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A glimpse into the counter-terrorism vs human rights conundrum

In the light of recent terrorist attacks in Europe, the controversy about how to strike the appropriate balance between “the fight against terrorism” and the upholding of human rights, might well return to the forefront of attention. The European Union and its Member States are the United States’ closest allies, and the cooperation extends well beyond the traditional NATO framework, deep into counter-terrorism, both on a bilateral and multilateral basis. At the same time, Europe has been resolutely and consistently skeptical as to the course of action taken by the USA in the aftermath of 9/11.Knowing that opinion polls worldwide show that in countries with higher exposure to terrorism the public is, quite predictably, more inclined to accept extreme, or at least doubtful, measures, it remains to be seen whether and/or how the increased sense of threat in Europe will affect their approach towards the already delicate balancing act between counter-terrorism and human rights.

As it is well-known, at the heart of the counter-terrorism versus human rights (HR) dilemma lies the simple observation that in the context of the “fight against terrorism” HR principles find themselves inevitably under stress. Some argue that in the face of this amorphous, but nonetheless very present danger, the rules of the game have changed. The chairman of the Senate Intelligence Committee presenting the highly critical “torture report” in December 2014,[1] Dianne Feinstein herself had stated back in 2002 that there would no longer be “business as usual”, since the threat is “so profound” “that we have to do some things that historically we have not wanted to do in order to protect ourselves”.[2]

Others assert that rather than being a luxury, the upholding of human rights, including in the severest circumstances, is an overriding necessity. This controversy is most intense when it comes to the so-called “hard measures”, such as drone attacks, illegal detention and torture. For some, these are only temporary infringements on HR principles, and thanks to them the overwhelming majority of the population is kept safe – and this is what matters at the end of the day. Others claim that rather than being temporary and targeted, the calling into question of HR considerations is in the process of developing into a system, in other words it is about to become the new norm.

Without retracing the recent, post-9/11 history of HR-sensitive counter-terrorism developments, it is worth recalling that in the aftermath of September 11, 2001, the United States’ self-proclaimed “war on terror” initiated a new, vastly, and overtly, extended approach to counter-terrorism. The starting point was the famous “One percent doctrine” attributed to then Vice President Cheney, in other words the conviction that if there is a 1% chance of harmful intention, we have to treat it as a certainty in terms of our response. As for the nature of this response, the same Cheney did bluntly declare that “we also have to work sort of the dark side, it is going to be vital for us to use any means at our disposal”.[3] It was later brought to light that this latter term encompasses, beyond the notorious issue of pervasive surveillance, all the measures related to the so-called preventive incapacitation, be it in the form of targeted killings by drones, or through forced disappearance, secret transfer, illegal detention and enhanced interrogation.

This particular bunch of “hard measures”, i.e. the extra-judicial abduction of terrorist suspects and their transfer on secret planes to undisclosed locations for the purposes of enhanced interrogation is what President George W. Bush once euphemistically called an “alternative set of procedures” and what has become known worldwide as the US practice of extraordinary rendition.

Three brief remarks are to be made in advance, to dispel the most common, and often deliberately entertained, misperceptions with regards to this programme. First: it would be all too easy to blame the sole USA when in reality this extra-judicial system profited from widespread complicity all over the world. Although the practice of extraordinary rendition as we know it was conceived, created and run by the United States, for it to work it needed the active or passive participation of other countries (to fly through their airspace and refuel at their airports; to host CIA black sites; or to carry the enhanced interrogations on behalf of America).  To this day, as many as 54 countries are documented to have been involved in the extraordinary rendition programme.

Second: despite some partial developments, the practice is far from being closed. President Obama’s 2009 Executive order[4] left several crucial issues largely vague, and some significant questions blatantly open. For instance, there still remains uncertainties as to the legality of specific techniques (qualified or not as torture),[5] as to the CIA’s right to operate extra-judicial detentions facilities (closed but might be open temporarily), as well as to the reliability of HR assurances from third parties (before transferring suspects, the US will continue to rely on non-binding, although supposedly “reinforced” assurances with regard to future treatment). In sum, the system of extraordinary renditions, created as such by then-President Bill Clinton, stays in place, with new restrictions that are designed to be sufficiently flexible to allow maximum room for manoeuvre, if it is deemed necessary.

Third: the debate around the Senate’s report on torture was, in fact, overwhelmingly centered on the issue of efficiency. Instead of a principled refusal of torture, both critics and defenders of "hard measures" in the US debate focused on whether they worked or not. An approach that leaves ground for skepticism with regards to the future. Especially considering that other forms of highly dubious methods, such as drone strikes under extremely permissive rules of engagement, are not only ongoing but have been increasing almost exponentially over the last couple of years.[6]

Finally, when it comes to questions of future and of efficiency, one cannot avoid interrogations about the long-term consequences of US counter-terrorism policies. Interrogations that are particularly well-reflected in a reported dialogue between EU leaders and former Secretary of State Condoleezza Rice. At the end of a closed-door meeting in September 2006, the Finnish foreign minister representing the EU wanted to strike a very diplomatic note by suggesting that, since extraordinary rendition and CIA black sites were at that moment on the front pages of the press, everybody sticks to the same script saying that the issue has not been discussed. However, Secretary Rice preferred to seize the opportunity to admonish her interlocutors, telling them that “All countries must keep up the fight against terrorism”.  The Finnish diplomat could not leave such a blatant misrepresentation unanswered: “We all agree on the need to fight terrorism but we should do so in a way that does not create more terrorism in the future”. Condoleezza Rice shot back, furious: “Let's deal with those who are trying to kill us now and leave the future for some other time”. To which the European diplomat replied without delay: “The future is with us today”. [7] 

[1] Senate Intelligence Committee Study on CIA Detention and Interrogation Program, published on 9 December 2014.
[2] Jose A. Rodriguez, Today’s CIA critics once urged the agency to do anything to fight al-Qaeda, The Washington Post, 5 December 2014.
[3] Interview with Vice President Cheney conducted by Tim Russert, host of NBC's 'Meet the Press.', 16 September 2001.
[4] Executive Order 13491 -- Ensuring Lawful Interrogations, The White House, 22 January 2009.
[5] Jeffrey Kaye, Contrary to Obama's promises, the US military still permits torture, The Guardian, 25 January 2014.
[6] Micah Zenko, Obama’s Embrace of Drone Strikes Will Be a Lasting Legacy, The New York Times, 12 January 2016.
[7] U.S., EU spar in private on terrorism, Reuters, 25 September 2006.



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