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Abstract
Does the interstate cooperation in the CIA rendition programme imply the anti-torture norm was severely degraded in the war on terror? Most scholarship currently suggests yes, pointing to the widespread cooperation of dozens of states, including many liberal democracies, in a programme designed to facilitate torture. This article argues that this conclusion is driven primarily by a focus on outcome, that states cooperated, and ignores the process through which cooperation happened. Using the data provided in the Senate report on the CIA’s detention and interrogation programme, this article demonstrates that studying the process of cooperation instead of merely the outcome allows us to see that the anti-torture norm had continuous causal effects that are currently unrecognised in the literature. This finding not only provides a counterpoint to much of the literature on the United States rendition programme that focusses on the negative human rights outcomes, but also builds on research which has argued that fundamental international human rights norms were not as damaged by American conduct in the war on terror as many scholars and activists had initially feared.
Disclosure statement
No potential conflict of interest was reported by the author.
Note on contributor
Vincent Charles Keating is an Assistant Professor in International Relations at the Center for War Studies, University of Southern Denmark. He has previously published on the potential erosion of international human rights norms in the war on terror in the British Journal of Politics and International Relations and in a monograph with Palgrave Macmillan entitled US Human Rights Conduct and International Legitimacy.
ORCiD
Vincent Charles Keating http://orcid.org/0000-0003-1040-2647
Notes
1. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (Washington, DC: United States Senate, 2014), 2. This conclusion was not completely new for the US government, having been previously echoed in the CIA Inspector General's 2004 Special Review of Counterterrorism; for an analysis see Ruth Blakeley, ‘Dirty Hands, Clean Conscience? The CIA Inspector General's Investigation of “Enhanced Interrogation Techniques” in the War on Terror and the Torture Debate’, Journal of Human Rights 10, no. 4 (2011): 544–61.
2. The conduct of the US and its allies in the rendition programme is documented extensively at The Rendition Project: http://www.therenditionproject.org.uk.
3. Sam Raphael, Crofton Black, Ruth Blakeley and Steve Kostas, ‘Tracking Rendition Aircraft as a Way to Understand CIA Secret Detention and Torture in Europe’, The International Journal of Human Rights 20, no. 1 (2016): 78–103, 79.
4. Office of the Inspector General, ‘Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003)’ (Central Intelligence Agency, 2004); International Committee of the Red Cross, ‘Report on the Treatment of Fourteen “High Value Detainees' in CIA Custody’ (2007), 17.
5. Throughout the article the term norm is defined in a social constructivist sense as a ‘standard of appropriate behavior’. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’, International Organization 52, no. 4 (1998): 891.
6. See, for instance, Jonathan Stevenson, ‘Exceptional Abhorrence’, Survival: Global Politics and Strategy 57, no. 1 (2015): 177–188; Kenneth Roth, ‘Obama Should Now Prosecute the Torturers’, The Washington Post, 13 December 2014, A15; Lisa Hajjar, ‘An Assault on Truth: A Chronology of Torture, Deception, and Denial’, in Speaking About Torture, ed. Julie A. Carlson and Elisabeth Weber (New York: Fordham University Press, 2012), 27–31; Mark Danner, ‘Now That We’ve Tortured: Image, Guilt Consequence’, in Torture: Power, Democracy, and the Human Body, ed. Shampa Biswas and Zahi Zalloua (Seattle: University of Washington Press, 2011), 54–61; David P. Forsythe, The Politics of Prisoner Abuse: The United States and Enemy Prisoners after 9/11 (Cambridge: Cambridge University Press, 2011), 142–61, Jonathan Hafetz, Habeas Corpus after 9/11 (New York: New York University Press, 2011), 46–67, John Parry, Understanding Torture: Law, Violence, and Political Identity (Ann Arbor: University of Michigan Press, 2011), 175–82; Mark Danner, ‘US Torture: Voices from the Black Sites’, New York Review of Books, 9 April 2009; Mark Denbeaux and Jonathan Hafetz, Guantanamo Lawyers: Inside a Prison Outside the Law (New York: New York University Press, 2009), 361–98; Michael Otterman, American Torture: From the Cold War to Abu Ghraib and Beyond (New York: Pluto Press, 2007), 135–56.
7. Malinda S. Smith, Securing Africa: Post 9/11 Discourses on Terrorism (Farnham: Ashgate, 2010), 209.
8. Alan Clarke, Rendition to Torture (New Brunswick, NJ: Rutgers University Press), 159 and see also 10, 14, 64–6, 62.
9. James D. Boys, ‘What's So Extraordinary About Rendition?’, The International Journal of Human Rights 15, no. 4 (2011): 596.
10. Richard J. Aldrich, ‘US-European Intelligence Co-Operation on Counter-Terrorism: Low Politics and Compulsion’, The British Journal of Politics and International Relations 11, no. 1 (2009): 123.
11. Laleh Khalili, Time in the Shadows: Confinement in Counterinsurgencies (Stanford: Stanford University Press, 2012), 136.
12. Manfred Nowak, ‘Statement of the Special Rapporteur on Torture, Manfred Nowak to the 61st Session of the U.N. Commission on Human Rights’, 4 April 2005.
13. In addition to speaking directly to our understanding of the black site programme, this argument also adds to recent literature that supports the idea that the war on terror had far less effect on the international human rights system than initial commentators believed, see Vincent Charles Keating, ‘Contesting the International Illegitimacy of Torture: The Bush Administration's Failure to Legitimate Its Preferences within International Society’, British Journal of Politics and International Relations 16, no. 1 (2014): 1–27; Jack Donnelly, ‘International Human Rights since 9/11: More Continuity Than Change’, in Human Rights in the 21st Century: Continuity and Change since 9/11, ed. Michael Goodheart and Anja Mihr (Basingstoke: Palgrave Macmillan, 2011), 13–29.
14. The examination of the process of human rights violations has been taken up with other elements on the war on terror, see Vincent Charles Keating, US Human Rights Conduct and International Legitimacy: The Constrained Hegemony of George W. Bush (New York: Palgrave Macmillan, 2014); Andrea Birdsall, ‘“A Monstrous Failure of Justice”? Guantanamo Bay and National Security Challenges to Fundamental Human Rights’, International Politics 47, no. 6 (2010): 680–97.
15. Note that the understanding of causal here is taken from the critical realist literature, which understands causation as the particular powers of ontologically real ideational forces, see Milja Kurki, Causation in International Relations: Reclaiming Causal Analysis (Cambridge: Cambridge University Press, 2008), 168–73, 78–87.
16. See particularly Ruth Blakeley, ‘Human Rights, State Wrongs, and Social Change: The Theory and Practice of Emancipation’, Review of International Studies 39, no. 3 (2012): 599–619, for an analysis of the importance of human rights activists in curtailing the US abuse of human rights in the War on Terror.
17. Senate Select Committee on Intelligence, Committee Study, 14.
18. Eric Leser, ‘Les Etats-Unis Voudraient Transférer Plus De La Moitié Des Détenus’, Le Monde, 13 March 2005; Nick Wadhams, ‘Ethiopia's Jails Are Nice, Say Al-Qa’eda Suspects’, The Daily Telegraph, 12 April 2007, 20.
19. Neil Mackay, ‘Barbaric Practices Carried Out in the Name of Democracy’, The Sunday Herald, 18 December 2005, 25.
20. Richard Norton-Taylor, ‘British Airports Handle 73 CIA Flights’, The Guardian, 18 March 2006, 5.
21. Paola Toraro, ‘Secret Service in Court's Firing Line’, The Age, 23 August 2008, 17.
22. Ruth Blakeley and Sam Raphael, ‘“Nor Can We Be Seen to Condone It”: Analysing British Involvement in Prisoner Abuse in the War on Terror’ (paper presented at the 9th Pan-European Conference on International Relations, Giardini Naxos, Italy, 22–26 September 2015), 9–13.
23. Souad Mekhennet, ‘German Spy Agency Admits Mishandling Abduction Case’, The New York Times, 2 June 2006, A8.
24. Human Rights Watch, ‘“No Questions Asked”: Intelligence Cooperation with Countries That Torture’, https://www.hrw.org/report/2010/06/29/no-questions-asked/intelligence-cooperation-countries-torture (accessed 6 October 2015).
25. Dana Priest, ‘Italy Knew About Plan to Grab Suspect’, The Washington Post, 30 June 2005, A01.
26. Clarke, Rendition to Torture, 162–3.
27. ‘EU Has Always Known About Rendition of Suspects, Powell Reveals’, Canberra Times, 20 December 2005, A9.
28. Jason Lewis, ‘Revealed: The Proof that Britain Knew about Torture Flights’, Mail on Sunday, 1 January 2006, 39.
29. Raphael et al., ‘Tracking Rendition Aircraft’, 79.
30. Tim Harper, ‘“Ghost Flights” Approved by Ottawa, Author Says’, The Toronto Star, 16 January 2006, A04.
31. Natalie O’Brien, ‘Spy Says US at Habib Grilling’, The Australian, 4 December 2007, 2.
32. Natalie O’Brien, ‘Keelty Admits Egypt Talks on Habib’, The Australian, 9 February 2008, 4.
33. Natalie O’Brien, ‘US Spoke to ASIO on Habib Rendition’, Weekend Australian, 28 June 2008, 3.
34. Raphael et al., ‘Tracking Rendition Aircraft’, 81.
35. Dana Priest and Barton Gellman, ‘U.S. Decries Abuse but Defends Interrogations’, The Washington Post, 26 December 2002, A01.
36. Ibid.
37. Dana Priest, ‘CIA Holds Terror Suspect in Secret Prisons’, The Washington Post, 2 November 2005.
38. Douglas Jehl, ‘Report Warned C.I.A. On Tactics in Interrogation’, The New York Times, 9 November 2005, A1.
39. There is some suggestion that they might have known directly. For instance, the British Secret Intelligence Service testified that they were ‘gradually aware’ of the programme over time: Intelligence and Security Committee, Rendition (Norwich, 2007), 19–20.
40. ‘Meet the Press’, NBC, 16 September 2001.
41. ‘Live Event’, Fox News Network, 25 October 2001.
42. Jason Burke, ‘The Secret War: Behind the Lines’, The Observer, 4 November 2001, 16; Walter Pincus, ‘Silence of 4 Terror Probe Suspects Poses Dilemma for FBI’, The Washington Post, 22 October 2001, A06.
43. Stephen Glover, ‘Even the SS Were Treated Better Than This’, Daily Mail, 15 January 2002, 13.
44. ‘Glance: U.S. Tactics Draw Fine Line’, Associated Press Online, 28 April 2002; ‘US Considered Allowing Zubaydah to Be Tortured for Information’, The White House Bulletin, 8 April 2002; ‘A Clear and Present Danger; Al-Qaeda’, Economist.com, 17 September 2002; Mark Forbes and Marian Wilkinson, ‘Voices from the Shadows Predict Horrors to Come’, The Age, 19 October 2002, 7; Doug Saunders, ‘U.S. Walks a Fine Line to Make Prisoners Talk’, The Globe and Mail, 17 September 2002, A9.
45. Priest and Gellman, U.S. Decries Abuse.
46. Jane Mayer, ‘The Black Sites’, The New Yorker, 13 August 2007.
47. David P. Forsythe, ‘United States Policy toward Enemy Detainees in the “War on Terrorism”’, Human Rights Quarterly 28, no. 2 (2006): 483.
48. European Court of Human Rights, ‘Secret Rendition and Detention by the CIA in Poland of Two Men Suspected of Terrorist Acts’ (2014).
49. United Nations, ‘The Universal Declaration of Human Rights’ (1948): Article 5 (emphasis mine).
50. United Nations, ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (1984). The reason for torture being jus cogens has been explored recently by scholars who argue that this level of prohibition arises from the liberal abhorrence to intentional suffering, see Kamila Stullerova, ‘Rethinking Human Rights’, International Politics 50, no. 5 (2013): 686–705; David Luban, ‘Liberalism, Torture, and the Ticking Bomb’, Virginia Law Review 91, no. 6 (2005): 1425–61.
51. Erika de Wet, ‘The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law’, European Journal of International Law 15, no. 1 (2004): 97–121, 98–9; Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’, The European Journal of International Law 19, no. 3 (2008): 496.
52. Michael J. Gilligan and Nathaniel H. Nesbitt, ‘Do Norms Reduce Torture?’, Journal of Legal Studies 38, no. 2 (2009): 445–70; Oona A. Hathaway, ‘Why Do Countries Commit to Human Rights Treaties?’, The Journal of Conflict Resolution 51, no. 4 (2007): 588–621; Oona A Hathaway, ‘Do Human Rights Treaties Make a Difference?’, The Yale Law Journal 111, no. 8 (2002): 1935–2042.
53. Eugene Robinson, ‘The U.S. Met Evil with Evil’, The Washington Post, 12 December 2014, A27.
54. Rosemary Foot, ‘Torture: The Struggle over a Peremptory Norm in a Counter-Terrorist Era’, International Relations 20, no. 2 (2006): 132.
55. Ibid., 140.
56. Though this scholarship is bountiful, some of the more important works are Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds, The Persistent Power of Human Rights: From Commitment to Compliance (Cambridge: Cambridge University Press, 2013); Thomas Risse and Kathryn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’, in The Power of Human Rights: International Norms and Domestic Change, ed. Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink (Cambridge: Cambridge University Press, 1999), 1–10; Finnemore and Sikkink, ‘International Norm Dynamics and Political Change’, 898; Friedrich V. Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989).
57. Ted Hopf, ‘The Logic of Habit in International Relations’, European Journal of International Relations 16, no. 4 (2010): 593–61; Risse and Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices’; Finnemore and Sikkink, ‘International Norm Dynamics and Political Change’.
58. Christopher Kultz, ‘How Norms Die: Torture and Assassination in American Security Policy’, Ethics and International Affairs 28, no. 4 (2014): 428.
59. Ibid., 429. This difference between actors who have internalised the norm and those who respond to its existence echoes Jeffrey Checkel's argument that norms both constrain and constitute the interests of actors, see Jeffrey T. Checkel, ‘International Norms and Domestic Politics: Bridging the Rationalist-Constructivist Divide’, European Journal of International Relations 3, no. 4 (1997): 473–95.
60. Reflecting the often-cited difference between logics of consequences and logics of appropriateness, see James G. March and Johan P. Olsen, ‘The Institutional Dynamics of International Political Orders’, International Organization 52, no. 4 (1998): 943–69.
61. This affects even the most powerful of states. As Jason Ralph noted in his review of The Torture Papers, the 1000 pages of legal argument demonstrate that even if the Bush administration preferred not to see itself as bound by international law, it certainly did not ‘ignore’ it and was therefore aware of its potential consequences. Jason Ralph, ‘America's “War on Terror”: Making Sense of the “Troubling Confusion”’, The International Journal of Human Rights 10, no. 2 (2006): 182.
62. Ayşe Zarakol, ‘What Made the Modern World Hang Together: Socialisation or Stigmatisation?’, International Theory 6, no. 2 (2014): 311–32.
63. Note that both and and or are possibilities since there are two separate effects in play: (1) being partially convinced that it is the wrong thing to do and (2) the belief that negative political consequences will arise from breaking the norm. Unfortunately demarcating the causal effects of each is impossible given the data at hand, so these two effects are grouped into one category because of their similar outcomes.
64. This analysis of conduct over time is similar to previous discursive analyses of the overall anti-torture norm in the war on terror, see Keating, ‘Contesting the International Illegitimacy of Torture’.
65. Ian Hurd, ‘Breaking and Making Norms: American Revisionism and Crises of Legitimacy’, International Politics 44, no. 2–3 (2007): 210.
66. Regina Heller, Martin Kahl, and Daniela Pisoiu, ‘The “Dark” Side of Normative Argumentation – The Case of Counterterrorism Policy’, Global Constitutionalism 1, no. 2 (2012): 278–312; Diana Panke and Ulrich Petersohn, ‘Why International Norms Disappear Sometimes’, European Journal of International Relations 18, no. 4 (2011): 719–42; Ryder McKeown, ‘Norm Regress: US Interventionism and the Slow Death of the Torture Norm’, International Relations 23, no. 1 (2009): 5–25. It is not a foregone conclusion that the international anti-torture norm resisted a norm cascade as we can clearly see this has occurred in US domestic politics. Despite the revelations of the 2014 Senate report studied in this article and its conclusion that definitively argued against torture, one Washington Post-ABC News poll found that 58% of Americans believe that torture is often or sometimes justified, and 59% supported the methods used by the CIA with 53% believing that it produced information that could not be gained any other way: Adam Goldman and Peyton Craighill, ‘A Majority of Americans Support Harsh CIA Methods, Poll Finds’, The Washington Post, 17 December 2014, A02.
67. For a general discussion of the strategies used by cooperating states to avoid culpability in the rendition programme, see Keating, US Human Rights Conduct and International Legitimacy, 109–34.
68. Blakeley and Raphael, ‘Nor Can We Be Seen to Condone It’, 1.
69. Richard Norton-Taylor, ‘Torture Flights: What No 10 Knew and Tried to Cover Up’, The Guardian, 9 January 2006.
70. Intelligence and Security Committee, Rendition, 51–2.
71. Blakeley and Raphael, ‘Nor Can We Be Seen to Condone It’, 7.
72. Ibid., 8.
73. Rumyana Grozdanova, ‘The United Kingdom and Diplomatic Assurances: A Minimalist Approach Towards the Anti-Torture Norm’, International Criminal Law Review 15, no. 3 (2015): 517–43.
74. Importantly, there is little dispute over the nature of the interstate cooperation, unlike many other elements that were strenuously objected to in the minority Senate reports, see Senate Select Committee on Intelligence, ‘Minority Views of Vice Chairman Chambiss Joined by Senators Burr, Risch, Coats, Rubio, and Coburn’, 20 June 2014; Senate Select Committee on Intelligence, ‘Additional Minority Views of Senator Coburn, Vice Chairman Chambliss, Senators Burr, Risch, Coats, and Rubio’, 2014; Senate Select Committee on Intelligence, ‘Senators Risch, Coats, & Rubio Additional Views’, 2014.
75. Senate Select Committee on Intelligence, Committee Study, 139.
76. Ibid., 16.
77. Although there is no official confirmation of the locations of each of the colour-coded detention sites, extensive research suggests that Detention Site Green was located in Thailand, Detention Site Blue at Stare Kiejkuty Base in Poland, Detention Site Violet was located in Lithuania, Detention Site Black was located in Romania, Detention Site Cobalt was likely the Salt Pit in Afghanistan, and Detention Site Brown was likely also in Afghanistan, see Raphael et al., ‘Tracking Rendition Aircraft’, 91–92; Amnesty International, ‘Annual Report’ (2015), https://www.amnesty.org/en/countries/europe-and-central-asia/lithuania/report-lithuania/; Toby Harden, ‘Brutality by the CIA’, The Sunday Times, 14 December 2014; Wassana Nanuam, ‘Prayut Dodges New Torture Questions’, The Bangkok Post, 18 December 2014; Monika Rebala and Sara Miller Llana, ‘CIA Torture: How Much Did Poland Know, and When Did It Know It?’, The Christian Science Monitor, 10 December 2014; Noa Yachot, ‘A Train Wreck Waiting to Happen’, American Civil Liberties Union, https://www.aclu.org/blog/human-rights-national-security/train-wreck-waiting-happen-shocking-stories-senates-torture-repo (accessed 31 December 2014).
78. Senate Select Committee on Intelligence, Committee Study, 23–4.
79. Ibid., 97. Similarly, in another section of the report a CIA Station is asked to ‘think big’ and create a ‘wish list’ about how CIA Headquarters could support elements of a hosting country. These subsidy payments eventually totalled in the tens of millions of dollars, some of which was delivered in boxes of 100 dollar bills, see Ibid., 140.
80. Ibid., 97.
81. Ibid., 99.
82. Ibid.
83. Ibid., 140, footnote 842.
84. Ibid., 74.
85. Ibid., 23–4.
86. Ibid., 120.
87. Ibid., 97.
88. Ibid.
89. Ibid., 74.
90. J. Cofer Black. ‘Approval to Establish a Detention Facility for Terrorists’, 25 October 2001.
91. Senate Select Committee on Intelligence, Committee Study, 22 (insertions mine).
92. Ibid., 24.
93. Ibid. Interestingly, problems caused by the mistreatment of prisoners proved to be significant in the opposite direction as well. This was confirmed in a 2004 incident when tensions arose between a host state and the CIA because some of the CIA detainees in a host state facility claimed that they could hear cries of pain coming from other detainees. A likely government official stated that the bilateral relationship was being tested by these claims which, according to the report, led the state to request the CIA to remove all CIA detainees from the country. When the CIA approached elements within the host state later in the year about the mistreatment of detainees within the facility, the state officials saw the CIA as ‘querulous and unappreciative recipients of their [REDACTED] cooperation’. This led to the degradation in overall intelligence cooperation between the two states, and eventually the CIA detainees were transferred out of the state in 2005. Ibid., 141–2.
94. Ibid., 150.
95. Ibid., 151.
96. Greg Miller and Adam Goldman, ‘Report Charts CIA Prisons’ Rise, Fall’, The Washington Post, 12 December 2014, A01.
97. Senate Select Committee on Intelligence, Committee Study, 152.
98. Ibid.
99. Ibid., 153.
100. Ibid.
101. Ibid., 74–5.
102. Ibid., 153.
103. Ibid.
104. Ibid., 154.
105. Ibid., 155.
106. Ibid., 156.
107. Ibid., 154.
108. Ibid., 154–5.