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Avoiding Transfers to Torture

Author: , International Affairs Fellow, 2007-2008

Avoiding Transfers to Torture - avoiding-transfers-to-torture
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Publisher Council on Foreign Relations Press

Release Date June 2008

56 pages
ISBN 978-0-87609-417-4
Council Special Report No. 35


A number of U.S. counterterrorism practices have generated significant controversy in recent years.

One area in which the United States faces particular criticism is the treatment of terrorist suspects, both those it holds itself and those it sends to other countries. While this criticism generally does not directly constrain U.S. practices, its effects should not be dismissed. In the struggle to prevent terrorist attacks and, especially, to frustrate terrorist recruitment, the perceived legitimacy of U.S. actions can be as important as the actions themselves.

When the United States wishes to transfer a suspect to a country where it believes the likelihood of torture is high, it can seek diplomatic assurances of humane treatment from the receiving country. In Avoiding Transfers to Torture, Ashley S. Deeks analyzes the debate over U.S. use of assurances against torture. The report explains the contexts in which assurances are used, how assurances can be conveyed, and what they can contain. It then outlines the objections of critics, who argue that assurances are of little or no help in preventing mistreatment in that they come from unreliable states and compliance cannot be legally enforced or easily monitored, especially since the United States often keeps the assurances secret.

The report argues that despite problems associated with their use, assurances are an important tool for dealing with dangerous suspects. Prosecution is often impossible, and the alternatives—holding suspects indefinitely, releasing them in the United States, or sending them to other countries with no assurances—are often unpalatable or unacceptable. Deeks therefore recommends a number of ways to respond to criticism so that the United States can continue using assurances. In addition, she proposes working with U.S. allies (who also use them) to increase corrections assistance to countries that receive suspects, something that could over time diminish the incidence of mistreatment and thus the need for assurances.

Avoiding Transfers to Torture is an intellectually rigorous and honest assessment of both the utility of assurances and their shortcomings. It illustrates the age-old point that it is not enough to criticize; one must also propose solutions. Recognizing the stakes for U.S. security, the rights of terrorist suspects, and America’s reputation around the world, Deeks crafts a thoughtful report that is critical of some U.S. practices but equally demanding of potential reforms. The result is a genuine contribution on an important issue that is all too often debated as if there were easy options when in reality there are none.

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Ashley S. Deeks is an international affairs fellow at the Council on Foreign Relations. She is undertaking her fellowship tenure at the Center for Strategic and International Studies. Ms. Deeks is on leave from the Office of the Legal Adviser at the U.S. Department of State. She most recently worked on issues related to the law of armed conflict, including detention, the U.S. relationship with the International Committee of the Red Cross, conventional weapons, and the legal framework for the conflict with al-Qaeda. She also handled intelligence issues. In previous positions at the State Department, Ms. Deeks advised on international law enforcement, extradition, and diplomatic property questions. In the legal adviser’s office, she has helped negotiate treaties on anticorruption measures, extradition, counternarcotics operations, and the law of armed conflict. From May 2005 to December 2005, she served as the embassy legal adviser at the U.S. Embassy in Baghdad, during Iraq’s constitutional negotiations, constitutional referendum, and transition to the current government. She has written several articles on the Iraqi constitution and has served as an adjunct professor at Georgetown Law Center, where she taught classes on international organizations. Ms. Deeks received a BA in art history from Williams College and a JD from the University of Chicago Law School, where she served on the editorial board of the Law Review.

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