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Tilting at Windmills

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February 3, 2009
By: Hilzoy

Ask Dr. Rendition!

Since the publication of the LA Times story about rendition yesterday, I've noticed some confusion about the topic. So Dr. Rendition will try to make things easy.

Q: What is rendition?

A: Rendition is the act of transferring a person into a different jurisdiction.

Q: "It occurs to me that this more benign definition of rendition as transferring someone to another criminal justice system, used to be called extradition. Can someone explain the difference to me?"

A: Extradition is one form of rendition, as you can see from Lawyers.com's Glossary of Legal Terms, which defines 'Rendition' as "extradition of a fugitive who has fled to another state." Here's a nice example of the term's normal usage from a hundred-year-old case:

"Among the powers of governors of territories of the United States is the authority to demand the rendition of fugitives from justice under 5278 of the Revised Statutes, and we concur with the courts below in the conclusion that the governor of Porto Rico has precisely the same power as that possessed by the governor of any organized territory to issue a requisition for the return of a fugitive criminal."


That was just the first case I found when I looked. There are lots more.

Q: But extraordinary rendition means sending someone off to be tortured, right?

A: No. Extraordinary rendition is rendition outside normal legal frameworks. (Extradition is a form of "ordinary" rendition.) It includes sending people off to countries where we have reason to think that they will be tortured. But it also includes things like catching Osama bin Laden in another country and bringing him to the United States to stand trial. What makes something a case of extraordinary rendition is the way the person is transferred from one jurisdiction to another, not what happens to that person once s/he arrives.

Q: But don't most people who talk about 'rendition' just mean 'sending people off to other countries to be tortured'?

A: Probably. That's the kind of rendition that became famous when Bush was in office. But remember: lawyers are not most people. They use all sorts of words in peculiar ways (besides using words like 'estoppal' that normal people don't use at all.) To them, this is a technical term. They use it accordingly.

Q: So when the LA Times quotes the Washington advocacy director for Human Rights Watch as saying that ""Under limited circumstances, there is a legitimate place" for renditions", he might just mean that he has no objection to legal extradition?

A: He might. Offhand, it seems more likely that he's referring to extraordinary rendition in its technical sense, and saying that it might be OK in some cases. Imagine, for instance, a modified version of Glenn Greenwald's hypothetical: Osama bin Laden is living in a country whose intelligence and police forces we know have been seriously infiltrated by al Qaeda. We have a warrant for his arrest, but we believe that if we asked that country to arrest him, the police would tip him off and he would escape. We also believe that he is planning further attacks. Is it OK to capture him in that other country and bring him to the US to stand trial? If you think not, ask yourself whether there is any attack so awful that, if we had convincing evidence that he was planning it, and convincing evidence that the police force of the country he was in had been compromised, we would be justified in capturing him ourselves.

Capturing bin Laden under these circumstances in order to bring him to trial here is extraordinary rendition. When the Israelis snatched Adolf Eichmann and brought him to stand trial in Jerusalem, that was extraordinary rendition. If you think any such cases could ever be justified, then you agree with the Director of Human Rights Watch that ""Under limited circumstances, there is a legitimate place" for renditions". Obviously, this does not imply that you approve of sending people off to Syria to be tortured. And if you had previously said that the US should "repudiate the use of rendition to torture", saying that it would be OK, under these circumstances, to capture bin Laden and bring him to trial would not constitute a "flip-flop", since this would not be "rendition to torture."

Q: But I thought that the official translation of that Human Rights Watch statement was "all that stuff about the need to end rendition? "Oh, that's just what we call pillow talk, baby, that's all.""

A: You were misinformed.

Q: Isn't all this just hairsplitting in a frantic attempt to defend The One from criticism?

A: No. If you think that the difference between extradition and sending someone off to Uzbekistan to be tortured is just semantics, you probably need to work on your reading comprehension skills.

Q: Have you "screeched hysterically over the CIA practice of rendition" "for the last seven years"?

A: No. I can't recall screeching hysterically about rendition even once, let alone for seven whole years.

Q: Do you have "truly disturbing, quasi-sexual "rendition" fantasies" involving Doug Feith?

A: No. *shudders*

Q: Why does Michael Ledeen think you're a guy?

A: No idea. You'll have to ask her.

Hilzoy 1:19 AM Permalink | Trackbacks | Comments (36)

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Comments

Andrew Sullivan is a clueless idiot.

Posted by: tomj on February 3, 2009 at 1:35 AM | PERMALINK

As to your use of the hypothetical of Bin Laden hiding in a country whose police and intelligence service had been compromised, here's a real event I would bet every good believer in human rights would applaud.

In 1961, the Mossad kidnapped Adolf Eichmann from Argentina and took him to Israel, where he stood trial for his crimes against humanity in organizing the Holocaust. At the time, Argentina's police, intelligence service and military was thoroughly compromised by Nazis, pro-Nazis and fascist true believers from the old Peron regime. The Israelis found the bastard, got him, got him out of the country, tried him in public and hanged him for the worthless piece of shit he was.

Anyone reading this have any qualms about the justice of that act???

Personally, I hope Bin Laden and Zawahiri try to escape, and end up face down in a muddy ditch where they can be strung up by their heels, just like that worthless scum Mussolini was.

Posted by: TCinLA on February 3, 2009 at 1:38 AM | PERMALINK

Great post.

As Orwell knew, a fundamental element of authoritarianism is muddying the language.

Posted by: jayackroyd on February 3, 2009 at 2:10 AM | PERMALINK

Good point about how lawyers use words. Hubby is an attorney, and sometimes the terms he uses mean the exact opposite of what I might think they mean.

Sometimes it's hell being married to a lawyer. They have ways of twisting words, and you can rarely, if ever, win an argument. It feels pretty good when you do, though. :)

Posted by: Michael W on February 3, 2009 at 2:48 AM | PERMALINK

"Imagine, for instance, a modified version of Glenn Greenwald's hypothetical: Osama bin Laden is living in a country whose intelligence and police forces we know have been seriously infiltrated by al Qaeda. We have a warrant for his arrest, but we believe that if we asked that country to arrest him, the police would tip him off and he would escape. We also believe that he is planning further attacks. Is it OK to capture him in that other country and bring him to the US to stand trial? If you think not, ask yourself whether there is any attack so awful that, if we had convincing evidence that he was planning it, and convincing evidence that the police force of the country he was in had been compromised, we would be justified in capturing him ourselves."

Oh, so... kind of like the ticking time-bomb scenario? Are we on the Left believing that again, all of the sudden? 'Cause I'd thought we'd spent the last 8 years convinced that that was bullsh*t.

Glenn Greenwald's question was best answered in his commentary section, by someone smarter than me:

"If (the hypothetical country) is unwilling (to arrest Bin Laden) then we need to start the debate in congress to declare war on (that country). It is not a pretty picture but the choice (to infiltrate that nation and kidnap Bin Laden) is an act of war anyway. We might as well be constitutional about it."

And then someone even *smarter* than both of us responded to Greenwald's hypothetical with a hypothetical of his own, which I'd love to hear Hilzoy respond to:

"Suppose (for the sake of discussion) that in 2007: (a) Afghanistan learns exactly where George W. Bush is located in the U.S.; (b) there is ample evidence that W. (i) illegally detained and tortured its citizens and (ii) is continuing these policies with the intention of doing so indefinitely; and (c) the U.S. government (both Dems and Republicans) is either unwilling or unable to apprehend W. in order to extradite him to the the Netherlands for trial. Further suppose that efforts to compel the U.S. to do so through the U.N. are blocked (because, say, the U.S. vetoes any actions).

What, if anything, is Afghanistan (under current facts) permitted to do about Bush, who -- we're assuming for purposes of these discussions -- clearly committed war crimes and is continuing to do so? . . . .Why are the rules different for us?"

As they say in talk radio, I'll take your comments off the air.

Patrick Meighan
Culver City, CA

Posted by: Patrick Meighan on February 3, 2009 at 2:55 AM | PERMALINK

Thanks for the information and clarification. Too few reporters, not to mention the general public, appreciate accurate usage.

Posted by: DevilDog on February 3, 2009 at 3:12 AM | PERMALINK

Thanks, Hilzoy, great post.

Posted by: Boronx on February 3, 2009 at 3:37 AM | PERMALINK

Good job on running this stuff down.

Has anything about data mining (in any of its variants - NSA, TSA, etc) popped up yet? Haven't heard anything on that front in a long while.

Posted by: bubba on February 3, 2009 at 3:38 AM | PERMALINK

Hilzoy

Thanks for the succinct guide to the terms in question, and the punchline ending as well. I also appreciated the elucidation of your comments on Digby's post about rendition.

Posted by: WillF on February 3, 2009 at 4:51 AM | PERMALINK

I heard an extraordinary rendition of "Norwegian Wood" last week.

Posted by: Sam Hamill on February 3, 2009 at 6:38 AM | PERMALINK
Extraordinary rendition is rendition outside normal legal frameworks.
Doesn't this mean, prima facie, that extraordinary rendition is illegal?

If so, then all this talk is really just a legal fiction to obfuscate illegal behavior. You can't be for the rule of law "a little". Everyone's for the rule of law when the law restricts someone else -- we need to be for it when it restricts us, or it's all just words. I'm with Patrick Meighan, above: What's to keep a foreign power from abducting our leaders? And if it being Bush makes this hard for you, consider if an unfriendly country (say, Iran) passes a law that it's a crime against humanity (under Iranian law) to render material aid to Israel -- then President Obama is likely to be a "criminal" in their eyes. Are they justified in kidnapping him to stand trial in Tehran? If your answer is, "Well, they'd never pull it off", you're just arguing for a return to law of the jungle, where might makes right.

So perhaps extraordinary rendition can be done and even should be done in certain circumstance ... but it's not ever going to be legal, and thus it's not ever going to be right. It's much like the silly ticking time-bomb scenario: Someone has Osama bin Laden in custody and they know he is planning a nuclear strike against an American city, and he won't give up the intel without torture. Do people think the American operative -- who, remember, is sure the intel is achievable and accurate -- would refrain from saving millions of lives because he might go to jail for it? If you were in that situation, wouldn't you give up your freedom in exchange for saving millions of lives? So legalizing torture lowers the bar -- it's easier to be "sure" the intel is worth it if your costs are lower.

Living under the rule of law is hard and it is risky. But it's the only sane option, if you value human freedom and dignity.

Posted by: Bernard HP Gilroy on February 3, 2009 at 6:42 AM | PERMALINK

This is a most interesting article, is it Rendition or Extradition?

The World is a stage, once told to me in a college class, perhaps in a different way, us, Americans, are all in this theater, but simply disregards this notion because Bush goofed. The language manta used as Bush was in power was to refer as the theater over there when in fact behind the scenes manipulation in a new world order transformed into massive corruption with high intensity distrust in motion now.

But, if you notice some of the language connected with this torture extradition stuff is scaled as “over there”. Meaning it all is different when it is on another continent or country. Whats really is funny the international community can make the argument that Bush in his pre-emptive action really was noting more than a military effort that resulted in converting a geo-social structure right under Saddam Hussein. American military action changed Saddams severe sovernity with in week’s right under his feet. That is the point where America should have gotten the hell out. Rendition was exercised right in Iraq, served to the Iraqi people through Bush’s pre-emption. Total change of government that put Saddam in a new Bush tribunal horse corral. For me that’s when the Greed really took off.


But, the ideal of Gitmo with water boarding looming over all the world make it appear as a comedy of error’s here we American’s because of Bush are fools.

Journalist across the board being embedded in this war showed all Americans the greed coupled with corruption plays on the same field as the huge banking mischief going on right now. Don’t forget the denial in secret prisons a long time ago by the New York Times, then Bush in his remarks about them. Total denial, but now we know very real. An outrageous lie to be given just a pass because he was the president does it and it should be considered legal. That’s nuts, no, that’s tyranny to make it legal.

A good example is Joe in the Morning continuously trying to weasel out of journalist being blamed. Monumental distrust created by Journalist and their supporting networks in supporting the Neo-Con Bush severe six year war is marquee by our current perception in Journalist denial coupled with the Banking problem blamed just on toxic derivatives is part of and integral international banking problem now.

Who knows what kind of deals have been made, including with the Carlyle Group, or hundreds of off shore tax fronts by the Arabs, the Bin Laden Group, that are going though the shedders, while huge entities are getting stiffed. What are going on are not just toxic derivatives but obvious royal butt freaking corruption in world wide proportions.


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

Excellent post, hilzoy.

Posted by: Gregory on February 3, 2009 at 7:36 AM | PERMALINK

Great post. And it is estoppEl, not estoppAl.

Posted by: KJ on February 3, 2009 at 7:44 AM | PERMALINK

In the Noriega case, the Supremes said that it is legal for the US to invade a country to capture a citizen of that country who has done something in that country that would be a crime if they did it in the US and bring them here for trial.

It was also said to be okay for the US to capture a Mexican in Mexico, who had killed a US drug agent, and bring him here for trial, without the usual constitutional niceties, because the Supremes ruled that US law extends beyond our borders, but constitutional protections do not.

And the red queen says play ball.

Posted by: anandine on February 3, 2009 at 7:53 AM | PERMALINK

Thanks for writing another great post, Hilzoy.

Posted by: Safron on February 3, 2009 at 8:04 AM | PERMALINK

"Suppose (for the sake of discussion) that in 2007: (a) Afghanistan learns exactly where George W. Bush is located in the U.S.; (b) there is ample evidence that W. (i) illegally detained and tortured its citizens and (ii) is continuing these policies with the intention of doing so indefinitely; and (c) the U.S. government (both Dems and Republicans) is either unwilling or unable to apprehend W. in order to extradite him to the the Netherlands for trial. Further suppose that efforts to compel the U.S. to do so through the U.N. are blocked (because, say, the U.S. vetoes any actions).

What, if anything, is Afghanistan (under current facts) permitted to do about Bush, who -- we're assuming for purposes of these discussions -- clearly committed war crimes and is continuing to do so? . . . .Why are the rules different for us?"

Bush? Want him? Take him.

Cheney too.

Posted by: Steve M. on February 3, 2009 at 8:07 AM | PERMALINK

Hey, you forgot a few questions I now have:

Is it wrong to have truly disturbing "rendition" fantasies involving Doug Feith, as long as they're not quasi-sexual?

What about if we have truly disturbing fantasies involving all the fools who led us into war (ie, Feith, Cheney, Wolfowitz, Perle, Bush, etc.) being convicted as war criminals using the same kangaroo court rules they established for enemy combatants, and then seeing them put in a prison similar to the one in Shawshank Redemption, but with more off-screen rape of war criminals? Because frankly, I get this one ALL THE TIME.

Finally, even if that last one is both morally and legally wrong, can we do it anyway? Please?

Posted by: Doctor Biobrain on February 3, 2009 at 9:10 AM | PERMALINK

In the Noriega case, the Supremes said that it is legal for the US to invade a country to capture a citizen of that country who has done something in that country that would be a crime if they did it in the US and bring them here for trial.

How, in the name of God, did the US not have jurisdiction to try US military and contractors for torture and other abuses in Guantanamo, Iraq, and Afghanistan, if we had jurisdiction over Noriega in Panama?

Posted by: Wapiti on February 3, 2009 at 9:34 AM | PERMALINK

"In 1961, the Mossad kidnapped Adolf Eichmann from Argentina and took him to Israel, where he stood trial for his crimes against humanity in organizing the Holocaust. At the time, Argentina's police, intelligence service and military was thoroughly compromised by Nazis, pro-Nazis and fascist true believers from the old Peron regime. The Israelis found the bastard, got him, got him out of the country, tried him in public and hanged him for the worthless piece of shit he was.

Anyone reading this have any qualms about the justice of that act???"

No, I don't have any "qualms" about that, because "qualms" imply uncertainty. I am absolutely certain that the Israelis committed an act that was not only hideously illegal, but also an act of war. And Argentina would have had the right, had they the wherewithal to do so, to respond with force for that.

If another country is known to be housing a dangerous terrorist/criminal/enemy/whatever, they still remain a sovereign nation. Infiltrating their borders and kidnapping someone within is not right. It never has been and never will be. The principle of rule-of-law must be absolute. We can't break it just because we find it personally inconvenient, or else the principle becomes worthless.

No country's authority extends into the borders of another country. ***NO*** country. That includes Israel and, neo-cons not withstanding, the USA.

And as for Hilzoy's example:

"If you think not, ask yourself whether there is any attack so awful that, if we had convincing evidence that he was planning it, and convincing evidence that the police force of the country he was in had been compromised, we would be justified in capturing him ourselves."

Still no. If we had "convincing evidence" of some planned attack, then we would have the ability to learn what the attack would be and deal with it in a legal manner. Keep in mind, the ticking bomb scenario has rightly been sneered at by every expert who isn't a character on "24".

Posted by: Shade Tail on February 3, 2009 at 9:55 AM | PERMALINK

omg, great post, and hilarious ending...i laughed when i saw ledeen's post, it just proves how out of touch he is with the "real world". Imagine never reading hilzoy!!

Posted by: bruce on February 3, 2009 at 9:55 AM | PERMALINK

Just wanted to thank you for the post. I am much better informed than I was five minutes ago. This is what blogging at its best can accomplish.

Posted by: wruscle on February 3, 2009 at 10:01 AM | PERMALINK

"Doesn't this mean, prima facie, that extraordinary rendition is illegal?"

Maybe. Just for context, there is a line of Supreme Court cases that says that the fact that someone has been seized in another country and brought here for trial, even in violation of that country's laws, is no bar to trying him here. So it apparently doesn't violate our laws, but it may violate others.

Posted by: David in NY on February 3, 2009 at 10:03 AM | PERMALINK

Let's see. I "screamed" about extraordinary rendition well before 7 years ago, because it started back in the Clinton Administration.

I pointed out Hilzoy's post last week might well be "hairsplitting for the One" because it ignored a number of things, such as:

1. Obama's executive orders are temporary/time-based, per him naming multiple AG-headed task forces to make recommendations for permanent ideas;

2. One 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.

So, there's the rest of the story on this issue, that Dr. Rendition forgot.

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 3, 2009 at 10:28 AM | PERMALINK

Actually (said the lawyer), the major point of controversy is not over "renditions", but over retaining secret prisons. The executive order exempts certain types of facilities from the order to close CIA secret prison sites.

From the Chicago Tribune:

One provision in one of Obama's orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis."

http://www.chicagotribune.com/news/nationworld/chi-renditions_31jan31,0,2998929.story

Posted by: ellebis on February 3, 2009 at 10:54 AM | PERMALINK

Clear, succinct and entertaining. Thanks.

Posted by: shortstop on February 3, 2009 at 11:58 AM | PERMALINK

will someone please forward this to Glenn Reynolds?

Posted by: flanders on February 3, 2009 at 12:05 PM | PERMALINK

If you think that the difference between extradition and sending someone off to Uzbekistan to be tortured is just semantics, you probably need to work on your reading comprehension skills.

And if you think there is no difference between treaty-controlled extradition with court oversight and what was done to, for example, Mordechai Vanunu, you probably need to work on your morality and logic comprehension skills.

Posted by: LarryE on February 3, 2009 at 1:04 PM | PERMALINK

Re ellebis on February 3, 2009 at 10:54 AM:

Obama's orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term

There has been a lot of hair-splitting and playing of semantic games in defense of Obama, but I think that splits hairs the other way.

I understood the provision to refer to facilities used as way-stations, if you will, the same way that some convicted felons might be held in a county lock-up before their transfer to federal prison. That is, I don't think it was intended as any sort of loophole.

However, whether or not someone(s) might try to use the provision as a loophole is a different question.

Posted by: LarryE on February 3, 2009 at 1:22 PM | PERMALINK

Larry E -

The point is, the CIA has to close all secret prisons - except those used only for "short-term, transitory" detentions. This is quite different from county lock-ups, whose existence is known, and which can be observed and monitored for abuse.

The CIA can have *secret prisons.* They can have prisons that nobody knows *exist.* They can have prisons where they can hold people *without telling anyone.* They can have prisons which, because nobody knows of them, no outside groups can visit or observe, to make sure that treatment is humane.

You can *tell* the CIA not to torture people, but as long as you allow them to have secret facilities, which they do not have to reveal the existence of, there's really not any accountability, is there?

Notice that the length of "short-term" or "transitory" is not defined.

County lock-ups hold many people awaiting trial for years, by the way. Not just convicted felons, but pre-trial, presumed innnocent people who couldn't make bail, or who were denied bail.

Posted by: ellebis on February 3, 2009 at 1:43 PM | PERMALINK

ellebis -

I think you're creating a dispute where none really exists. I have no problem with what you say about closing secret prisons or hiding people "off the books."

But at the same time, "facilities" can refer to CIA safe houses and embassy offices as easily as secret prisons. My single point was that I think the provision was meant to say that the CIA isn't barred from detaining anyone, period, and that it wasn't - and I'll emphasize the word this time - intended to be a loophole to allow for the continuation of current programs.

But again, that doesn't mean that there won't be those who will try to use it as one.

Finally:

County lock-ups hold many people awaiting trial for years

I assure you I need no instruction on the reality of people languishing in jail due to inability to make bail. However, that's not relevant to the point here, which was about the use of local jails to hold on a "short-term, transitory basis" people who were being moved to other places.

Posted by: LarryE on February 3, 2009 at 2:12 PM | PERMALINK

Larry E, the executive order talks about closing Guantanamo Bay and other "facilities." In context, it's clear they're not talking about embassies and safehouses.

Certainly, "facilities" *can* refer to facilities and safehouses, but you don't need an executive order to exempt those from closure. Or disclosure, for that matter.

As for the county jail, I was using your example to make the point that "short-term and transitory" doesn't really mean anything. It could mean a day, a week, a year. Citizens in this country - where the Constitution is much more likely to be followed than in an unknown detention facility on foreign soil - are guaranteed a "speedy trial." If "speedy trial" means anything, why are so many people sitting in county jails for months or years awaiting trial?

Posted by: ellebis on February 3, 2009 at 2:24 PM | PERMALINK

This will be my last on this because again, I think you're creating a dispute where there really isn't one.

I say, again, that the exception was put there because without it, under the order the CIA is unable to hold anyone for any length of time, however short, for the purpose of transferring them elsewhere and that it was not intended to allow for the continuation of indefinite imprisonment and torture.

Are you saying it was so intended, that is, not that the CIA could try to use it as a loophole to enable such mistreatment to go on but that it was done deliberately to that end? If not, I don't see the disagreement; if so, I have to say I don't buy it: It would have been easier (and better politically) to leave out the exception and add it later as a secret order.

Next, the comparison I drew to county jails was simply that many people convicted of state or federal offenses are held temporarily in such jails before their transfer to state or federal prison. That there is another entire class of prisoners in such jails, mostly poor, many of who - as you correctly note - are denied their right to a speedy trial is irrelevant to that comparison.

One last thing: If what you want is to shut down renditions not done through open legal processes entirely, to simply ban the practice of kidnapping of suspects in order to deliver them to trial or imprisonment, then I agree with you, as I would think my reference to Mordechai Vanunu indicated. But that was not what I was addressing when I replied to you.

Posted by: LarryE on February 3, 2009 at 5:49 PM | PERMALINK

Larry E, this will also be my last post on the topic, because it seems clear you're intent on defending the executive order no matter what.

I'm not ascribing any dastardly intent to keep these secret detention facilities around for purposes of torture. One doesn't need to. If you don't see a problem with allowing the CIA to retain secret prisons without having to declare their existence, then I'm afraid there's nothing more to say on that subject.

And again, I get your point that some convicted inmates are held temporarily in county jails before transfer to prison. Yes. As you have also acknowledged, there are also people held for long periods of time before trial. Which violtates the "speedy trial" clause. "Speedy", like "transitory" or "short-term", is left undefined. If "speedy" doesn't mean anything for American citizens on American soil, then what do you think are the chances of "transitory" or "short-term" actually meaning that a foreign citizen in a foreign country in a secret prison will be held for only a short period of time?

Where is the accountability? To whom may he appeal, if a day stretches into a week stretches into a month or a year? Not only are his whereabouts unknown - he's in a facility whose very *existence* is unknown.

But again, if you don't agree that secret prisons are a problem, then seriously, don't trouble yourself to reply. Cheers.

Posted by: ellebis on February 3, 2009 at 6:40 PM | PERMALINK

Ellebis speaks well for me. The pertinent executive order doesn't define "short term."

Also, as I said on Hilzoy's first post about this, by a presidential finding, Obama can simply say, "Country X does not torture," whether that's actually true or not.

Posted by: SocraticGadfly on February 3, 2009 at 7:06 PM | PERMALINK

I wasn't going to comment again but your last line translates to "if you don't respond, it means you think secret prisons aren't a problem." And that is such utter crap I could not let it stand.

you're intent on defending the executive order no matter what

The only "defense" I offered was to say the provision about "short-term" facilities was not intended as a loophole to allow the continuation of long-term detention and torture - while repeatedly cautioning some might try to turn it into one.

I'm at a loss to understand why that straightforward declaration in simple English continues to mystify you - unless you imagine that it was intended as a loophole.

Indeed, it increasingly appears, based on your argument about county jails, that's exactly what you think, that the lack of a specific time limit was intended to allow for long-term imprisonment. Let's leave aside the fact that court decisions, regulations, directives, and laws are rife with terms like "reasonable," "temporary," "as soon as practical," "with all due haste," and myriad other equally-vague terms so that a phrase like "short-term" is hardly unusual or revealing. Let's just consider your question of if US citizens on US soil have their right to a speedy trial violated, what chance does a foreigner on foreign soil have. My question back to you is, if Constitutional rights can be so easily and routinely ignored here, what the hell difference could a time limit make for that CIA detainee? Why couldn't that be just as easily ignored? Frankly, your comparison doesn't advance your argument about the lack of a time limit, it undermines is.

Not only are his whereabouts unknown - he's in a facility whose very *existence* is unknown.

Maybe you should have read the order before you judged it. Sec. 4(b) says, in part, that the IRC will be given

"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."

The exception for "short-term" facilities does not apply to this section. Which means, if the order is followed, there should be no one whose whereabouts are unknown or in a facility whose existence is unknown - unless their presence in that facility is "transitory."

And before you say "that's if the order is followed," I'll remind you that I've been the one cautioning against the possibility of someone or someones trying to subvert the order's meaning in order to continue past practice.

Looking back over the previous parts of this exchange, I see other issues I should have addressed, but frankly, the heck with it. I'm done.

Posted by: LarryE on February 4, 2009 at 10:03 AM | PERMALINK




 

 

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