The Real Roots of the CIA's Rendition and Black Sites Program

Originally posted at Truthout on February 17, 2010, but the article by H.P. Albarelli and Jeff Kaye is worth reposting now with all the controversy over the release of the Senate Select Intelligence Committee's report on the CIA's Rendition, Detention and Rendition program. Whatever the public gets from any putative release -- and the CIA is fully in charge of deciding what gets censored and what doesn't from the Executive Summary portion that is section supposedly up for declassification review -- we can be sure that we will only get a "limited hangout" about what the CIA really did... and does.

The article below has been lightly edited to allow for some changes in events in the past four years, and a link has been added to document the CIA material on the "Kelly case."

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On Tuesday, February 10, the British High Court finally released a "seven-paragraph court document showing that MI5 officers were involved in the ill-treatment of a British resident, Binyam Mohamed." The document is itself a summary of 42 classified CIA documents given to the British in 2002. The US government has threatened the British government that the US-British intelligence relationship could be damaged if this material were released. The revelations regarding Mohamed's torture, which include documentation of the fact the US conducted "continuous sleep deprivation" under threats of harm, rendition, or being "disappeared," were criticized by the British court as being "at the very least cruel, inhuman and degrading treatment by the United States authorities," and in violation of the United Nations Convention Against Torture.

The Mohamed case is the most prominent of a number of cases that have come to public attention. While the timeline of Mohamed's torture places the implementation of the Bush administration's so-called "enhanced interrogation techniques" many months prior to their questionable legal justification in the August 1, 2002, Jay Bybee memo to the CIA, the use of torture and rendition has a much earlier provenance. Over the past decade, many Americans have been shocked and disturbed about the CIA's secret program of rendition and torture carried out in numerous secret sites (dubbed "black sites" by the CIA) around the globe. The dimensions of this program for the most part are still classified "Eyes Only" in the intelligence community, but the program's roots can be clearly discovered in the early 1950's with the CIA's Artichoke Project. Perhaps the best and strangest case illustrating this can be found in the agency's own files. This is the so-called "Lyle O. Kelly case." The facts of this case are drawn from declassified government documents.

An Early Example of Torture and Rendition: "The Kelly Case"

In late January 1952, Morse Allen, a CIA Security Office official, was summoned to the office of his superior, security deputy chief Robert L. Bannerman, where he met with another agency official to discuss what Bannerman initially introduced as "the Kelly case." Wrote Allen, in a subsequent memorandum for his files, the official "explained in substance the Kelly case as follows: "Kelly, (whose real name is Dimitrov), is a 29-year-old Bulgarian and was the head of a small political party based in Greece and ostentively [sic] working for Bulgarian independence." The official described Dimitrov [whose first name was Dimitre] to Allen as "being young, ambitious, bright ... a sort of a 'man-on-a-horse' type but a typical Balkan politician."

The official continued explaining to Allen that months earlier CIA field operatives discovered that Dimitrov was seriously considering becoming a double agent for the French Intelligence Service. "Accordingly," states the memo, "a plot was rigged in which [Dimitrov] was told he was going to be assassinated and as a protective he was placed in custody of the Greek Police." Successfully duped, Dimitrov was then thrown into prison. There he was subjected to interrogation and torture, and he witnessed the brutal torture of other persons the CIA had induced authorities to imprison. Greek intelligence and law enforcement agencies were especially barbaric in their methods. Highly respected Operation Gladio historian Daniele Ganser describes the treatment of prisoners: "Their toes and fingernails were torn out. Their feet were beaten with sticks, until the skin came off and their bones were broken. Sharp objects were shoved into their vaginas. Filthy rags, often soaked in urine, and sometimes excrement, were pushed down their throats to throttle them, tubes were inserted into their anus and water driven in under very high pressure, and electro shocks were applied to their heads."

According to Allen's memo, after holding Dimitrov for six months the Greek authorities decided he was no more than "a nuisance" and they told the CIA "to take him back." Because the agency was unable to dispose of Dimitrov in Greece, the memo states, the CIA flew him to a secret interrogation center at Fort Clayton in Panama. In the 1950's, Fort Clayton, along with nearby sister installations Forts Amador and Gulick, the initial homes of the Army's notorious School of the Americas, served as a secret prison and interrogation centers for double agents and others kidnapped and spirited out of Europe and other locations. Beginning in 1951, Fort Amador, and reportedly Fort Gulick, were extensively used by the Army and the CIA as a secret experimental site for developing behavior modification techniques and a wide range of drugs, including "truth drugs," mescaline, LSD and heroin. Former CIA officials have also long claimed that Forts Clayton and Amador in the 1950's hosted a number of secret Army assassination teams that operated throughout North and South America, Europe and Southeast Asia.

There in Panama, Dimitrov was again aggressively interrogated, and then confined as "a psychopathic patient" to a high-security hospital ward at Fort Clayton. Allen's memo makes a point of stating: "[Dimitrov] is not a psychopathic personality."

[The original Truthout article did not link to any documents on Artichoke or the "Kelly case." But these documents are fully available at the Mary Ferrell Foundation website, though you may have to create an account there to see the actual documents. See this link for a list of the documents.]

The Artichoke Treatment

This remarkable summary brought the official to the purpose of his meeting with CIA security official Morse Allen. After months of confinement in Panama, Dimitrov had become a serious problem for the agency and the military officials holding him in the hospital. Dimitrov had become increasingly angry and bitter about his treatment and he was insisting that he be released immediately. Dimitrov, through his strong intellect and observation powers, was also witnessing a great deal of Project Artichoke activity and on occasion would engage military and agency officials in unauthorized conversations. The official explained to Allen that the CIA could release Dimitrov to the custody of a friend of his in Venezuela, but was prone not to because Dimitrov was now judged to have become extremely hostile toward the CIA. "Hence," explained the official, "[CIA] is considering an 'Artichoke' approach to [Dimitrov] to see if it would be possible to re-orient [Dimitrov] favorably toward us."

Wrote Allen in his subsequent summary memorandum: "This [Artichoke] operation, which will necessarily involve the use of drugs is being considered by OPC with a possibility that Dr. Ecke and Mike Gladych will carry out the operation presumably at the military hospital in Panama. Also involved in this would be a Bulgarian interpreter who is a consultant to this Agency since neither Ecke nor Gladych speak Bulgarian." Allen noted in his memo that security chief Bannerman "pointed out" that this type of operation could "only be carried out" with his or his superior's (security chief Sheffield Edwards) authorization, and "that under no circumstances whatsoever, could anyone but an authorized M.D. administer drugs to any subject of this Agency of any type." (The "Dr. Ecke" mentioned above was Dr. Robert S. Ecke of Brooklyn, New York, and Eliot, Maine, where he died in 2001. "Mike Gladych," according to former CIA officials, was a decorated wartime pilot who after the war became "deeply involved in black market trafficking in Europe and the US," and then in the early 1950's was recruited to join a "newly composed Artichoke Team operating out of Washington, DC.")

Allen also wrote that Bannerman was concerned that the military hospital at Fort Clayton may not approve of or permit an Artichoke operation to be conducted on the ward within which Dimitrov was being held, thus necessitating the movement of Dimitrov to another location in Panama. Lastly, Bannerman stated to the official and Allen that "[the CIA's Office of] Security [through its Artichoke Committee] would have to be cognizant" of the operation, and may even want to "run the operation themselves since this type of work is one which Security handles for the Agency. Here it is interesting to note that among the many members of the agency's Artichoke Committee in 1952 was Dr. Frank Olson, who would about a year later be murdered in New York City.

Morse Allen concluded his memo: "While the [Artichoke] technique that Ecke and Gladych are considering for use in this case is not known to the writer [Allen], the writer believes the approach will be made through the standard narco-hypnosis technique. Re-conditioning and re-orientating an individual in such a matter, in the opinion of the writer, cannot be accomplished easily and will require a great deal of time.... It is also believed that with our present knowledge, we would have no absolute guarantee that the subject in this case would maintain a positive friendly attitude toward us even though there is apparently a successful response to the treatment. The writer did not suggest to [Bannerman and the CIA official] that perhaps a total amnesia could be created by a series of electro shocks, but merely indicated that amnesia under drug treatments was not certain." Interesting also is that Allen noted in his memo, about thirty days prior to his meeting, an official in the CIA's Technical Services Division, Walter Driscoll, discussed "the Kelly case" with him. No details of that discussion were provided.

About a month later, according to former CIA officials, after Artichoke Committee approval to subject Dimitrov to Artichoke techniques, a high-ranking CIA official objected to treating Dimitrov in such a manner. That objection delayed application of the techniques for about "three weeks." In March 1952, according to the same former officials, Dimitrov was "successfully given the Artichoke treatment in Panama for a period of about five weeks."

In late 1956, the CIA brought Dimitrov, at his request, to the United States. Apparently, the Agency felt comfortable enough with Dimitrov's diminished hostility and anger to agree to bring him to America from Athens, where he had returned for undetermined reasons. CIA files state, "The Agency made no further operation use of Dimitrov after he came to the United States, however, former CIA officials dispute this and relate that Dimitrov was "used on occasion for sensitive jobs."

This, however, was not the end of Dimitre Dimitrov's story.

After being relocated to the United States, Dimitrov either remained bitter or resumed his bitterness toward the CIA. In June 1960, he contacted the CIA's Domestic Contact Division and requested financial assistance for himself and additional covert support and assistance for activities against Bulgaria. In 1961, he contacted an editor at Parade, a Sunday newspaper magazine then with reported strong ties to the CIA, with the intention of telling his story. A Parade editor contacted the CIA and was informed, according to CIA documents, that Dimitrov was "an imposter" who was "disreputable, unreliable, and full of wild stories about the CIA."

About ten years after the JFK assassination, Dimitrov, operating sometimes under the aliases Lyle Kelly, James Adams, General Dimitre Dimitrov and Donald A. Donaldson, informed a number of people that he had information about who ordered the murder of JFK and who had committed the act. Reportedly, he had encountered the assassins while he had been imprisoned in Panama. He also told several people that he knew about military snipers who had murdered Martin Luther King. In 1977, Dimitrov actually met with US Sen. Frank Church, head of a Senate Committee investigating the CIA, and President Gerald Ford to share his information. Dimitrov said after the meeting that Ford had asked him to keep the information confidential until he could verify a number of facts. Immediately following the March 29, 1977, death of Lee Harvey Oswald's friend George de Mohrenschildt, Dimitrov became extremely frightened and contacted a reporter with a foreign television station who either mistakenly, or intentionally, revealed Dimitrov's name publicly on American television. Not long after this, Dimitrov disappeared in Europe where he had fled. He has never been seen or heard from since. Former CIA officials say privately, "Dimitrov was murdered" and "His body will never be found."

A 1977 memorandum written, before Dimitrov's disappearance, by an attorney in the CIA's General Counsel's Office, A. R. Cinquegrana, states: "[It appears] to me that the nature of the Agency's treatment of Dimitrov might be something which should be brought to the attention of appropriate officials both within and outside the Agency. The fact that he is still active and is making allegations connected with the Kennedy assassination may add yet another dimension to this story."

Binyam Mohamed's Torture

Dimtrov's story takes on added significance when one considers the latest stories of the unraveling torture conspiracy and operations conducted by the American CIA and Department of Defense, in conjunction with their British allied organizations, and a host of other governments, including Israel, Jordan, Morocco, Pakistan, Poland and numerous others. After a series of exposures during the 1970's, many assumed the worst excesses of the Cold War torture research program, and its implementation in programs such as the CIA's Operation Phoenix in Vietnam were a fixture of the past. However, subsequent revelations, e.g. the appearance of a US-sponsored torture manual for use in Latin America in the 1980's, including documentation of torture by US forces in the immediate aftermath of 9/11 and the invasion of Afghanistan, demonstrate that a direct line exists between the torture and rendition programs of the past and the practices of the present day. Recently, articles have detailed how the 2006 rewrite of the Army Field Manual allowed for use of ongoing isolation, sleep deprivation, sensory deprivation, induction of fear and the use of drugs that cause temporary derangement of the senses.

The Binyam Mohamed story is unfortunately not unique, but it does demonstrate that the implementation of a SERE-derived experimental torture program began months before it was given legal cover by the memos written by John Yoo and Jay Bybee. Other stories, for instance of "War on Terror" captives being drugged and tortured, have been related by the prisoners themselves, by their attorneys, and by US and international rights agencies, including the International Committee of the Red Cross, whose report on the torture of CIA "high-value detainees" was leaked to Mark Danner of the New York Review of Books.

While Binyam in many ways had a very different personal background than Dimitrov, like the Bulgarian political leader, he was rendered to a US foreign ally for torture. He was drugged. He was considered unreliable and a "disposal" problem for US leaders, who kept secret the actual treatment they endured. Both were victims of a torture program run by the CIA. Both were sent from their foreign torturer back to US custody, where they endured intense psychological torture.

Binyam Mohamed was arrested in Pakistan in April 2002, where his torture, as evidenced by the latest UK court release, was supervised by US agents. This torture was akin to the treatment meted out to Abu Zubaydah. Binyam was subsequently sent to Morocco in July 2002, where he was hideously tortured for 18 months, including a period where multiple scalpel cuts were made to his penis, and a hot stinging fluid poured on the wounds in an attempt to get him to confess to a false "dirty bomb" plot. (The US only dropped the bombing claims in October 2008.) At one point, a British informer was used to try to "turn" Mohamed into an informant for the US or Britain, just as the Artichoke treatment was used to "re-orient" Dimitrov in a pro-US direction. Mohamed also indicated that he had been drugged repeatedly.

In January 2004, Binyam Mohamed was flown to a CIA "black" site in Afghanistan, the infamous "Dark Prison." Mohamed is one of five plaintiffs in an ACLU suit against Boeing subsidiary Jeppesen DataPlan Inc., which ran the aircraft for the CIA's "extraordinary rendition" program. According to an ACLU account:

In US custody, Mohamed was fed meals of raw rice, beans and bread sparingly and irregularly. He was kept in almost complete darkness for 23 hours a day and made to stay awake for days at a time by loud music and other frightening and irritating recordings, including the sounds of "ghost laughter," thunder, aircraft taking off and the screams of women and children. 

Interrogations took place on almost a daily basis. As part of the interrogation process, he was shown pictures of Afghanis and Pakistanis and was interrogated about the story behind each picture. Although Mohamed knew none of the persons pictured, he would invent stories about them so as to avoid further torture. In May 2004, Mohamed was allowed outside for five minutes. It was the first time he had seen the sun in two years.

Amazingly, this was not the end of Mohamed's ordeal. From the Dark Prison he was sent to Bagram prison, and then later to Guantanamo. In August 2007, the British government petitioned the US for release of their subject. Eighteen months later, and after being subjected to more abuse at Guantanamo, he was finally able to leave US custody and return to Britain.

[The ACLU's suit against Jeppesen was ultimately dismissed. In May 2011, the Supreme Court turned down an ACLU request to hear the suit.]

The Use of Drugs in Torture by the United States

The allegations of drugging by Mohamed and other prisoners are redolent of the use of hallucinogenic and other powerful mind-altering drugs by the US in its Artichoke, MK-ULTRA and other programs. A recent account, by Joby Warrick of The Washington Post, described some of these allegations of drugging of "detainees." The Post article subsequently led to an ongoing DoD Inspector General investigation into Possible Use of Mind Altering Substances by DoD Personnel during Interrogations of Detainees and/or Prisoners Captured during the War on Terror (D2007-DINT01-0092.005) "to determine if DoD personnel conducted, facilitated, or otherwise supported interrogations of detainees and /or prisoners using the threat or administration of mind altering drugs." According to his attorney's filings in the Jose Padilla case, Padilla, who was also originally implicated in the "dirty bomb" so-called plot with Binyam Mohamed, was forced to take LSD or other powerful drugs while held in solitary confinement in the Navy brig in South Carolina.

[The DoD IG report on drugging of prisoners was finally released in July 2012, thanks to a FOIA request I had filed. The report takes up some of the charges listed here, but only in a partial and misleading fashion. For a complete analysis, see the article by Jason Leopold and Jeff Kaye at this link.]

Another former Guantanamo prisoner, Mamdouh Habib, an Egyptian-born Australian Muslim released in 2005, has consistently told his tale of being subjected to electroshock, beatings and drugging while in US custody.

The CIA has been accused of involvement in continuing interrogation experimentation upon prisoners. The recent release of the previously censored summary of Mohamed's treatment in Pakistan notes that "The effects of the sleep deprivation were carefully observed." As Stephen Soldz notes in an article on the British court revelations, "Why were these effects being 'carefully observed' unless to determine their effectiveness in order to see whether they should be inflicted upon others? That is, the observations were designed to generate knowledge that could be generalized to other prisoners. The seeking of "generalizable knowledge" is the official definition of "research," raising the question of whether the CIA conducted illegal research upon Binyan Mohamed." The role of doctors, psychologists and other medical professionals in the CIA/DoD torture program has been condemned by a number of individuals in their respective fields, and by organizations such as Center for Constitutional Rights and Physicians for Human Rights.

Most recently, in an important article by Scott Horton at Harpers, the reexamination of the evidence in the supposed 2006 suicides of three prisoners at Guantanamo pointed to the possibility that the prisoners were killed in a previously unknown black site prison on the Guantanamo base - "Camp No" - run by the CIA or Joint Special Operations Command. This raises the question of why they were taken off site at all. One prisoner, 22-year-old Yasser Talal Al-Zahrani, had needle marks on both of his arms. The marks were notably not documented in the US military's autopsy report.

Where Do We Go From Here?

The tale of Dmitri Dimitrov documents the existence of a US-run torture and rendition program decades before the post-9/11 scandals of the Bush administration. Both the CIA and the Department of Defense have been implicated in both the research and implementation of torture for much of post-World War II US history. And yet, aside from the famous Church and Pike Congressional investigations of the 1970's, and the hearings and report from the Senate Armed Services Committee in 2008-09 on detainee abuse, the perpetrators of these crimes have gone unpunished. The current administration of President Barack Obama has clearly stated that it had little appetite to "look backwards" and seek accountability for the abuses of the past. Yet these abuses are never really "past," as the suffering of the victims and their families continues into the present. Additionally, the practice of torture, or use of "cruel, inhumane and degrading treatment" of prisoners has not ended, and the same generals, colonels, admirals and intelligence agency bureaucrats and politicians who have been linked to past programs are free to research or implement ongoing abuse of prisoners and experimentation.

This country needs a clear and definite accounting of its past and present use of torture. Like a universal acid, torture breaks down the sinews of its victims, and in the process, the links between people and their government are transformed into the naked exercise of pure sadistic power of rulers over the ruled. The very purpose of civilization is atomized in the process. We need a full, open and thorough public investigation into the entire history of the torture program, with full power to subpoena, and to refer those who shall be held accountable for prosecution under the due process of law.

9th Circuit Adopts "State Secrets" Defense Against Jeppensen Rendition-Torture Victims

In yet another outrage in the torture scandal, according to an ACLU press release, the 9th Circuit Court of Appeals, ostensibly the most liberal such court in the nation, has ruled Wednesday in an en banc hearing that the lawsuit of five men kidnapped and tortured by the United States government is dismissed, as trespassing upon "state secrets" privileges by the government. The ruling follows an appeal by the Obama administration, who has proven the worthy successor to the Bush/Cheney executive, striving to keep secret state actions of rendition and torture.

The five men include former prisoner Binyam Mohamed, whose case has been covered extensively by the press, and whose torture is a key reason the government of Great Britain recently announced that there would be an investigation of British collaboration with the United States on the torture and rendition programs. A UK Guardian story reported on protests by the legal charity Reprieve over the appointment of the intelligence-linked Sir Peter Gibson to head the inquiry. I'd made much the same exception to Gibson's appointment in my coverage of the announcement of the inquiry back in July. Of course, the British government claims no conflict of interest for the 76-year-old Gibson, who is Intelligence Services Commissioner, responsible for monitoring secret bugging operations by MI5, MI6 and GCHQ (Britain’s version of the NSA).

The 9th Circuit's final vote was tight, 6-5, and the decision and the dissents are well-worth reading (PDF). But this ruling is an outrage, and another indication of the anti-democratic nature of this supposed democratic state, made more ironic and sickening when you consider that the U.S. military spills the blood of hundreds of thousands, and makes refugees out of millions more, all in the name of spreading "Democracy." It would be funny, if it weren't so... so criminal and disgusting.

Consider this story from just one of the five defendants, Ahmed Agiza, seeking damages against Jeppesen DataPlan, Inc, the Boeing subsidiary that leased the planes used in some of the torture renditions. He was kidnapped by the CIA from Sweden and sent to Egyptian torturers three months after 9/11. Note, too, that Sweden had negotiated with Egypt guarantees of humane treatment (for all of you who believe the Obama administration's claims that getting guarantees regarding conditions of imprisonment and interrogation from "host" countries makes rendition "safe"). From the court's ruling:

Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authori- ties, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and geni- tals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

From the ACLU press release:

SAN FRANCISCO – A federal appeals court today dismissed a case against Boeing subsidiary Jeppesen DataPlan, Inc. for its role in the Bush administration's extraordinary rendition program. The American Civil Liberties Union and the ACLU of Northern California filed the lawsuit in May 2007 on behalf of five men who were kidnapped by the CIA, forcibly disappeared to U.S.-run prisons overseas and tortured. The Bush administration intervened in the case, improperly asserting the "state secrets" privilege in an attempt to have the lawsuit thrown out.

In April 2009, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the government must invoke the state secrets privilege with respect to specific pieces of evidence – not over an entire lawsuit. The Obama administration appealed that ruling, and in December the appeal was heard by an en banc panel of all 11 Ninth Circuit judges. According to the ACLU, today's ruling all but shuts the door on accountability for the illegal program. The ACLU intends to seek Supreme Court review of the decision.

The following can be attributed to Ben Wizner, staff attorney with the ACLU, who argued the case before the Ninth Circuit:

"This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation's reputation in the world. To date, not a single victim of the Bush administration's torture program has had his day in court. If today's decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history."

Attorneys on the case are Wizner, Steven Watt, Steven R. Shapiro and Jameel Jaffer of the national ACLU, Julia Harumi Mass of the ACLU of Northern California, Paul Hoffman of the law firm Schonbrun DeSimone Seplow Harris & Hoffman LLP and Hope Metcalf of the Yale Law School Lowenstein Clinic. In addition, Margaret L. Satterthwaite and Amna Akbar of the International Human Rights Clinic of New York University School of Law and Clive Stafford-Smith and Zachary Katznelson represent plaintiffs in this case.

Others are responding to this terrible decision by the Ninth Circuit, including Marcy Wheeler, Nick Baumann, Josh Gerstein, and Garrett at Daily Kos. For more on the rendition story, see my article at Firedoglake last July, UK on U.S. Rendition: “Is it clear that detention, rather than killing, is the objective of the operation?” For an even longer historical perspective, read The Real Roots of the CIA's Rendition and Black Sites Program by H.P. Albarelli and Jeffrey Kaye, published at Truthout.org last February.

Bottom line? Ben Wizner described it well, calling it a sad, sad day for all torture victims, as well as those who care about the rule of law. Marcy Wheeler put it more acerbicly:

So basically, the government can kidnap you and send you to be tortured – as they did with Binyam Mohamed – yet even if your contractors acknowledge what they were doing, if the government wants to call their own law-breaking a secret, the most liberal Circuit Court in the country agrees they can.

In a related story, see Adam Goldman's AP piece on the torture of Abd al-Rahim al-Nashiri at a CIA black site prison in Poland, where he had been sent via rendition back in 2002 and 2003. Al-Nashiri famously had both a gun and a drill held threateningly to his head during the torture. Ostensibly, according to the article, the torturer in question was an ex-FBI agent and CIA interrogator named "Albert." The article looks meant to warn DoJ prosecutor John Durham not to bother with a prosecution of the CIA agents involved, as doing so would open a can of worms, since previously DoJ declined prosecution, and "Albert" went on to work for the CIA for years after his "reprimand" in the Nashiri case.

As al-Nashiri's attorney said about her client's case:

"Terrorizing a hooded, shackled prisoner is torture," [Nancy] Hollander said. "I will do everything in my power to make sure the world knows that agents of the U.S. government tortured my client and have now held him in violation of U.S. and international law for over eight years."

Per Obama: Torture Evidence Is "Protected" Against Release

This is what a Nobel Prize gives you the chutzpah to do. From Jason Leopold at Truthout:

On Thursday, the House approved a Department of Homeland Security spending bill that included a provision to amend the Freedom of Information Act (FOIA) and grant Defense Secretary Robert Gates the authority to withhold "protected documents" that, if released, would endanger the lives of US soldiers or government employees deployed outside of the country.

According to the bill, the phrase "protected documents" refers to photographs taken between September 11, 2001 and January 22, 2009, and involves "the treatment of individuals engaged, captured or detained" in the so-called "war on terror." Photographs that Gates determines would endanger troops and government employees could be withheld for three years.

Leopold quotes Democratic Congresswoman Louise Slaughter as saying "the language was quietly reinserted in recent weeks, 'apparently under direct orders from the administration.'" The bill's language is a cover for Obama, who was otherwise threatening an administration petition to the U.S. Supreme Court to stop the release of the controversial, unseen "torture photos."

Will we hear much protest from the progressive blogosphere? Not likely, as the torture issue slips off the radar, and the trudging submission of the progressive punditry to Democratic Party faux-ameliorism continues (there are exceptions, and you know who they are). Millions more on unemployment. Wall Street dances in blue chips. War continues apace, and the torture industry revs up for more high-tech adventures in breaking individuals down. No pictures of war. Nothing messy. Just bright baubles, Nobel Prizes, and proud words about equality... some day. No one in a position of power must lose a wink of sleep: that's how change is measured in America these days.

Congress Fails, But Justice Speaks Out

Meanwhile, over in Great Britain, per the UK Guardian, some very welcome news:

In a devastating judgment, two senior judges roundly dismissed the [British] foreign secretary's claims that disclosing... evidence would harm national security and threaten the UK's vital intelligence-sharing arrangements with the US.

In what they described as an "unprecedented" and "exceptional" case, to which the Guardian is a party, they ordered the release of a seven-paragraph summary of what the CIA told British officials – and maybe ministers – about Ethiopian-born [Binyam] Mohamed before he was secretly interrogated by an MI5 officer in 2002.

"The suppression of reports of wrongdoing by officials in circumstances which cannot in any way affect national security is inimical to the rule of law," Lord Justice Thomas and Mr Justice Lloyd Jones ruled. "Championing the rule of law, not subordinating it, is the cornerstone of democracy."

Readers might remember the case of Binyam Mohamed, who was seized by the United States in Pakistan in 2002, secretly renditioned to Morocco, and later held at Bagram and Guantanamo "terror" prisons, suffering torture in all these sites. He is one of the plaintiffs in the Jeppesen case, a suit brought by the ACLU. That case engendered a decision last summer by the Ninth Circuit Court, which was one of the last legal victories in the U.S. in the struggle for accountability for torture.

In 2007, the ACLU filed a federal lawsuit against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company, on behalf of five victims of the United States government's unlawful "extraordinary rendition" program. The suit charges that Jeppesen knowingly participated by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to detention and interrogation. Shortly after the suit was filed, the government intervened and inappropriately asserted the "state secrets privilege," claiming further litigation would undermine national security interests, even though much of the evidence needed to try the case was already available to the public. In April 2009, the Ninth Circuit Court of Appeals reversed a lower court dismissal of the case, ruling that the government must invoke the state secrets privilege with respect to specific evidence, not to dismiss the entire suit. The case is remanded back to district court, providing the first opportunity for Bush-era torture victims to have their day in court.

Jeppesen UK Gives In, Will Give Up "Ghost Plane" Evidence on Renditions

H/T Gitcheegumee at FDL

Sunday's UK Guardian, 7/26/2009

Secrets of CIA 'ghost flights' to be revealed

Confidential documents showing the flight plans of a CIA "ghost plane" allegedly used to transfer a British resident to secret interrogation sites around the world are to be made public. The move comes after a Sussex-based company accused of involvement in extraordinary rendition dropped its opposition to a case against it being heard in court.

Lawyers bringing the case against Jeppesen UK on behalf of the former Guantánamo Bay detainee, Binyam Mohamed, claimed last night the climbdown had wide-ranging legal implications that could help expose which countries and governments knew the CIA was using their air bases to spirit terrorist suspects around the world.

It was only three months ago that the U.S. Ninth Circuit Court ruled against the Obama administration's invocation of "state secrets" privilege in trying to squash Mohamed and his co-defendants' lawsuit again Boeing subsidiary Jeppesen DataPlan for its role in Bush's extraordinary rendition program. While the suit in the UK is separate from that in the U.S., which is being fought by the ACLU and the British charity organization, Reprieve, the decision by Jeppesen in the UK will have a profound effect upon the question of "state secrets" in the U.S., and perhaps other countries.

The Guardian article explains:

The US government is seeking to have the case against Jeppesen dismissed, saying it would breach national security. But Jeppesen UK's decision to drop its opposition to fighting the case in a British court means a wealth of confidential information relating to the alleged rendition process will become public....

Reprieve's renditions investigator, Clara Gutteridge, said the CIA could not have acted alone and the case would raise questions over which governments were complicit in extraordinary rendition.

It's great to finally receive some good news, and hats must go off to Reprieve and Mohamed's London lawyers, Leigh Day & Co. Deserving of a similar victory are the hard workers at ACLU. As for Jeppesen UK, I guess they got a sense the jig was up, and it would better to hang out now. Or maybe they think the fix is in or they can finesse it in court.

In any case, greater openness is something to celebrate. The whole sordid tale of renditions to torture is one of the worst episodes of this country and its allies descent into moral turpitude and crime. Another lingering Obama scandal in the egg his administration's insistence that they will keep the rendition program, with yet another governmental promise that no one will be sent to torture. But if you think Obama really has control over the brutal rulers of Egypt, Jordan, Morocco, Yemen, etc., then you've really drunk the Kool Aid.

Hey, where's Andy Worthington when you need him?

9th Circuit Rules Against Obama/Bush on State Secrets in Jeppesen Case

The Ninth Circuit Court of Appeals has rejected the Department of Justice arguments of "state secrets" in the suit against Boeing subsidiary Jeppesen Dataplans, Inc., and will let their suit go forward.

Glenn Greenwald reported yesterday:

...in a 26-page ruling (.pdf), the appellate court resoundingly rejected the Bush/Obama position, holding that the "state secrets" privilege -- except in extremely rare circumstances not applicable here -- does not entitle the Government to demand dismissal of an entire lawsuit based on the assertion that the "subject matter" of the lawsuit is a state secret. Instead, the privilege only allows the Government to make specific claims of secrecy with regard to specific documents and other facts -- exactly how the privilege was virtually always used before the Bush and Obama DOJs sought to expand it into a vast weapon of immunity from all lawsuits challenging the legality of any executive branch program relating to national security....

Critically, the court went on to note that the Government's interests in maintaining secrecy "is not the only weighty constitutional values at stake."

Astute legal observer, bmaz, over at Emptywheel/FDL, noted a small fly in the ointment, but concluded, "this is a big blow to the government and a win for the rule of law." The fly?

... it appears from a skimming of the decision that they did not dismiss the ability of the government to assert state secrets, rather indicated the time was not ripe for it.

FAS Secrecy News notes a particular aspect of the ruling, which speaks to the importance both Greenwald and bmaz give the case:

In another crucial distinction, the court said that the fact that certain information is "classified" does not necessarily mean that it is "secret" for purposes of the privilege.

"A rule that categorically equated 'classified' matters with 'secret' matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process," the court said.

Greenwald noted other, similar statements in the brief.

While it indeed looks like Binyam Mohamed and the other plaintiffs in the Jeppesen case will get their day in court (referring to damages incurred by them as torture victims in the CIA's secret rendition program, using Boeing subsidiary Jeppesen Dataplan for critical flight planning and logistical support services and aircraft crews), the government has not responded yet to the ruling, leaving open the possibility of further appeals.

Reactions to Obama/Holder Injustice in Jeppesen Case

Ateqah Khaki, from the National Security Project, in an article posted at ACLU Blog of Rights, has described the significant press reaction following the Obama Administration's decision to claim "state secrets" in their argument to the Ninth Circuit Court of Appeals to drop plaintiffs' plea to let their suit against Boeing subsidiary Jeppesen Dataplans, Inc. go forward. ACLU attorneys argued the case for plaintiffs.

It is public record that Jeppesen knowingly participated in the CIA extraordinary rendition program, providing critical flight planning and logistical support services and aircraft crews. Jeppesen employees were even known to brag about their services to the CIA program. One managing director told Jane Mayer of The New Yorker:

"We do all of the extraordinary rendition flights—you know, the torture flights. Let’s face it, some of these flights end up that way."

The five men involved in the lawsuit, which was dismissed by a lower court in February 2008 thanks to the Bush administration's inappropriate assertion of "state secrets privilege," that release of information in court regarding the case would supposedly harm national security. The men had been forcibly disappeared by the Jeppesen-serviced CIA program and sent from countries like Sweden, Gambia, Pakistan, and Jordan and flown to secret detention and torture in CIA prisons, or by CIA proxies in Morocco and Egypt, or elsewhere.

One of these five, Binyam Mohamed, lies near death on hunger strike in Guantanamo prison, where U.S. authorities are pondering his release to return to Britain. One of Mohamed's attorney's, Lieutenant-Colonel Yvonne Bradley, an American military lawyer, has written an appeal for his release, published in today's UK Guardian. She describes some of what her client is currently suffering. This, not yesterday's Obama press conference, displays the real face of American power and how it is used:

Guards told Binyam that he was going home in December, and so he is on hunger strike (together with 50 or so other prisoners). This means that he is tube-fed while strapped to a chair, twice a day. Binyam has lost so much weight that he speaks of the pain he suffers from being strapped to the chair for hours each day – he speaks of feeling his bones against the chair. I am really worried that if Binyam does not come home soon, he will leave Guantánamo Bay in a coffin.

The Joint Task Force, which runs Guantánamo Bay, gives me no information about Binyam. When I called to enquire about his condition, they said first, that they would look into it and then that they would tell me nothing and that I should make a Freedom of Information request, which would have taken months to process. Therefore, whenever I want information about Binyam, I have to make the 5-hour trip to Guantánamo. Each time, he asks why he is still there.

It is worth bearing in mind that all charges against Binyam have been dropped and that Binyam's chief prosecutor resigned, citing the unfairness of the system.

Meanwhile, outrage continues to pour out regarding the injustice of the Obama administration's actions in court on Monday. The Los Angeles Times highlighted the incredulity of one judge regarding the government's argument to dismiss the Jeppesen case:

At one point during the hearing, Judge Michael Daly Hawkins, a Clinton appointee, told the government’s lawyer that he was not convincing.

"So any time the executive branch of the government says the fact is classified, it means it cannot be examined?" Hawkins asked Letter.

Letter, noting that national security was at stake, told the court it should "not play with fire" by permitting the suit to go forward.

"Nor should the government in asserting [secrecy] privilege," Hawkins shot back.

The New York Times editorialized today against the Obama Department of Justice actions:

The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law....

Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred....

The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

The simple truth is this: the government has had years to make their cases against the Guantanamo detainees. If they cannot bring a case today, the detainees should be released. They could be given provisional residency status in the United States, pending final disposition. Those for whom their is acceptable evidence of crimes could be turned over to federal courts and charged and tried accordingly. Binyam Mohamed should be released immediately. Britain has already indicated they are ready to accept him.

The news last week that President Obama is still considering some kind of modified version the hated military commissions to try Guantanamo prisoners should be dropped. The U.S. courts can handle any appropriate prosecutions. Whether its bogus military commissions or "state secrets privilege" to torpedo accountability lawsuits, why doe the U.S. government want to keep these issues out of American courts? One good reason: their actions and programs would not withstand legal scrutiny.

FYI: The ACLU has posted a link so everyone can hear the oral arguments made last Monday in the Jeppesen case.

Obama Reneges on Justice for Torture Victims, Embraces Bush Secrecy Doctrine

Today, new Attorney General Eric Holder's Justice Department embraced Bush administration claims of "state secrets" in the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan for its role in Bush's extraordinary rendition program. Jeppesen's involvement in the "torture flights" of an undetermined number of terror suspect abductees, making a tidy profit for themselves in the meantime.

The New York Times reported on how the deal went down in San Francisco earlier today:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Even the judges seemed surprised by the government's seeming apostasy from its previous public proclaimations about openness.

It is worth remembering that one of the five rendition torture victims bringing suit against Jeppesen is Binyam Mohamed, who was "rendered" to Morocco in July 2002, where he suffered horrific torture, including cuts on his penis with a scalpel. Mr. Mohamed recently saw his attempt to get classified information about his torture released by British courts squashed by U.S. threats to stymie cooperation with British intelligence, while the Brits appeared queasy themselves over revelations regarding the collaboration of their own intelligence services with Mohamed's torture.

Justice Department spokesman Matt Miller shook off criticisms of the government's actions:

"The Justice Department will ensure the privilege is not invoked to hide from the American people information about their government's actions that they have a right to know. This administration will be transparent and open, consistent with our national security obligations," Miller said.

Meanwhile, ACLU executive director Anthony Romero had a few choice words for the administration:

"Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

Barack Obama has gotten quite a free ride from the "change" and "hope" crowd. When he quickly issued executive orders closing the CIA "black site" prisons and shutting down the CIA's "enhanced interrogation" torture, including waterboarding, much of the liberal and human rights world shouted, "Torture is over." Guantanamo would be closed (within a year), and the whole world could rest easy that the humane and totally vetted Army Field Manual would guide interrogators and protect vulnerable prisoners from the brig at the Naval Base at Charleston, South Carolina to the U.S. run prison at Baghram Air Base in Afghanistan.

Moreover, the Obama administration was proclaiming a new era of governmental transparency. The Freedom of Information Act was to be returned to its days of glory, and the new Attorney General assured his Senate questioners that old abusive use of "state secrets" privilege by the Executive Branch was a thing of the past, with such invocation only to be be used "in legally appropriate situations."

But what is the situation we have today? The conditions at Guantanamo worsen day by day, with 20 percent of the prison population on hunger strike. Binyam Mohamed himself lies near death. Obama has ordered a review of interrogation procedures which has some worried he will okay certain exceptions for the CIA. Meanwhile, the myth of a model humane Army Field Manual has been broken via exposure of abusive techniques inside its Appendix M, and elsewhere in its text.

Yesterday, I wrote this:

Whatever the intentions of Barack Obama, there is an entrenched culture now within the military and in the intelligence agencies of the United States, and also of some its allies, that relies on coercion and terror to enforce their rule and their power. The fight over this must be taken into the open, with demands to declassify all but the most current and sensitive documents that relate to interrogations and torture. If there is no imminent danger to the United States then there is no reason to hold any such documentation secret.

This is almost exactly the same point Ben Wizner of ACLU made to Glenn Greenwald, regarding the claims of state secrets in the Jeppesen case:

Wizner noted one last fact that is rather remarkable. The entire claim of "state secrets" in this case is based on two sworn Declarations from CIA Director Michael Hayden -- one public and one filed secretly with the court. In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation -- the very policies which Obama, in his first week in office, ordered shall no longer exist. How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned?

The question is, of course, rhetorical in nature, because I think only the blind do not know the answer to that.

It really doesn't matter who is president of the United States when it comes to torture policy. That has been in the hands of the CIA and certain folk in the Pentagon and Executive Branch for a long time now. Obama and Holder have demonstrated they have zero intention in challenging that institutional status quo, even if that means throwing entire civil suits brought by torture victims out of court, even when the information about the suit is almost totally part of the public record.

This is not about keeping secrets safe. It's about controlling what the public can hear and not hear, so the repressive apparatus of the state can be allowed to function without public scrutiny or public control.

What will the followers of Obama do now? Will they sell out the most wretched and cruelly tortured for the feel-good vibes of the moment? Or will they hold their candidate to account?

More Confusion on Renditions: The Role of Ostensibly Liberal Bloggers

There's a lot of smoke spewing up from the bits and pieces of Bush's leftover torture program, as the Obama administration is trying to refashion policies around apprehension, detention and interrogation of prisoners in what used to be called (or still is) the "Global War on Terror."

The foulest smell issues from the controversy over using cruel, inhuman, and degrading and/or torture techniques in the Army Field Manual (AFM). Obama, supported by some human rights organizations, especially Human Rights Watch and Human Rights First, has proposed making the AFM its "single standard" for all interrogations, including those done by the CIA.

While the CIA publicly balks, one wonders if they are that unhappy with the AFM's Appendix M, which codifies the old CIA interrogation doctrine of regression of the prisoner's personality through use of solitary confinement (isolation), sleep deprivation (debility), sensory deprivation, and a harsh form of "Fear Up" (dread)? In any case, Appendix M violates the very international documents Obama claims to uphold. That contradiction cannot hold, and other human rights groups, like Physicians for Human Rights and Center for Constitutional Rights, have publicly called for the elimination of Appendix M prior to acceptance of the AFM as any kind of interrogation template.

But if the AFM is the foulest, the controversy over rendition is the most opaque and contentious. Liberal bloggers have jumped on the bandwagon defending President Obama's Executive Order calling for a review of "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...." Forget that Obama did not outlaw the practice of rendition. But this is because, according to certain liberal bloggers, and a few human rights spokespeople (like Tom Malinowski of Human Rights Watch), "Under limited circumstances, there is a legitimate place" for renditions.

These individuals -- and Scott Horton and Hilzoy are two prominent such bloggers, followed somewhat by the more ambivalent soul-searching of the otherwise usually precise Glenn Greenwald on the issue -- believe that extraordinary renditions are something qualitatively different than regular or normal renditions. While U.S. Supreme Court decisions may see some distinction, these are about renditions "to justice" in a U.S. court (the Ker-Frisbie doctrine). No one is arguing that the renditions being considered by the U.S. today are these kinds of renditions, so the argument about "good" or "lawful" renditions is specious, and meant to confuse or muddy the waters.

In a truly extraordinary confluence of opinions, these same liberal bloggers either support the AFM as is or remain silent about the question of abuse in the Army Field Manual. Why the silence and/or support for such a heinous set of procedures? That's a question to be taken up another day.

According to Horton et al., extraordinary renditions are war crimes, because the government sends prisoners to foreign countries to be tortured. (That is certainly correct, so far as that goes.) "Legal" renditions -- as defined by Richard Clarke in a recent article, whose opinion was specifically endorsed by Horton and the anti-torture blog, Back to Our Senses -- are examples of "renditions performed by the American government [and] are legal, effective, and done within the scope of human rights" (emphasis added). And if you think differently, then you are "ridiculously misinformed", a "buffoon," a "moron" (the latter by a Daily Kos commenter to yours truly).

Truly, you can get a lawyer to argue that black is white and white is black, if you pay him or her enough, or if they have a well-entrenched political agenda.

"Expert" Opinions and the Rendition Question

Most of what passes for political commentary these days relies on the received "wisdom" of experts. So, if Scott Horton, an "expert" in international law, says that there is a "distinction between 'extraordinary renditions' and 'renditions'" (one is supposedly legal, if rare, the other is a serious crime), then it must be true. No one thinks to ask other authorities, and the sides line up based upon loyalty to their favorite authority.

There may be no other way around this, especially for non-lawyers like myself. And even among legal experts there may be profound differences of opinion, which hopefully are decided by respected and powerful courts, like the U.S. Supreme Court, or an appropriate international juridical body.

When I was looking to form an opinion on rendition, I did not just read a few blog entries by my favorite blogger or columnist, as trustworthy as I may usually find them. I did some of my own research and reading. It's really worth the effort. I rarely found "extraordinary rendition" separated from that of "rendition," unless the focus of a document were purely on the Bush Administration practice of renditions to torture. The latter fact is part of definitional problem involved in discussing this issue, as "extraordinary rendition" has become synonymous with Bush's program, but in fact E.R. existed prior to Bush's tenure, i.e., as a covert program used as a tactic, since at least 1995.

What I found in my search was plenty of examples in the law explaining the differences between lawful rendition, which we call extradition, and abduction. Here's a few, courtesy of Justice Stevens:

Extradition treaties prevent international conflict by providing agreed upon standards so that the parties may cooperate and avoid retaliatory invasions of territorial sovereignty. According to one writer, before extradition treaties became common, European States often granted asylum to fugitives from other States, with the result that "a sovereign could enforce the return of fugitives only by force of arms . . . . Extradition as an inducement to peaceful relations and friendly cooperation between states remained of little practical significance until after World War I." M. Bassiouni, International Extradition and World Public Order 6 (1974)

If you are enforcing your New World Order, I suppose you don't care about friendly cooperation between states. But how would Americans react if Afghanis kidnapped Bush or Cheney for crimes and brought them back to Afghanistan for trial, or even more to the point, delivered them over to the North Koreans for interrogation? Or how about Cubans kidnapping Luis Posada Carriles, who bombed Cubana flight 455 in September 1976 (with CIA foreknowledge, by the way), and today resides in the U.S.? Why not just junk all treaties and let the rule of might makes right the ultimate arbiter?

When Abraham Sofaer, Legal Adviser of the State Department, was questioned at a congressional hearing, he resisted the notion that such seizures were acceptable: " `Can you imagine us going into Paris and seizing some person we regard as a terrorist . . .? [H]ow would we feel if some foreign nation--let us take the United Kingdom--came over here and seized some terrorist suspect in New York City, or Boston, or Philadelphia, . . . because we refused through the normal channels of international, legal communications, to extradite that individual?' " Bill To Authorize Prosecution of Terrorists and Others Who Attack U. S. Government Employees and Citizens Abroad: Hearing before the Subcommittee on Security and Terrorism of the Senate Committee on the Judiciary, 99th Cong., 1st Sess., 63 (1985).

The Congressional Research Service, which produces material so that Congress can understand important legislative issues, has made it clear that its own analysis of rendition was about extrajudicial seizures. So did Amnesty International in a document on "'Rendition' and secret detention.' I think AI really described the salient problems I have with rendition, whether it's rendition to torture or not (assuming one can really determine what will happen to a prisoner who has been kidnapped and delivered to a foreign, or even domestic, penal or governmental or intelligence agency). I will quote it here somewhat at length (emphases added):

Amnesty International uses the term "rendition" to refer to a variety of practices by the US authorities involving transfers of individuals from one country to another, without any form of judicial or administrative process such as extradition. These practices, usually carried out in secret, include transferring "war on terror" detainees into the custody of other states, assuming custody of individuals from foreign authorities and abducting suspects on foreign soil.

The practice of transferring a detainee from US custody to the custody of a foreign state is usually called "extraordinary rendition" in the USA, and appears to have been carried out by the Central Intelligence Agency (CIA) since 1995....

Some victims of "rendition" have later turned up in official US detention centres, such as Guantánamo Bay. Others have simply "disappeared" after being arrested by US agents or turned over to US custody.

It has been reported that the CIA, often using covert aircraft leased by front companies, has flown individuals to countries including Egypt, Jordan, Morocco, Pakistan, Saudi Arabia and Syria. Most of the states to which the USA transfers these individuals are known to use torture and other ill-treatment in interrogations. It is alleged that states which are known to practise torture have been specifically selected to receive detainees for interrogation and that detainees have been threatened by US interrogators that they will be sent to such states.

It has also been reported that victims of "rendition" transferred to US custody from other countries have been held in US-run secret detention centres outside US territory (sometimes called "black sites")....

The US administration has acknowledged it uses "rendition", maintaining that the practice is aimed at transferring "war on terror" detainees from the country where they were captured to their home country or to other countries where they can be questioned, held or brought to justice. It has contended that these transfers are carried out in accordance with US law and treaty obligations....

Amnesty International believes that these practices are illegal because they bypass any judicial or administrative process such as extradition. Under international law, it is illegal to transfer people from one country to another without any kind of judicial or administrative process.

Do you hear that, Scott Horton? Under international law. If you want more detailed legal discussion, please see Matteo M. Winkler's article, When ‘Extraordinary’ Means Illegal: International law and the European Reactions to the United States Rendition Program, Section 3.1 - Can Abduction Be Justified? (Yale Law School Student Scholarship Series, Paper 46). Also see Justice Stevens' dissent in U.S. v. Alvarez Machain, as well as F.A. Mann, "Reflections on the Prosecution of Persons Abducted in Breach of International Law", in International Law at a Time of Perplexity, 1988, Martinus Nijhoff Publishers:

A State which authorizes the abduction of a person from the territory of another sovereign State is guilty of a violation of public international law. This principle is supported by considerable State practice, numerous decisions of municipal courts, and a large body of doctrinal opinion. Its basis is the incontrovertible rule that exercise of physical force by one State without the latter's consent constitutes an excess of international jurisdiction or a violation of the 'principle of respect, which is guaranteed by not only Article 2 of the Charter of the United Nations and other texts, because these merely respond to firmly established and longstanding tenets of customary international law.'

But let us now return to Amnesty International's discussion:

Moreover, most victims of "rendition" were arrested and detained illegally in the first place: some were abducted; others were refused access to any legal process. Many victims of "rendition" have been or continue to be held in prolonged arbitrary detention and they have been or continue to be subjected to enforced disappearance. All of the victims of "rendition" Amnesty International has interviewed have also said they were subjected to torture and other ill-treatment.

"Rendition" usually involves multiple human rights violations, including abduction, arbitrary arrest and detention and unlawful transfer without due process of law. It also violates a number of other human rights safeguards: for example, victims of "rendition" have no possibility of challenging their detention, or the arbitrary decision to transfer them to another country.

"Rendition" is a key element in the global system of secret transfers and arbitrary detention. This system is designed to detain people, often for obtaining intelligence from them, free from any legal restriction or judicial oversight.

We are left with this quandry: why the wide gulf of opinions on rendition? Horton and others can point to ill-informed bloggers, constructing strawmen which they can then easily tear down, all the better to strut their expertise before the admiring crowd. But you won't see them tearing down Amnesty International or Reprieve, who totally oppose all renditions as ignoble and illegal acts of extrajudicial power and injustice. That might alienate some of their readers, who then might investigate for themselves.

What kind of game, we must ask at this crucial time in the fight against torture, including the full panoply of repressive measures routinely used by the Bush Administration, the Pentagon and the CIA, are these liberal columnists playing? Is it anything that different from what the mainstream press has done for years, i.e., toady up to the current administration or the opposition party, the better to keep access to sources? Or is there something more ideological, or even, heaven forbid, more sinister going on there? Is there any connection with the fact that an important civil suit on renditions, which also challenges the U.S.'s state secrets defense, namely Mohamad v. Jeppesen Dataplan, Inc. is about to go to trial? (Glenn Greenwald just interviewed Ben Wizner, the ACLU attorney representing the plaintiffs in the Jeppesen case.) Or is this just about securing future jobs in an Obama administration?

The Eichmann Case

Horton points to the kidnapping of Adolf Eichmann by the Israelis around 50 years ago as an example of "the prototype of an appropriate rendition." Here are the results of Horton's unfortunate example, taken from an article by Raanan Rein in Jewish Social Studies, Spring-Summer 2001 (emphasis added):

The election of Arturo Frondizi as president of Argentina in February 1958 was welcome news to both the Israeli embassy in Buenos Aires and the leaders of the local Jewish community. And he had not lived in the presidential palace for long before their expectations appeared to have been justified. The Jews of Argentina felt a growing sense of security and well-being, and relations between Jerusalem and Buenos Aires grew closer. The kidnapping of Adolf Eichmann in May 1960, however, interrupted this idyll, precipitating a crisis that nearly severed the ties between the two countries and threatened Argentine Jews' sense of personal security. The Argentine Jewish community, which was then just marking the hundredth anniversary of its existence, became the target of a wave of antisemitic terror and nationalist attacks that sought to cast doubt on Jewish citizens' loyalty to the Argentine republic.

Thus, the "appropriate rendition" by one party causes untold suffering and unforeseen political consequences for a vulnerable population. One wonders if Horton knows also that both the West Germans and the U.S. knew the location of Eichmann for two years before the Israeli kidnapping and did nothing to induce Argentina to arrest or otherwise extradite the man.

Or does Horton forget or not know that the Israeli court trying Eichmann itself alluded to violations of international law in his capture, which were adroitly "remedied" by getting the Argentines to forego, after the fact, asserting their sovereignty in the case?

The Israeli Court also determined that because "Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant, any violation of international law that may have been involved in this incident has thus been remedied."

I'm not saying that Eichmann shouldn't have been tried, nor that he didn't receive justice. But that's poetic or moral justice... not law. My problem with the use of kidnapping by states is a simple one. Who decides when a person is beyond the legal pale? Who makes the justice? Who decides that abduction is acceptable? How will our civilization rule itself, by the law of talion, or the law of due process?

New Attorney General Addresses "Secret Law" & "State Secrecy"

The new Attorney General, confirmed just the other day, Eric Holder, gave some written answers to Senator Russ Feingold concerning the latter's questions regarding review of Bush administration policies concerning promulgation of "secret laws" and claims of "state privilege" in legal cases. I'm reproducing the exchange by Holder and Feingold, as it bears upon significant pending issues, not least the Jeppesen and al-Haramain cases.

Secret Law

2. I held a hearing last year on what I have been calling the problem of "secret law." Our legal system is based on the premise that the public has a right to know what the law is. But we now know that for the past seven years, bodies of executive and judicial law were kept secret from the public, and too often from Congress as well. The prime examples of this were binding opinions of the Office of Legal Counsel, and decisions of the Foreign Intelligence Surveillance Court interpreting the Foreign Intelligence Surveillance Act. Certainly there are times when these opinions and decisions may discuss sensitive operational information, and this type of properly classified information should not be made public. But that shouldn’t extend to an explanation of what the law is. Do you agree that, as a general matter, the Justice Department should be committed to more public access to OLC opinions and to FISA Court decisions? And will you work with me on legislation such as the OLC Reporting Act (S. 3501 in the 110th Congress) and Executive Order Integrity Act (S. 3405), to create some statutory protections against this problem?

I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law. Public scrutiny also provides an important check against unpersuasive legal reasoning – reasoning that is biased toward a particular conclusion. Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC's policies relating to publication of its opinions with the goal of making its opinions available to the maximum extent consistent with sound practice and competing concerns.

In that regard, I support the principles behind the proposed OLC Reporting Act. I believe that the Department should notify Congress when it concludes that a provision of a statute is unconstitutional or when it interprets a statute in a manner that is manifestly at odds with its intent. As your question indicates, such notice is subject to the legitimate privilege and other secrecy concerns of the executive branch. I will commit to work with Congress to satisfy Congress's legitimate interest in notice and the executive branch's legitimate interests in efficiency and confidentiality.

State Secrets

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

[...]

Here's a link to the full exchange, posted by the Senate Judiciary Committee.

It seems we'll have to await Holder's review of the state secrets privilege claims to really understand how Obama's Justice Department will operate in this area. As ACLU noted the other day, the first real test of Holder's intentions will come February 9th, when oral arguments are scheduled at the Ninth Circuit in Mohamad v Jeppensen.

Most promising is Holder's pledge to release as many of the formerly secret legal memos produced by Bush's Office of Legal Counsel as possible.

As reported in FAS Secrecy News:

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Mr. Holder wrote.

Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.

“Releasing the memos would … signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct,” the ACLU wrote.

The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration. See “The Missing Memos” by Dan Nguyen and Christopher Weaver, January 28.

In many ways, these missing memos constitute the ostensibly legal framework upon which the Bush regime constructed their apparatus of governmental repression and torture. In particular, I'd love to read John Yoo and Robert Delahunty's OLC 10/23/2001 memo to Alberto Gonzales (then counsel to Bush), Fourth Amendment doesn't apply to military operations abroad or in U.S.:

This memo, titled Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, concludes that the Fourth Amendment's protections against warrantless search and seizure don't apply to military operations, even when the operations take place on U.S. soil.

Kind of sends a chill up your spine, doesn't it, knowing the U.S. Constitution was suspended about eight years ago, and by secret fiat no less. Luckily for us, Obama, by executive order, recently rendered null and void all of these so-called legal OLC opinions that were issued regarding detention and interrogation after 9/11/01.

From the Executive Order, 1/22/2009 (bold emphases added):

Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2-22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

While I have been adamant that standing "as is", the Army Field Manual allows for abusive treatment that can amount to torture, by limiting interpretations of its protocols to CA3, CAN, etc., and forbidding use of the Bush era legal "interpretations" of the law, a minimal amount of protection is provided. It is likely upon this thin reed that many liberals, especially in the administration, are resting their support of the AFM as the "single standard" for interrogations (and I mean people like Glenn Greenwald and Scott Horton).

Unfortunately, it is not enough, as recognized by the Center for Constitutional Rights:

Much like John Yoo's infamous "torture memos" at the Office of Legal Counsel attempted to provide a legal cover for the authorization of torture by high-ranking Bush administration officials, the addition of Appendix M attempts to provide the same cover, utilizing the Army Field Manual. President Obama's executive order repudiates Yoo's memos - but it is not sufficient to do so without also repudiating this appendix, drafted in light of those memos.

H/T to Emptywheel. Also, a posting at Docudharma/Daily Kos by Patriot Daily succinctly explains some of the more abstruse aspects of the state secrets issue, and proposes a solution, utilizing criteria criminal courts use when classified material is part of the case. It's worth reading, for those following this important issue.

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.