Extraordinary rendition, the American judiciary, and the failure of the “territorial” approach in both international and domestic law

This chapter provides some background of the larger political and legal context from which extraordinary rendition arose. It examines the judiciary's treatment of the issue by analyzing the two most visible cases of extraordinary rendition that have been brought in the United States, which also reflect the avenues. The chapter focuses on the structural deficiencies in both international and domestic law that helped give rise to extraordinary rendition in the first place. It argues that extraordinary rendition is a perfect manifestation of the weaknesses of the dominant "territorial" interpretation of the law. In a series of decisions, the Court ruled that detainees had rights–including certain constitutional rights–under US law. Like Maher Arar and other extraordinary rendition victims, Khaled El-Masri was denied any form of remedy in the United States. In Nicaragua v. United States, the International Court of Justice (ICJ) addressed the forms of state responsibility. Finally, the ICJ treats "state responsibility" as an either/or issue.