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February 1, 2009
By: Hilzoy

The LA Times On Rendition

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.

Hilzoy 3:54 PM Permalink | Trackbacks | Comments (32)

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Comments

What you say may well be true, but a lot of people are not going to look further than the headline. Despite all the abuse directed at the mainstream media, and the myriad cases in which it has messed up in spectaular fashion, some people still assume what they read in the news must be founded in truth. This is all the more so if they were predisposed to believe it in the first place, because it fit their overall impression.

The journalism profession has come a long way, to paraphrase Tom Petty, down a dirty road. Somewhere along the way, it discovered that most readers are too lazy to invest the most basic research into its claims, and that those who wanted to believe an allegation would not only do so, but would broadcast it for free.

Posted by: Mark on February 1, 2009 at 4:16 PM | PERMALINK

You are correct. Rendition itself is not necessarily an illegal action. It is one way to transfer ex pat prisoners to their own country or another that has a valid legal complaint against them. Nothing in Obama's order is any different than this requirement. Wingnut's are so eager to find an "Obama does it too" talking point they forget to read the actual order the LA times misconstrues. What Bush did was systematic Extraordinary Rendition of sending suspect prisoners to foreign governments for the sole purpose of extracting information via torture.

Posted by: Stuck on February 1, 2009 at 4:56 PM | PERMALINK

a small point:

I'm not under the impression that the main area of concern in the rendition debate is returning citizens of a country to that country when it is known to torture political prisoners - I would call that extradition and is mostly concerned with asylum. I thought the clamor of the bush regime criminality was more associated with stealing people from one country - say Afghanistan, Pakistan, or Iraq, and sending them to a different country believed to engage in torture - say Syria or Egypt for the purpose of extracting information.

Posted by: pluege on February 1, 2009 at 5:31 PM | PERMALINK

Sigh. I hope plenty of people read this. You'd think they'd be gun-shy about anything the press or most especially intelligence officials say Obama is going to do. Their interest in spreading lies is so exquisitely plain.

Unhappily, we have far more The Sky Is Falling brothers and sisters on our side than discerning readers.

Thanks for this.

Posted by: Roq on February 1, 2009 at 6:42 PM | PERMALINK

I have reasonable confidence that under an Obama administration official will make a good faith effort to ascertain that we aren't rendering people to jurisdictions that practice torture. This is a tougher standard, than not rendering people to countries with known mass abuse. I hope we have the integrity to make more than a cursory effort to determine the probability of abuse.

I heard nothing in this discussion, about the secondary problem. The secrecy involved in a lot of past cases. Where the abductee's family and embassy are not informed of his whereabouts -or even that we have him. I hope this is an omission of discussion, and not of policy.

Posted by: bigTom on February 1, 2009 at 7:15 PM | PERMALINK

Hi Hilzoy,

I got to the same place you did, although not quite so eloquently.

http://www.newshoggers.com/blog/2009/02/obamas-rendition-program-no-torture-included.html

Greg Miller has done some great reporting over the years on Bush's torture and surveillance programs. Maybe he just has difficulty changing horses.

Regards, Cernig

Posted by: Cernig on February 1, 2009 at 7:25 PM | PERMALINK

I can smell the hypocrisy among these pathetic posts. We are witnessing BUSH Lite. I think I'm going to lose my lunch. Hilzoy, look in the dictionary under intellectual dishonesty, you'll find your picture there. LOL.

Posted by: sistatolljahso on February 1, 2009 at 9:02 PM | PERMALINK

Intellectual dishonesty. Gee, that's a lot of syllables for a fifth-grader. Anything specific that's "hypocrisy", or do you just have a special nose for it in general? Maybe you could work for Homeland Security, like one of those drug-sniffing dogs.

Posted by: Mark on February 1, 2009 at 9:37 PM | PERMALINK

"That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."

-Vice President Albert Gore, 1993

[As quoted in "The Long War" by Benjamin Wittes]

Posted by: SGEW on February 1, 2009 at 9:37 PM | PERMALINK

I read somewhere else that this was not true:

Hilzoy at Obsidian Wings says that the article is mistaken and that the orders Obama signed actually prohibit rendition under existing law and speculates that this is more nonsense from the intelligence community (which would certainly be in keeping with their behavior since Obama was elected.)

Posted by: poopsybythebay on February 1, 2009 at 10:04 PM | PERMALINK

SistaT: No need to take my word for it; just read the executive order. I linked it in the post.

Posted by: hilzoy on February 1, 2009 at 10:22 PM | PERMALINK

The stench of hypocrisy is overwhelming.

Posted by: Antimedia on February 1, 2009 at 10:26 PM | PERMALINK

When I read the story in my Dallas News, I felt it was much to close to the things Bush did. I sent the White an email expressing disappointment that they would do anything like this. Even though I was wrong, maybe they should try to clarify the intent. Thanks for your article explaining the situation.

Posted by: w. e. bonham on February 1, 2009 at 10:41 PM | PERMALINK

Say, there's another one who can smell hypocrisy! Is it something in the water where you live, maybe? Well, while I have access to someone with this special talent, what's it smell like? I mean, is it gross like hangover poop, or nauseatingly sweet like cotton candy? Sharp, like dill pickles, or ambrosially smooth like Harvey's Bristol Cream?

Can you smell other expressions as well, like stupidity or indecisiveness? Oh, wait, I know!!!! Can you smell who's going to win the election in Israel? I thought I sort of smelled Bibi Netanyahu a little bit while I was on the bus, maybe my talent is developing!

Posted by: Mark on February 1, 2009 at 10:54 PM | PERMALINK

No need to take my word for it; just read the executive order. I linked it in the post

That would involve actual reading and thinking. Not the ingredients needed for building straw men, and likely beyond the typical pooh slinger's ability.

Posted by: Stuck on February 1, 2009 at 11:02 PM | PERMALINK

The LAT article seemed pretty straightforward to me. It mentioned the "not to countries that torture" exemption (which can be loopholed by presidential certification that a country doesn't torture). It also mentioned that short-term detention in black sites is still allowed, without saying who defines "short-term."

And, let's not forget all those "six-month commissions" that Obama used to kick the cans of permanent decisions down the road. This summer or early fall, renditions may be okey-dokey again.

So, I think Hilzoy is making a mountain out of a molehill as to some nuances of the LAT story perhaps not being quite 100 percent right, and that's all.

I'm cautiously optimistic on what Obama has done so far in this area, but am I going to overlook loopholes, unlike MSLBs might?

Nope.

Posted by: SocraticGadfly on February 1, 2009 at 11:37 PM | PERMALINK

I blogged about all the executive orders Jan. 23. There's a few other loopholes.

1. The Gitmo closure order assigns AG Holder to determine how to handle remaining detainees. In other words, Holder could determine to go ahead with military commissions.

2. A second task force will review the policy of extraordinary rendition and make a permanent policy recommendation.

3. That same task force will also determine whether or not Obama's temporary executive order requiring the CIA to follow the Army Field Manual should be made permanent - or not.

That's why I noted a week ago that folks like Michael Ratner from the Center for Constitutional Rights is still concerned.

Bonus point - from his days as Clinton chief of staff, what does CIA nominee Panetta know about rendition?

Anyway, the bottom line is that Obama's exec orders on these issues are temporary, not permanent, and that's part of why they have loopholes.

Sorry, Hilz.

Posted by: SocraticGadfly on February 1, 2009 at 11:48 PM | PERMALINK

Must have been the title that threw me and threw a big funny-bone for the wingnuts to chew on..

"Obama preserves renditions as counter-terrorism tool":

Pretty big loophole that makes it sound like Obama is planning on outsourcing torture like Bush. And what does MSLB stand for?

Posted by: Stuck on February 1, 2009 at 11:48 PM | PERMALINK

Re: Careful Reading
The LA Times article states, according to you:
"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."
Absolutely nothing in your analysis contradicts or undercuts this statement.
Your analysis discusses torture.
"Extraordinary renditions" need not involve one iota of torture.
"Extraordinary rendition" means, precisely, how a suspected individual is taken into custody and delivered to another's custody. That is, without the protracted formalities of extradition.
The term does not now and has not historically referred to how the suspect is treated after being handed over to the custody of another power.
Except in the case of sloppy journalistic buzzwords and shorthand.
Similarly, nothing in your analysis contradicts the assertion that a suspected person may be secretly abducted.
Indeed, I am not sure it is possible to abduct, or indeed to in any way apprehend, a suspect by doing so "publicly," whatever that might mean. By appointment?
Similarly, there is nothing inconsistent with effecting an "extraordinary rendition" and then requiring the suspected person to be accorded every imaginable punctilio of public judicial procedure.
All of the above is said with no implication of how such cases ought to be handled.
Just a request for a bit of care and precision.

Posted by: Donald Brosnan on February 2, 2009 at 4:20 AM | PERMALINK

Re: Careful Reading
postscript:
Many of the commenters seem to think that the word "extraordinary" in "extraordinary rendition" referred to the addition of torture.
This is an understandable error.
However, for decades "extraordinary renditions" were used (relatively rarely) and referred to by that phrase without there being any suspicion of torture.
Before the Bush administration added the highly controversial interrogation practices that the term has become (popularly, but sloppily) synonymous with, it was a pretty dry and technical idea without the dramatic and in many cases horrible overtones the phrase has taken on.
Again, in all of the above I am not suggesting how this difficult matter ought to be treated. Just pointing out that it is important to separate the administration's order, and the actual words of the LA Times article, from the cloud of overtones they have acquired.

Posted by: Donald Brosnan on February 2, 2009 at 4:33 AM | PERMALINK

The press really needs to stop reporting about things they don't understand or they need to take a few minutes to talk to people that do understand the issue so they can get their stories straight. Science and the law seem to be their real failing points.

Posted by: Jay on February 2, 2009 at 8:12 AM | PERMALINK
The press really needs to stop reporting about things they don't understand or they need to take a few minutes to talk to people that do understand the issue so they can get their stories straight.

The problem is the press understands very little about any of the substantive issues it covers—journalists aren't by and large experts, or even particularly well-educated laypeople, in anything save a particular approach to communication—and that on certain issues, most of the people who know anything and are easy to spend a few minutes talking to have vested interests that they are going to serve whenever they engage in a discussion. If you spent far more than a few minutes talking to each of a diverse array of different people who understood the issue, or did some actual boring research, you could learn more, but the journalism business is about truthiness to keep readers attached so ads can be sold, the work necessary to go beyond truthiness to truth is just a waste of resources from the point of view of media corporations. No matter what they say, there are few corporate media outlets that would rather be right than first, in fact, there are few that would rather be right than inflammatory even if being right didn't have a cost in resources and time.

Posted by: cmdicely on February 2, 2009 at 12:09 PM | PERMALINK

Responding to Donald Brosnan's point about "publicly" rendering someone -- the EO covers that by its reporting requirement to the ICRC. Of course the actual abduction would be planned and executed in secret and w/out warning. But timely reporting makes the act public, and attempts to prevent folks simply disappearing.

I agree that an "extraordinary" rendition need not by definition involve torture. I think Obama's EO does its best to safeguard against torture. But it is still nerve-wracking to know that Black Sites can operate 'short-term' without knowing what that really means. A lot of bad mojo can happen in a week, if we take a week as an possible definition of short-term.

I am familiar with Hilzoy's work and trust that she and others will be keeping an eye on this stuff.

Posted by: richrath on February 2, 2009 at 12:09 PM | PERMALINK

So long as people are not disappearing without a trace, the world can scrutinize the actions and determine if they violate any individual rights or international laws.

Specifying public disclosure helps me a bit, but secretly kidnapping people is getting into thorny territory. I would like to see Obama emphasize some oversight and the publicize the actions.

Posted by: klevenstein on February 2, 2009 at 12:44 PM | PERMALINK

By focusing on the question of what countries victims are sent to and whether or not they're tortured, you're missing the more important point: Nobody should be allowed to take people into custody on U.S. soil except the police pursuant to a lawful arrest. Period.

Posted by: Toast on February 2, 2009 at 12:53 PM | PERMALINK

Well done, Brosnan.

Posted by: SmokeVanThorn on February 2, 2009 at 9:22 PM | PERMALINK

Yes, let's assign only the most generous interpretation to Obama's intentions in those EOs.
Why doubt a man who is, as we speak, appointing utterly corrupt persons to the highest levels of his administration?
Quite defensibly too, "No one's perfect."

Posted by: GGLiddy on February 2, 2009 at 11:10 PM | PERMALINK

How can you make such a differentiation regarding rendition vs extraordinary rendition. All rendition is extrajuridicial. It doesn't include things like extradition. Where have you gotten your definition? I get mine from the Congressional Research Service report to Congress on rendition: http://www.fas.org/sgp/crs/natsec/RL32890.pdf

From the CRS report, "Rendition: Constraints Imposed by Laws on Torture" (Oct. 07)

"Persons suspected of criminal or terrorist activity may be transferred from one State (i.e., country) to another for arrest, detention, and/or interrogation. Commonly, this is done through extradition, by which one State surrenders a person within its jurisdiction to a requesting State via a formal legal process, typically established by treaty. Far less often, such transfers are effectuated through a process known as “extraordinary rendition” or “irregular rendition.” These terms have often been used to refer to the extrajudicial transfer of a person from one State to another. In this report, “rendition” refers to extraordinary or irregular renditions unless otherwise specified.

"Although the particularities regarding the usage of extraordinary renditions and the legal authority behind such renditions are not publicly available, various U.S. officials have acknowledged the practice’s existence. Recently, there has been some controversy as to the usage of renditions by the United States, particularly with regard to the alleged transfer of suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture, purportedly with the knowledge or acquiescence of the United States."

-- Obama's EO does not put a stop to renditions. It offers to examine a policy that is illegal at its core. Who, as Greenwald belated discovered in an "update" to his current article on this, will decide who gets kidnapped. Opening up this can of worms, with or without torture, is a very bad idea. When one of the best organizations, Reprieve, whose director is the most honorable and knowledgeable of men on this subject, complains about Obama's position here, I think you should listen very carefully.

Meanwhile, why does this story get your goat? It's just one media story, after all. But you have not written anything about the torture allowed by certain techniques (in Appendix M) of the supposedly clean Army Field Manual, which has been pointed out by both Physicians for Human Rights and Center for Constitutional Rights? I don't get it. There is still torture being allowed, but you don't want to write about it? (And that's even if you are totally right about rendition.)

Posted by: Valtin on February 2, 2009 at 11:29 PM | PERMALINK

The report is not incorrect. The liberal outcry certainly had to do with the issue of torture and secret detention but it also centered around the lack of due process - namely access to courts-- in order to validate the transfer. This is what makes Obama's/Bush's/Clinton's rendition strikingly different from extradition. In an extradition process a judicial examiner confirms that probable cause exists to execute the transfer, the individual subject to transfer can have a lawyer, and the transfer must be made to a state actor. Also, the transfer takes place for very specific purposes. Many liberals who now defend rendition are indeed changing their positions.

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

Posted by: Darren Hutchinson on February 3, 2009 at 3:31 AM | PERMALINK

The press really needs to stop reporting about things they don't understand

Your newspaper will be pretty much 100% ads from now on, then . . .

Posted by: rea on February 3, 2009 at 6:36 AM | PERMALINK

What an entirely pointless discussion.
You've actually taken the time to quote the Geneva Conventions there, in the context of what someone has said will be adhered to in 2009.

Perhaps there's someone on earth that'll believe this will be the first decade yet that this occurs.

At what point is someone going to acknowledge that Obama has prohibited absolutely nothing relating to torture and violations of international law... that wasn't already.

The law against these renditions was simplest thing you've ever read. The only problem was that the past 2 presidents simply ignored it.

The LA times article tells you precisely how to prevent that occurring again, and it isn't with a freaking study group looking into whether breaking the law is still breaking the law like it was yesterday.

That of course being a very transparent bit of window dressing that serves only to delay a policy recommendation you would otherwise be factoring into this story now.

Wake me when we get round to the next topic of Obama putting in writing that he won't continue Bush's domestic spying policies, while the same NSA eavesdropping facilities intercept all US communications without a hiccup and the brand new data mining* facility on US soil still hasn't needed to lay anyone off.

* It's what you get if you ask a nerd to come up with a name for wholesale violation of the warrantless search prohibitions in your constitution.

Sure it was prohibited last month, but this month he'll say it's prohibited more. And then we'll discuss how big of a deal that is.
Ooooh I can't wait to see if he says his staff aren't allowed to murder hobos.

Posted by: Kilo on February 3, 2009 at 7:06 AM | PERMALINK

Perhaps we should ask Sarah Palin about her position on this issue particularly as it relates to the differences between the various types of rendition.

Posted by: Gnomestrath on February 3, 2009 at 7:57 AM | PERMALINK




 

 

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