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Introduction

The practice of transferring terrorist suspects to countries that routinely practice torture and other ill-treatment is of growing international concern. A number of governments around the world – in particular in Europe, the Middle East and North America – have transferred or attempted to transfer terrorist suspects to places where they are at risk of being subjected to torture or ill-treatment. In the United States, the media has reported extensively on such transfers in recent months, shedding new light on a policy that remains shrouded in secrecy.¹

U.S. officials have been pressed to comment on the secret practice that has come to be known in the United States as extraordinary rendition. At a press conference on March 16, 2005, President George W. Bush stated that one way to protect the American people and their friends from future attack was “to arrest people and send them back to their country of origin with the promise that they won't be tortured.”² When asked by a journalist, “…what is it that Uzbekistan can do in interrogating an individual that the United States can't?” the President demurred, saying only that “[w]e seek assurances that nobody will be tortured when we render a person back to their home country.”³

The terms “rendition” and “extraordinary rendition” have been used to describe a variety of forms of transfer of persons to the custody of other governments. It is important to clarify both the terminology used in this report and the types of activities covered. Some of the transfers of persons suspected of terrorist activities occur within a legal framework, such as an immigration deportation process or extradition proceedings. Other transfers are effectuated outside of any legal process. In many ways, these extralegal renditions raise even more serious concerns, largely because they take place in secret and without any procedural safeguards, including an opportunity for the person to challenge the transfer in a legal forum.⁴ 

While some have used the term “rendition” to apply to any transfer to torture, more often “rendition” is used simply to signify the transfer or sending of a person to another country. “Extraordinary rendition” typically refers to the extralegal form of the practice, in which a person is apprehended in one country and handed over to another without any formal legal procedure. Some differentiate extraordinary renditions from renditions not based on the process used to effectuate the transfer, but on whether the end result involves risk of torture. They use the term “extraordinary rendition” to signify the transfer of terror suspects to countries where they may face torture.⁵ 

Because these terms lack precise legal definitions, this report will use them as follows. The report will use the term “rendition” to refer generally to any transfer of a person from the custody of one government to that of another. The term “extraordinary rendition” will be used to refer to transfers that occur outside of any legal framework. The report will use the term “rendition to risk of torture” to refer to any transfer of a person to a country where he or she is at risk of being tortured, whether the transfer is within or outside a legal procedure. This framing maintains a clear focus on the critical human rights issue implicated by these practices: the absolute prohibition on transferring people to a risk of torture or ill-treatment. Just as governments may not engage in torture directly, they may not send or transfer persons to other countries where they are at risk of torture.

Maher Arar’s case may have been a rendition within a lawful procedure, given that it appears he was removed from the United States after being placed in expedited immigration proceedings. His case is likely not among those considered to be “extraordinary renditions” by U.S. officials, which are probably limited to cases involving the apprehension and transfer of persons outside of the United States and outside of any legal framework. Despite the fact that Mr. Arar’s rendition purportedly occurred within a legal process, it remains unclear whether U.S. officials adhered to the legally prescribed procedures in his case. Even if the rules were followed, including with respect to diplomatic assurances from the receiving government, in this case Syria, the fact that a rendition occurs within a legally prescribed procedure does not absolve the sending government of its obligation not to transfer a person to another country where he or she is at risk of torture or ill-treatment. Human Rights Watch believes that U.S. procedures governing immigration matters, in particular the use of diplomatic assurances, are not adequate to meet U.S. obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and its U.S. implementing legislation.

As will be demonstrated below, sending a person to a country where he or she is at risk of being subjected to torture is contrary to U.S. obligations under both international and domestic law. To circumvent these legal obligations, the Bush administration obtains diplomatic assurances from the receiving countries, stating that they will not torture the transferred person. As discussed in detail below, however, diplomatic assurances do not satisfy U.S. legal obligations because they do not provide an effective safeguard against torture or other ill-treatment.