Obama Backpedals on Torture, Renditions, State Secrecy

The Los Angeles Times had an article over the weekend by Greg Miller, describing the decision by the Obama administration to maintain, in some form, the secret rendition program of the CIA. The program began under the Clinton administration, and was accelerated President Bush. Full details of the program are classified.

In legal terms, extraordinary rendition is the "extrajudicial transfer of a person from one State to another." But for most of us, rendition remains a fancy term for kidnapping, and involves snatching suspected "terrorists" off the streets, or from airports, as in the case of innocent Canadian citizen Maher Arar, snatched out of JFK airport, and secretly flown to Syria. Maher spent over ten months in a "grave-like" cell, and was beaten and tortured into making a false confession.

Miller notes, in his article:

Despite concern about rendition, Obama's prohibition of many other counter-terrorism tools could prompt intelligence officers to resort more frequently to the "transitory" technique.

Et tu, Obama?

According to Times Online today, "hundreds of terrorist suspects have been abducted and transferred to prisons in countries with questionable human rights records such as Egypt, Morocco or Jordan." The European parliament and human rights groups around the world have condemned the rendition policy. But according to an anonymous administration official:

“Obviously you need to preserve some tools. You still have to go after the bad guys,” said the official. “It is controversial in some circles. But if done within certain parameters, it is acceptable.”

But another anonymous "senior CIA official" dryly noted:

"Once you turn them over to another service, you lose control."

The Bush administration always maintained, too, that it took the requisite precautions regarding sending prisoners to states that torture. It had to do this, of course, to keep up any pretense to following the law. According to a Congressional Research Service report in October 2007:

The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), and its domestic implementing legislation (the Foreign Affairs Reform and Restructuring Act of 1998) impose the primary legal restrictions on the transfer of persons to countries where they would face torture. Both CAT and U.S. implementing legislation generally prohibit the rendition of persons to countries in most cases where they would more likely than not be tortured, though there are arguably limited exceptions to this prohibition. The State Department has taken the position that CAT’s provisions concerning the transfer of persons do not apply extraterritorially, though as a matter of policy the United States does not transfer persons in its custody to countries where they would face torture (U.S. regulations and statutes implementing CAT, however, arguably limit the extraterritorial transfer of individuals nonetheless). Under U.S. regulations implementing CAT, a person may be transferred to a country that provides credible assurances that the rendered person will not be tortured. Neither CAT nor implementing legislation prohibits the rendition of persons to countries where they would be subject to harsh interrogation techniques not rising to the level of torture. Besides CAT, additional obligations may be imposed upon U.S. rendition practice via the Geneva Conventions, the War Crimes Act (as amended by the Military Commissions Act (P.L. 109-366)), the International Covenant on Civil and Political Rights (ICCPR), and the Universal Declaration on Human Rights.

For more on the illegality of extraordinary rendition by the tenets of international law, see this excellent briefing paper by an "All-Party" UK Parliamentary Group, published a little over three years ago, Torture by proxy: International law applicable to ‘Extraordinary Renditions.'

Despite the protests and controversies that attended Bush's use of rendition, in his article, Miller notes the relative silence of human rights groups. As in the case of the campaign to gain acceptance for the abuse-laden Army Field Manual, some human rights agencies are eager to braintrust the Obama administration on this:

"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.

Miller goes on to note that Obama's executive order on interrogations, which also made the Army Field Manual the new "single standard" of U.S. interrogation, included the formation of a task force to re-examine policy in this area, and as regards renditions, "to make sure that they 'do not result in the transfer of individuals to other nations to face torture' or otherwise circumvent human-rights laws and treaties."

While this last point is a branch onto which those hoping for Obama to really dismantle all U.S. torture policies, cling, the statements attributed to current administration officials are not promising. And then there is the unasked question: do you really trust the CIA to police itself on this? The task force called to assess interrogation policy over the next six months, has no human rights or congressional members at all, and is stacked with the leadership of military and intelligence agencies, while headed by Attorney General Eric Holder.

"State Secrets" and Torture

Meanwhile, as a recent article by Suzanne Ito at the ACLU's Blog of Rights explains that the Obama administration's vaunted promise of transparency in government and opposition to torture gets it first real test in court later this month, when oral arguments are scheduled in Mohamed v. Jeppesen Dataplan, Inc. As explained by Daphne Eviatar at The Washington Independent:

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

The ACLU filed suit on behalf of this group of victims in May 2007, but the Bush administration quickly swooped in, waving the flag of the state secrets privilege. Insisting that the very subject of the lawsuit – the CIA’s rendition program – is itself a state secret, the Justice Department convinced the federal court in California, where Jeppesen is based, to dismiss the case on the grounds that it would harm national security....

In fact, by the time this lawsuit was filed, the CIA’s rendition of suspected terrorists to foreign countries to be tortured had become an international scandal. Foreign countries such as Egypt, Switzerland, the UK and others that had cooperated with the CIA had been forced to investigate; those investigations had corroborated many of the allegations that are the subject of the case pending against Jeppesen.

Still, the U.S. government, now under President Obama, continues to insist in a brief filed with the U.S. Court of Appeals for the Ninth Circuit that “[t]he sensitivity of the information at issue in this litigation, and the serious harms that would result from its disclosure, compel the Government to assert the state secrets privilege.” The Obama administration has not filed any new briefs or amendments in the case.

Eviatar contacted the Obama administration, asking if it intended to file any new briefs, or change their position on "state secrets," and they declined to comment. Oral arguments are scheduled for February 9 in the Ninth Circuit Court of Appeal. The Fourth Circuit Court of Appeals dismissed a somewhat similar case ACLU in 2006 on behalf of rendition victim Khaled El-Masri, citing the "privileged" nature of the entire case, and the Supreme Court upheld the dimissal last year.

For those who are hoping that Obama's promises of change around torture will be more than partial (he's shut down CIA prisons and practices of "enhanced" CIA torture), the time is growing short. Support for CIA renditions; support for use of isolation, sleep deprivation, and sensory deprivation, among other cruel, inhumane and degrading techniques in the Army Field Manual; support for "state secrets" privileges in order to stop victims of torture from getting their day in court; support for CIA secret prisons, if used for prisoners in "facilities used only to hold people on a short-term, transitory basis."

Clive Stafford Smith, the director of the British human rights group, Reprieve, was trying to be gracious to Obama when he was quoted in Times Online today:

“Western liberals are totally deluded at the moment. Like George Bush, who declared ‘mission accomplished’ on Iraq six years ago, they need to realise that the job is far from done. I believe that Obama’s heart is in the right place but he is surrounded by people in the US intelligence and military who don’t want either themselves or their policies subjected to too much scrutiny.”

Smith is right. It's up to us to make this administration, and a Congress usually subordinate to intelligence and military needs, do the right thing. That means, dear reader, it's up to you, and what are you doing about it. You could start with supporting (and that means $$$) the ACLU, Reprieve, Physicians for Human Rights, Center for Constitutional Rights, and any other human rights or legal group fighting to stop torture. Just make sure that they really are. In human rights groups, as elsewhere, caveat emptor: make sure they oppose the Army Field Manual's torture-approving Appendix M, and make sure they oppose the criminal policy of extraordinary renditions, and call for total adherence to the Convention Against Torture and all other U.S. and international laws against torture and cruel, inhuman, or degrading treatment of prisoners.

Update:Scott Horton's column is cited by my many critics [at the Daily Kos posting of this essay] because he notes what I supposedly fail to -- the qualitative difference between plain old rendition, and extraordinary rendition. Gee, how did I get so confused? Perhaps I followed the analysis in the Congressional Research Service report for Congress, Renditions: Constraints Imposed by Laws on Torture, who sets out the following definitions:

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.

In other words, all renditions are "extraordinary renditions." The use of the latter to render suspects to torture is what is at issue. But note, all renditions are extrajudicial, i.e., outside established law.

Horton, Sullivan and Greenwald can say whatever they like. The heat's on, and they don't want to be perceived as too far off the mainstream. But the truth is also the truth, no matter how bitter or inconvenient it may be.