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September 30, 2004

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» Better late than never from Body and Soul
The Washington Post has picked up the story Katherine flagged yesterday at Obsidian Wings about the provision in the 9/11 Commission Bill which would allow the government to send people suspected of terrorism -- a condition which afflicts a lot [Read More]

» House Leadership Attempts to Legalize Torture from Opiniatrety
Write your Representative about this, if it's the only thing you do today! It's important. Katherine (via hilzoy) of Obsidian Wings writes that the House of Representatives is planning to pass a bill to put a legal imprimatur on the... [Read More]

» Holsclaw to Republicans: police yourselves from Waffle
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» Torture may be legalised by new bill in US from Panchromatica
No comments other than read this and if you live in the US do something about it! [via Crooked Timber (several posts but this is the latest)] [Read More]

Comments

Excellent post, Sebastian.

(metaphorically crumpling up piece of paper) Indeed. Much better than the one I was working on.

Great post, Sebastian. I'm going to link to it and to Katherine's post.

We're with you Sebastian. I offen wonder what kind of person conducts torture. Oddly enough, the movies have that one pegged. So what kind of person endorses it. Not my kind of person.

Well done. Just let me know where to mail your new "Adult Republican Club" membership card.

Truly excellent Sebastian. In particular, this thought:

But I know for a fact, and you do too if you think about it, that law enforcement pushes the line and pushes it hard. If we move the line so far as to allow suspects to be sent to other countries to be tortured, the actuality will go even further.

argues against the supporters (I've seen a few) out there who insist this could be used "carefully."

The Republican Party will not remove "extraordiary rendition" from the 9/11 bill. They will instead use it to paint any Democrat who objects to these sections as being against the entire 9/11 bill, soft on terror, and a flip-flopper.

Your post shows that there are some Republicans who still believe their Party's traditional rhetoric of libety, honesty and responsiblity. It's entirely up to you to stop the monsters that have taken over your Party, as the Democrats can't possibly take the lead in this without being spun to death in the elections. The polls indicate that your chances of success are not good.

I'm inclined to agree with Jim, but instead I'm going to take the day off from my left-wing whining and celebrate Sebastian's superb, and I hope, effective post.

;D!

I agree completely, Sebastian. I guess this means I have to write my congresscritters, again.

Great post, Sebastian.

"It's entirely up to you to stop the monsters that have taken over your Party, as the Democrats can't possibly take the lead in this without being spun to death in the elections."

I'm not going to agree with the monsters part, but I think it is clear that regular Republican voters are in the best position to apply pressure to Congress on this issue.

So, regular Republican voters--step up to the plate and write/call your Congressman.

The Democrats are adults, and ought to be able to stand up for themselves in a way that persuades the public, frankly.

That said, they are also outvoted and not given much opportunity to participate in House legislation, so it is very, very important that Republican voters get involved.

Sebastian: thank you very, very, very much.

N.B. in response to one of the objections at Red State: the Beslan suspects were granted asylum, not withholding of removal under the torture convention. Asylum has a lower standard of proof--you must show a "well-founded fear" of persecution; for the torture convention you must show that it is "more likely than not" that you will be tortured--a preponderance of the evidence, in other words. It's not easy to do.

Asylum is ultimately in the executive branch's discretion. If you file your application too late, commit other procedural violations, are deemed a national security threat, commit certain crimes, participate in the persecution of others etc. etc. the executive branch can and in some cases must deny you asylum. Whereas everyone is eligible for the torture convention's protection.

Under Markey's bill, the Beslan suspects could be sent to Russia, indefinitely imprisoned, interrogated, tried and sentenced to death, etc. etc.--the only caveat is that they could not be tortured & there had to be some verification of that (assuming Russia is classed as a country that practices torture & the suspects can prove it is more likely than not that they will suffer torture.)

As another commenter suggested, even if we do need the law to be harsher than that, the place to change it is regulations on extradition, not rendition.

Whenever this subject comes up, I always flash back to the second season of 24. Without spoiling it for anyone who hasn't seen it (one of the most gripping and disturbing seasons of drama ever televised, I think), in the series a nuclear device is set to go off in a major US city, and both protagonist Jack Bauer (Kiefer Sutherland) and President David Palmer (Dennis Haysbert) end up confronting the issue of torture under just such circumstances uncomfortably and often.

In fact, the season /opens/ with a scene of "extraordinary rendition", which provides the intel about the bomb.

Not a comfortable thing to watch, but extremely good and thought-provoking drama. I hadn't given US-endorsed torture much thought before then, but long before Abu Ghraib and the "torture memos" that season got my friends and I talking about the subject.

I generally support the 9/11 Commission Bill (which is more formally known as H.R. 10). However, Sections 3032 and 3033 are very disturbing. They make it very easy for the US to move terrorist suspects into the custody of other countries in order to allow such suspects to be tortured in that country.

Actually, the provisions of Section 3032 simply apply the same standards on deporting aliens who might fear torture that we use in deporting aliens who might fear that their lives or freedom would be threatened. In both cases we exclude certain aliens from protection namely those who have committed and been convicted of a serious crime (i.e. felonies with a sentence of five years or more and drug trafficking), those who have committed genocide in other countries, and yes those who we have reason to believe have committed a serious crime abroad or who are a security threat to our country – the same people that are already exempted from protection against deportation to countries where they might fear their freedom or lives could be endangered. By all means, feel free to wring your hands that we’re not granting them greater protections against the fear of punishment than we are for those might fear for the loss of their lives or freedom. Somehow I doubt thought that it is going to be a losing issue though for supporters of H.R. 10 or move many (or any) swing voters.

The provisions of Section 3033 do nothing to actually make it easier to deport aliens to any country (much less those that might practice torture) and in fact provides an additional justification not to deport aliens (“unless, in the opinion of the Secretary of Homeland Security, removing the alien to such country would be prejudicial to the United States”) that wasn’t in the statute before. It also changes the authority for making the decision in several paragraphs of the statute from the “Attorney General” to the “Secretary of Homeland Security” which is a rather neutral change but an understandable one considering that the Department of Homeland Security probably wasn’t in place when the original statute was written. You over-reached by throwing this provision in with Section 3032 which suggests that youg might have been a little too quick to jump on the “legalizing torture” bandwagon.

I'm ok with the neutral change.

Thorley,

I'm willing to consider the propose legislation is not as horrendous as it sounds, but your explanation is somewhat confusing. Can you restate more simply?

I just double checked the bill against my immigration law statute book, and Thorley is either mistaken about, or deliberately mischaracterizing, what the bill does, especially section 3033.

The short version is that the old bill set up a hierarchy among countries where we could deport someone, and only if various options were not possible--the country where the person travelled from, where they're a citizen, where they live, where they were born, or a country the alien designates--could the attorney general choose where to deport them.

The new language allows the Secretary complete discretion to decide that deportation to any country would be "prejudicial to the United States". This allows him to skip down the list until he arrives at the country where we want to render the suspect.

(the long version, and a discussion of 3032, will have to wait till after class.)

Bravo, Sebastian, from a fellow Republican. I've already posted on this.

The response from Hastert's people is that the Justice Department *really* wants this in the bill.

When may I add you to the roll of the Ancient and Hermetic Order of the Shrill?

Excellent post, Sebastian; and a useful reminder that the "extraordinary rendition" provisions in HR 10 are fundamentally NOT a "left"/"right" or partisan political issue, but, IMHO, an issue of basic morality, and a touchstone of the fundamentals of the American system of law.
I am not sure, though, that I agree with the posters who see this as just another "tough-on-terror" wedge issue for Republicans to beat Democrats with (although I can see their point); HR 10 is a huge bill with hundreds of sections: the "extraordinary rendition" bits are buried deep inside: just a guess, but it looks like Hastert & Co. were trying to slip the no-torture evasions in by stealth. And in any case, in bringing this to the attention of one's Congressperson, the partisan aspects can be overcome by pushing the greater theme: this is an issue of fundamental morality: don't besmirch our country.

Can I take it that you would oppose the death penalty on the same grounds? Or is a mistaken convict being executed somehow less wrong than a mistaken suspect being tortured?

Chance Can I take it that you would oppose the death penalty on the same grounds? Or is a mistaken convict being executed somehow less wrong than a mistaken suspect being tortured?

My answer to this question is two-fold.

1. In my opinion, the death penalty is as barbaric as torture, and as applied in the US, with the years on Death Row, may be considered a form of torture. I neither support torture nor the death penalty, and while it is certainly worse to torture or to kill those not guilty of any crime, I do not support either torture or death even for those proved guilty.

2. It is far more difficult to remove a bad law than it is to prevent a bad law being passed. It is urgently necessary to prevent this law being passed: it is simply morally wrong, as both Sebastian and Katherine have made admirably clear from right and left. I would not, therefore, as a matter of pragmatic necessity, confuse the pressure to prevent this abominable law being passed with the pressure (necessary, and I hope ultimately successful) to make capital punishment illegal in the US.

In short, I consider your question unhelpful, and I hope that Sebastian will feel free to leave it unanswered.

I often disagree with you, but congratulations on a great post. It's important that we preserve common American ideals across party lines.

That's a good list of reasons and well put. However, there's another one most people seem to forget, and it's a 'selfish' one, at least relatively speaking, after the ethical and legal concerns, there's a very practical one: if the US violates the conventions against torture, it makes it a lot easier for other countries to do so in respect to US citizens and military abroad.

Katherine wrote (regarding Section 3033):

The short version is that the old bill set up a hierarchy among countries where we could deport someone, and only if various options were not possible--the country where the person travelled from, where they're a citizen, where they live, where they were born, or a country the alien designates--could the attorney general choose where to deport them.

The new language allows the Secretary complete discretion to decide that deportation to any country would be "prejudicial to the United States". This allows him to skip down the list until he arrives at the country where we want to render the suspect.

Which doesn’t actually contradict anything I actually wrote since the language (a) does nothing to make it easier to deport an alien and (b) is completely neutral as to the subject of torture.

As far as the SecHomSec’s* discretion, Katherine’s being a little disingenuous because the original statute also gave discretion – to the Attorney General not to return an alien to a country on the “hierarchy” if it were found to be “impracticable, inadvisable, or impossible” to return the alien to a country in which the alien were a citizen, subject, national, born, or has a residence which is arguably not that much different from the SecHomeSec* refusing to return an alien to a country that might be "prejudicial to the United States".

What makes this provision an improvement though is that the discretion in the original statute (if I’m reading it correctly) did not apply to the country or contiguous territory in which the alien would have boarded the airplane or boat in order to gain entry to the United States. Under the proposed revision, that discretion would apply to that country/territory as well which makes sense unless you want the United States to be bound to return an alien to country that might not be able or willing to prevent him from trying to return to the United States merely because that’s where he boarded a plane.

* What’s the correct abbreviation for the Secretary of Homeland Security?

I must have misread you. The only thing this section may do is make it easier to render a suspect to a country of our choosing. It does not directly deal with the question of torture--that's 3032--or whether we can deport at all, but if we can pick any country in the world it makes it easier to deport someone to a country that practices torture.

Obviously it makes a rather huge practical difference in all this whether someone is deported to, say, Syria, instead of oh, I don't know, Canada.

"Inadvisable" is weak, and I had read over it and concentrated on "impossible" and "impracticable". I don't think it's as weak as the new language--note that it says prejudicial to the U.S. in the OPINION of the Secretary. I'd have to look at my INA again and probably some case law to know for sure.

"* What’s the correct abbreviation for the Secretary of Homeland Security?"

I use "Tom Ridge." (seriously--no idea. Sec. HS?)

Thank you, Sebastian. Excellent.

"They will go to using a person's children against them"

Already done by the U.S. at Abu Ghraib, yes? So that envelope does indeed get pushed.

"torture is rarely more effective than other interrogation techniques"

Indeed, generally less effective in getting reliable information, as I understand it.

"Voters want tough, but they do not want crazy"

must...stifle...self...must...


Katherine wrote:

I must have misread you. The only thing this section may do is make it easier to render a suspect to a country of our choosing. It does not directly deal with the question of torture--that's 3032--or whether we can deport at all, but if we can pick any country in the world it makes it easier to deport someone to a country that practices torture.

As I said in my previous post (02:06 PM), the discretion isn’t that much different from the current level except for the two exceptions I noted (paragraphs A and B of the current statutory language) such as for example:

Obviously it makes a rather huge practical difference in all this whether someone is deported to, say, Syria, instead of oh, I don't know, Canada.

Evidentially it doesn’t actually make much of a “practical difference.”

"Inadvisable" is weak, and I had read over it and concentrated on "impossible" and "impracticable". I don't think it's as weak as the new language--note that it says prejudicial to the U.S. in the OPINION of the Secretary. I'd have to look at my INA again and probably some case law to know for sure.

And who was it who determined whether it was “inadvisable, impossible, or impracticable? ”

"* What’s the correct abbreviation for the Secretary of Homeland Security?"
I use "Tom Ridge." (seriously--no idea. Sec. HS?)

I thought about that but it seems to close to SecHHS. Where’s Moe when you need him?

"Where’s Moe when you need him?"

What the heck do I know about Dizzy City naming conventions? Call him Magical Pretty Defending Rainbow Secretary, or something.

Moe

PS: Although Rainbow Sec does have a certain ring to it.

One other point, Katherine seems hung up on her belief that we ought to automatically send aliens back to some countries because of their position in the current “hierarchy.” Obviously I disagree and I would argue that it’s better to be able to have the discretion not to send an alien back to some countries merely because that’s where they got on a boat. I have seen no evidence (and Katherine’s beloved Mahar Arar case actually contradicts this) for her implicit claim that an alien would necessarily be more likely to be sent back to a country and be tortured than under the proposed change than the current system) merely by our being able to say “no, we won’t send you back there.” An alien, it seems to me, is just as likely to be subject to the cruelty of being sent back to a country for its arbitrary position on a “hierarchy” as s/he would if someone had the discretion to refuse to send them back to a certain country.

Moreover, the proposed change in Section 3033 gives us more flexibility in not being able to send an alien back to a country that might do a “catch and release” or otherwise be harmful to the US and as such is IMO an improvement.

gives us more flexibility in not being able

Huh?

Moe Lane asks:

What the heck do I know about Dizzy City naming conventions?

I just figured you being an RPG geek* and all, if anyone would be know the nick-names/codenames/abbreviations for the titles of government officials, it would be you. ;)

Oh and please accept my (belated) congratulations on your engagement to the future Mrs. Lane.

* Although I suppose having completed negotiations of an Imperium(now Republic)-Eldar-Tau-Squat mutual defense pact, I might be in danger of earning such a designation.

Thorley, as far as I can tell, you're asserting that it makes no practical difference whether Maher Arar had been deported to Syria or to Canada... but it made a very practical difference to Maher Arar, didn't it?

Honestly, I'm finding it extremely hard to figure out what you're arguing for or against. I don't know whether it's just me and everyone else is finding you clear as daylight. It's quite possible.

Honestly, I'm finding it extremely hard to figure out what you're arguing for or against. I don't know whether it's just me and everyone else is finding you clear as daylight.

It's not just you, Jes.

I think he's saying that Arar was deported to Syria under the old version, so what's the difference?

But of course Arar is suing in a U.S. district court arguing that his deportation was illegal, so....I think he's got an uphill battle surviving a motion to dismiss, but this bill--especially the retroactivity provision--looks like it might partly be an attempt to avoid liability and get that case dismissed.

this bill--especially the retroactivity provision--looks like it might partly be an attempt to avoid liability and get that case dismissed.

Which would explain why the Justice Department is reportedly so interested in it, no?

Katherine wrote:

I think he's saying that Arar was deported to Syria under the old version, so what's the difference?

Evidently not the difference you’d like to lead people to believe it is. Particularly since had Canada denied Arar reentry, under your beloved hierarchy, the country of his birth (Syria) would probably have been next on the hierarchy. Granted, there are other issues here, but strictly in the context of Section 3033, there is no real evidence to support the proposition that it is better to have this arbitrary hierarchy rather than the discretion to say “we’re not sending so-and-so back there.” Which is really the issue here.

But of course Arar is suing in a U.S. district court arguing that his deportation was illegal, so....I think he's got an uphill battle surviving a motion to dismiss, but this bill--especially the retroactivity provision--looks like it might partly be an attempt to avoid liability and get that case dismissed.

Just so people aren’t misled by Katherine’s response, Section 3033 (the part we’re discussing) is not in fact retroactive and as such would have nothing to do with the Arar case.

Mr. Winston: did you not bother to read the entire statute?

The proposed bill applies to aliens described in 8 U.S.C. 1231(b)(3)(B). Looking up that statute in Findlaw, I find it describes aliens for whom "the Attorney General decides that . . . or(iv)there are reasonable grounds to believe that the alien is a danger to the security of the United States."

John Ashcroft feels the guy is dangerous, he's gone, no review, no nuthin. Right there in black & white.

Edward: It's not just you, Jes.

That's a relief.

Thorley: Particularly since had Canada denied Arar reentry ... the country of his birth (Syria) would probably have been next on the hierarchy

Except that under international law, the US was not allowed to deport anyone to Syria, since there was good (and well-founded) reason to believe that they would be tortured.

Do you have any reason to suppose that Canada would have denied a Canadian citizen re-entry, btw?

under your beloved hierarchy
Katherine’s beloved Mahar Arar case

You know, Thorley, condescending to Katherine doesn't exactly do you any favors here.

You know, Thorley, condescending to Katherine doesn't exactly do you any favors here.

Well, it does confirm it's the Thorley Winston for us. ;p

trilobite wrote:

Mr. Winston: did you not bother to read the entire statute?

The proposed bill applies to aliens described in 8 U.S.C. 1231(b)(3)(B). Looking up that statute in Findlaw, I find it describes aliens for whom "the Attorney General decides that . . . or(iv)there are reasonable grounds to believe that the alien is a danger to the security of the United States."

So why exactly are you quoting Section 3032 when we’re talking about and my question pertained to Section 3033?

Jesurgislac wrote:

Except that under international law, the US was not allowed to deport anyone to Syria, since there was good (and well-founded) reason to believe that they would be tortured.

Change the word “since” to “if” and you have a true statement.

Do you have any reason to suppose that Canada would have denied a Canadian citizen re-entry, btw?

This would be the one of the “other issues” alluded to in my previous posting since the post was concerned with the hierarchy not as to why one nation would chose to deny the alien in question reentry. As to the specific case of Canada and why it might deny one of its own citizens re-entry, I don’t know since the details as to the involvement of the RCMP and CSIS in this incident are rather sketchy at the moment.

Thorley claims: Change the word “since” to “if” and you have a true statement.

Certainly. It's true both ways. If there was good (and well-founded) reason to believe that they would be tortured, the US is legally not allowed to deport people to Syria, or to any other country for which that's true: and since there was good (and well-founded) reason to believe that Mahar Arar would be tortured in Syria, the US acted illegally in deporting Maher Arar there.

As to the specific case of Canada and why it might deny one of its own citizens re-entry

As, for example, that it was told a load of lies about Maher Arar by the US?

Jesurgislac wrote:

Certainly. It's true both ways.

Nope, it's only true with “if” rather than” since.”
As, for example, that it was told a load of lies about Maher Arar by the US?

Actually the story seems to be that it was the United States that was relying on information it received from the RCMP and/or CSIS (true or not is another matter) rather than the other way around.

Nope, it's only true with “if” rather than” since.”

On what grounds do you base this farfetched claim? Seriously, do tell: you seem to have this picture of Syria which is at odds with literally any source of information that I can imagine. Where do you get your information about Syria that tells you that a political prisoner deported there would not be tortured?

Actually the story seems to be that it was the United States that was relying on information it received from the RCMP and/or CSIS (true or not is another matter) rather than the other way around.

Information justifying torture? I don't think so. We can hope that Mahar Arar's case (if not blocked by the passing of this foul law) will establish who is most to blame for his illegal deportation to Syria. But in any case, even if Canada had actually formally refused to accept one of its citizens (or only refused to jail him without evidence) the US had no right to deport him to a country where there was good and well-founded reason to believe he would be tortured.

I await with interest the source material that you have been reading which tells you that Syria is not such a country.

What are you talking about? I've been following this story, getting documents from the inquiry, etc. I've not seen any claim that Canada denied Arar re-entry.

He was arrested partly based on RCMP or CSIS info. There is strong circumstantial evidence that he was arrested based on coerced confessions from other suspects detained in Syria.

The "beloved" language is silly, but we do tend to talk about Arar's case as if it's the only confirmed case of "extraordinary rendition." It's not. I know of at least a dozen or so others, which I will begin to post on tomorrow (I assume everyone will be absorbed in the debate tonight).

Many of the others weren't innocent. But torture is torture.

Katherine wrote:

What are you talking about? I've been following this story, getting documents from the inquiry, etc. I've not seen any claim that Canada denied Arar re-entry.

I didn’t say he was denied reentry I said “had Canada denied Arar reentry” as in a hypothetical situation.
He was arrested partly based on RCMP or CSIS info. There is strong circumstantial evidence that he was arrested based on coerced confessions from other suspects detained in Syria.

That seems to be my understanding as well. My reference to “information” was in response to Jesurgislac’s earlier assertion that the United States government had told lies to the Canadian government. I merely pointed out that the information (whether it was true or not) appeared to have been coming from the RCMP and/or CSIS to the United States rather than the other way around.
The "beloved" language is silly, but we do tend to talk about Arar's case as if it's the only confirmed case of "extraordinary rendition." It's not.

I don’t think so, I was content to talk about this bill in terms of its policy implications but you seem to be the one dragging it back to Arar even though it does not appear that it would have made the slightest bit of difference in that particular case. Hence my use of the term “beloved” since you seem to revert back to this particular case so often.

Jesurgislac wrote:

On what grounds do you base this farfetched claim?

On the grounds that the burden of proof is on those who make the assertion that there was “good and well-founded reason” to believe Ahar would have be tortured. Hence the use of the word “since” (which implies that it was in fact known) rather than “if” is incorrect.

Information justifying torture?

Now Jesurgislac is simply making stuff up (again) since the reference to “information” was in the context of whether it was coming from the RCMP/CSIS to the United States or the other way around.

On the grounds that the burden of proof is on those who make the assertion that there was “good and well-founded reason” to believe Ahar would have be tortured.

Which there was, as anyone with the most cursory information about Syria could have told them. Again, I have to ask - what source information are you using that you think Syria is the kind of country where political prisoners are not tortured? On what do you base this far-fetched assessment of Syria?

Now Jesurgislac is simply making stuff up (again)

Actually, Thorley, right now I'm just tired and confused as to what you're actually trying to prove. All we seem to have established is that you have a rosy and idealistic image of Syria - based on sources you don't seem to wish to disclose. (But I wish you would do so.)

I'm relieved by Edward's comment that I'm not the only person confused by your posts.

"They said they wanted to know why I did not want to go back to Syria. I told them I would be tortured there." - Maher Arar

A lot of talk has been concentrated, I think, on the rights and well-being of the person being rendered, with the rejoinder of ticking-bomb scenarios. But let's look a little more in depth at a hypothetical that might be more applicable, which would be when we render someone who _is_ innocent because we feel that his protestations of innocence are not believed. We send someone like that to Pakistan or Saudi Arabia (perhaps Syria is a shining beacon of reason in the ME, I don't know), and, because the person is unconnected to any terrorist cells, any people in the chain of command who are sympathizers to AQ or whatever, have just gotten a great way to prove their bona fides to the good guys. We then get all kinds of intelligence that is faulty and particularly aimed at misleading us.

People have mentioned that governments which use torture are not necessarily going to be ones that want us to have the whole truth, but putting flesh on those bones makes it apparent how dangerous this whole thing is. Any conservative with two brain cells to rub together ought to be able to figure that out.

OK Thorley. I give up. What is your position on the legislation in question? Is it a good idea or not?

If I understand Mr Winston's comments correctly, he is maintaining that the proposed legislation changes the substance of the law in a way that is "neutral," a reshifting of powers between departments rather than the introduction of new ones.

I am not a scholar of law, and doubtless Mr Winston is more trained than I in analysing legal texts in the USA. Nonetheless, I do not see that his dismissal of this text is entirely as well founded as he says.

Section 3032 still exists, notwithstanding any interpretation of section 3033. This section considerably weakens the defenses available to persons accused of crimes, and thus impacts directly on the people who are affected by section 3033. It is possible that my characterisation of 3032 is flawed, but so far Mr Winston has focussed entirely on 3033, and I interpret this as a classic category error: while 3032 and 3033, if individually implemented, may produce neutral results, the combined result of the two sections is to weaken key protections.

As Sebastian so helpfully pointed out above, the line is pushed, and many agents of the government can be overzealous in their execution of their duties. It is for this reason that our system of law is so complex, and for this reason that we balance authorities one against the other, to prevent abuses of necessarily granted power and authority. It appears that the Arar case is on the very edge of boundaries set by your legal system. Under present rules, Arar's deportation to Syria remains morally reprehensible, politically foolish and a stunning waste of American resources, but it may well be only just on the wrong side of illegality.

Changing the law slightly, therefore, will change it significantly. "Extraordinary rendition" will change from being just about illegal to just about legal. That is what has been argued here, and I do not see how Mr Winston's arguments affect the claim.

There are a couple of other rationalisations from Mr Winston which trouble me.

"I didn’t say he was denied reentry I said “had Canada denied Arar reentry” as in a hypothetical situation."

As I mentioned in the thread following Katherine's thread, hypothetical scenarios can be of limited usefulness, and can be distracting to the point where the information presented appears to be more cut and dried.

Appreciating that the Arar case may not be actually affected, but that it is certainly a good example, let us consider it again. "Had" Canada denied entry, it is possible Arar would have been flown to Syria anyway. Canada did not, and it was therefore illegal to deport him there. Under the new provisions, as outlined by Katherine, whether or not Canada denied entry becomes a moot point -- Arar's deportation would have been legal. Again, the change is a subtle one, but it is very significant and the ramifications are wide-reaching.

The final objection is rather more significant, and is the thing that leads me to doubt Mr Winston's characterisation of other things in this thread.

"On the grounds that the burden of proof is on those who make the assertion that there was “good and well-founded reason” to believe Ahar would have be tortured. Hence the use of the word “since” (which implies that it was in fact known) rather than “if” is incorrect."

Here, more obviously than before but in keeping with Mr Winston's previous methodology, we move into a world that vaguely represents our own, but is in fact constructed entirely of legal theories and rejects entirely the concept of substantive facts.

If we have reason to believe someone will be tortured while imprisoned in Syria, we cannot deport them there.

We have reason to believe that if we sent someone to a Syrian jail, they would be at significant risk of torture.

THEREFORE

The treatment of Arar under current law was illegal.

The word "since" is entirely appropriate in the disputed statement. We do have the evidence, therefore the "if" is neither here nor there. That such an easily countered dispute was raised is troubling, because it indicates that Mr Winston's conception of the law is entirely within the realms of legal theory, and does not reference the actual physical reality in which the law would be implemented. His appraisal of it, therefore, is of somewhat limited usefulness once it goes beyond being a bill to be debated and becomes a law to be enforced.

Those who said that Arar was at risk of being tortured were, in fact, correct in their risk assessment, because he was tortured. This means that, in future cases, it is to be expected that persons returned to Syria will be tortured.

Again, to repeat the point: while the changes may not be massive, they are very, very significant. For those who find themselves in Arar's shoes (and, as a foreign national travelling to your country in less than a week (where I will be fingerprinted and photographed, as befits a threat to common decency such as myself) I am certainly at risk of this) the impact on our lives could be, in fact, the difference between life and death.

McDuff: Those who said that Arar was at risk of being tortured were, in fact, correct in their risk assessment, because he was tortured. This means that, in future cases, it is to be expected that persons returned to Syria will be tortured.

Everything I know about Syria (and I am no ME expert: I know only publicly and easily available information, such as Syria Country Report on Human Rights Practices for 1998, compiled by the Department of State) suggests strongly that Syria is the kind of country where any prisoner may be at risk of torture, and where that risk is vastly increased for political prisoners. This has been true for years: it was certainly true at the time Mahar Arar was deported.

"Serious abuses include the widespread use of torture in detention; poor prison conditions; arbitrary arrest and prolonged detention without trial" (cite)

"Despite the existence of constitutional provisions and several Penal Code penalties for abusers, there was credible evidence that security forces continued to use torture. Former prisoners and detainees report that torture methods include electrical shocks; pulling out fingernails; the forced insertion of objects into the rectum; beatings, sometimes while the victim is suspended from the ceiling; hyperextension of the spine; and the use of a chair that bends backwards to asphyxiate the victim or fracture the spine. Although torture may occur in prisons, torture is most likely while detainees are being held at one of the many detention centers run by the various security services throughout the country, and particularly while the authorities are trying to extract a confession or information about an alleged crime or alleged accomplices." cite)

So I'm not sure where Thorley's getting his shiny background information on Syria... but it certainly wasn't from the Department of State or from any other organization I've ever heard of that had credible information about Syria.

Not being a lawyer at all, and being unable to find my way through Thorley's foggy posts, I would simply like to raise one common-sense argument against the idea, which he seems to be advancing, that this legisaltion is "neutral."

Apparently Hastert or his spokesman have said, in the face of criticism, that DOJ really wants this law. How can anyone believe that Ashcroft badly wants a neutral change?

So again, Thorley. How do you vote? For or against, or are you unwilling to say?

On the grounds that the burden of proof is on those who make the assertion that there was “good and well-founded reason” to believe Ahar would have be tortured.

Well, now that we know he was...why would we EVER send another person to Syria? Does this legislation include wording that ensures the US will never send another person there? Or does it require us to prove that each individual may be tortured independent of the track record of the nation...in other words, how freaking ludicrous is the burden of proof here? I mean it's not like we're talking about willfully sending someone off to be inhumanely tortured...oh, no, wait...that is what we're talking about!

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Whatnot


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