Obama's Rendition Program, No Torture Included

By Cernig

There's massive gleeful cackling from rightie-tightie bloggers today because the L.A. Times says that Obama's recent executive orders on torture and detentions leave open the door for illegal renditions to nations that torture. Ed Morrissey is especially "told ya so", and Moe Lane says he'll sleep over Obama's "torture program" peacefully because he voted for the other guy (who would have closed Gitmo too) but us lefties must flagellate ourselves over voting for a torturer.

But let's unpack the LA Times article, which relies on a cursory examination of Obama's executive orders and the say-so of two anonymous officials, one from the current and one from the last administration.

The Times' Greg Miller over-reaches for once and hangs his entire story on a provision in Obama's executive order "Ensuring Lawful Interrogations":

The terms "detention facilities" and "detention facility" in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.

Section 4(a) says:

CIA Detention.  The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.

What Miller forgets to mention, and what blows his precarious story out of the water, is the following Section 4(b):

International Committee of the Red Cross Access to Detained Individuals.  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.

Which is why the current officially unofficial official told the Times:

"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."

"Illegal Rendition" as practised by the Bush administration did not involve notifying the IRC, which is why it kicked up a storm in Europe - because it was a crime involving secretly disappearing people into secret prisons. Renditions which include notifying the correct international body, used only for the purpose of getting wanted people before a proper court, and which are fully in compliance with international and domestic law including (from the Obama executive order):

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. 

Which would also, inter alia, prohibit rendition to a foreign nation for torture "off the books"...

...That isn't illegal. Nor is it preserving torture. The relevant part of the remit of the Special Task Force established by Obama's executive order to examine all US detention and interrogation practises makes that quite clear

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.

That is just normal extra-territorial rendition as practised by the law-abiding world. On this issue, at least, Lefties can sleep easy after all (after they've worried about Obama's war crime of airstrikes indiscriminately killing civilians in Pakistan and his complicity in Bush's torture crimes by apparently ruling out prosecutions of torturers). Some Rightwing pundits should go take a valium and lie down for a while, though.

Update: Scott Horton explains, for hard-of-understanding wingnuts, the difference between the legal and internationally recognised tool of rendition and Bush's illegal extraordinary rendition. He also says the LAT got punked by sources with an axe to grind.

Comments

[Link]

Rendition began in 1883 when Frederick Ker was kidnapped in Peru by the Pinkerton Detective Agency and rendered back to Chicago to face trial for grand larceny. The tactic was endorsed by the Supreme Court (Ker v. Illinois). These renditions, like the case of Mir Aimal Kansi from Pakistan in 1997, were renditions to courts of law. But they are very different from the CIA’s covert program of extraordinary rendition under Bush, in which terror suspects are sent not to justice but into the hands of rough allies. There is a difference between lawful rendition and EXTRAORDINARY rendition.

I don't think many people on either side of the political line will read past the misleading LA Times headline and actually read the executive order in its entirety. I do appreciate when people are trying to get the actual truth out there though. Obama will make bad choices as all presidents do, but this isn't one of them thank goodness.

[Enlightened Layperson]

I really don't understand why wingnuts see it as such an important matter of principle that we must torture someone, somewhere, somehow.

[Karl K]

Of course, the Red Cross has been allowed access to Gitmo, so that means Gitmo is OK? That's the logic of THIS argument.

Yet Gitmo is somehow considered by all of you lefties as somehow this degrading inhuman torture chamber.

Really, you don't even grasp your own internal contradictions.

Meanwhile, keep up the rationalization that Obambi is engaging somehow in a "kindler, gentler" form of rendition. And sure, swallow the flip flop of Human Rights who first said ALL rendition should be eliminated but now has now problem with the OBAMA version of rendition.

In the Bush era, we could take these vicious thugs and scaliwags to a black site in Poland, have them interrogated by a female in garters and a push up bra and drive the medieval mind of the guy nuts until he spilled his guts. A crushing psychological blow, I know.

Or, in the case of REALLY dangerous guys like Khalid Sheik Mohammed, put a wet towel over his head for 40 seconds, and get him to reveal all manner of plots and schemes. Yeah, that did SO much damage to his psyche he's managed to work up the courage at Gitmo to ask for a lawyer.

Now, our options? We can either kill the guy or let him go, or we rendition him to some nice comfy place where we all he can do is utter his name, and rank, and we can't do ANYTHING to him to extract info. Of course, the Obama administration implicitly leaves open the possibility of sending him back to, say, Jordan, or some other nation that is an exemplar of human rights, where he will be introduced to Mr. Power Drill and Mr. Genital Electrodes.

Meet the news boss...pretty much the same as the old boss.

[Steve Hynd]

Karl, the IRC wasn't allowed at Gitmo for years. It was after it was allowed in that major allegations of torture surfaced, partly due to the IRCs diligence. And HRW has never said all rendition should be banned, since rendition to trial is recognised in international law. You're trying so hard, as EL says upthread, to insist that America should and does still torture. That's sad.

[Steve Hynd]

Oh, and the IRC has consistently called for the closure of Gitmo - citing abuse, illegal detentions (often of people fingered for a bounty) and restrictions on IRC access as all being illegal under the Conventions.

[Karl K]

Cernig, I know you lefties LOVE to sneer at the right for their horrible unfeeling views on the gang of vicious killers we're up against. And no doubt the Great Messiah's rendition-light warms the hearts of the Amerika-is-a-bad-bad-bad-torturer-of-poor-poor-Muslims crowd.

Still, you need to get your facts straight. The ICRC has been visting GITMO since JAN 2002!

http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/usa-detention-update-121205?opendocument

[Robert E.]

I'm a liberal Democrat, and I hate rendition in all its forms. I hated it when Reagan, Bush 41, Clinton, and Bush 43 did it, and I'm going to hate it when Obama does it. It's really upsetting.

[Steve Hynd]

Karl,

And compalining about barriers to full access ever since.

But, apparently you'd prefer to name call (which I haven't) rather than apply your intellect to the difference between rendition-to-trial as practised legally by the entire world and rendition-to-torture as practised illegaly by Bush.

[Robert E.]

C,

I doubt your assertions that rendition can be in full compliance with international and domestic law. Even the pre-George W. Bush versions of rendition had their legalities questioned. Former FBI Director William Webster had doubts about the Reagan version of rendition and former White House Counsel Llyod Cutler had doubts about the Clinton version. I think it's much better to do away completely with rendition, or anything like it.

[Steve Hynd]

You might be right, Robert, and I'm willing to look at arguments that its the case. Can you give me links on those contra-arguments please? But it remains true that there's a world of difference between ordinary rendition and what bush practised.

Regards, C

[Karl K]

Cernig, you said "the IRC wasn't allowed at Gitmo for years." But it takes me 10 seconds to find that this statement is factually incorrect.

If you want to be a writer and a commentator, I'd advise you to use words with precision.

[Robert E.]

C,

Sure about the links. Webster's opinions on the matter can be read about in the 2001 book "Extradition, Politics, and Human Rights" by Christopher Pyle, pages 274-275. I found a link to an excerpt of that section.

http://books.google.com/books?id=8iEWsWUjHA8C&pg=PA275&lpg=PA275&dq=webster+william+fbi+rendition&source=web&ots=JD40ITjRc7&sig=xcx5f2rwYy6zAqKKHa6r5WBFucY&hl=en&sa=X&oi=book_result&resnum=2&ct=result#PPA274,M1

If the link doesn't work for whatever reason, you can Google "william webster fbi extradition, politics, and human rights" and it should be the first listing.

I'll post an appropriate link about Cutler as soon as I can find a good one.

[Karl K]

Cernig says I'm "trying so hard, as EL says upthread, to insist that America should and does still torture."

You know what torture is?

--Hanging homosexuals by lifting them up off the ground with construction cranes and stoning women buried up to their neck in a dirt pit.

--Frying thousands of people in aviation fuel, so their last minute and half of life has them screaming and flailing their extremities, and smelling their own burning flesh.

--Slowly sawing the head off of a prisoner, as he gurgles in sheer terror and pain for the minute it takes to accomplish the task, and video-recording the scene for later upload to the internet.

THAT'S torture.

[Kat]

Enlightened Layperson: I really don't understand why wingnuts see it as such an important matter of principle that we must torture someone, somewhere, somehow.

Why? Because The Gospel According to Darth Cheney told them so.

Karl K: Cernig, I know you lefties LOVE to sneer at the right for their horrible unfeeling views on the gang of vicious killers we're up against. And no doubt the Great Messiah's rendition-light warms the hearts of the Amerika-is-a-bad-bad-bad-torturer-of-poor-poor-Muslims crowd.

Frankly, I don't give a damn about the right's 'horrible unfeeling views on the gang of vicious killers'. Call me an idealist, but what bothers me is Bushco's trashing of our Constitution, the Bill of Rights, and the Rule of Law -- which has had a far more deleterious affect on US citizens than the 'gang of vicious killers' could ever have hoped to have -- were it not for the neocons' collusion of convenience.

[Robert E.]

C, the best reference I can find on Cutler's opinions on rendition is page 238 of the 2005 book "Blind Spot" by Timothy Naftali.

Google "lloyd cutler rendition blind spot" and it will be the first listing.

[Steve Hynd]

And Karl K rolls out the old "the other guy does it worse" excuse.

As in "I only murdered one person, look at what Son of Sam did!". Or "I only cheated on you three times, honey, and none of them meant anything - not like that guy down the street cheats on his wife."

[Karl K]

No, Cernig, we ARE better.

In the world, the real world, there are REAL distinctions. Waterboarding is NOT the same as beheading with a rusty knife. Subjecting someone to variations in temperature is NOT the same as stringing somebody up with wire and then splashing them with gasoline and setting them on fire. Sensory deprivation is NOT the same as feeding somebody feet first into a woodchipper.

Again, like you did with your blanket non-factual assertion about the ICRC being excluded from Gitmo (which you have yet to admit to, by the way), you, and those like you, play fast and loose with words. You do not use words with precision.

You writing does not lend clarity but instead muddies the moral waters.

[Karl K]

Kat writes:

Call me an idealist, but what bothers me is Bushco's trashing of our Constitution, the Bill of Rights, and the Rule of Law -- which has had a far more deleterious affect on US citizens than the 'gang of vicious killers' could ever have hoped to have -- were it not for the neocons' collusion of convenience.

"Idealist?" Not quite sure what you think the meaning of that word is, but it isn't the one you're thinking of.

While you're patting yourself on the back in this typical brand of sanctimoniousness, let's look at the facts here.

--There's never been more free speech -- the fact that this blog can spout its particular views is surely evidence of that.

--We still have three branches of government, and working amendments.

--Last I looked, we haven't rounded up hundreds of thousands of citizens in internment camps.

--You can still sue the Federal government and petition for redress of grievances; if you're not sure about that, ask the ACLU.

This notion that Bush somehow shattered the constitution into a million pieces is an irrational delusional meme that makes certain folks feel really good. It has a certain kind of therapeutic effect, apparently.

[Steve Hynd]

Leaked Guantanamo Manual Shows Red Cross Denied Access to Groups of Detainees

The 2003 SOP manual sharply restricts Red Cross access to Guantánamo prisoners, in direct violation of Article 26 of Common Article III of the Geneva Convention of 1949. The SOP manual states that “All detainees will have a level of ICRC contact designated for them” – the four levels being “No Access,” “Restricted,” “Unrestricted,” and “Visual.” Yet the Geneva Convention on the treatment of prisoners of war states that the ICRC “shall have access to all premises occupied by prisoners of war,” be able to interview the prisoners without witnesses present, and that the “duration and frequency of these visits shall not be restricted.”

[Kat]

Karl K: This notion that Bush somehow shattered the constitution into a million pieces is an irrational delusional meme that makes certain folks feel really good.

Your koolaid addiction has made you delusional.

[Robert E.]

More on the subject of rendition:

The National Security Act of 1947 explicitly prohibits the CIA from engaging in police, subpeona, and/or law enforcement activities. That was only changed in 1981 when President Reagan signed Executive Order 12333. Considering that CIA rendition would have been illegal by U.S. law during the CIA's first 34 years of existence, there's a pretty good case that can be made that it should be done away with entirely. Some couragous President should start on that work of repealing parts of 12333 and its subsequent amendments.