The Shape of Modern Torture: Extraordinary Rendition and Ghost Detainees

Abstract:     
My goal in this essay is to combine two ways of thinking about torture and related forms of coercive treatment and interrogation. The first way is a legal analysis of some of the issues surrounding torture, with particular reference to the practice of extraordinary rendition (the use of force rather than legal process to take suspected "terrorists" from one country to another for purposes of detention and interrogation) and the existence of so-called "ghost detainees" (people who are secretly held and interrogated by the U.S or its allies in undisclosed locations and who are outside the protections of domestic or international law in any practical sense). Although some of my arguments and conclusions on these issues may be surprising or at least debatable, they will be set largely within a familiar context of legal argument and analysis.

The second is an effort to think more conceptually or theoretically, albeit sketchily, about what torture is and how it operates within and as a part of modern societies. By "modern," I mean simply societies governed as centralized, often democratic nation states and the social and psychological dynamics associated with them - such things as "bureaucracies and corporations, the nuclear family with its bourgeois mores, human and social sciences and the institutions that support them." Although we often think of these things positively, as reflecting the progress of enlightenment values, the experience of modernity also generates concerns about the ways in which these structures can "ingrain destructive patterns of thinking and acting" that result in a level of dehumanization or subjection of people that is different in degree and kind from what is arguably inherent in the relationship between individual and society.

My point in undertaking this second type of analysis is to get a broader perspective on the reasons that torture and its close equivalents are practiced by countries such as the U.S., and at the ways in which they are practiced - including the ways in which law makes room for these practices. As I hope will become clear in this essay, one of the most important aspects of modern torture is the creation of doubt as to whether torture has happened at all. Extraordinary rendition and the creation of ghost detainees serve this function well.

Keywords: criminal law, jurisprudence, constitutional law

JEL Classifications: K10, K14, K33, K42

Accepted Paper Series