Rendering renditions

Back on January 22, O-ba-MA! issued executive orders related to the detention, interrogation, and torture of suspected terrorists. They were justly celebrated in many quarters because they would close Gitmo within a year and put an end to the worst of the excesses of the Bush administration.

More recently, a few dissenting voices have been raised as to whether or not the orders went far enough, along with lingering (and always wise) suspicion over if this really was as good as it looked at first. Some of those doubts were given form in an article in Sunday's Los Angeles Times, which said that

the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism - aside from Predator missile strikes - for taking suspected terrorists off the street.

But pushback came quickly, sparked by Scott Horton, who wrote in Harper's that

[t]he Los Angeles Times just got punked.

In Horton's wake, major members of the liberal blogosphere - including Glenn Greenwald, Digby, and Hilzoy - all came up with their own explanations as to why there was nothing to the LA Times story.

And they're all wrong. All of them.

Including Horton, who said the problem was a failure to recognize a difference between renditions - which have been going on since Bush Sr. if not before - and the Shrub gang's program of extraordinary renditions, which Obama's order was supposed to halt. ("Ordinary" rendition involves kidnapping suspects with the intention of delivering them into the hands of some justice system, here or abroad. "Extraordinary" rendition, on the other hand, disappeared people, taking them into a web of secret prisons and torture from which they might not emerge.)

But while the article did at one point apparently blur the difference between "ordinary" and "extraordinary" rendition, it did accurately report that Obama's order, while halting the latter by shutting down the CIA's secret prisons, did not touch the former.

The arguments advanced by our bloggeriffic trio against that idea varied and in some ways appeared to contradict each other, but each in their own way sought to absolve President Change of any tinge of guilt.

Digby was the best - or least bad - of the three; having originally overreacted to the LA Times story by interpreting it as describing a plan to "outsource torture," she contented herself with quoting Horton at length and saying she'd gotten punked along with the Times. However, she added an update suggesting that

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

Hilzoy took that and ran with it, rather pompously explaining that "lawyers are not most people. They use all sorts of words in peculiar ways." (Emphasis in original.) Extradition, she insisted, is simply a type of rendition and rendition is all nice and legal and anything that's illegal is "extraordinary" rendition. Which may even be technically correct in lawyer-speak - but it's entirely irrelevant because the word "rendition" does not appear in the orders at hand so it's exact legal definition is merely an interesting sidebar, not something useful in reaching any conclusions. More to the point, it distorts the discussion by defying the meanings the terms have acquired in the public mind by shoving what had been called renditions under the heading of extraordinary renditions. While that may be technically correct for the purpose of a legal brief, the only court here is the court of public opinion and the fact is, the term "rendition" has an accepted meaning in that court. And it is not - or, if I'm to be accurate and precise, not limited to - that which Hilzoy would give it.

But that's of no concern to Hilzoy, who earlier sought to absolve Obama of any hint of being involved in any illegal stuff not only by glossing over the difference between "ordinary" and "extraordinary" but by willfully ignoring it: She notes where the article quotes an Obama administration official as saying, she wrote, "The legal advisors working on this looked at rendition. ... if done within certain parameters, it is an acceptable practice." She immediately adds that

[i]t's important, here, to note that extraordinary rendition is not the same as rendition proper. Rendition is just moving people from one jurisdiction (in the cases at hand, one country) to another; includes all sorts of perfectly normal things....

But as she herself had it earlier in her piece, the full quote was this, with the omitted words in italics:

The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice.

If the term was only meant to refer to "all sorts of perfectly normal things," why would it be controversial? Why would it "kick up a big storm?" Why would referring to it being done "within certain parameters" be expressed as standing in opposition to that "storm" (via the use of the word "but")? Why would it need to be "looked at?" Even Horton admits that "there are legal and policy issues with the renditions program." Issues which Hilzoy seems determined to ignore.

The notion that this official was not saying that "within certain parameters" the Obama administration would be willing to engage in illegal activities such as kidnapping suspects is bullshit, pure and simple.

So, for that matter, was her parting shot:

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

To which I replied in comments:

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

For his part, Glenn Greenwald labeled the LA Times story "wildly exaggerated and plainly inaccurate" and argued, in a chorus with the others, that the story was an attempt by elements in the intelligence services to undermine Obama's intention to end torture - as well as adding a string of others long enough to come across as paranoid rather than analytical who, he said, want to make it look like there's been no change from Shrub's policies.

But I know of no one outside of those who argue that Obama is just lying who say that there is no change. That "no one" includes the LA Times, which, again, quoted officials as saying

the rendition program might be poised to play an expanded role ... because it was the main remaining mechanism - aside from Predator missile strikes - for taking suspected terrorists off the street,

a comment that makes no sense except in the context of the closing of the secret prison network and the ending of extraordinary rendition.

Worse, Greenwald openly defends rendition with

a question for those who believe that rendition, in all cases ... is inappropriate and wrong:

Suppose (for the sake of discussion) that: (a) the U.S. learns exactly where Osama bin Laden is located in Pakistan; (b) there is ample evidence that bin Laden (i) perpetrated the 9/11 attacks and (ii) is in the advanced stages of planning new imminent attacks on the U.S.; and (c) the Pakistani Government is either unwilling or unable to apprehend bin Laden in order to extradite him to the U.S. for trial. Further suppose that efforts to compel the Pakistanis to do so through the U.N. are blocked (because, say, China or Russia vetoes any actions).

What, if anything, is the U.S. (under current facts) permitted to do about Osama bin Laden...? As far as I can tell, the options would be: (a) drop a bomb on him and kill him with no due process; (b) enter Pakistan, apprehend him, and bring him to the U.S. for a trial (i.e., rendition); or (c) do nothing, and just leave him be.

Those who are arguing that rendition is illegitimate in all cases ... have the obligation to answer that question specifically....

But as I said in my answering comment,

No, we don't. And I won't answer it first because it's a ticking-time-bomb question and second because it's a slippery slope that ends up where George Bush pushed us.

Re first: A ticking-time-bomb question is one where the situation specified is exactly what it needs to be to force the "my way or let the bad guys win" choice.

Re second: Okay, assume we agree to rendition in that case. But then suppose we realize we can't try bin Laden because there's no way in hell we could find an impartial jury. What do we do then? Just let him go? Or, wait, no, maybe send him somewhere not so dainty about legal rights? And what about the information he may have about those "imminent attacks?" We can't just ask him for it, can we? Don't you want to stop potential attacks on us? After all, that bomb is still ticking.

And where are we then? Once you cross that line, how do you set down a new one?

[Note: That is a slightly expanded version of my actual comment, adding a couple of phrases but no additional arguments.]

Greenwald himself tacitly admits to being brought up short by another comment, which simply flipped his example to imagining Afghanistan pursuing charges against Bush and asking why the rules should be different. Greenwald wound up rather plaintively saying that

to ask questions about an argument - as I'm doing here with regard to the view that rendition is always wrong and illegitimate in all cases - is not to embrace or reject the argument; it's to ask questions about it.

Oh, please. I can't imagine that we're really to think that after posting his gotcha question which certain others supposedly had an "obligation" to answer "specifically" that he was thinking "Gee, I wonder what people will say" rather than "Slammer!"

As evidenced by Greenwald's reaction, that reverse argument is a potent one and points to another reason beyond basic morality to resist the temptation to engage in kidnapping as national policy, the same reason that sits among those advanced against torture: You don't do it the better to avoid it being done to you.

But underlying the defenses of rendition is the assumption that it consists of what we do to "them" and never of what "they" might do to us. It's glides on an assumption of US power and US authority, that we can act without retaliation and without regard to the judgment of others, an assumption of long standing that permeates our national culture and infects our political debate.

Back in May 1992, in the print version of Lotus, I referred to the case of Manuel Noriega, a case of "rendition" that was a little more aggressive than a kidnapping:

Nothing he was accused of doing was done within US jurisdiction. But that didn't matter. Indeed, Richard Gregorie, who supervised the framing of the indictment, said after the trial "we aren't going to be able to limit our law enforcement to within our borders.... The message is we will come get you." That "getting" Noriega meant invading Panama and killing thousands of innocent people is irrlevant: "It doesn't matter how he got back here, once here he's subject to prosecution."

But if how the accused is "gotten" doesn't matter, what then of Salman Rushdie? Iran has convicted him of an insult to Islam, a capital offense. Is it then okay that he should be hunted across the world, murdered if he's found, even though no crime was committed within Iran nor is Rushdie within its jurisdiction? If we say no, what's the difference between his case and Noriega's?

(Note that there is no answer in that Rushdie was to be killed, not tried: Remember that he had already been convicted in abstentia and the fatwa allowed any observant Muslim to carry out the sentence. It was all nice and legal under Iranian law.)

We are[, I wrote at that time,] in our foreign affairs a nation afflicted with arrogance and consumed with conceit, a nation whose musclebound commitment to its collective ego has lead it from the hope of being a light unto the world to the reality of being a blight unto the world.

Let it be said that Obama's decisions regarding the CIA's secret prisons and Gitmo are a single step toward reversing that fact. Yes, it's just one step on a journey of a thousand miles, but still it is a step and can be endorsed as such. But the fact remains that the rendition program as is relevant here, a program that is not about delivering someone up for a fair trial in accordance with established treaties and legal procedures but about the use of kidnapping and other illegal actions, has not been halted or even limited: As Digby noted, Obama has yet even to "make clear that he is not going to be sending prisoners to countries like Syria or Egypt."

Despite that simple fact, the discussion of that program has slid back and forth between the poles of "it's all legal" and "it's a necessary tool." The legal, moral, ethical, and practical issues with that program may well not rise to the level of those presented by the Shrub gang's use of extraordinary rendition, but that does not mean they do not exist and acting as if they don't and without reference to what actions we are thereby justifying by others is simply another example of that arrogant conceit, that musclebound ego, that grips too many even on the left half of our political spectrum.

Footnote: The LA Times did slip up a couple of times: Once when it said the European Parliament had condemned renditions per se when in fact, according to Horton, it had condemned extraordinary renditions. Another was when it made too much of a statement in the order, writing that

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

However, I don't think the ability of the CIA to interrogate terrorism suspects was ever at issue; it was the techniques used in those interrogations. And I believe that the reference to "short-term, transitory" was intended to allow the agency the ability to hold suspects for transfer rather than to enable the spooks to hold people "as long as it's like, you know, not too long."

On the other hand, even though I don't believe it was intended to create a loophole in the order to close the secret prison system, I also think the possibility that some might try to turn it into just that is a real one. There need to be some follow-up orders.