Sensibly Construing the 'More Likely than Not' Threshold for Extraordinary Rendition

Abstract

The use of Extraordinary Rendition, aside from assassination, was perhaps the most controversial method that the Bush Administration utilized to neutralize suspected terrorists and unearth alleged associates and plans. Since the Bush Administration acknowledged the Extraordinary Rendition program in 2006, human rights groups and scholars have condemned the legality of abducting and covertly transferring captives to other states without legal processes or assurance that human rights would be respected after rendition. Amnesty International and Human Rights Watch currently advocate that charges be brought against U.S. officials who rendered individuals to states for harsh interrogation. Americans courts did not bring charges against U.S. officials, but after a criminal trial in absentia and three years of appellate processes, in September 2012, Italy’s highest criminal court upheld the convictions of 23 CIA agents who were involved in Extraordinary Rendition operations. This result seems substantively inconsistent with the U.S. Supreme Court’s refusal of certiorari over Arar v. Ashcroft in June 2010, which rejected the theory that victims of Extraordinary Rendition had a right to civil damages. This article emphasizes that investigations are warranted for several reasons. First, there is strenuous logic inherent in presuming that Extraordinary Rendition can be employed to have other sovereign states use coercive tactics to attain intelligence information from suspected terrorists with methods that exceeded those employed in Pentagon- and CIA-run facilities and to still assume that the methods were not “more likely than not” to result in torture under binding law. Second, there are well-founded reasons under international law for top officials to be the principal subjects of investigation, rather than subordinates. Third, there may be inequitable treatment in that the Alien Tort Statute provides a jurisdictional basis to sue foreigners in American courts for universal jurisdiction human rights crimes, but not U.S. officials committing similar acts.