The Corner/NRO, Feb 02, 2009
Buried in that LAT article on rendition Jonah linked below is a flip-flop from Human Rights Watch that would impress even the East German judge. Here's Human Rights Watch in April of last year:
The US government should:
·Repudiate the use of rendition to torture as a counterterrorism tactic and permanently discontinue the CIA's rendition program;
·Disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001, including detainees who were rendered to Jordan;
·Repudiate the use of "diplomatic assurances" against torture and ill-treatment as a justification for the transfer of a suspect to a place where he or she is at risk of such abuse;
·Make public any audio recordings or videotapes that the CIA possesses of interrogations of detainees rendered by the CIA to foreign custody;
·Provide appropriate compensation to all persons arbitrarily detained by the CIA or rendered to foreign custody.
Now here's Human Rights Watch in the era of Hope and ChangeTM:
"Under limited circumstances, there is a legitimate place" for renditions,
said Tom Malinowski, the Washington advocacy director for Human Rights Watch.
"What I heard loud and clear from the president's order was that they want to
design a system that doesn't result in people being sent to foreign dungeons to
be tortured — but that designing that system is going to take some time."
Posts
Obama's Moralizing Tone May Not Wear Well. By Dorothy Rabinowitz
ReplyDeleteHow often do Americans want to hear how misguided they were before his arrival?
WSJ, Feb 02, 2009
http://online.wsj.com/article/SB123353286292837497.html
Two days into his presidency, Barack Obama delivered on his most celebrated and ardently pledged campaign promise -- the imposition of stringent limitations on the ways in which U.S. agents can question terror suspects, an executive order mandating the closure of the Guantanamo Bay detention facility, and the freezing of all detainee prosecutions.
That last request brought an eloquent reply from Col. James Pohl, Guantanamo's chief military judge, who promptly said no. He declared the directive to freeze all trials "not reasonable" -- a description that could as well apply to the whole of the administration's program for our moral cleansing and reformation in intelligence gathering. Col. Pohl refused, specifically, to delay the Feb. 9 arraignment of Abd al-Rahim al-Nashiri -- accused Saudi master-planner of the USS Cole bombing that killed 17 American sailors and a cause célèbre for the American Civil Liberties Union. In its characteristically nuanced style, the ACLU declared, through executive director Anthony Romero, that the judge's ruling was the work of "Bush hangers-on in the Defense Department."
Mr. Obama, of course, isn't likely to be deterred by an insurrection from a military court judge. His view of America's new position in the world -- following the announcement of those orders -- was amply clear, its tone familiar. America had entered upon a new day -- we once were lost and now we're found, a people restored to the paths of principle and honor. Hillary Clinton, speaking as secretary of state, would a few days later add her voice to the general thanksgiving for our rebirth, declaring, "There is a great exhalation of breath going on in the world."
To hear Mr. Obama speak now on matters like the national defense is to recognize that the leader now in the White House is in every respect the person he seemed on the campaign trail: a man of immense moral certitude, prone to an abstract idealism, and pronouncements that range between the rational and the otherworldly.
That's not counting the occasional touches of pure rubbish. Having, on the second day of his presidency, issued executive orders effectively undermining efforts to extract (from captured al Qaeda operatives) intelligence essential to the prevention of terror attacks -- and in addition seriously hampering the prosecution of terrorist detainees -- Mr. Obama argued that it was just by such steps that we strengthened our security. In his own words: "It is precisely our ideals that give us the strength and the moral high ground to be able to effectively deal with the unthinking violence that we see emanating from terrorist organizations around the world."
What can this mean? What moral high ground, exactly, would have enabled us to deter the designs of the religious fanatics in search of martyrdom and the slaughter of as many Americans as possible on September 11?
So much had happened in Washington that week -- so much speechifying and celebration -- it was easy to tune out that pronouncement, particularly since we'd heard its like so often during Mr. Obama's presidential run. It was of a piece with those assertions, emphasized the length of his campaign, that it was not our strength in arms but our principles that had made us a great nation.
During his grim inaugural address -- never has the promise of a nation's rebirth sounded so cheerless -- he was similarly emphatic as he touched on the issue of our defense, proclaiming that "we will not give up our ideals for expediency's sake." It was a line that evoked a loud upsurge of applause from his audience.
They had heard in it again, Mr. Obama's most dramatic and familiar campaign charge, delivered now in shorthand that needed no spelling out: The day of the Bush administration's machinations against our sacred ideals, against democracy itself, all in the name of our security, was now over. In this new day of our national salvation, then -- in a post 9/11 America that had seen 3,000 of its inhabitants murdered by terrorists -- it was now acceptable to characterize strenuous efforts to avert more such catastrophes as "expediency." It was not only acceptable, but proof of a higher moral intelligence.
The generation of Americans who had faced down fascism and communism understood, Mr. Obama further explained on Inauguration Day, that power alone could not protect us. They understood that our security came not just from missiles and tanks but from "sturdy alliances" and "enduring convictions" -- it emanated from "the tempering quality of humility and restraint."
It's impossible to know what kind of history Mr. Obama has been reading but this much at least is true -- the generation he describes knew the importance of sturdy alliances all right. There was that one, for instance, between the American leader, Franklin Roosevelt, and the British, Winston Churchill. Both of them, along with their countrymen, were driven by one enduring conviction -- that fascism should be eradicated from the face of the earth and a total war of destruction waged on Imperial Japan and Nazi Germany until their surrender. It would be hard to find, in their pursuit of that purpose, any hint of that tempering quality of humility and restraint. Not that it isn't entertaining to imagine Roosevelt extending the hand of friendship and conciliation to Hirohito, or Churchill proposing to raise a glass and talk things over with Hitler.
It's been tempting to ascribe Mr. Obama's orders on terrorist detentions, interrogations and Guantanamo to his campaign promises. Not to mention the pressure of that political constituency whose chief enterprise has been these many years to portray the war on terror as an illicit enterprise, conducted by agents of government bent on robbing innocent Americans of their constitutional rights and instilling baseless fears -- and that has succeeded, with the invaluable aid of a like-minded quarter of the media, in presenting a picture of Guantanamo as a hell on earth akin to Auschwitz.
Mr. Obama, who has always been much better than his vocal supporters on the far left, better than the cadres in MoveOn.Org, is no extremist. Still, there is no reason to think that his views on security issues and Guantanamo and interrogations, his tendency to minimize the central importance of armed might, are not deeply rooted. They are clearly core beliefs.
And that, along with those trumpeting declarations to the world that new leadership had now come to the United States, that we were now a nation worthy of the world's trust -- those speeches suggesting that after years of darkness America had now been rescued, just barely, from the abyss -- will be in the end this president's Achilles' heel. Those are not, Mr. Obama may discover, tones that wear well in the course of a presidency.
Ms. Rabinowitz is a member of The Wall Street Journal's editorial board.
The LA Times On Rendition. Political Animal/The Washington Monthly, Feb 01, 2009
ReplyDeletehttp://www.washingtonmonthly.com/archives/individual/2009_02/016703.php
The LA Times has an article today called "Obama preserves renditions as counter-terrorism tool":
"The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.
But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.
Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.
Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street. (...)
"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."(...)
The decision to preserve the program did not draw major protests, even among human rights groups. Leaders of such organizations attribute that to a sense that nations need certain tools to combat terrorism.
"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."
Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said."
If the LA Times is right to claim that the Obama administration has left open the possibility of extraordinary renditions, that would be a huge problem. However, I don't think it is. Here it helps to have spent some time reading the actual orders. The order called "Ensuring Lawful Interrogations" contains the following passage:
"Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties."
Part 1, Article 3 of the Convention Against Torture states:
"1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."
Obama orders people to comply with the Convention Against Torture, and that Convention states that we cannot return people to states where there are substantial grounds to believe that they will be tortured. And nothing the Obama administration has done to date suggests to me that they would engage in the kinds of creative reading of legal documents that would allow them, say, to disregard Egypt's long record of torture in making this determination.
Moreover, Obama's Executive Order also establishes a commission one of whose goals is:
"to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control."
So in addition to announcing that the administration will obey the Convention Against Torture, the administration will also study not whether to send detainees off to be tortured, but how to ensure that our policies are not intended to result in their torture, and will not result in their torture. This seems to me like a very clear renunciation of the policy of sending people to third countries to be tortured. His executive order also precludes any kind of secret detention of prisoners, and thus "secret abductions and transfers of prisoners":
"All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies."
Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else.
So what accounts for the LA Times' story? The Times cites "Current and former U.S. intelligence officials" in support of its thesis. I don't take the statements of former administration officials as evidence of anything in this regard, since they would not be privy to the Obama administration's thinking. Moreover, there have been a whole lot of "former administration officials" wandering around saying that once Obama got into office and saw how tough things really were, he would be forced to adopt their policies, only to discover that -- surprise, surprise! -- he doesn't. I don't see much reason to take their opinions as probative this time.
Obama officials, of course, are a different story: they would know, and they have no vested interest in believing that the previous administration's policies are somehow inevitable. The Times quotes only one official, who says: "The legal advisors working on this looked at rendition. (...) if done within certain parameters, it is an acceptable practice." It's important, here, to note that extraordinary rendition is not the same as rendition proper. Rendition is just moving people from one jurisdiction (in the cases at hand, one country) to another; includes all sorts of perfectly normal things, like extradition, which are not problematic legally. Extraordinary rendition is rendition outside these established legal processes: e.g., kidnapping someone abroad so that s/he can be brought to the US to stand trial, or delivering someone to another country to be tortured.
The author of the Times article, however, defines "rendition" as "secret abductions and transfers of prisoners to countries that cooperate with the United States." It's not clear whether he knows that rendition includes perfectly normal things like extradition. It's also not clear that he knows that extraordinary rendition includes not just cases in which we transfer a detainee to another country, but cases in which we capture someone abroad and take them to this country to be tried.
What is clear, however, is that Obama's executive order prohibits sending people off to other countries where there are substantial grounds to think that they will be tortured, and commits his administration not just to hoping that this will not happen, but to trying to figure out how to keep it from happening. I will continue to watch what the Obama administration does. If they backtrack on their commitment not to engage in extraordinary rendition, I will call them on it. But I don't think that this article provides evidence that they will.