1 Dana, Priest, Cia Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005, at A1 Google Scholar; see also Human Rights Watch, Human Rights Watch Statement on U.S. Secret Detention Facilities in Europe (Nov. 7, 2005), available at <http://hrw.org/english/docs/2005/ll/07/usintll995.htm=Google Scholar (identifying the eastern European countries as Poland and Romania). The U.S. government has acknowledged that it participates in renditions to combat terrorism but asserts that it does not transfer individuals from one country to another for the purpose of interrogation using torture. Condoleezza Rice, Remarks upon Her Departure for Europe (Dec. 5, 2005), available at <http://www.state.gov/secretary/rm/2005/57602.htm=Google Scholar. The U.S. government now also acknowledges that the CIA has secretly detained certain terrorism suspects for purposes of interrogation and incapacitation. John, R. Crook, Contemporary Practice of the United States, 100 AJIL 936 (2006).Google Scholar

2 On November 4, the president of the Parliamentary Assembly asked the Committee on Legal Affairs and Human Rights to look into the matter. Council of Europe, PACE Committee on Legal Affairs to Examine Secret Detention Centre Allegations (Nov. 4, 2005), available at <http://assembly.coe.int=Google Scholar (then search “secret detention”). On November 7, the Committee on Legal Affairs appointed Dick Marty of Switzerland as rapporteur. Council of Europe, PACE to Examine Alleged Secret CIA Detention Centres (Nov. 7, 2005), available at id. Google Scholar

3 The Venice Commission is an organ of the Council of Europe known more formally as the European Commission for Democracy Through Law. The members of the Venice Commission who participated in the legal opinion on the CIA program were Iain Cameron (Sweden), Pieter van Dijk (the Netherlands), Olivier Dutheillet de Lamothe (France), Jan Helgesen (Norway), Giorgio Malinverni (Switzerland), and Georg Nolte (Germany).

4 Eur. Parl. Ass. Res. 1507, Alleged Secret Detentions and Unlawful Inter-state Transfers of Detainees Involving Council of Europe Member States (June 27, 2006), available at <http://assembly.coe.int/ASP/Doc/ATListing_E.asp?offset=60= Eur. Parl. Ass. Recommendation 1754, Alleged Secret Detentions and Unlawful Inter-state Transfers of Detainees Involving Council of Europe Member States (June 27, 2006), available at id.

5 Article 52 of the ECHR provides: “On receipt of a request from the Secretary General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention.” European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221 [hereinafter ECHR].

6 See, e.g., Report on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners, Eur. Parl. DOC. A6-0020/2007 (2007) [hereinafter EU Report], available at <http://www.europarl.europa.eu/recherche/ResultatsAbreges.cfm= (report of a committee of the European Parliament in large part mirroring the legal and factual findings of the Council of Europe); Eur. Parl., CIA Activities in Europe: European Parliament Adopts Final Report Deploring Passivity from Some Member States (Feb. 14, 2007), available at <http://www.europarl.europa.eu/news/expert/tous_les_themes_press/default/default_en.htm= (press release on adoption by the European Parliament of the committee’s report); Amnesty Int’l, USA: The Secretive and Illegal US Programme of ‘Rendition’ (n.d.), available at <http://web.amnesty.org/pages/stoptorture-050406-feature-eng=.

7 See, e.g., EU Report, supra note 6, para. 15 (noting judicial actions in Italy, Germany, and Spain); Richard, Owen, CIA Agents Must Be Charged over ‘Kidnap and Torture’, Says Judge, Times (London), Feb. 17, 2007, at 39 Google Scholar (reporting on case-specific proceedings in Italy and Germany); World Briefs: Portugal Probes CIA Flights, Newsday, Feb. 7, 2007, at A22 Google Scholar (reporting on a criminal investigation in Portugal into the operation of CIA flights there); Scott, Shane, Torture Victim Had No Terror Link, Canada Told U.S., N.Y. Times, Sept. 25, 2006, at A10 Google Scholar (reporting on case-specific investigation in Canada).

8 See, e.g., Neil, Mackay, Torture Flights: The Inside Story, Sunday Herald (UK), Oct. 16, 2005, at 20 Google Scholar; Jane, Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Program, Newyorker, Feb. 14, 2005, at 106, available at <http://www.newyorker.com/printables/fact/0502l4fa_fact6=Google Scholar. For ongoing online coverage, see Jurist Legal News & Res., <http://jurist.law.pitt.edu/currentawareness/rendition.php= Guardian Unlimited, <http://www.guardian.co.uk/usa/rendition=.

9 See e.g., A. John, Radsan, A More Regular Process for Extraordinary Rendition, 37 Seton Hall L. Rev. 1 (2006)Google Scholar; Margaret, L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law, 75 Geo. Wash. L. Rev. (forthcoming 2007), available at <http://ssrn.com/abstract=945711=Google Scholar; David, Weissbrodt & Amy, Bergquist, Extraordinary Rendition: A Human Rights Analysis, 19 Harv. Hum. Rts. J. 123 (2006)Google Scholar.

10 Eur. Parl. Ass., Alleged Secret Detentions and Unlawful Inter-state Transfers of Detainees Involving Council of Europe Member States, Doc. No. 10957, para. 280 (2006) [hereinafter Rapporteur’s Report], available at <http://assembly.coe.int/Documents/WorkingDocs/doc06/edocl0957.pdf=. The report bases this conclusion on a review of routine flight routes of aircraft operated or suspected of being operated by the U.S. government. The rapporteur acknowledges that most of these flights were not engaged in the transport of terrorism detainees, but he finds that a small percentage of them were. See id., paras. 49-50.

11 Id, para. 284.

12 Id., paras. 288-89 (naming Bosnia-Herzegovina, Cyprus, Germany, Greece, Ireland, Italy, Macedonia, Poland, Portugal, Romania, Spain, Sweden, Turkey, and the United Kingdom).

13 Venice Commisson, Opinion No. 363/2005 on the International Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-state Transport of Prisoners, Doc. CDLAD( 2006)009, paras. 78-85 (2006) [hereinafter Legal Opinion], available at <http://www.venice.coe.int/docs/2006/CDL-AD(2006)009-e.asp=.

14 The commission does not address whether the conduct at issue could be deemed permissible acts of self-defense under the rules governing the use of force, or, if it could, whether international humanitarian law would then apply.

15 Legal Opinion, supra note 13, para. 124. The commission appears to use the phrase “secret detention” interchangeably with the phrase “incommunicado detention.” See, e.g., id., para. 125. This essay uses the phrase “secret detention” throughout, except when quoting the commission.

16 Id., paras. 29, 121.

17 Id., paras. 121,138,146. In addition to considering the lawfulness of secret detentions and interstate transfers, the Venice Commission considered the lawfulness of arrests by a foreign state not party to the ECHR made in the territory of a Council of Europe member state. This essay does not consider the commission’s (brief) treatment of that issue because information disclosed since the rapporteur asked the Venice Commission to address it suggests that the CIA coordinated any arrests in member state territories with officials of the relevant state. See, e.g., EU Report, supra note 6, para. 10 (noting confirmation by members of the European Parliament that the CIA program had been conducted in a way that respected the sovereignty of the countries involved); Owen, supra note 7 (reporting that the CIA almost certainly worked with Italian intelligence officials to abduct Abu Omar in Milan, an operation on which there had previously been speculation that the CIA had acted unilaterally).

18 ECHR, supra note 5, Art. 5(1).

19 Legal Opinion, supra note 13, para. 50.

20 Id, para. 124.

21 In this context, the commission does not specifically cite the provision of Article 5(1) requiring a procedure prescribed by law. Nevertheless, the commission asserts that interstate transfers are unlawful if predicated on “a procedure not set out in law,” id., para. 24, and explains, when assessing interstate transfers, that “[i]f there is no legal basis for an active measure (arrest, handing over etc) under national law, then there will be in such cases a breach of national law on arrest, and consequently also a breach of Article 5,” id., para. 29.

22 Id., paras. 10,24. Here, the commission appears to use the word “transfer” in category (4) as a term of art that distinguishes it from extraditions in category (2). The word “transfer” is often used in prisoner transfer treaties to refer to the interstate transport of a person to his or her state of nationality for purposes of serving a sentence imposed by a foreign state. See, e.g., Convention on the Transfer of Sentenced Persons, Arts. 2, 3, Mar. 21, 1983, Eur. TS No. 112, 1496 UNTS 91, available at <http://conventions.coe.int/Treaty/en/Treaties/Html/112.htm=. Extraditions, by contrast, entail the interstate transport to a state that has charged or sentenced a person for purposes of standing trial or serving a sentence in that state.

23 Legal Opinion, supra note 13, para. 30.

24 See id., paras. 51-52.

25 See id., para. 52; cf. Öcalan v. Turkey, 41 Eur. H.R. Rep. 45, para. 89 (2005) (“[P]rovided that the legal basis for the order for the fugitive’s arrest is an arrest warrant issued by the authorities of the fugitive’s State of origin, even an atypical extradition cannot as such be regarded as being contrary to the Convention”) (citation omitted); Ramírez Sanchez v. France, 86-B Eur. Comm’n H.R. Dec. & Rep. 155,162 (1996) (determining that the interstate transfer of “Carlos the Jackal” was not inconsistent with the ECHR, given that an arrest warrant was lawfully issued by the state requesting the rendition).

26 U.S. government officials have argued that the CIA rendition program is consistent with the understanding of the ECHR advanced by the European Commission of Human Rights, in that the commission has recognized the legality of renditions conducted in the absence of any treaty. See, e.g., Rice, supra note 1; John Bellinger, State Department Legal Advisor Examines U.S.-European Counterterrorism Cooperation (Sept. 11, 2006), available at <http://useu.usmission.gov/Dossiers/US_EU_Combat_Terrorism/Sepll06_Bellinger_Rome.asp=. The rapporteur of the Parliamentary Assembly responded to this argument by noting that a rendition conducted in the absence of any treaty has been considered lawful only where the person rendered was later subjected to a legal process compatible with the ECHR. Rapporteur’s Report, supra note 10, para. 261 n.227. The rapporteur’s response in this regard underscores that the ultimate concern with the CIA program is the absence of any legal process.

27 Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989).

28 Legal Opinion, supra note 13, para. 68.

29 Id., para. 69.

30 Id., para. 45.

31 ECHR, supra note 5, Art. 1.

32 Legal Opinion, supra note 13, para. 66.

33 Id., para. 126 (quoting Ilaşcu v. Moldova, 40 Eur. Ct. H.R. 46, para. 318 (2004)).

34 Id., para. 123 (emphasis added).

35 Id., para. 127 (first emphasis added).

36 Id., para. 130 (emphasis added).

37 Id, paras. 127, 130.

38 Id, para. 126.

39 Id., paras. 137-38.

40 Id, para. 138.

41 Id, para. 130.

42 Id., para. 132.

43 Id., paras. 159(h), (i).

44 Id., para. 145.

45 Id., paras. 148, 150.

46 See, e.g., Human Rights Committee [Hum. Rts. Comm.], Consideration of Reports Submitted by State Parties: United States of America, UN Doc. CCPR/C/USA/3, para. 130 (Nov. 28, 2005) (“[T]he obligations assumed by the United States under the Covenant apply only within the territory of the United States.”).

47 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, 180, para. III duly 9) (“[T]he Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”); Hum. Rts. Comm., General Comment No. 31, UN Doc. CCPR/C/21/Rev.l/Add.l3, para. 10 (2004) (“ [A] State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”).

48 The ECHR, for example, has been interpreted to prohibit refoulement, not only where the individual may be subjected to torture, but also where she may be subjected to inhuman or degrading treatment or punishment, or to the flagrant denial of a fair trial, especially where the flagrant denial of a fair trial may result in the imposition of death. See Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989) (inhuman or degrading treatment or punishment); id., para. 113 (flagrant denial of a fair trial); Bader v. Sweden, App. No. 13284/04, Judgment, paras. 42-48 (Eur. Ct. H.R. Nov. 8, 2005), available at <http://www.echr.coe.int= (flagrant denial of a fair trial in Syria, resulting in the imposition of the death sentence). By contrast, under the UN Convention Against Torture, refoulement is prohibited only where the individual may be subjected to torture. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, opened for signature Dec. 10, 1984, 1465 UNTS 85. And, although the Human Rights Committee has interpreted the International Covenant on Civil and Political Rights to include an implicit obligation of non-refoulement where the individual may be subjected to cruel, inhuman, or degrading treatment, see Hum. Rts. Comm., General Comment 20: Article 7, UN Doc. A/47140, Annex VI, at 194, para. 9 (1992), that interpretation is not binding, and the United States, at least, has not accepted it. See U.S. Dep’t of State, List of Issues to Be Taken up in Connection with the Consideration of the Second and Third Periodic Reports of the United States of America, para. 10 (n.d.), available at <http://www.state.gov/g/drl/rls/70385.htm=.

49 Legal Opinion, supra note 13, paras. 143-45.

50 Id., para. 91 (adopting a functional test for determining whether an aircraft should be characterized as a state or civil aircraft); id., para. 93 (asserting that state aircraft do not enjoy the overflight rights of civil aircraft). The functional test that the commission adopts is not necessarily wrong, but, as explained below, that test is not always dispositive or illuminating as to whether an aircraft is a state or a civil aircraft. See infra notes 54-60 and corresponding text.

51 Convention on International Civil Aviation, Art. 3(c), Dec. 7,1944,61 Stat. 1180,15 UNTS 295 [hereinafter Chicago Convention].

52 The commission asserts that, where a state aircraft improperly presents itself as a civil aircraft, it loses the immunity resulting from its state status and therefore may be searched by the authorities of the territorial state. Legal Opinion, supra note 13, para. 103. A state aircraft that transits a foreign state without authorization will have acted inconsistently with international law, but it is not clear that the appropriate remedy for that violation is the loss of immunity. Assuming that the commission is correct that state aircraft enjoy immunity as a matter of law, see id., para. 95, then the removal of immunity would itself constitute a wrongful act unless consistent with the limitations under international law on the use of countermeasures.

53 See, e.g., International Civil Aviation Organization, Secretariat Study on “Civil/State Aircraft,” ICAO Doc. LC/29-WP/2-I,Attachment l, para. 1.1 (1994) [hereinafter ICAO Study] (“Currently, there are no clear generally accepted international rules, whether conventional or customary, as to what constitute state aircraft and what constitute civil aircraft in the field of air law.”).

54 Chicago Convention, supra note 51, Art. 3(b).

55 ICAO Study, supra note 53, at 16.

56 Id. at 14, 16.

57 See, e.g., Andrew, S. Williams, The Interception of Civil Aircraft over the High Seas in the Global War on Terror, 59 A.F. L. Rev. 73, 106–12 (2007)Google Scholar (addressing continued uncertainty with respect to the proper characterization of aircraft used in military services).

58 ICAO Study, supra note 53, at 11 (acknowledging the frequency of this practice).

59 The commission recognizes this possibility and suggests that member states deal with it by modifying or questioning the terms of any agreements granting blanket overflight authorization to foreign state aircraft. Legal Opinion, supra note 13, paras. 150-51.

60 For instance, it would have been helpful for the commission also to consider the options of Council of Europe member states for policing civil aircraft transiting their airspace with at-risk detainees. The Chicago Convention grants overflight rights only to civil aircraft engaged in nonscheduled services, see Chicago Convention, supra note 51, Art. 5, and not all states are party to the sister agreement granting overflight rights to civil aircraft engaged in scheduled services, see International Air Services Transit Agreement, Art. 1, §1, Dec. 7, 1944, 59 Stat. 1693, 84 UNTS 389 [hereinafter IASTA]. Thus, some civil aircraft may not have overflight rights over some Council of Europe member states (i.e., countries that are not party to IASTA). Moreover, even where overflight rights exist, those rights are subject to (1) the right of the state overflown to request a landing and to search the aircraft; and (2) the aircraft’s compliance with certain laws and regulations of the territorial state. See Chicago Convention, supra, Arts. 11-13; IASTA, supra, Art. 1, §2 (incorporating by reference the relevant provisions of the Chicago Convention). Yet here again there is a legal gray area. Although it is clear that the territorial state may require transiting aircraft to comply with certain laws and regulations, it is not clear to what extent the territorial state may impose on such aircraft laws or regulations that bear no relation to civil aviation, and that unduly limit the rights of overflight. Again, a more thorough analysis of these issues would have been welcome.

61 Rapporteur’s Report, supra note 10, at 2-5.

62 Eur. Parl. Ass. Res. 1507, supra note 4; Eur. Pari. Ass. Recommendation 1754, supra note 4.

63 Eur. Pari. Ass. Res., supra note 4, para. 13.

64 Id., para. 19; see also Eur. Pari. Ass. Recommendation 1754, supra note 4, paras. 3, 4.1.

65 Secretary General of the Council of Europe, Follow-up to the Secretary General’s Reports Under Article 52 ECHR on the Question of Secret Detention and Transport of Detainees Suspected of Terrorist Acts, Doc. SG(2006)01 (June 30, 2006), available at <http://www.coe.int/t/dc/press/source/20060907_DocSG_en.doc=.