Human rights: expendable or vital in the 'war on terror'?

"The official said none had died."1 This quote from The New York Times came from a US official discussing rendition - the provision or transfer of suspected terrorists to another country for interrogation without going through formal extradition processes. The unnamed official, however, added that prisoners had been mistreated.

This rendering of people to non-government agencies or companies, or foreign states with different interpretations of human rights, poses important questions. What is an acceptable trade-off, if any, between human rights and security and how has that calculus changed since the 'war on terror' started after 11 September 2001?

There is no question that there has been a change among officials. The US Central Intelligence Agency (CIA), for example, now has the power to render people without, as it previously had to, getting case-by-case approval from the White House or the Department of State and Department of Justice.2

The New York Times, using anonymous government sources, has written that since the 11 September 2001 attacks, the CIA has flown 100 to 150 suspected terrorists from one foreign country to another, including to Egypt, Syria, Saudi Arabia, Jordan and Pakistan, which have all habitually used torture in its prisons, according to the Department of State. Before 11 September 2001 there had been 70 renditions, the CIA told The New York Times.

One example of rendition is Maher Arar, a Syrian-born Canadian, who was detained at Kennedy Airport in New York two weeks after the 11 September 2001 attacks and transported to Syria, where he alleged he was subjected to beatings. A year later he was released without being charged with any crime.

The CIA has held nearly 40 high-ranking leaders of Al-Qaeda in secret sites overseas, while the US military continues to detain hundreds of suspected terrorists at the US naval base at Guantanamo Bay, Cuba, and in Afghanistan. The US has handed over 62 Pakistani, Moroccan, Saudi Arabian, and Kuwaiti prisoners in Guantanamo Bay to their original national governments, despite allegations of torture.

France already deports suspected terrorists to Algeria, Jordan, and Egypt, which have been accused of human rights violations by pressure groups.3

The UK government is also preparing to send foreign nationals suspected of being terrorists back home to countries where torture in prison is allegedly commonplace. The UK was prevented under the European Human Rights Convention from deporting these suspects, such as some of the 17 held in Belmarsh prison, until March 2005 without charges being formally made, but was is in negotiations with their home countries about arranging guarantees that they would not be mistreated.4

The UK Foreign and Commonwealth Office (FCO) said its junior minister, Baroness Symons, had just returned from a trip to North Africa where the return of nationals had been discussed. The FCO spokesman disclosed that five countries, including Algeria, Tunisia, Morocco, and Egypt, were currently in talks with the UK about what assurances could be provided and how the UK courts could be convinced mechanisms were in place to monitor the guarantees.

However, in countries such as Egypt torture is seen by some, including the writer Caroline Moorehead, as institutionalised under a near-permanent state of emergency, despite the country being a signatory to the UN Convention Against Torture and the Geneva Conventions.

Broken promises?

The US, as part of its rendition programme, also receives assurances that those being transferred will be treated humanely, and it claims to monitor compliance. However, the US has faced allegations from former prisoners that these assurances are routinely broken.

The transfers are portrayed as an alternative to what US officials have said is the costly, manpower-intensive process of housing them in the US or in US-run facilities in other countries. The UK government has also used this argument.

The US and UK are among the states that have also received and used information received from interrogations carried out by states with poor human rights records. Craig Murray, Britain's former ambassador to Uzbekistan, left the UK Foreign Office in October 2004 after criticism of US support for the current rulers and alleged UK use of intelligence gathered from torture. He recently said: "I think US policy is ridiculously myopic in Uzbekistan: by supporting [President Islam] Karimov we are creating an Islamic terrorist threat to the West that did not exist before."5

The standard definition of torture from the Committee Against Torture is broadly any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted under official aegis on a person to get information or a confession, or as punishment or intimidation. Incidental pain or suffering from lawful sanctions are not included as torture.6

The US Department of Justice is now understood to regard torture as something specially intended, rather than just a general intent to cause pain. But under US law, specific intent to torture requires the defendant to have acted with the express purpose of inflicting severe pain with no other objective (i.e. sadism), according to Nigel Rodley, a former UN special rapporteur on torture (1993-2001) and current member of the UN Human Rights Committee.7

The US has also argued that the Geneva Convention on treatment of prisoners of war does not cover unlawful combatants, such as suspected Al-Qaeda or Taliban members captured in Afghanistan.

There is also considerable debate about what interrogation practices are illegal. Former US Navy intelligence officer Wayne Madsen has coined the term 'torture-lite', which has been seen by some to cover interrogation practices using all appropriate pressure.8

Rodley said some US interrogation techniques could be deemed torture, especially if conducted over a protracted period of time. His examples of measures often sanctioned at Guantanamo Bay include:

Egypt, for example, excludes mistreatment by police as torture, unless used to extract a confession, and in alleged cases only the prosecutor general can bring a legal case, according to Moorehead.9

But, ultimately, the debate comes down to whether the 'war on terror' can be won with what, in moral philosophy, is called teleology or whether deontological measures are the only route to success. Teleology is the study of practices where the result can be judged good, even if the methods are suspect, while deontology is the study of something that is intrinsically good.

In a global battle against terrorism of all hues, governments are trying to maintain support for an 'alliance of nations' by weakening and removing state support for extremists and their support from among the general population. From the deontological viewpoint, therefore, the mass internment of Catholics in Northern Ireland or, arguably, the human rights violations against Muslims in Iraq or elsewhere were, and are, counter-productive.

Experts, such as Professor Paul Wilkinson, chairman of the advisory board of the Centre for the Study of Terrorism and Political Violence at St Andrews University in Scotland, have also questioned the accuracy of information obtained under duress.10 The UK FCO said such intelligence could only be used as supporting material to back up credible threats from other, non-tortured sources.

But teleologists defend renditions or using intelligence tainted by torture as one among several important tools in counter-terrorism efforts.

Intellectuals, such as Michael Ignatieff in The Lesser Evil: Political Ethics in an Age of Terror, are highly critical and disapproving of torture, but, according to critics, he argues that democracy is entitled to do some wrong to fight terrorism.11

The teleologists see a larger battle of good (represented by the Western democratic states) against evil (the terrorists of whatever hue). Conor Gearty, professor of human rights law at the London School of Economics, described this as seeing "in human rights something larger and grander than the kind of minor attention to detail that demands for each and every individual identical levels of security from state abuse: to take the 'human' out of human rights".12 However, this leads to different interpretations of good and evil depending on each person's interpretation, Gearty added.

One official told The New York Times: "The intelligence obtained by those rendered, detained, and interrogated has disrupted terrorist operations. It has saved lives in the US and abroad, and it has resulted in the capture of other terrorists."13

The price of ignorance

Jack Straw, the UK's Foreign Secretary told the UK Parliament's Intelligence and Security Committee: "There are certainly circumstances where we may get intelligence from a liaison partner where we know, not least through our own human rights monitoring, that their practices are well below the line… It does not follow that if it is extracted under torture it is automatically untrue… Torture is completely unacceptable… but you cannot ignore [such intelligence] if the price of ignoring it is 3,000 people dead."14

This is an example of what Stanley Cohen, a founder of the Centre for the Study of Human Rights at the London School of Economics, has called the 'third history of torture: the words that justify the deeds'. "Democratic leaders who authorised the violation had to learn voodoo talk: 'yes, we understand and affirm that a total prohibition on torture means just that; there can be no exceptions, not under any circumstances. But what we are doing is not really torture and anyway is morally justifiable under the special circumstances we find ourselves in'."15

The secret intelligence war is an asymmetric fight, as the examples of foiled plots are less evident than pictures of tortured people. Torture is therefore likely to be self-defeating.

James Mawson previously served as an International Editor at the Financial Times, and continues to write for both the The Independent on Sunday business section and the Financial Times

REFERENCES

Special thanks to Index on Censorship for its latest publication, Torture: A User's Manual.

1 'Rule change lets CIA freely send suspects abroad', The New York Times, 6 March 2005.

2 ibid.

3 'Terror law defeat will not mean freedom for suspects', Daily Telegraph, 9 March 2005.

4 Interview with author, 29 March 2005.

5 'Interview: our man in Uzbekistan', Index on Censorship, vol. 34, no.1, 2005.

6 'Looking-glass laws', Index on Censorship, ibid.

7 ibid.

8 'Post-moral torture', Index on Censorship, ibid.

9 'In the name of security', Index on Censorship, ibid.

10 Interview with author, 22 February 2005.

11 'With a little help from our friends', Index on Censorship, op cit.

12 ibid.

13 The New York Times, op cit.

14 'Torture evidence has foiled attacks, Straw tells MPs', The Evening Standard, 10 March 2005.

15 'Post-moral torture', Index on Censorship, op cit.