Rage Against Rendition I

The United States is a party to the Convention Against Torture, which prohibits a country from committing torture against anyone, enemy or otherwise. What many people do not know is that it also prohibits the transfer of a detainee to a third country if it is more likely than not that the individual will be tortured there. These laws were originally designed to protect suspects that ended up in US custody from the danger they would face if extradited to a country that wants to try them – but will more likely than not treat that person in a degrading, illegal, or immoral manner. Why does it say “more likely than not?” Because using an objective, rather than subjective standard makes authorities over such matters responsible for what happens to detainees under their care even if they are willfully ignorant of the detainee’s treatment abroad. Authorities such as the head of the CIA or the Secretary of Defense cannot plead ignorance to an objective standard.

Just after the 9/11 attacks, the CIA began a policy of “extraordinary rendition,” where it transferred individuals netted in the wide nets it had cast to catch anyone with suspected links to Al-Quaida to foreign countries for interrogation. The detainees were transferred to locations around the world, many of which remain secret. We know that individuals were transferred to Egypt, Syria, and Uzbekistan – countries with unabashed records for torturing their prisoners. In a dramatic change of posture, it appears that the US is now the nation people fear – and the very laws we used to protect people from the wrath of other countries are now the focus of our own efforts to circumvent an obvious rule: that torture is wrong, and that we ought not to engage in it.

It is hard to believe that there was any reason for such extraordinary measures but to take advantage of relaxed standards for interrogation in those countries.

From prisoner abuse at Abu Ghraib, to the secret interrogations conducted at Guantanamo Bay, the United States government has come under fire for its interrogatory tactics with detainees in the war on terror. The Geneva Conventions set conditions for the treatment of prisoners of war, and law enforcement paradigms set parameters for interrogation. The government has argued that neither of these regimes apply when it interrogates suspected terrorists. Human Rights groups argue that the government cannot have it both ways: either it is prosecuting suspected international criminals, and owes them the protections associated with a law enforcement paradigm (like the 4^th and 8^th Amendments, or respect for rules of extradition); or it has detained combatants in its war on terror, in which case the laws of war apply. Torture is not justified under either of these paradigms, but the government has been accused of using tactics that violate the Convention Against Torture (to which the U.S. is a party), customary international law, the Geneva Conventions, and its own Constitution.

Digging deeper, we understand how the Administration has crafted its response to enable it to deny wrongdoing, yet continue to engage in, or authorize, the torture of individuals under its control. In a series of memoranda, now known as the “torture memos,” members of the Justice Department articulated a position that redefined torture – raising the bar to exclude most, if not all, of the conduct of interrogators from the definition of what tactics constitute torture. Thus, the Administration (under the new definition) can state that it does not engage in torture (because under the new standard, next to nothing amounts to torture). Furthermore, it has ‘rendered’ suspects to other countries for interrogation – countries with documented records of abuse and torture tactics. International law specifically forbids the US from sending a prisoner to a country where it is more likely than not that the prisoner will be tortured. With such a narrow newly-defined definition of torture, the Administration can claim that it does not believe that the countries ‘torture’ the detainees.

Interrogation tactics represent a vexing dilemma for ethicists and theologians alike. Under a utilitarian calculus, if harsh interrogations provide reliable information that is useful in preventing terrorist attacks, then it may be a justifiable form of treatment. But, the lines are difficult to draw, and the secret nature of interrogations invites abuse like that witnessed at Abu Ghraib. Furthermore, as religious lawyers, we wonder not where the line can be legally drawn, but where it ought to be drawn. Justice Department lawyers musing on the legal intricacies of interrogation and torture literally hold the lives of other human beings in the scope of their work. As with the ‘torture memos,’ a lawyer’s musings might become a new standard – under which people may die, or be treated with incredible cruelty.

My first question: what is the difference between killing and torture? Initially, I feel like we kill to remove an obstacle – like removing a soldier from a watchtower, so our soldiers may pass underneath; or using deadly force against a terrorist who took another person hostage. Under this way of thinking, killing can be humane – better bullets and technology make it possible to kill without inflicting an immense amount of suffering in the process.

Torture, on the other hand, has as its purpose, the infliction of suffering. Torture is not effective if the subject dies – torture is designed to elongate, accentuate, and magnify the physical or mental suffering of another person. The troubling aspect of this is the fact that we torture to obtain information. That is, we don’t necessarily know whether the person actually possesses the information. For example, I often hear the classic hypothetical scenario associated with the dilemma of torture: what if a person had hidden a ticking time-bomb in New York City, and you could only ascertain its whereabouts by torturing him? This is an easy one for most but the most devout pacifists; but its simplicity stems from the critical assumption in the scenario: that you know what he is hiding. The hypothetical assumes you know you have the man who hid the bomb, and that you know he knows where it is.

In reality, we torture people precisely because we do not know what they know, or how much they know. So, my immediate question becomes: how does an interrogator know when to stop? Assume you have a suspect who divulges some information; what is the temptation? Pump him for more. Detainees play cat and mouse just like their interrogators, often giving up easy information in hopes to satisfy the interrogators that they surrendered all they know. But, the interrogators know this, and they prod for more. What about the individual who does not know anything? Do we believe that an interrogator will accept this fact? How do interrogators know whether a person is strong-willed, or just lacks the information? I suppose the problem is more dangerous when interrogating low-level suspects of Al-Qaida, than when interrogating the high-ups – because you might be safer assuming that high-level suspects actually possess important information. But, the problem of exhaustion remains – when have you gotten all the information your detainee possesses? This seems to be a fatal flaw in the interrogation process – because it systemically invites over-torturing a suspect to make sure you got it all.