The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees
by John T. Parry
Parry, John T., "The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees"
.
Melbourne Journal of International Law, Vol. 6, p. 516, 2005 Available at SSRN: http://ssrn.com/abstract=829345
‘Before I draw nearer to that stone to which you point’, said Scrooge,
‘answer me one question. Are these the shadows of the things that Will
be, or are they shadows of things that May be,
only?’[1]
I INTRODUCTION
My goal in this commentary is to combine two ways of thinking about
torture and related forms of coercive treatment and interrogation. The
first of these ways is a legal analysis of some of the issues
surrounding torture, with particular reference to the practice of
extraordinary rendition (the use of force, rather than legal process,
to take suspected ‘terrorists’
from one country to another for purposes of detention and
interrogation), and the existence of ‘ghost detainees’ (people who are
secretly held and interrogated by the United States or its allies in
undisclosed locations and who are outside the protections of domestic
or international law in any practical sense). Although some of my
arguments and conclusions on these issues may be surprising or at least
debatable, they will be set largely within a familiar context of legal
argument and analysis.
The second is an effort to think more conceptually or theoretically,
albeit briefly, about what torture is and how it operates within and as
a part of modern societies. By ‘modern’ I mean simply societies
governed as centralised, most commonly democratic nation-states and
their accompanying social and psychological dynamics; such things as
‘bureaucracies and corporations, the nuclear family with its bourgeois
mores, human and social sciences and the institutions supported by
them’.[2]
Although we often ascribe a positive value to these dynamics, seeing
them as reflecting the progress of enlightenment values, the experience
of modernity also generates concerns about the ways in which these
structures can ‘ingrain destructive patterns of thinking and acting’[3]
that result in a
level of dehumanisation or subjection of people that is different in
degree and kind from what is arguably inherent in the relationship
between individual and society.[4]
My point in undertaking this second type of analysis is to gain a
broader perspective on the reasons why torture and its close
equivalents are practised by countries such as the US, and how they are
practised, including the ways in which law makes room for these
practices. As I hope will become clear, one of the most important
aspects of modern torture is the creation of doubt as to whether
torture has happened at all — extraordinary rendition and the creation
of ghost detainees serve this function well.
II DEFINING MODERN TORTURE
In 1993, Darius Rejali published Torture and Modernity, which
considered the use of torture in Iran by the Pahlavi dynasty and the
Islamic Republic that emerged from the revolt against the Shah. Rejali
rejected the possibility that the practice of torture by both regimes
was an historical hangover that would drop away as Iranian society
became more progressive,
enlightened, and humane in the eyes of Western observers; that is, as
it became more ‘modern’ under one sense of that word. Instead, he
insisted that Iran was already a modern society and that the ways in
which the Pahlavi dynasty and the Islamic Republic used torture not
only reflected the modernity of Iranian society but were also
characteristic of modern states in general.[5]
The
following year, in a review of Rejali’s book, Daniel Chirot challenged
the idea that the use of torture by Iran’s recent governments was
connected with their modernity. In what may have been intended as the
clinching argument, Chirot asked rhetorically: ‘[i]f the growth of
torture in twentieth-century Iran and its changing forms are caused by
efforts to modernize, why do we not torture in the modern United States
or Western Europe?’.[6]
Chirot’s question was at best naïve when written. Consider the abusive treatment,
including torture, of people variously defined as insurgents, terrorists,
revolutionaries, or criminals by Great Britain in, among other places, Kenya and Northern Ireland,[7] by France in Vietnam and Algeria,[8] by Spain in the Basque country,[9] by Israel in the occupied territories,[10]
and by the US in the Philippines, Vietnam and Central America (where it trained others in the use of coercion).[11]
With the exception of the actions by the US in the Philippines, all of
this abuse took place after World War II, in the midst of the
humanitarian revolution in international law.
If
asked today, Chirot’s question might be dismissed, not just as naïve,
but as inexcusably ignorant or aggressively partisan, because the names
Bagram, Abu Ghraib, and Guantánamo have come to stand for state torture
in a colloquial sense, and for coercive interrogation and punishment in
a somewhat more precise sense. Few in the academy today would so easily
deny that modern Western democracies use torture or its close
equivalents.
How then should we interpret the statements of US
President George W Bush? A year before the Abu Ghraib scandal broke,
but after he had signed a document declaring that much of the law
embodied in the Geneva Conventions[12]
need not apply to the Taliban or al Qaeda, he stated that the US was leading the fight against torture ‘by example’.[13] Early in 2005,
after numerous revelations of abuse by US forces, he insisted that
‘torture is never acceptable, nor do we hand over people to countries that do torture’.[14]
Despite what I suggested above, I do not think President Bush was
speaking simply out of naïveté, ignorance, or aggressive partisanship.
Rather,
I think he sincerely believes that the US does not torture in any
meaningful sense. Whatever had been approved or was already being done
at various locations was either not relevant to his statement or was
properly defined as ‘not torture’. In both cases he may have been
correct.
To
understand why, we need to think about what torture is and how it
functions in what the Bush Administration calls the ‘Global War on
Terrorism’. The most obvious starting point is the legal definition of
torture, and the most obvious source of a definition is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[15]
The Convention defines torture as
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or a
third person information or a confession, punishing him for an act he
or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. It does
not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions.[16]
Torture, so defined, is banned absolutely: ‘[n]o exceptional circumstances … may be invoked as a justification of torture’.[17] The
Convention against Torture also takes account of an additional
category of state violence — ‘other cruel, inhuman or degrading
treatment or punishment’ — that States Parties must ‘undertake to
prevent’.[18] Other international agreements, such as the International Covenant on Civil and Political Rights[19]
and the Geneva Conventions,[20] ban similar conduct, as do the domestic laws of most countries. In the US, for example,
torture is understood to be not just illegal but also unconstitutional in a
variety of ways.[21]
From
this definition and prohibition, three points seem obvious. Firstly,
one characteristic of modern torture is the effort to define it
rationally, with precision, and to conceptualise it against a
background of individual rights.
Thus, torture is defined as conduct so terrible that all individuals
have an absolute right not to be subjected to it. Indeed, the
prohibition against torture seeks to escape the familiar dynamic of
rights and state power, in which the recognition of a right is also,
and arguably more importantly, an acknowledgment of state power.[22]
Secondly,
the attempt to define and prohibit torture means that states will do
their best to argue that their conduct is ‘not torture’ — even if that
involves admitting the conduct was cruel, inhuman or degrading. In this
sense,
the Convention against Torture normalises torture by placing
it in the familiar framework of legal argument that surrounds the
application of contract or criminal law. Embedding torture within law
creates a tension with the absolute prohibition, a tension that is
familiar to lawyers, judges, and legal academics from debates regarding
the relative priority of rules and standards in legal interpretation.
Put briefly, for anyone who believes there is an exception to every
legal rule, creating a law of torture will almost inevitably lead to
exceptions. Resolving this tension by prohibiting exceptions does no
more than make definition rather than exception the central legal
issue. Governments will interpret the legal definition of torture to
permit specific forms of coercion because they are ‘not torture’, a
move which allows formal adherence to an absolute ban on a shrinking
category of conduct.
Thirdly, if we adopt a
moderate reading of the Convention against Torture’s
definition
— not as expansive as human rights advocates would like, but not as
narrow as many governments would prefer — it appears that torture is
something that Western governments do. It may even be that the practice
of torture in modern, developed, Western democracies is not
aberrational, rather it is common enough to be characteristic,
particularly if we take account of
‘domestic’ violence inflicted by police and prison officials.[23]
A Modern Torture as a Hidden Practice
Briefly moving away from the legal definition of torture, I will now
consider the characteristics of torture in its modern form. Firstly,
modern torture as a
practice is hidden. Sometimes this hidden quality is more official than
actual because rarely does torture remain secret from all. Yet it stays
hidden, in the sense that it remains outside or at the margins of
prevailing political discourse. One reason for the ability of modern
torture to be hidden while in plain sight may be its frequently
nationalist and colonial character. Torture often happens offstage,
overseas, during military and intelligence operations,
and the victims are not members of the community; they are others,
foreign; they are enemies, not friends.[24]
Also
worth noting,
particularly for the US, is the coercive conduct — rising at least to
the level of cruel, inhuman and degrading treatment or punishment under
international law — practised by domestic law enforcement officials.
This violence is often also hidden, although stories surface with
regularity of acts of brutality, sometimes isolated, sometimes part of
a larger pattern.[25]
Just as with the overseas or external conduct that we are more used to
thinking of as torture,
police and prison violence is hidden in the US and other countries
because it is often practised against racial, ethnic, religious, and
other minorities; against those whose voices frequently go unheard or
are not believed, and for whom the general public has at best only
intermittent sympathy.[26]
So
long as torture and other coercion is hidden, it is also deniable. When
officials declare that they have not approved illegal or inappropriate
treatment, their denials tend to be accepted because we are likely to
overlook or discount the seriousness of the treatment that has been
permitted or inflicted. The victims, speaking weeks,
months, or years after the fact, and alleging treatment that may not
have left lasting physical marks, and who may be already defined as
suspect or untrustworthy because of their race or ethnicity, or because
they were detained in the first place, often cannot prove their claims.
We are also willing to believe the official characterisation of
conduct. That is, when torture is hidden, particularly when it is
hidden in the colonial or imperial sense, part of what makes it hidden
is also our willingness to call it something else, or to ascribe
responsibility for the conduct to those on whom it is being inflicted.
As
a result of these processes, the hidden quality of torture and related
forms of state violence is a central part of our relationship with our
governments. We often look the other way while our government does what
it must.
Torture is hidden, or at most an open secret, because we push it down
and out of sight. Going further, when abuses are not hidden, their
public quality may be the result of dissent over government action;
when they remain hidden it is likely to be because we approve of or are
grateful for the government’s violent protection.
Finally,
the hidden quality of modern torture means that instead of spectacles
of violence, we have violence behind closed doors as part of a
rational, bureaucratic structure (albeit a part that is often formally
illegitimate). Yet even as they are hidden, torture and other forms of
coercion are also carefully circumscribed by rules. In Israel, for
example, the Landau Commission prescribed the forms of coercion that
would be permissible.[27]
In the US, officials have drawn up and frequently revised lists of specific conduct that is permitted.[28]
At Guantánamo Bay, military physicians and behavioural scientists have participated in interrogations or advised on strategies.[29]
In short, and as Talal Asad has argued, the fact that torture is so
often a secret while also being a highly regulated and specialised
practice — as well as the fact that a crucial part of the legal
definition focuses on psychological suffering
— marks it as a form of ‘disciplinary knowledge’ and thus as
‘modern’.[30]
B Modern Torture as an Exception
A second aspect of modern torture is its status as exceptional
conduct. This exceptionality exists in two forms. Firstly, torture is
about the exception because, as a matter of criminal law, an official
prosecuted for using torture may be able to invoke the necessity
defence to claim his or her conduct was justified under the
circumstances. That doctrine appears to be the law in Israel, after the
Supreme Court of Israel ruled in Public Committee against Torture in Israel v Israel that interrogators prosecuted for using coercion are entitled to raise the necessity defence.[31] The necessity defence is also available in the US, at least conceptually, under the Model Penal Code[32]
and common law theories of justification. Memoranda prepared by Bush
Administration officials explicitly embraced the necessity defence for
interrogators prosecuted for going too far.[33]
Even in the aftermath of Abu Ghraib, we remain unlikely to see many
cases on the issue, because executive discretion and the intricacies of
the military justice system will divert the cases in which
justification is most likely to be a plausible claim.
Nonetheless, the category of necessity creates rhetorical as well as
legal space to justify coercion in individual cases.[34]
Secondly,
as a
practice, torture by modern states is exceptional because it is linked
to states of exception or emergency. Over the past few years, scholars
have increasingly recognised the importance of exceptions and emergency
power and have sought to explore their qualities and limits.[35]
For purposes of this commentary, I would simply like to note that we do
not associate torture with normal practices — that is, with the legal
and constitutional forms that we expect to constrain everyday
government conduct.
Rather, torture is something the modern state uses as a matter of
necessity, in an emergency, when ordinary legal constraints are
arguably inapplicable.
The danger is that the state of exception will become the norm. The Weimar Republic,
for example, proclaimed a state of exception more than 250 times over approximately 13 years.[36]
Most developed Western democracies are of course far more stable than
Weimar Germany,
but exception claims operate at a rhetorical and political level as
well as at a
legal level. After World War II, the US entered almost immediately into
the Cold War with the Soviet Union that continued until 1989 and
involved numerous sub-wars and proxy wars in Korea, Vietnam, Africa,
the Middle East, and Central America. The Gulf War against Iraq
followed as soon as the Cold War ended, and the US remained on a
military footing with respect to the Middle East. This culminated in
the invasion of Afghanistan and the second war against Iraq, both of
which can also be classified as part of the arguably separate war on
terror.
The idea of war has also been a core component of domestic
policy. At least since the 1970s, the US has been embroiled in a war on
crime that gave birth to a war on drugs and also overlaps with the new
war on terror. At each point,
officials and commentators have suggested that interests of the state
may require temporary suspension or rolling back of liberties that were
improvidently granted. The rhetoric leads to pressure on legislatures
and courts to revise legal rules or create exceptions to them. As a
result, individuals become more vulnerable legally and physically to
state violence, including coercive interrogation.
To
the extent that it is true that the exception tends to become the norm,
practices such as torture are simultaneously normal and aberrational.
When they are used, that fact functions to confirm that they are
employed only as an exception and in an emergency. The more frequent
their use — that is, the more normal they become — the more intense the
emergency. Under this reasoning, rather than condemn torture we should
direct our concern to the emergencies that make torture necessary and
that require its continuation. This has been precisely the response
made by some defenders of the Bush Administration, who insist that the
focus on interrogation abuses detracts energy from the war on terror.[37]
Nor is it unequivocally clear that they are wrong — although the manufacturing of near-permanent emergencies cannot be denied.
Lastly,
claims of exception have real consequences. Elections turn on them, law
enforcement activity takes cues from them, and people’s status as
members of the political community depends on them. One’s bodily
integrity is also at stake. So, after September 11, when officials of
the Bush Administration declared that ‘the gloves [have] come off’,[38]
there was no mistaking what they meant. Lawyers in the White House and
Justice Department also knew, and they crafted legal arguments to
explain why ordinary, normal rules of international, constitutional and
criminal law did not apply to military and intelligence actions in the
war on terror. Much of that analysis had the precise goal of taking off
the legal gloves when it came to interrogations.[39]
C Beyond Interrogation and Punishment: Torture as Total Domination
I want to suggest one final aspect of modern torture. Torture is no
longer
— assuming it once was — simply a method of interrogation or a form of
punishment. Certainly, torture continues to be used in those ways, but
it also functions as a form of domination. One way this domination
plays out is in the way it inverts our notions of agency, consent, and
responsibility. Once torture begins, the result is always a product of
the victim’s
‘choice’. If the victim chooses to provide information, she becomes a
betrayer, someone who chose self‑preservation over solidarity and is
thus responsible for the consequences. If the victim resists, there
will be more torture, and again the victim is responsible; she chose to
resist and thus provoked the torture.
Note,
too, how this perverse logic of choice also suggests another aspect of
torture that the international law definition fails to capture
explicitly: escalation. Part of the anguish facing a victim is the
uncertainty about how far the process will go and when it will stop.
Moreover,
because escalation itself causes anguish, we should see torture as
existing,
even with relatively mild treatment, if the victim reasonably believes
that more and greater harm will follow if she resists. Indeed, the
ultimate modern torture might consist of taking a prisoner into
custody, explaining to her what will transpire if she does not
cooperate, and allowing her to torture herself mentally. A polite and
thorough interrogation would then take place.
In
sum,
an appreciation of the qualities of modern torture suggests the need
for a
broader legal definition of torture. I would define it not merely as
the infliction of severe pain to gather information or punish, but also
as the infliction of potentially escalating mental or physical pain for
purposes that include dominating the victim and ascribing
responsibility to the victim for the pain incurred. Whether such a
definition would work in a legal context is however debatable.[40]
III RULES FOR AN EXCEPTION: THE LAW OF MODERN TORTURE
The idea of the exception is reflected in the law of torture. Recall
Israel’s explicit acceptance of necessity as an after-the-fact
justification, and the conceptual availability — and administrative
embrace — of necessity in the US. Now consider the Convention against Torture, which bans torture absolutely and allows no exceptional circumstances to justify its use. A textualist reading of the Convention
suggests however, that the ‘no justification’ clause does not apply to the ban on cruel, inhuman or degrading treatment.[41]
This exclusion, if it means anything, must include the possibility that
violent treatment of prisoners or others that does not rise to the
level of torture can be justifiable under some circumstances. Under the
definition of torture I
proposed in the previous section, this exclusion would allow
justification of conduct we ought to classify as torture. Put plainly,
the Convention against Torture,
which is arguably the critical, and certainly the most extensive,
international law document addressing state torture and related abuse,
seems deliberately crafted to leave room for states to engage in
coercive treatment in compelling circumstances, so long as the conduct
falls short of torture as defined in that document.[42]
In the process of consenting to the Convention against Torture,
the US Senate narrowed the definition of torture to include a
requirement of specific intent to inflict severe mental or physical
suffering and to limit the kinds of mental harm that constitute torture.[43]
These changes arguably reduce ambiguity, but even more so they create
additional space for coercive practices by limiting the applicability
of international law.
The Senate also sought to define the phrase ‘cruel, inhuman or
degrading treatment or punishment’ as equivalent to ‘the cruel, unusual
and inhumane treatment or punishment prohibited by the Fifth, Eighth,
and/or Fourteenth Amendments to the Constitution of the United States’.[44] In other words,
‘cruel, inhuman or degrading conduct’ is unconstitutional conduct
(and torture is unconstitutional a fortiori). The Senate thus modified the
Convention against Torture to ban only conduct that was already illegal under US law.[45]
The question then is exactly what the US Constitution
has to say about torture. The Fourth Amendment protects against
excessive force in the context of a search or seizure and would appear
to ban a wide variety of practices that inflict pain. The Supreme Court
has said, however, that application of this standard turns on the
reasonableness of the force used and also —
critically — on the reasonableness of the official’s belief about the
need to use force.[46]
The Eighth Amendment bans ‘cruel and unusual punishments’, and the
Supreme Court has interpreted that language to prohibit the
‘unnecessary and wanton infliction of pain’.[47]
The Court has also held however, that officials are not liable in
damages if ‘force was applied in a good faith effort to maintain or
restore discipline’,[48] as opposed to
‘maliciously and sadistically for the very purpose of causing harm’.[49]
Under both Amendments therefore, officials are afforded a great deal of
latitude when their decisions to use force are reviewed.
The self-incrimination clause of the Fifth Amendment may originally have been intended to protect against torture.[50]
The Supreme Court has ruled, however, that the privilege against
self-incrimination is almost entirely a trial right, with the result
that it applies only to efforts to introduce coerced testimony in a
legal proceeding, and not to conduct outside the court.[51] Perhaps a case of indisputable torture would lead to a different result, but even that is not clear.
The
final constitutional avenue for a prohibition on torture is the
substantive due process doctrine of the Fifth and Fourteenth
Amendments. The doctrine takes two forms. Firstly, it renders
unconstitutional conduct that
‘shocks the conscience’. The ostensible protection this provides is,
however, diminished by the Supreme Court’s assertion that conduct only
‘shocks the conscience’ if it is ‘unjustifiable by any government
interest’.[52]
If we take seriously the possibility that ‘any government interest’
will justify otherwise conscience‑shocking behaviour, we have not said
much more than that the state must have a purpose when it tortures; it
cannot do so arbitrarily.
The
second way in which conduct can offend substantive due process
principles is by violating a fundamental right. Although this doctrine
provides stronger protection than the ‘shocks the conscience’ test,
it too makes ample room for exceptions. Conduct that is narrowly
tailored to serve a compelling state interest is constitutional even if
it violates an individual’s fundamental rights. Add the
sometimes-enforced requirement that the claimed right be described with
particularity, and the doctrine becomes malleable enough to allow at
least some degree of coercive interrogation.[53]
In
short,
finding an absolute constitutional right not to be tortured is
difficult. Courts are of course not bound to follow doctrines to their
logical conclusions, and the Justices have often asserted that
‘torture’ is unconstitutional.[54]
My goal however, is not to argue for a correct interpretation of US
constitutional doctrine. Rather, my point is that constitutional law,
and sometimes international law, is constructed to leave room for
government action in cases of perceived necessity. In the case of
torture and related forms of coercion,
this structure means that the idea of state necessity becomes part of
the legal definition of what conduct is permitted and prohibited.
IV PRACTISING MODERN TORTURE: EXTRAORDINARY RENDITION AND GHOST DETAINEES
Soon after the revelation of abusive treatment of detainees at Abu
Ghraib,
stories about a variety of other US interrogation and detention
practices began to appear. Among them are the practice of extraordinary
rendition and the claim that the Central Intelligence Agency is holding
numerous ghost detainees for interrogation in undisclosed locations
outside the US.[55]
At
the most basic level, the term ‘rendition’ refers to the practice of
seizing a person in one country and delivering her to another country,
usually for the purpose of criminal prosecution.[56]
Rendition stands in contrast to legal processes that can accomplish the
same result. Ordinarily a
country wishing to obtain custody of a person found in another country
would employ that country’s extradition process. Similarly, a country
wishing to dispatch a person to another country would employ its own
extradition or deportation and removal processes. Sometimes, for
reasons more or less defensible, officials will determine that these
legal processes are not appropriate and will choose rendition instead.[57]
In
the US, where constitutional limits on executive power prohibit the
seizure and transportation out of the country of a person without due
process, rendition has generally been employed in two ways. Firstly, it
is a method for obtaining suspects from other countries to stand trial
in the US. This process, which commonly takes the form of kidnapping,
has been found to be constitutional, because a trial court
‘need not inquire as to how [the defendant] came before it’.[58]
The
second form of rendition involves US officials arranging the transfer
of a person from one country to another country (a practice not covered
by extradition and immigration statutes), sometimes for criminal
process but increasingly for interrogation. According to numerous
reports, allegations, and off-the-record statements, the US has
arranged the transfer of suspected terrorists from a
variety of countries to countries in which interrogators are willing to
use coercive tactics, sometimes rising to the level of torture, to
obtain information that is then provided to the US. Officials usually
receive
‘diplomatic assurances’ from the receiving country that
‘torture’ will not be used, but the value of these assurances has been
sharply criticised.[59]
The practice, which appears to have begun in the Clinton Administration
and has expanded significantly after September 11, has come to be known
as extraordinary rendition.[60]
Closely
related to rendition is the issue of ghost detainees. According to
several news reports,
the CIA and other intelligence agencies have custody of up to 100 ‘high
value’ detainees held ‘off the books’ in unknown locations.[61]
These detainees are reportedly subjected to coercive interrogation
practices such as ‘water boarding’, ‘in which a prisoner is strapped
down, forcibly pushed under water, and made to believe he might drown’.[62] The CIA has obtained these people from US military forces as well as through rendition from other countries.
Under a straightforward reading of international law, these practices are suspect. With respect to rendition, the Convention against Torture provides:
‘[n]o State party shall expel, return
(‘refouler’) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being
subjected to torture’.[63] The language of the Convention does
not specify whether it is limited to transfers of a person from the
signing state’s territory to the territory of another,
or whether it includes transfers entirely outside the territory of the
signing state. To the extent that there is ambiguity, the US Congress
adopted a broad understanding of this obligation:
It shall be the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a country in
which there are substantial grounds for believing the person would be
in danger of being subjected to torture, regardless of whether the
person is physically present in the United States.[64]
Note, however, that both the Convention against Torture and
the US statute refer only to ‘torture’, not to lesser forms of coercion
and violence. For the purposes of extradition and immigration, both the
US Department of State and the Department of Homeland Security have
stressed that torture is ‘an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment’.[65]
These regulations imply that the US may extradite or remove people to
countries in which they will face cruel, inhuman or degrading
treatment, providing it does not rise to the level of torture; and that
conclusion is arguably consistent with the Convention against Torture.
Just as it does not rule out the invocation of exceptional
circumstances as a justification for cruel, inhuman or degrading
treatment falling short of torture, nor does the Convention
rule out sending a person to a country where she will face such treatment.[66] As a result, the definition of torture again becomes critical.
At least one more step is necessary in the analysis of the international legal framework. The provisions of the Convention against Torture are ‘without prejudice to the provisions of any other international instrument … which prohibits cruel,
inhuman or degrading treatment or punishment or which relates to extradition or expulsion’.[67] The
ICCPR also bans torture and cruel, inhuman or degrading
treatment, with no possibility of justifying either category of
conduct, and the United Nations Office of the High Commissioner for
Human Rights has interpreted that language to include ‘expos[ing]
individuals to the danger of torture or cruel,
inhuman or degrading treatment or punishment upon return to another
country by way of their extradition, expulsion, or refoulement’.[68]
Conversely,
according to the Bush Administration,
[t]he United States has maintained consistently that the [ICCPR]
does not apply outside the United States or its special maritime and
territorial jurisdiction, and that it does not apply to operations of
the military during an international armed conflict.[69]
In other words, although the ICCPR might apply to the
transfer of a
person from the US to another country, it arguably does not apply to US
involvement in transfers that take place entirely outside the US.[70] This contention, which seeks to neutralise the broader reach of the ICCPR, does not alter the prohibitions of the Convention against Torture; these prohibitions, as well as those of the federal statute, would remain. Furthermore, the US claim about the limited reach of the ICCPR is controversial. Both the International Court of Justice and the Human Rights Committee assert that the
ICCPR applies during periods of armed conflict and to some extraterritorial conduct, including arrests.[71]
In
short, with respect to rendition, at the very least US and
international law protect against transferring people to countries
where they are likely to be tortured. In addition, many judges,
lawyers, and scholars insist that the ICCPR, as interpreted by
the ICJ and the Human Rights Committee, should apply as well. A debate
about the precise scope of the law is, however, largely esoteric in
light of the fact that many of the extraordinary renditions recently
reported would plainly violate even the weakest interpretation of the
prohibition.
With respect to ghost detainees, both the Convention against Torture and the
ICCPR protect against mistreatment in the form of torture or cruel,
inhuman and degrading treatment. Yet, as mentioned above, the Bush Administration has taken the position that the ICCPR does not apply outside the US or to military operations. The Administration has also suggested that the Convention against Torture’s prohibition against cruel,
inhuman or degrading treatment ‘does not apply to alien detainees held abroad’.[72] Even accepting the plausibility of both arguments for purposes of this commentary, the
Convention against Torture’s non-derogable ban on torture remains
— and one could certainly classify such things as the CIA’s reported practice of ‘water boarding’ as torture.[73]
V CONCLUSION
Extraordinary rendition and the holding of ghost detainees exemplify
the qualities of modern torture described in Part II. Above all, they
are hidden.
So, too, they are exceptions to standard rules and procedures. Finally,
they function to produce total domination of the person rendered and
detained. When one is a ghost, held outside the protections of any
applicable and enforceable legal regime, one is already separate from
one’s body, not to mention from one’s family, community, and other
support networks. The rendered and detained person — the ghost — is by
definition hidden, exceptional,
and dominated.[74]
These
practices in turn highlight the role of law in the practice of torture.
We are told that universal norms of human rights symbolise modern
progress toward greater protection of individuals, but the practice of
international human rights is far more complex. It relies on political
will and remains vulnerable to state power. Also, and perhaps more
importantly, it is not clear that human rights law functions chiefly to
protect the bodies of people who stand in the way of state power.
Instead, it creates the idea of an international rights-bearing
citizen, and in so doing it embeds people deeper in the web of state
interests and state power. Legal analysis of our rights, which is the
same process as legal analysis of the extent and limits of state power
over us,
reflects but also enables and sustains the shape of modern torture as
hidden,
exceptional, and characterised by total domination. This analysis is
not confined to the context of torture. Perhaps, then, the ghost
detainee is not only exceptional but broadly representational, if not
of our current condition,
or even necessarily of what will be, at least of what may be.
[*]
Visiting Professor, Lewis and Clark Law School; Associate Professor,
University of Pittsburgh School of Law.
Portions of this commentary were presented in ‘Interrogation, Power,
and Fun: Understanding Modern Torture’ (Paper presented at the
conference on Torture: Contemporary Issues in Europe and the United
States, Transitional Justice Institute, University of Ulster, Belfast,
Northern Ireland, 21 February
2005), and I am grateful for that opportunity and for the conversations
that it sparked. This commentary also benefited from the comments of
Robert Chesney and an anonymous referee, and from my participation with
Mirko Bagaric and Marcy Strauss in the symposium ‘Torture: When, If
Ever, Is It Permissible?’ (University of San Francisco School of Law,
San Francisco,
US,
8 April 2005).
[1] Charles Dickens, A Christmas Carol (first published 1843, 1897 ed)
89.
[2] Eyal Chowers, The Modern Self in the Labyrinth: Politics and the Entrapment Imagination (2004)
3.
[3] Ibid.
[4] See ibid 2–3.
For the purposes of this commentary, I do not quarrel with the idea
that the dehumanisation or subjection described by writers such as
Chowers is normatively undesirable; nor do I seek to historicise the
idea of an individual self (although it is worth noting that the
concept of the self is in many ways a modern concept linked to the rise
of modern societies).
[5] See Darius Rejali,
Torture and Modernity: Self, Society, and State in Modern Iran (1993)
62–81.
[6] Daniel Chirot,
‘Torture and Modernity: Self, Society, and State in Modern Iran, by Darius M Rejali’ (1994) 23 Contemporary Sociology 678,
680.
[7] See Caroline Elkins,
Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya
(2005) 207–11, 244–59; John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture (2000)
4–8.
[8] See Douglas Porch,
The French Secret Services: From the Dreyfus Affair to the Gulf War
(1995) 302, 381–4; Rita Maran, Torture: The Role of Ideology in the French–Algerian War
(1989).
[9] See Paddy Woodworth,
Dirty War, Clean Hands: ETA, the GAL and Spanish Democracy (2001) 281.
For further discussion of Britain, France and Spain respectively see Antonio Vercher, Terrorism in Europe: An International Comparative Legal Analysis
(1992) 65–72, 240–1, 247–9; Joseba Zulaika and William Douglass, Terror and Taboo: The Follies, Fables, and Faces of Terrorism
(1996) 198–212.
[10] See generally John T Parry, ‘Judicial Restraints on Illegal State Violence:
Israel and the United States’ (2002) 35 Vanderbilt Journal of Transnational Law
73.
[11] See Timothy Kepner,
‘Torture 101: The Case against the United States for Atrocities Committed by School of Americas Alumni’ (2001) 19 Dickinson Journal of International Law 475, 486–492. See generally Theodore Gonzalves,
‘Apocalypse Now and Then’, AsianWeek (San Francisco, US), 13
August 2004, 6; Walter Pincus, ‘Iraq Tactics Have Long History with US Interrogators’, The Washington Post (Washington DC, US), 13
June 2004, AO8. See also the controversial Vietnam Veterans against the War,
Winter Soldier Investigations (1971) available at
<http://lists.village.virginia.edu/sixties/HTML_docs/
Resources/Primary/Winter_Soldier/WS_entry.html> at 1 October
2005.
[12] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, opened for signature 12 August 1949, 75 UNTS
31 (entered into force 21 October 1950); Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of the Armed Forces at Sea of August 12, 1949, opened for signature 12 August 1949,
75 UNTS 85 (entered into force 21 October 1950); Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950);
Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949, opened for signature 12 August 1949, 75 UNTS 287
(entered into force 21 October 1950) (collectively, ‘Geneva Conventions’).
[13] George W Bush, Statement by the President: United Nations International Day in Support of Victims of Torture (26 June 2003)
<http://www.whitehouse.gov/news/releases/
2003/06/20030626-3.html> at 1 October 2005. See also Peter Slevin, ‘US Pledges to Avoid Torture’, The Washington Post (Washington DC, US),
27 June 2003, A11.
[14] See Jane Mayer, ‘Outsourcing Torture’ (2005) 81(1) The New Yorker
106, 106. See also Elisabeth Bumiller, David Sanger and Richard Stevenson,
‘The Conflict in Iraq: President Bush Says Iraqis Will Want GIs to Stay to Help’, The New York Times
(New York, US), 28 January
2005, A1; George W Bush, ‘Memorandum: Humane Treatment of al Qaeda and
Taliban Detainees’ (7 February 2002) in Karen Greenberg and Joshua
Dratel
(eds), The Torture Papers: The Road to Abu Ghraib (2005) 134,
134–5.
[15] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
(‘Convention against Torture’).
[16] Ibid art 1.
[17] Ibid art
2.
[18] Ibid art
16.
[19] Opened for signature
16 December 1966, 999 UNTS 171, art 7 (entered into force
23 March 1976)
(‘ICCPR’).
[20] Above n 12. See also Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts, opened for signature 12 December
1977, 1125 UNTS 3 (entered into force 7 December 1978); Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflict,
opened for signature 12 December 1977, 1125 UNTS 609 (entered into
force 12 December 1978).
See Jordan Paust, ‘Post-9/11 Overreaction and Fallacies Regarding War
and Defense, Guantanamo, The Status of Persons, Treatment, Judicial
Review of Detention, and Due Process in Military Commissions’ (2004) 79
Notre Dame Law Review 1335, for discussion of how the Geneva
Conventions apply to ‘a prisoner of war, unprivileged belligerent,
terrorist, or noncombatant’: at
1351.
[21] See discussion below in Part III.
[22] For theoretical claims to this effect about rights in general, see Michel Foucault,
Discipline and Punish: The Birth of the Prison (Alan Sheridan trans, 1979
ed) 222 [trans of: Surveiller et punir: Naissance de la prison (first published 1975)]; Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen trans, 1998 ed) 121–2 [trans of: Homo sacer: Il potere sovrano e la nuda vita (first
published 1995)]; Roberto Buonamano, ‘Humanity and Inhumanity: State
Power and the Force of Law in the Prescription of Juridical Norms’ in
John T Parry (ed), Evil, Law,
and the State: Perspectives on State Power and Violence (forthcoming
2005).
[23] See, eg, Parry,
‘Judicial Restraints’, above n 10,
77–9.
[24]
Consider Ascherson’s description of the British public’s knowledge of
torture and other abuses committed in Kenya: Neal Ascherson ‘The
Breaking of the Mau Mau’, The New York Review of Books (New York, US), 7
April 2005, 26:
It is fair to say that even now, fifty years later, the British
public is not really aware of what went on. … British ignorance about
Mau Mau is of a
peculiar, resilient kind. It is breached every so often, but then heals
over again. … [T]here was a period in the later 1950s when everyone
knew, or could know, what was going on. … All that seems to have been
forgotten. The British need to believe that their Empire was run and
eventually dismantled with restraint and humanity — as opposed to the
disgusting brutality of the French, Dutch, Belgian, Portuguese,
Spanish, and German colonial empires.
My only serious dispute with Ascherson is over his suggestion that
the ignorance he describes is peculiar. I would argue that it is
pervasive.
[25] See generally Parry, ‘Judicial Restraints’, above n 10.
[26]
For legal perspectives on police violence in the US, see ibid. For the
claim that racism — broadly defined — is a critical element in the
legitimation of modern state violence, see Michel Foucault, ‘Society Must Be Defended’:
Lectures at the Collège de France, 1975–76 (David Macey trans,
2003 ed) 254–63 [trans of: Il faut défendre la société (first published
1996)].
[27] For the unclassified portions of the Landau Commission Report,
see
‘Commission of Inquiry into the Methods of Investigation of the General
Security Service regarding Hostile Terrorist Activity’ (1989) 23 Israel Law Review
146. For a discussion of this report see Talal Asad, ‘On Torture, or
Cruel, Inhuman, and Degrading Treatment’ in Arthur Kleinman,
Veena Das and Margaret Lock (eds), Social Suffering (1997) 285, 296;
Parry, ‘Judicial Restraints’, above n 10, 88–90.
[28]
See ‘Working Group Report on Detainee Interrogations in the Global War
on Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations’ (4 April
2003) in Karen Greenberg and Joshua Dratel (eds), The Torture Papers: The Road to Abu Ghraib
(2005) 286, 346–59 (‘Working Group Report’); Donald Rumsfeld,
‘Memorandum for Commander, US Southern Command: Counter-Resistance
Techniques in the War on Terrorism’ (16 April
2003) in Karen Greenberg and Joshua Dratel (eds), The Torture Papers: The Road to Abu Ghraib (2005) 360. At the time of writing, official documents on practices approved for use by the CIA remain classified.
[29]
For participation of physicians and behavioural scientists, see
generally Jane Mayer, ‘The Experiment: The Military Trains People to
Withstand Interrogation — Are Those Methods being Misused at
Guantánamo?’
(2005) 81(20) The New Yorker
60.
[31] As reproduced in 38 ILM
1471, 1485 (1999).
[32] Model Penal Code § 3.02(1)(a) (American Law Institute
1962).
[33] See Jay Bybee,
‘Memorandum to Alberto Gonzales, Counsel to the President: Standards of Conduct for Interrogation under 18 USC §§ 2340–2340A’ (1
August 2002) in Karen Greenberg and Joshua Dratel (eds), The Torture Papers:
The Road to Abu Ghraib (2005) 172, 207–9; ‘Working Group Report’, above n 28,
307–9.
[34] See Public Committee against Torture in Israel v Israel,
as reproduced in 38 ILM 1471
(1999). For a discussion of torture and the necessity defence, see
generally John T Parry and Welsh White, ‘Interrogating Suspected
Terrorists: Should Torture Be an Option?’ (2001–02) 63 University of Pittsburgh Law Review 743.
[35] See, eg,
Agamben, Homo Sacer, above n 22;
Giorgio Agamben, State of Exception (Kevin Attell trans, 2005 ed) [trans of: Stato di eccezione (first published 2003)]. See generally Oren Gross,
‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?’ (2003) 112 Yale Law Journal 1011; Sanford Levinson, ‘Torture in Iraq and the Rule of Law in America’ (2004)
133(3) Dædalus 5; Kim Scheppele, ‘Law in a Time of Emergency:
States of Exception and the Temptations of 9/11’ (2004) 6 University of Pennsylvania Journal of Constitutional Law 1001. For a slightly earlier example, see Jules Lobel, ‘Emergency Power and the Decline of Liberalism’ (1989) 98 Yale Law Journal
1385. The effort to come to grips with ideas of emergency and exception
also helps explain the revival of interest in the writings of Carl
Schmitt, who famously declared,
‘[s]overeign is he who decides on the exception’: Carl Schmitt,
Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans, 1985 ed) 5 [trans of: Politische Theologie (first published
1922)]. For examples of the Schmitt revival, see generally Symposium,
‘Carl Schmitt: Legacy and Prospects’ (2000) 21 Cardozo Law Review 1469.
[36] See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948)
33.
[37] See Jennifer Loven,
‘Bush Open to Possibly Closing Gitmo Camp’, Associated Press,
8 June 2005 for President Bush’s own comments on the issue of closing
the Guantánamo detention centre in response to documented abuses:
It’s in our nation’s interest that we learn a lot about those people
that are still in detention, because we’re still trying to find out how
to better protect our country. What we don’t want to do is let somebody
out that comes back and harms us.
See CNN, Cheney: Guantanamo Policy ‘Is the Correct One’
(13 June 2005) <http://www.cnn.com/2005/POLITICS/06/13/gitmo.cheney> at 1
October 2005 for US Vice‑President Dick Cheney’s comments on the same issue:
Given the nature of the conflict that we’re involved in, there would
need to be some kind of facility that would allow you to detain people
who are enemy combatants, in effect, who if you put them back on the
street will do their level best to return back to the battlefield and
complete their mission of trying to kill Americans.
[38] See Evidence to US Joint Intelligence Committee Hearing, Joint Investigation into September
11th: Fifth Public Hearing,
107th Congress, Washington DC, US, 26 September 2002, 2 (Cofer Black,
Former Director of the CIA Counterterrorist Center) available at
<http://www.fas.org/irp/congress/2002_hr/092602black.html> at
1 October 2005.
[39]
The importance in modern democracies of making torture both secret and
exceptional also emerges from the reception of two recent proposals —
one from the US and one from Australia — to establish more transparent
legal frameworks for the use of torture. Alan Dershowitz proposes
authorising federal judges in the US to issue ‘torture warrants’ when
officials make a sufficient showing of a need to employ coercion: Alan
Dershowitz, ‘The Torture Warrant: A Response to Professor Strauss’
(2003) 48 New York Law School Law Review 275, 275–7 (fns
14–16). Mirko Bagaric and Julie Clarke similarly urge adoption of a
legal framework to regulate torture. They also go ‘one step beyond’
Dershowitz to argue that torture will sometimes be morally correct:
Mirko Bagaric and Julie Clarke, ‘Not Enough Official Torture in the
World? The Circumstances in which Torture Is Morally Justifiable’
(2005) 39 University of San Francisco Law Review 581.
Both proposals contend that torture is already routinely practised and
it would be better to talk openly about it and set up rules to govern
it rather than do nothing. The idea of ex ante regulation of torture —
instead of ex post regulation through such things as the necessity
defence — is a perfectly reasonable view. It is also reasonable, of
course, to object to such proposals altogether on the ground that
torture should be banned without exception: see,
eg, Marcy Strauss, ‘Torture’ (2003) 48 New York Law School Law Review
268. Yet many people, depending on time, place, and circumstance,
would support coercion, if only as a last resort, and those views are
not obviously wrong in some objective sense: cf Sanford Levinson, ‘In
Quest of a Common “Conscience”: Reflections on the Current Debate about
Torture’ (forthcoming 2005) 1 Journal of National Security Law and Policy
(suggesting the controversy over torture takes us back to
‘Philosophy 101’ debates between deontological and consequential
approaches). It is difficult not to conclude, therefore, that some of
the objections to the Dershowitz and Bagaric–Clarke proposals have a
kind of
‘emperor’s new clothes’ quality. Of course coercion or torture might
take place, but we don’t talk of such things. The same attitude extends
to the systematic state violence that sustains our societies. One can
be sure, however, that at least some of those who exercise state power
speak of such things to each other and that our silence is entirely in
their interests.
[40] For some elaboration of these points, see John T Parry, ‘What Is Torture, Are We Doing It, and What If We Are?’ (2003) 64 University of Pittsburgh Law Review
237, 246–9. In the commentary at hand I do not stress the ways in which
torture as domination is about the relationship between torturer and
victim. The ways in which this relationship plays out are also, I
think, part of the definition of modern torture. Elaine Scarry explores
aspects of this relationship: see generally Elaine Scarry, The Body in Pain: The Making and Unmaking of the World
(1985).
[41] Convention against Torture, above n 15, art 16. See also Nigel Rodley, The Treatment of Prisoners under International Law
(2nd ed, 1999) 50; Committee on Human Rights Association of the Bar of the City of New York, ‘The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (1987) 42
Record of the Association of the Bar of the City of New York 235, 240
(noting ‘most of the obligations imposed by the Convention apply only to acts of torture’).
[42] This argument ignores customary international law as well as the prohibitions on torture contained in the Geneva Conventions, above n 12, and the ICCPR, above n 19, not to mention their relevance to the interpretation of the Convention against Torture, above n 15 (particularly in light of art 16 of the
Convention against Torture). See John T Parry, ‘“Just for Fun”: Understanding Torture and Understanding Abu Ghraib’
(forthcoming 2005) Journal of National Security Law and Policy, for a
more detailed version of this argument and further analysis of US law on torture.
[43] See 136
Congressional Record S17491 (daily ed, 27 October 1990) (Resolution of Advice and Consent to Ratification of the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment:
Reservations, Declarations, and Understandings) pt II(1)(a) (‘Resolution of Advice and Consent to Ratification’).
[44] Ibid pt I(1).
[45] See ibid. In addition, according to the US Department of Justice, because the Fifth Amendment to the US Constitution
‘does not apply to aliens in US custody overseas’, this definition
‘strongly suggest[s] that [the prohibition against cruel, inhuman and
degrading treatment] does not apply to alien detainees held abroad’:
Letter from William Moschella, Assistant Attorney-General to the
Honourable Patrick Leahy, 4 April 2005 (copy on file with author). I am
sidestepping in this commentary the debate over the Senate’s practice
of including reservations, understandings, and declarations in its
consent to treaties. For a defence of the constitutionality of this
practice, see Curtis Bradley and Jack Goldsmith, ‘Treaties, Human
Rights, and Conditional Consent’ (2000) 149 University of Pennsylvania Law Review 404, 404–10. For a description and analysis of the UN’s response to such practices, see Elena Baylis, ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’ (1999) 17 Berkeley Journal of International Law
277.
[46] Saucier v Katz,
533 US 194, 204–5
(2001).
[47] Hudson v
McMillian, 503 US 1, 6–9
(1992).
[48] Whitley v
Albers, 475 US 312, 320–1
(1986).
[49] Ibid
321.
[50] See Albert Alschuler,
‘A Peculiar Privilege in Historical Perspective: The Right to Remain Silent’ (1995–96) 94 Michigan Law Review 2625,
2651.
[51] Chavez v
Martinez, 538 US 760, 766–7 (plurality opinion) (2003); 778 (Souter J,
concurring).
[52] County of Sacramento v Lewis, 523 US 833, 849
(1998).
[53] Washington v
Glucksberg,
521 US 702, 721 (1997) (describing the fundamental rights doctrine).
For application of both tests to licence coercive interrogation, see
Chavez v Martinez, 538 US 760, 774–6 (Thomas J)
(2003).
[54] See, eg, Chavez v Martinez, 538 US 760, 773 (stating that the due process doctrine will
‘provide relief in appropriate circumstances’ for ‘police torture or other abuse that results in a confession’); 783–4
(Stevens J, concurring in part and dissenting in part); 789 (Kennedy J,
concurring in part and dissenting in part). See also McKune v Lile, 536
US 24, 41 (2002) referring to ‘the physical torture against which the
Constitution clearly protects’.
[55] See, eg,
Mayer, ‘Outsourcing Torture’, above n 14, 106.
[56]
See generally Ethan Nadelmann, ‘The Evolution of United States
Involvement in the International Rendition of Fugitive Criminals’
(1993) 25 New
York University Journal of International Law and Policy 813,
857–82.
[57]
The US extradition and deportation processes are not summary and
immediate; if time is of the essence, they will frustrate official
goals: see, eg, Immigration and Naturalization Service v St Cyr, 533 US 289 (2001) (holding that aliens may seek habeas corpus relief from removal proceedings); M Cherif Bassiouni,
International Extradition: United States Law and Practice (4th
ed, 2002) (describing and discussing the extradition process and
alternatives to it). US immigration law also creates a framework for
determining the country to which an alien may be removed, which may not
always accord with the country to which officials would like to send
that person: see 8 USC § 1231(b) (2004)
for ordinary removal and 8 USC § 1537(b)(2) (2004) for removal of
‘alien terrorists’.
[58] United States v Alvarez-Machain, 504 US 655, 662 (1992). For discussion of the constraints on executive power to extradite from the US, see generally John T
Parry, ‘The Lost History of International Extradition Litigation’
(2002) 43 Virginia Journal of International Law 93,
119–24.
[59] See generally Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard against Torture (2005).
[60] See Rajiv Chandrasekaran and Peter Finn, ‘US Behind Secret Transfer of Terror Suspects’, The Washington Post (Washington DC, US), 11 March 2002,
AO1; Mayer, ‘Outsourcing Torture’, above n 14, 107 (referring to estimates that approximately 150 people have been subjected to extraordinary rendition since
2001); Michael Scheuer, ‘A Fine Rendition’, The New York Times
(New York, US), 11 March 2005, A23; Scott Shane, Stephen Grey and
Margot Williams, ‘CIA Expanding Terror Battle under Guise of Charter
Flights’, The New York Times (New York, US), 31 May 2005, A1.
For a
general discussion of these allegations and of the legal issues they
raise, see Committee on International Human Rights of the Association
of the Bar of the City of New York and Center for Human Rights and
Global Justice, Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions’
(2004).
[61] See Mayer,
‘Outsourcing Torture’, above n 14, 108.
[62] James Risen, David Johnston and Neil Lewis, ‘Harsh CIA Methods Cited in Top Qaeda Interrogations’, The New York Times (New York, US), 13 May
2004, A1. See generally Douglas Jehl, ‘Some Iraqis Held outside Purview of US Command’, The New York Times (New York, US), 17 May 2004, A1;
Yossi Melman, ‘CIA: No Comment on Report 11 Qaida Suspects Held in Jordan’, Ha’aretz (Jerusalem, Israel), 13 October 2004; Josh White, ‘Army Documents Shed Light on CIA “Ghosting”’,
The Washington Post (Washington DC, US), 24 March 2005,
A15.
[64] Foreign Affairs Reform and Restructuring Act of 1998,
Pub L No 105-277, § 2242,
112 Stat 2681, 2681–822 (1998). The extent to which constitutional due
process protections might apply to the treatment of people not
technically in the territory or custody of the US is highly contested:
see, eg, Moschella,
above n 45.
Although one can make a
plausible due process argument that extraordinary rendition violates
constitutional rights of those sent from one country to another, it is
unlikely to be successful in court (or even to be litigated), and this
commentary does not make the attempt. Nor is it likely that separation
of powers arguments designed to limit executive power will gain much
traction by themselves against executive branch use of rendition in the
context of foreign affairs and military action — although the existence
of a federal statute that directly regulates rendition takes the sting
out of most pro-executive separation of powers claims.
[65]
See 22 CFR
§ 95.1(b)(7) (2005); 8 CFR § 208.18(a)(2) (2005) respectively (note
that the immigration regulation adds the phrase ‘that do not amount to
torture’ at the end of the sentence quoted in the text).
[66] Convention against Torture, above n 15, art 3. When the US Senate consented to the Convention it
included an understanding that ‘substantial grounds for believing that
he would be in danger of being subjected to torture’, as used in art 3,
should be interpreted to mean, ‘if it is more likely than not that he
would be tortured’: see Resolution of Advice and Consent to
Ratification, above n 43, pt II(2). For an illustration of how this standard has been narrowly applied in the immigration context, see Auguste v
Ridge, 395 F 3d 123 (3rd Cir, 2005).
[67] Convention against Torture, above n 15,
art 16.
[68] Office of the High Commissioner for Human Rights, General Comment 20, 44th sess, [9] (10 March 1992) as contained in
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 30, UN Doc HRI\GEN\1\Rev.1 (29 July 1994). See also J
Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1988) 150:
insofar as it might be possible to derive from other international …
legal instruments a prohibition against extradition … where the
extradited or expelled person might be exposed to cruel, inhuman or
degrading treatment or punishment falling short of torture, the fact
that article 3 of the present
Convention only deals with torture should not be interpreted as
limiting the prohibition against extradition … which follows from such
other instruments.
Once again, I am not addressing the relevance of customary international law to these issues.
[69] ‘Working Group Report’, above n 28, 290.
Although there is no express reference, this position taken by the Bush Administration presumably relies on art 2 of the ICCPR, above n 19, which provides, ‘[e]ach State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the
present Covenant’, and on art 4, which allows derogation ‘in
time of public emergency’. Importantly, however, the right to be free
of torture and cruel, inhuman, or degrading treatment is non-derogable
and is expressly excluded from the ‘public emergency’
exception: at art 4.
[70]
A small number of extraordinary renditions have begun in the US, for
example with people detained while seeking to enter the US or while
changing planes in a US airport. Because such people have not ‘entered’
or been legally admitted to the US, they are almost already ghosts,
with few rights and no immediate residence: see Margaret Taylor,
‘Detained Aliens Challenging Conditions of Confinement and the Porous
Border of the Plenary Power Doctrine’ (1995) 22 Hastings Constitutional Law Quarterly 1087,
1128–33 (discussing the due process standards applicable in such circumstances).
[71] See
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ [105]–[109]
<http://www.icj-cij.org> at 1 October 2005; Human Rights Committee,
Consideration of Reports Submitted by States Parties under Article 40 of the
Covenant: Concluding Observations of the Human Rights Committee
(Israel), 78th sess, 2–3, UN Doc CCPR/CO/78/ISR (21 August
2003). For a critical discussion of the ICJ approach, see Michael Dennis,
‘Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation’ (2005) 99 American Journal of International Law
119.
[72] See Moschella, above n
45.
[73] The
Declaration on the Protection of All Persons from Enforced Disappearance,
GA Res 133, UN GAOR, 47th sess, 92nd plen mtg, UN Doc A/RES/47/133 (12
February 1993) is also worth mentioning at this point. It states that
an act of ‘enforced disappearance’ is ‘a grave and flagrant violation
of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights
and reaffirmed and developed in international instruments in this
field’: at art 1. It also requires each state to prevent enforced
disappearances ‘in any territory under its jurisdiction’, and to avoid
expelling, returning, or extraditing a person ‘to another State where
there are substantial grounds to believe that he would be in danger of
enforced disappearance’: at arts 3, 8. For discussion of the
declaration, including the meaning of ‘enforced disappearance’, see
Rodley, above n 41,
243–76.
[74] Agamben develops similar ideas at greater length in Homo Sacer, above n 22, and State of Exception, above n 35, and I am indebted to his analysis.