, holding keys to a realm that we hear about only in shadowy bits, leaked information or the testimony of a former “disappeared” or rendered person like Khaled El-Masri or Maher Arar. If democracies like ours do not exercise oversight and regulate these activities through enforceable laws, intelligence agencies will become judge and jury as well. At that point, the rule of law will have been rendered meaningless.