‘To build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, of maintaining a network of secret prisons to jail people beyond the reach of the law’. (Barack Obama, Foreign Affairs, July/August 2007; at the time a Democratic Senator).
Is it necessary and effective to torture terrorist suspects? Is it patriotic? What would you do if you knew you could save people by resorting to torture? In the entertainment world the answers are obvious. Who doesn’t have a soft spot for Dirty Harry, the 1971 film in which Clint Eastwood tortures a serial killer in order to make him reveal the location of a captive child? What about Jack Bauer, the hero of the television show 24 or the Emmy-award winning tv-series Homeland’s use of torture. The latest in these Hollywood productions which reopened a debate is Zero Dark Thirty. In the movie it is suggested that torture may have produced useful clues in the quest to find Osama Bin Laden. In the real world however the answers are not that obvious. According to intelligence officials and the incomplete public record, detainees who endured varying degrees of torture did tell their interrogators some truths, as well as half-truths and outright lies. What remains unprovable is whether the same or better information might have been obtained without resorting to torture.
Real life variations of Hollywood-scenarios have been unfolding as the US government has engaged in a program of extraordinary rendition since the Clinton Administration and which became widespread under the Bush Administration following the September 11 terrorist attacks. Rendition is the movement of detained persons across state boundaries in a manner which is outside of any legal framework. As such, rendition stands in contrast to legal movements of detained persons, such as those covered by extradition or deportation processes. Over the years, it became a tool to retrieve suspects from foreign countries and to bring them to another state, such as the US, for the purposes of standing trial within an established and recognised legal and judicial system. Extraordinary renditions are used to bring suspects to countries for interrogation where they could (and would) be subjected to torture and / or indefinite imprisonment. “War on Terror” detainees have been held in military installations outside the United States (such as the U.S. naval base at Guantánamo Bay, Cuba, and the U.S. air force base in Bagram, Afghanistan), as well as reportedly being held in secret detention centers run by the Central Intelligence Agency (CIA) and other government agencies (including suspected secret sites on U.S. naval ships and at certain foreign bases or prisons such as in the European Union).
Obama and rendition
Days after his January 2009 inauguration, President Obama signed a detailed executive order banning torture and extraordinary rendition. The order said that prisoners "shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including torture). The order also says the CIA shall not operate detention centers and should close "as expeditiously as possible" any centers it now operates. Obama however added that the detention facilities do not refer to facilities used only to hold people on a short-term, transitory basis.
Obama created also a Special Task Force on Interrogations and Transfer Policies to make recommendations regarding the interrogation of persons held in U.S. custody and the practices of transferring individuals to other nations. On August 24, 2009, Attorney General Eric Holder announced that the Task Force had finished its review. The United States will continue to send individuals to other countries, stated a Department of Justice Press press release, but the United States will seek "assurances from the receiving country" that the suspect will not be tortured. Relying on diplomatic assurances alone however to authorise the extradition or deportation of a person to a country where there are substantial grounds for believing that individuals would be in danger of being subjected to torture (with or without complicity by US personnel as several reports by the United Nations and Human Rights Watch have shown) is incompatible wiht the absolute prohibition of torture in international law. The US is party to the Convention against Torture and the International Covenant on Civil and Political Rights which prohibit torture.
The full scope and nature of US government torture remains hidden, in part because the US has kept many details of the program secret. The Senate Select Committee on Intelligence in December 2012 adopted a 6000-page classified report detailing the CIA’s detention and interrogation program, a program under which much of the torture occurred. Obama should support declassification of the report to provide the public with a full accounting of past US government policy.
Obama failure to ensure accountability for human rights violations committed in the name of counter-terrorism under the previous administration sends an unmistakable message that torturers can expect not to be held accountable. US federal courts have systematically refused to hear the merits of lawsuits seeking redress for human rights violations because of the state secrets privilege. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the US government stating that court proceedings might disclose sensitive information which might endanger national security. In contrast, on 13 December 2012, the European Court for Human Rights (ECHR) concluded that German citizen Khaled el-Masri (who had previously brought a (dismissed) civil action in the US against the CIA officials for his mistreatment) had been subjected to torture, unlawful detention and other abuses in connection with the CIA's "extraordinary rendition" programme. The ECHR’s condemnation serves as a reminder to the US that even though victims of its wrongdoing often fail to obtain remedies in US courts, foreign, regional, and international forums remain available to address relevant violations.
As Obama has legitimately opened himself up to criticism for striking the wrong balance between civil liberties and national security in his use of drones and targeted killing of American citizens deemed terrorists without judicial review, it seems warranted to criticize his rendition and detention programme.
'I recognize that in our democracy, no one should just take my word that we’re doing things the right way. So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world'. (President Obama in his State of the Union address on February 12, 2013).
A selection of relevant publications from the Peace Palace Library collection
- Hafetz, J., Habeas Corpus After 9/11: Confronting America's New Global Detention System, New York, New York University Press, 2011.
- Kovarovic, K.,"Our "Jack Bauer" Culture: Eliminating the Ticking Time Bomb Exception to Torture, Florida Journal of International Law, 22 (2010), No. 2, pp. 251-284.
- McCoy, A.W., Torture and Impunity: The U.S. Doctrine of Coercive Interrogation, Madison, University of Wisconsin Press, 2012.
- Michaelsen, C., "The Cross-Border Transfer of Dangerous Persons, the Risk of Torture and Diplomatic Assurances", in S. Hufnagel, C. Harfield and S. Bronitt (eds.), Cross-Border Law Enforcement: Regional Law Enforcement Cooperation: European, Australian and Asia-Pacific Perspectives, Abingdon, Routledge, 2012.
- Schulz, W.F., "Torture", in M. Goodhart (ed.), Human Rights: Politics and Practice, Oxford, Oxford University Press, 2013.
- Silkenat, J.R. and P.M. Norman, "Jack Bauer and the Rule of Law: the Case of Extraordinary Rendition", Fordham International Law Journal, 30 (2007), No. 3, pp. 535-552.
- Turner, I., "Human Rights and Antiterrorism: A Positive Legal Duty to Infringe Freedom from Torture?", Studies in Conflict & Terrorism, 35 (2012), No. 11, 760-778.