Non-Refoulement: Extraordinary Renditions and Outsourcing Torture

The principle of non-refoulement, found in Article 3 of the Convention Against Torture, states that governments must not only refrain from torturing individuals themselves but also refuse to turn people over to other countries in which there is a reasonable suspicion they will be tortured.

In the last few years, questions have been raised about whether certain practices employed by the American CIA violate this principle. One such practice, extraordinary renditions, entails “secretly spiriting away suspects to other countries without due process,” often based on little evidence other than the suspicion of terrorist activity.¹

In a rendition, an individual can be snatched off a street corner, sometimes in broad daylight in their home town, by men in black hoods, loaded on a plane, and transported to a foreign country where he or she is jailed and interrogated for months at a time. The frequency of renditions by the CIA increased rapidly in the days and years following 9/11 as terrorist suspects and members of al-Qaeda were picked up and fed into a “global ‘ghost’ prison system.”²

Some, such as then-CIA Director George Tenet, claimed the practice of renditions produced valuable information that “shattered terrorist cells and networks, thwarted terrorist plans, and in some cases even prevented attacks from occurring.” Once the interrogations were complete, some prisoners were simply flown home and released, while others were brought to Guantanamo Bay, which came to become a “‘dumping ground’ for CIA mistakes.”³  It was here that questionable tactics the CIA had used were adopted by military personnel and eventually made their way over to Iraq.⁴

Many argued that the network of secret CIA prisons, which stretched from Eastern Europe to the Middle East and Afghanistan, violated both the letter and the spirit of the Convention Against Torture. When the CIA did not interrogate prisoners in their own custody, they often turned them over to countries where there was legitimate reason to believe they would be tortured. U.S. government officials claim they no longer render prisoners to governments suspected of conducting torture, such as Syria, but “such scruples are being ignored when it comes to rendering suspects to allies like Egypt and Jordan, even though some officials do not believe ‘assurances’ from these nations that they were not mistreating prisoners.”⁵

The Harrowing Story of Khaled El-Masri  Khaled El-Masri, a German citizen of Lebanese ancestry, was kidnapped by local authorities in December 2003 while on vacation in because his name resembled that of one of the hijackers involved in the September 11 terrorist attacks. Macedonian police turned El-Masri over to the CIA after more than twenty days of captivity, and, handcuffed and blindfolded, he was transferred by secret flight to a CIA prison in Afghanistan. El-Masri was jailed in deplorable conditions without charge and was denied any form of legal representation. He claims that he was physically abused by interrogators during this time and had no contact with his family.6  When the CIA realized that the suspicion surrounding El-Masri’s terrorist ties was baseless, they informed him that he would be released but that “he would not receive any documents or papers confirming his ordeal.” American officials “would never admit they had taken him prisoner” and warned him that no one would believe his story if he tried to go public. El-Masri was flown to Albania and then allowed to return to Germany, without any compensation or apology for what he had suffered.7  The American Civil Liberties Union (ACLU) filed a lawsuit against Tenet and the U.S. government in 2006, but the suit was dismissed by several courts on the grounds that “allowing the case to proceed would jeopardize state secrets.” El-Masri is considering an appeal to the U.S. Supreme Court.8 Ultimately, the Surpreme Court refused to hear the case.9  El-Masri’s plight has become a symbolic cause for those who oppose the American policy of extraordinary renditions.

The practice of extraordinary renditions raises more questions about the limits of the protection against torture. Should renditions be permitted if they do produce valuable intelligence that saves lives? Should we believe government claims that interrogations under such conditions are effective? Are there any circumstances under which refoulement should be allowed? How troubling are the secrecy and lack of transparency surrounding this process? Is invoking the need to safeguard “state secrets” sufficient justification for reinterpreting a state’s commitments under the International Bill of Rights and the Convention Against Torture?

The guarantee of non-refoulement is a good example of the complexity of many human rights. It is both an individual right and a government duty, an obligation for governments not to torture and to take active steps to ensure that no one in their custody is ever put into a situation where torture is likely to occur. Negligence or passing off responsibility to other governments is not a valid excuse when it comes to torture.

The Ticking-Time Bomb Scenario: Jack Bauer and the Influence of ‘24’  A suspected terrorist, visibly roughed up, sits in front of a television monitor, unable to move because bound to a chair. On the screen, he watches video footage of his family, held hostage by masked men with machine guns. His interrogator warns that if he does not reveal the location of a nuclear bomb threatening Los Angeles, his wife and children will be murdered. Still refusing to talk, he cries out in horror as one of his sons is shot and falls over. He cracks and finally divulges details about the bomb. As he is escorted from the room, the monitor flickers to reveal that the entire scene has been faked and the suspect’s family remains unharmed. The interrogators got the information they wanted, but was their deception ethical? Did it constitute a form of psychological torture that is illegal under international law?10  The scene just described occurred not in real life but on the popular American television program ‘24.’ Over the course of its six seasons, ‘24’ has depicted practices that could be characterized as torture in sixty-seven occasions, far more than any other show. Critics accuse the show of “glamorizing” torture; the show’s producers argue that they do not condone torture, except in the extreme circumstances in which there stories are set.11  These circumstances are known as the “ticking time bomb” scenario: it is known that a real threat exists, there is a finite amount of time before the damage is done, and authorities have someone in their custody they are confident has information that could save the day. Those who support the limited use of torture often point to precisely this scenario as the one case in which extreme measures would be justified in order to protect the public good.  But many are concerned about the increasing acceptance of torture in the popular media and its affects on the American psyche, and ‘24’ is the poster boy for this post-September 11 phenomenon. Nonprofit groups such as Human Rights First and the Parents Television Council estimate that the number of times torture was shown on television jumped from 102 between 1996 and 2001 to 624 from 2002 to 2005.12  Military leaders are worried about the influence of ‘24’ on its personnel. U.S. Army Brigadier General Patrick Finnegan, dean of the U.S. Military Academy at West Point, recently requested a meeting with the show’s producers to ask them to stop or at least change the way they present torture. Finnegan and others lamented the “toxic effect” the show was having on some soldiers, including many serving in Iraq, for whom DVD’s of television programs and movies “can sometimes substitute for or trump military training, and transmit a dark message to soldiers.” The star of ’24,’ a character named Jack Bauer is viewed by fans as a patriotic hero, whose tactics, while gruesome, usually achieve the desired results.13  Experienced interrogators insist that torture is not an effective method of acquiring information. Joe Navarro, a Federal Bureau of Investigation official who has conducted thousands of interrogations, suggests that torturing suspected terrorists just does not work, “These are very determined people, and they won’t turn just because you pull a fingernail out…They almost welcome torture…They expect it. They want to be martyred”14 The group that met with the show’s producers encouraged them, if they insisted on continuing to display torture, to at least make it realistic and acknowledge the risks involved. These include duration (it can take weeks or months to “break” a suspect), reliability (suspects often provide false information to escape further harm), and mortality (victims of torture may die in the process).15  Given these qualifications, it is natural to wonder how realistic the ticking time bomb scenario truly is. Would this highly specific set of conditions justify torture? Is the increased acceptance of such techniques in the media having a negative effect on viewers? Do these negative effects extend to military personnel engaged in real-life interrogation situations? Is this problem significant enough to demand the attention of government regulators?