Exhortation

Well here is the post I never wanted to have to write.  I have noted before that I am in the odd position of being a conservative writer with a mostly liberal audience.  I'm usually ok with that, but sometimes I want to direct my writing to a conservative or Republican audience.  There has been a drip, drip, drip that we have mostly ignored.  It does us no credit to continue.  There are many sources for this information, but the New Yorker has an excellent overview.  The Bush administration has engaged in a very troubling pattern of legtimizing torture by dramatically expanding the practice of "extraordinary rendition".  This practice essentially amounts to sending people to other countries to be tortured.  An excellent blog source for information on this practice is available on a section of ObsidianWings.  It has gotten to the point where it is obvious that this is more than a bad agent or two and it has expanded to far beyond just a few of the most hardened and obvious Al Qaeda operatives. 

I wish I could just mention the program and assume that I didn't have to argue against it.  Unfortunately I'm not entirely sure that is true.  So before I get to what Republicans should do to stop it, I'm going to briefly outline why we should act to stop it:

Torture is wrong.  The practice of extraordinary rendition began as a classic Clintonian hairsplitting exercise in the mid 1990s to avoid the clear letter of the laws which prohibit America from using torture.  This is the kind of avoidance of the law and ridiculous semantics that we decried when employed by the Clinton adminstration.  It has gotten no more attractive just because Bush has decided to continue the program. 

We are torturing non-terrorists.  Perhaps some people would be willing to torture Al Qaeda members.  I'm not one of them, but perhaps some are.  The problem with that mindset is that we aren't just torturing Al Qaeda members.  It is becoming completely obvious that some of the people being tortured are innocent.  See especially the ObsidianWings link above.  That is crazy.  There isn't any information we are getting that could possibly justify the torture of innocent people. 

Torture is ineffective.  Torture isn't ineffective at getting information per se. It is ineffective at geting useful information.  That is because the victim either snaps completely, or starts trying to mold his story to fit what the torturer wants to hear.  There is evidence that we have relied on information obtained through torture, only to find that it was very wrong. 

Torture also opens us up to the legitmate criticism that we are acting out the very barbarism that we want to fight.  I think as Republicans we have heard that charge so many times employed against practices where the analogy was completely inappropriate, that we have become inured to the charge when properly employed.  This is a case where the charge has force.   Go watch the Nick Berg Beheading Video and then imagine the blood pouring from his neck being just like the blood oozing from the fingers of an innocent torture victim sent to his fate by the CIA.  That is the barbarism we are fighting, and that is the barbarism we must not become a part of.  I know we have heard the charge that we are acting "just like them" thrown at us over trivial concerns like suggesting that we pay a bit more attention to visa-holders from other countries.  This is NOT THAT CASE.  This is the case of saying we are acting just like them because we are torturing people--acting just like them. 

Therefore extraordinary rendition is a moral sinkhole, which is being employed on people we are not sure are guilty, and which doesn't even get good information.  It cannot be continued.

The Republican Party has spent so many years in the minority that sometimes I think we have not adjusted to the fact that we are in power.  We are in power now.  We control both Houses of Congress and we have our people throughout the administration.  We don't need to wait for the Democrats to raise this issue.  We can't hide behind the worry that exploring our practices is going to get a President elected who is going to retreat from Iraq.  We are the party which leads the most powerful country in the world.  And lead it we must.  President Bush must be shown that the Republican Party is not willing to stand for the perversion of our moral standards.  The Republican-controlled Senate and the Republican-controlled House can close the loophole which allows for extraordinary rendition and can loudly reaffirm that torture is not something we do.  We are the majority party, and we claim to be a party that cares about the moral health of the nation.  We are damning ourselves if we sit back and let it continue.  This practice is foolish in the proverbial sense of the word--it perverts our moral core and gains us nothing but the illusion of doing something important.  The mid-term elections are two years away.  If we can't make a principled stand now, we never can. 

Comments

[Sebastian Holsclaw]

I wrote this for RedState so I took a couple of tacts that I would not have for this audience.

[Anarch]

Fair enough. Nice post.

[Anarch]

...athough I'll note, in the interests of pedantry, that you probably meant "tacks" and not "tacts" ;)

[Jesurgislac]

Excellent post, Sebastian.

[hilzoy]

Sebastian: Bravo. And thanks. Having opponents like you to argue tooth and nail with (the rest of the time, obviously not on this issue) is a wonderful thing.

[riffle]

"Torture is wrong. "

Wow. I'm not sure you're right there. Can you support that?

Otherwise maybe I'll become a rightwinger who thinks you are a pussy because you don't support the US government.

Which rules.

[Sebastian Holsclaw]

I was a bit worried that Jesurgislac might ask me to provide a cite for torture is wrong. Riffle did instead, so the whole world isn't crazy. :)

[Jesurgislac]

I was a bit worried that Jesurgislac might ask me to provide a cite for torture is wrong.

Heh. Well, I might have asked you for your definition of torture, in another context, but not this one. ;-) I think there's a core area in which we agree, and while I wish this didn't have to be it (because I wish it wasn't happening), well, it's there.

[bob mcmanus]

Of course an admirable post.

I am a worrier. There are the hints given by Gonzalez and Yoo. There is Cheney's historical resistance to the War Powers Act. There was disagreement on the Wright Amendment, and suggestions that Congressional action was unnecessary in initiating both Gulf Wars. My gut feeling is that many in this administration would welcome a confrontation over the ability of Congress to restrict the options of the President as CiC, in order to establish a very heavy precedent.

The ultimate Constitutional status of these laws is unclear to me, although I can remember Timmy & Katherine getting into some issues. But even if they were willing, it will be very difficult to ask Congress to confront the executive on such an issue, with so important consequences & implications.

So perhaps best behind closed doors in private, depending on whether your priority is stopping rendition and torture, or establishing principles & precedents on executive power and int'l law. Probably the first is the best we can hope for, but would be very unsatisfying.

[blogbudsman]

I'd be one of those who'd want to debate what is and isn't torture. However, when someone decides to send a suspect somewhere that probably knows exactly what torture really is, then that issue disappears. My worse fear would be having absolutely no control over my existence and being subject to excruciating mental or physical pain at the hands of some sadistic creature. This is wrong. As wrong as wrong can be.

[carpeicthus]

Wow. RedState commenter #1 is literallly arguing that torture is a public good, and if you want to make an omelette, you're going to have to break a few innocent people's legs. Nice crowd. I know "ineffective" has a lot of syllables and all, but I would expect them to sound it out.

[Dantheman]

Good post. What's the next step?

[Kyle Hasselbacher]

Please don't debate what is and isn't torture. It's a solved problem.

[Opus]

Sebastian, I always look to you for posts that represent a good deal of thought, as opposed to knee-jerk reactions. This post is a great example.

[Opus]

That first comment at RedState is an [warning: facetious] example of entry-level torture: posts with no capitalization. Gah!

[Jesurgislac]

Opus: Please don't debate what is and isn't torture.

I didn't intend to, in this context. We're agreed that there are some things that are intolerable, and the Bush administration ought to be made to stop doing them. Okay.

As Dantheman asks: "Good post. What's the next step?"

I'd prefer to discuss that.

[Jesurgislac]

Sorry, Kyle & Opus - misattributed a comment made by Kyle to Opus. No offense intended.

[LizardBreath]

I'm not your intended audience, but I do appreciate the post.

My gut feeling is that many in this administration would welcome a confrontation over the ability of Congress to restrict the options of the President as CiC, in order to establish a very heavy precedent.

You too? If I could make one change in the current understanding of constitutional law, I'd introduce a Potter-Stewart-style definition of "war" ("It's a war if we've got troops overseas shooting at people"), and put the power to start wars back in the hands of Congress, where the founders had it. The expanded powers of the executive give me the creeps.

[Jesurgislac]

Blockquote begone! (But how did that happen?)

[Nell Lancaster]

Sebastian, thanks for this post. I hope it has an impact on the desired audience. Getting down to the level of nitty-gritty, who in the administration, Congress, and or Senate do you see leading this fight? Someboday has to be the energized figure, and it looks like a pretty bleak landscape to me.

[Katherine]

Thank you so much.

I am afraid of venturing to RedState and drawing an angry mob. I just have a few points to make:

1) I have said before, and will say again: extraordinary rendition and Guantanamo Bay in its current form are the wrong answers to a very real, very difficult problem. In the long run, if we are going to have to come up with a better answer--and I don't think trying them on criminal charges before Article III courts, or giving them POW status (note that "giving them POW status" and "complying with the Geneva Conventions" are not synonymous) are sufficient answers. Terrorism is a hybrid between a conventional war and a crime--what it is, actually, is a war crime. And counter-terrorism requires a hybrid system of military & law enforcement & intelligence gathering.

2) I don't think we need to design this perfect system before we stop extraordinary rendition. Despite the abuses reported at Abu Ghraib and Guantanamo and other U.S. detention facilities, I would rather people be kept in U.S. custody than sent to Syria or Egypt, where there are simply no constraints at all against torture, where there is no reason that a suspect's innocence or the uselessness of the information he provides will end torture, and where we cannot know what confessions are true and what confessions were basically concocted by Syrian or Egyptian intelligence agents, and then signed by a desperate suspect who thinks he will be beaten to death or tortured forever if he does not tell them what they want to hear.

3) These are words from President Bush's inaugural address:

We have seen our vulnerability - and we have seen its deepest source. For as long as whole regions of the world simmer in resentment and tyranny - prone to ideologies that feed hatred and excuse murder - violence will gather, and multiply in destructive power, and cross the most defended borders, and raise a mortal threat. There is only one force of history that can break the reign of hatred and resentment, and expose the pretensions of tyrants, and reward the hopes of the decent and tolerant, and that is the force of human freedom.

We are led, by events and common sense, to one conclusion: The survival of liberty in our land increasingly depends on the success of liberty in other lands. The best hope for peace in our world is the expansion of freedom in all the world.

America's vital interests and our deepest beliefs are now one. From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth. Across the generations we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave. Advancing these ideals is the mission that created our Nation. It is the honorable achievement of our fathers. Now it is the urgent requirement of our nation's security, and the calling of our time.

So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.

Now, of course, words like that are always an oversimplification, an ideal to strive for that is worth stating even if it cannot be fully realized. You can oppose tyranny, and mean it, and still decide that your first priority in dealing with North Korea and Pakistan is going to have to be protecting the United States and its close allies from a nuclear attack, and in Pakistan's case your second priority is going to be dismantling Al Qaeda. You can oppose tyranny, and mean it, and still realize that there are limits on what our military can do to overthrow dictatorships and much, much greater limits on what our military can do to build democracies. You can oppose tyranny, and mean it, and still share intelligence with regimes like Egypt and Syria.

But you cannot say the words in President Bush's speech, and mean them, and send your prisoners to be tortured in Syrian and Egyptian jails. The two things cannot be reconciled. Extraordinary rendition is a more extreme version of the same old devil's bargain we've been making for decades in the middle east, the one that however much I disagree with the alternatives he provides, Paul Wolfowitz was quite right to reject. Extraordinary rendition is an implicit acknowledgment to Mubarak and Assad that they are right when they claim that this is the only way to deal with terorrists. It signals to the rest of the world,and especially the Arab and Muslim world, that we do not mean a word we say about democracy and human rights--and if they do not believe us, they are more likely to believe Bin Laden's lies about us. It signals to the population of Iraq that we are lying when we say never wished to rule over them forever, and will leave as soon as there is a stable democratic government that can defend itself against Zarqawi's thugs. It signals to the population of Iran that, in whatever happens there in the coming months and years, we cannot be trusted.

I think we supported many more dictators then we needed to during the Cold War, but those decisions, as wrong and as mistaken as I think many of them were, at least made some logical sense in the scheme of our overall strategy. Extraordinary rendition doesn't. It really, really doesn't.

[Katherine]

oh, and

4) as far as exactly where to draw the line in defining torture--first of all, it is not so relevant as to extraordinary rendition, because I don't think there is any doubt that the sorts of things Mayer describes qualify as torture.

Second of all, it's not a very useful debate in general, because the administration has been asked repeatedly to say whether specific techniques are:
a) torture
b) cruel, inhuman or degrading treatment short of torture, or
c) none of the above.

You can see examples in these written questions from Senator Durbin to Alberto Gonzales--look at question 2(b) on page 2, for example. Gonzales states that he cannot answer because whether a technique constitutes torture is a "highly fact specific inquiry", and more importantly because answering would reveal too much about our interrogation techniques, and give Al Qaeda an effective "road map" so that they can resist interrogation more effectively. If you agree with that, you would presumably equally agree that it would be a mistake for Congress to pass a statute authorizing or prohibiting specific interrogation techniques like "waterboarding" or "mock executions" or whatever else. And if you disagree, well, you can understand how we feel it's a little pointless having a theoretical discussion about what techniques would be justified when it's going to be impossible to ever find out if we're actually using them, let alone doing anything about it.

[dutchmarbel]

Chapeau Sebastian, well put!!

[Katherine]

"Getting down to the level of nitty-gritty, who in the administration, Congress, and or Senate do you see leading this fight? Someboday has to be the energized figure, and it looks like a pretty bleak landscape to me."

I think it would have to come from outside of the administration at this point.

As far as the Senate, I think you'd want both a Democrat and a Republican on board, though I would expect much more support from the Democrats. Durbin seems the most promising to me, both as far as his commitment to the issue and as far as his influence. Other candidates would include Russ Feingold, Carl Levin, or Patrick Leahy. On the Republican side, I would look first to John McCain and Lindsey Graham--both have a military background and personal history (especially in McCain's case obviously) that seem to make them both committed on this issue, and very convincing about it to people who might not be convinced by a Lincoln Chafee or Olympia Snowe would be. But because McCain seems to be planning to run for President and Graham is a freshman senator from a very conservative state, someone like Chuck Hagel might be more willing to keep pushing this if the leadership opposes it. If you want to go for a really weird strategy, there's Sam Brownback--who is extremely socially conservative, but has done real good work on the Sudan, and who Nick Kristof and Nat Hentoff seem to hold in high regard.

As far as the House, Edward Markey already is energized. Tom Lantos would be a very useful ally. On the Republican side--the three people that come to mind are Ray LaHood of Illinois (an early co-sponsor of the Innocence Protection Act), Christopher Shays of Connecticut (probably DeLay's least favorite House Republican so that's a point in his favor), and Steve Buyer of Indiana (the JAG officer who said he'd offered his services at Abu Ghraib and been rejected.) caveat: I don't really know a damn thing about the House Republican caucus.

[NeoDude]

Well, this article made me feel like an a**hole.

After Iraq’s Wartime Elections:
They Were a Success for Most Iraqis but May Yet Lead to Failure for the United States

Robert Fisk is the award-winning journalist of the London-based Independent newspaper, and he has long been a consistent critic of American imperial policies in the Middle East. “But it was the sight of those thousands of Shi’ites, the women mostly in black hejab covering, the men in leather jackets or long robes, the children toddling beside them, that took the breath away,” he reported from Baghdad on election day. “If Osama bin Laden had called these elections an apostasy, these people, who represent 60% of Iraq, did not heed his threats.”

http://www.fpif.org/papers/0502after.html

[Jackmormon]

Sebastian, what a great post. In particular, your envoi that urges Republicans to stop thinking like a minority party should, I hope, do some good.

Katherine, great specific suggestions. Isn't it a sad reflection on contemporary politics that McCain would hesitate to oppose extraordinary rendition because he's considering a Presidential run? Lindsey Graham asked some pretty tough questions in Gonsales's confirmation hearing. Maybe he'll step up.

Appparently Brian Lehrer on WNYC is going to devote a 40-minute segment on extraordinary rendition tomorrow (Thursday). If you're in NYC, you can listen on 820 am. If you're elsewhere, you should be able to stream online.

[Catsy]

America's vital interests and our deepest beliefs are now one. From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.

How can a man who speaks these words countenance any policy which deprives people of their rights and dignity simply because they're not Americans and we think it's somehow useful to do so? Hypocrite.

Excuse me. I had to exorcise that. Sebastian, bravo for writing this, and even more credit for posting it at Redstate. The responses there are not for the faint of stomach, and I sincerely hope that the small sample set is not representative of the Republican party as a whole. The responses of people like blogbudsman here restore some of that faith.

[Nell Lancaster]

If you want to go for a really weird strategy, there's Sam Brownback--who is extremely socially conservative, but has done real good work on the Sudan, and who Nick Kristof and Nat Hentoff seem to hold in high regard

Definitely plan C, only if all else fails.

Chuck Hagel is running for president, too.

And this will take strong leadership, because a big chunk of the base are for torturing prisoners.

A bleak landscape.

[Jesurgislac]

Catsy: The responses there are not for the faint of stomach

Mostly. Moe Lane stepped up and spoke out.

[LizardBreath]

And this will take strong leadership, because a big chunk of the base are for torturing prisoners.

I think that's an overstatement. I think a big chunk of the base considers it disloyal to question what our country is doing, and so has a fuzzy, unexamined belief that either what we're doing isn't that bad, or that we have sufficiently good reasons for it if it is. These people bother me, because they aren't fulfilling their responsibility as citizens by thinking critically about what's being done in their name, but that doesn't make them a pro-torture constituency, just an insufficiently anti-torture constituency.

If enough more engaged citizens who are perceived as being on their side come out against torture (once again: good for you, Sebastian!), I think the base may fall in line.

[Sebastian Holsclaw]

"And this will take strong leadership, because a big chunk of the base are for torturing prisoners."

Actually I would think it would take medium-level leadership for two reasons. First, you don't have to win over the whole Republican caucus unless a large number of Democrats are going to vote against for extraordinary rendition. Second, this isn't the kind of thing that many people want to defend in the light of day. Lizardbreath is exactly right, a huge percentage of people haven't been paying attention and/or have become so inured to charges of torture or unfairness over the years that they believed to be silly, that they don't really understand that we aren't talking about that anymore.

BTW, I'm pretty sure that the first commentor on RedState is a moby troll.

I did get one really good insight out of the RedState post. It is one thing to have a discussion about what is and is not torture. We should have that discussion and apply the results of it to our practices. But that discussion is irrelevant to a discussion about extraordinary rendition because we give up our controls on such things when we send someone to Egypt to be tortured.

[Jesurgislac]

And this will take strong leadership, because a big chunk of the base are for torturing prisoners.

I think - pace Sebastian, Bird, and indeed Moe - it's more the case that a big chunk of the base don't want to believe that the Bush administration is sending innocent people away to be tortured, and indeed is pro-torture. All three of them have, in the past, passionately asserted that this wasn't happening, or at least only accidentally and occasionally: all three have since come around to the fact that yes, it is, and yes, the Bush administration are doing it.

[Katherine]

"There isn't any information we are getting that could possibly justify the torture of innocent people."

How do you know?

"Torture is ineffective. Torture isn't ineffective at getting information per se. It is ineffective at geting useful information."

Again, how do you know?

"That is because the victim either snaps completely, or starts trying to mold his story to fit what the torturer wants to hear."

Do you know that this is universally true? Or is it just a feature of torture applied poorly?

I have two responses to this. I should probably post them over there, but I'm lazy. Since Tac can't post here, I should make it clear--I don't think it's fair to attack him if he can't defend himself, and I'm not doing so. He said he was playing devil's advocate, we don't know whether this is what he thinks. And I'm arguing this because he did a good job playing devil's advocate, not because I think he did a poor one.

1) Even if the problem is not torture in itself, but "torture applied poorly", even if it could ever be proper to trust someone with the power to use torture in a controlled and limited way--I think we can still agree that you would want to choose carefully who you gave that power. You would want to make sure you were giving it to Jack Bauer and not Uday Hussein.

In that case, why on earth do we trust Syria and Egypt not to apply it poorly, more than we trust the U.S. military or C.I.A.?

2) Let's all assume, for the sake of argument, that torture is morally justified if this equation is satisfied:

V > W + X + Y + Z

V = # of people whose lives were saved in terrorist attacks prevented by torture (note: this means not only that the attack was prevented by evidence obtained under torture, but that the evidence would not have been obtained in time without the use of torture.)
W = # of people tortured
X = # of people whose lives were taken in terrorist attacks where torture was a "but-for" cause. (e.g., the terrorist would not have become a terrorist unless his cousin was tortured; the terrorist joined the insurgency only because of the pictures at Abu Ghraib; the terrorist's neighbor would've turned him in if he hadn't been afraid of getting his acquaintance tortured.)
Y = # of Americans tortured in direct retaliation for the torture of Muslim prisoners. (If the American prisoner would have been tortured anyway, of course it does not count--I would obviously not include, say, Danny Pearl or Nick Berg or anyone captured by Zarqawi's thugs in this category.)
Z = # of Americans killed by soldiers or insurgents who fought to death instead of surrendering because of the fear of torture.

Should the burden of proof be on people who oppose the authorized use of torture to show that the equation is not satisfied, either in general or in a particular case? Or should the burden of proof be on people who support the authorized use of torture to show that the equation is satisfied, either in general or in a particular case?

I think clearly, it ought to be the latter. Even if torture's not bad enough to ban in all cases, it's bad enough that we would want to place the burden of proof on those who want to legalize it to show that it is justified. And I don't think you can possibly meet that burden, except after the fact through the use of the necessity defense.

Final thought: If you want to make this a math problem there's another approach you could use--you could multiply each variable by a coefficient indicating our certainty about it. We are most certain of W, less certain of V, and probably least certain about X, Y, and Z. I don't think this changes who should have the burden of proof, and I don't think it changes the result at all.

[liberal japonicus]

First off, excellent post, Seb.

I'm assuming that "The practice of extraordinary rendition began as a classic Clintonian hairsplitting exercise in the mid 1990s to avoid the clear letter of the laws which prohibit America from using torture." is one of those tacks for the Redstate folks. I don't think it is fair, and I would like to see something along the lines of Katherine's

I have said before, and will say again: extraordinary rendition and Guantanamo Bay in its current form are the wrong answers to a very real, very difficult problem.

That Clinton took this approach pre 9-11 should not be an opportunity to score points, especially in front of an audience that might be willing to grasp that straw. I note that in the previous thread, Katherine answered a poster's allegation that the policy under Clinton was widespread, indicating it was 9 persons total.

Also, in that thread, I wondered about the use of Thailand as a prison location/location for extraordinary rendition. If I understand correctly, the Clinton admin used Egypt exclusively and I think it was because Egypt could be 'trusted' as a government that has battled Muslim extremism. I'm not sure how one separates out the practice under Clinton and the practice under Bush in a way that doesn't seem like mote in the eye sort of stuff, but I think that if we want to be honest about it, we should. I would guess that there were no extraordinary renditions under Bush before 9-11, and the expansion of locations is a red flag in my mind, especially to places like Thailand (where we can't argue that the Thai police have some better understanding of islamic extremism) and Pakistan (where it is likely that there are Islamic extremist sympathizers in key positions)

Related to that, Katherine, I'm wondering if 'in its current form' modifies both Gitmo and extraordinary rendition.

[Sebastian Holsclaw]

"That Clinton took this approach pre 9-11 should not be an opportunity to score points, especially in front of an audience that might be willing to grasp that straw."

Know your audience. For many Republicans--myself included, saying that something is an exercise in Clintonian hairsplitting is just about the ultimate insult without dragging in their mother. It has connotations of moral indifference and hyper-technical lawyerly behaviour. In other words, it neatly encapsulates exactly what is wrong with extraordinary rendition. I suspect you would argue that 'Clintonian' ought not have gained such connotations. Maybe so. But it has them, and it seemed appropriate to use it.

[Jesurgislac]

Sebastian: I suspect you would argue that 'Clintonian' ought not have gained such connotations. Maybe so. But it has them, and it seemed appropriate to use it.

I understood it as such.

I've never understood why, to a good Republican, "Clinton did it first!" is supposed to look like a valid defense: it argues that Republicans generally look to President Clinton to set their moral standards for them, and that surely isn't true. (I'm not saying you're doing this, Seb: in fact, I can see you're doing the oppositve.)

[Gary Farber]

"...(where we can't argue that the Thai police have some better understanding of islamic extremism)...."

Is that really an impossibility?

[Slartibartfast]

it argues that Republicans generally look to President Clinton to set their moral standards for them

No, it doesn't.

[fdl]

SH: you're going to need a name for your club.

Republicans Against Torture? nope, shortens to RATS

how 'bout

Demonized
Energized
MObilized
Crazy
Repubs.
Against
Torture

DEMOCRATS!

cheers

Francis

[Catsy]

Jes: it argues that Republicans generally look to President Clinton to set their moral standards for them

Slart: No, it doesn't.

Not exactly. To be more precise, it puts Republicans in the unique position of measuring themselves against the bar set by Clinton.

We can disagree about what that bar means (I disliked a lot of things about Clinton, but overall thought he was the best president we'd had in the last thirty years), but the fact remains: when you defend yourself against a charge by saying that someone else did it first, you are measuring yourself against that person's conduct, and you have to ask yourself if that is the bar you want to set for your behavior.

[JerryN]

Sebastian - good post. As I mentioned on some earlier thread, this reminds me a bit of the public response as Watergate unfolded - it takes a while for a lot of people to be convinced that their government is doing bad things.

One small point re: Clinton's approach. From what I've seen, that administration at least provided the fig leaf of having charges filed in Egypt before the rendition. It appears that the current administration has not bothered with this nuance. One consequence of this is that it makes it more difficult to bring charges even if the interrogation yields tangible results.

[Nell Lancaster]

Republicans who plan to do anything at all about this (i.e., talk to other Republicans in order to generate pressure on Republican Senators and Reps) need to be prepared for the range of responses that are out there. My thanks to the commenters who've helped sort those out.

1. pure lack of knowledge
haven't been paying attention

2. trust in authorities
considers it disloyal to question what our country is doing, and so has a fuzzy, unexamined belief that either what we're doing isn't that bad, or that we have sufficiently good reasons for it if it is. ...[not] a pro-torture constituency, just an insufficiently anti-torture constituency.

2-B. distrust of critics
have become so inured to charges of torture or unfairness over the years that they believed to be silly.

Hm. True, some messengers will not be heard as well as others, but since there are many highly credible messengers 2-B is basically a form of

3. denial/minimizing
don't want to believe that the Bush administration is sending innocent people away to be tortured. [Posters here are examples of Rs who] asserted that this wasn't happening, or at least only accidentally and occasionally ...[and]... have since come around to the fact that yes, it is, and yes, the Bush administration are doing it.

I'd add that in order to stop rendition, Republicans must be unwilling to countenance 'guilty' people being sent away to be tortured, too. This brings us to the other possible response,

4. approval.

I'm hopeful that this is a small minority of Republicans, but even if so it's a very vocal and
potentially active one. The response at Red State isn't encouraging, but I make allowances for the initial effects of thrashing the issue around, and await a broader response.

[Slartibartfast]

To be more precise, it puts Republicans in the unique position of measuring themselves against the bar set by Clinton.

Actually, that would be even less precise. The intention behind this particular invocation of Clinton is to point out that different standards are being used to judge an action, depending on whether Clinton or Bush performed it.

I'm not sure that's quite as much of a gotcha as those taking that position would like, but it's definitely NOT what Catsy and Jesurgislac have interpreted it to be. It'd be interesting to know what the Republican response to Clinton's ideas regarding SS were, at the time.

[Slartibartfast]

This is not intended to claim that differing standards have been exercised from the Right side of the political spectrum, by the way.

[Nell Lancaster]

So, Slarti, what's your take on Sebastian's proposal? Are you ready to talk with your friends about this issue? What are the difficulties?

I'd hate to see this thread drift off into other issues.

[Slartibartfast]

I'm all for it, Nell. I've written to all my congressmen on this issue...I dunno, a few months ago. Probably a larger, coherent, public stand would be more effective. I'm starting to think that "more" could be removed from that last sentence to form a more accurate picture of how things work.

[Dantheman]

"The intention behind this particular invocation of Clinton is to point out that different standards are being used to judge an action, depending on whether Clinton or Bush performed it."

Not really. If you view Clinton's conduct in this matter unfavorably, you are making a two wrongs make a right argument at best. If you view Clinton's conduct favorably, then you are measuring your conduct by Clinton's. Which side do you fall under, Slarti?

[Slartibartfast]

If you view Clinton's conduct favorably, then you are measuring your conduct by Clinton's.

How so?

[Slartibartfast]

More directly, what on Earth has my conduct to do with anything at all, that's relevant to this conversation?

[Roxanne]

You guys are doing important work on this blog. Thank you for your continued coverage of this issue.

[Dantheman]

"If you view Clinton's conduct favorably, then you are measuring your conduct by Clinton's.
How so?"

Substitute "your party's" for "your" if you aren't following what I said.

[Jesurgislac]

Slarti: The intention behind this particular invocation of Clinton is to point out that different standards are being used to judge an action, depending on whether Clinton or Bush performed it.

Except that this presumes that different standards are being used to judge an action, depending on whether Clinton or Bush performed it. Which merits an automatic Karnak award for mindreading.

[Slartibartfast]

Substitute "your party's" for "your" if you aren't following what I said.

Still not getting you, Dantheman. First, I explicitely said that I'm not endorsing this particular, selective exhumation of the Clinton presidency. Second, I at least attempted to point out that this is an argument about consistency; right and wrong are value judgements and are, at least as far as this argument goes, completely irrelevant.

Now I've done it. hilzoy's going to jump in here any second now and tear me a new one.

[Slartibartfast]

Jesurgislac, if person A does X and gets one score, then person B does X and gets a much lower score, one has to think that the Soviet bloc judges are involved somehow.

[Bird Dog]

We're in perfect agreement, Sebastian. I wish I had the time to write this post myself.

[Sebastian Holsclaw]

"If you view Clinton's conduct in this matter unfavorably, you are making a two wrongs make a right argument at best."

Is the Clinton phrase really that unclear in this context? Let's walk it through. Most Republicans don't like Clinton. One of the reasons they didn't like him was because of what they saw as his amoral hairsplitting. Extraordinary rendition is a case of immoral hairsplitting that began under the Clinton presidency. I am arguing, specifically targeted to Republicans, that we should not embrace this Clintonian hairsplitting just because Bush continues the practice. In no way, shape, or form is that an excuse for extraordinary rendition. Especially in view of the audience it is clearly an argument against it. Most arguments of the "Clinton did it too" variety are at best an admission of willingness to descend into the ugly depths of political action.

In this case, it is the exact opposite of a "two wrongs make a right" argument. It is a "don't continue doing a wrong thing" argument.

[Jay C]

Excellent post, Sebastian: congrats for a valiant attempt to try to craft a simplified approach to a very complex problem. An issue, which, IMO, is complicated even more by its conflation of both moral and political elements: the latter, oddly, seeming to be the less-difficult to resolve.
However: while I agree wholeheartedly with your formulations that "Torture is wrong" and "...extraordinary rendition is a moral sinkhole" - how do you propose to try to put this position over to that "conservative and Republican audience" whose feelings on the issue may be, well, conditional at best?
Blogroll trolls aside, there seems to enough of a "base" of opinion out there whose views on torture and "extraordinary rendition" might be summed up as "It's wrong - when done to Americans" and whose notions of the relative morality of torture have been shaped (warped, IMO) in recent years by apocalyptic "war of civilizations" rhetoric,a bloodthirst for revenge for the 9/11 attacks, and a Majority party which has fervently enabled the "leadership"[sic] of an Adminstration which has NEVER, AFAICT, ever admitted that ANY of its policies might be wrong or misguided, least of all when its trademark "War on Terror" is involved.
Not that you're wrong, Sebastian, it's just I feel that the torture/extraordinary rendition issue will be
an uphill battle to even get recognized by the political establishment, much less actually addressed (and still less halted). Would that it weren't so, but there you are.

[Jesurgislac]

Slarti: if person A does X and gets one score, then person B does X and gets a much lower score, one has to think that the Soviet bloc judges are involved somehow.

Sorry, Slarti, that doesn't follow. Bush has been President now since January 2001, if you remember: I've been Jesurgislac since, um... *trying to remember* sometime in October 2001, I think. No one who's read me as Jesurgislac knows what I think of the Clinton administration's actions, and very specifically, what I thought of extraordinary rendition when done by Clinton, because it's just not something they can have any data on. At all.

Now, granted, there are some people who have an online presence that goes back well into the Clinton administration, and those people you can dig up what they said when Clinton did it, and what they said when Bush did the same thing, and compare/contrast.

If you simply assume that the person you are speaking to approved of X when Clinton did it, but now disapproves of X when Bush did it, then you are guilty of mindreading. And that's exactly how a lot of Republican bloggers argue. Mindreading awards all round, I think.

[ScottM]

First, that's a wonderful post Sebastian. Unfortuantely, I'm not your target audience, but it's very strong.

I checked with MSWord; it's a little over 800 words. Is that too many for a guest feature/column in most newspapers? Because I think it's strong enough that it should be read widely-- and it will be appreciated here, in red Central California, far more than opposition party moralizing. Can I persuade you to try?

Again, thanks for taking on this difficult issue.
--Scott

[Slartibartfast]

No one who's read me as Jesurgislac knows what I think of the Clinton administration's actions, and very specifically, what I thought of extraordinary rendition when done by Clinton, because it's just not something they can have any data on.

Your past opinions in the matter have never been the point, Jesurgislac. Not disrespecting you, but you are not the center of this particular disagreement.

I'd advance, for the sake of not putting on even an appearance of endorsing such arguments, a proposal that Clinton's past actions regarding rendition ought to be regarded as irrelevant to the question of whether it's wrong when Bush does it.

If you simply assume that the person you are speaking to approved of X when Clinton did it, but now disapproves of X when Bush did it, then you are guilty of mindreading. And that's exactly how a lot of Republican bloggers argue. Mindreading awards all round, I think.

Well, keep one of the larger, shinier ones for yourself, because I didn't have you in mind at all.

;)

[Jesurgislac]

Slarti: Your past opinions in the matter have never been the point, Jesurgislac. Not disrespecting you, but you are not the center of this particular disagreement.

No. But I have been the target of Republican commenters who tell me "Clinton did it too!" as if that answered anything: and so, I imagine, will many people be who argue against extraordinary rendition. Other people have pointed out other reasons why anyone who uses that argument ought to be shot down in flames: I'm merely making the point that they also get an automatic award for mindreading.

[Katherine]

As far as next steps: the logical next step for me, at least, is to finish my paper, and then submit it for publication somewhere and start using the information I find in it to begin harassing Congressmen in earnest. (For instance, based on my research, I'm starting to think Congressman Markey's bill only closes one of three potential legal loopholes the administration could use to justify rendition.) So I should probably do that, instead of procrasting here--even procrastinating on the same subject in delightful company.

One last thought in, response to this:

"Torture also opens us up to the legitmate criticism that we are acting out the very barbarism that we want to fight.

Only if you confuse means with ends."

The ends matter, just as the means do. Terrorism and torture and certainly war in an unjust cause, are worse than terrorism and torture and war in a just cause. But the ends and means cannot be so neatly separated.

The thing is, everyone always claims that their ends are just. One of the best ways to determine whether their stated ends are honest, or whether their stated ends will really be achieved, is to look at their means.

If you abstract it out enough, bin Laden and Torquemada and Martin Luther King and Rabbi Hillel and a Quaker hiding a fugitive slave in her basement all shared an ultimate end: serving the will of God on earth. But bin Laden proposes to get there by means of the slaughter and, if the Taliban is any indication, enslavement of innocents, and Torquemada wanted to get there by the torture of Jews and heretics, and King and Hillel had very different means. It is by looking at their means, that we judge whether they are really serving God or the devil. (or what is best or worst in man.)

That's perhaps too extreme an example. Here's another one: Yasser Arafat's cheerful willingness to see Israeli teenagers blown up in coffee shops cast doubt on his claim that his desired end was a two-state solution and not the destruction of Israel.

I would actually argue that in evaluating self-described liberation movements throughout human history, the means chosen are a better predictor of what happens than the stated ends. I think it's pretty clear that an Irish Catholic in 1917, a Russian peasant under the tsar, just about every African in the 1950s, a black citizen of Ian Smith's Rhodesia, a Palestinian today--they all probably had stronger grievances than the colonists did in 1775. I mean really, tea and stamp taxes? They have a point about "No taxation without representation", but that's the slogan on the D.C. license plates. The Boston Massacre was four people--it's more on the scale of Kent State than the Potato Famine.

And yet, things turned out very well here. They were worse in Ireland, and incomparably worse in the U.S.S.R, and really just about the entire continent of Africa. Look at Mugabe's Zimbabwe, and look at Mandela's South Africa. And do you realize how unbelievably lucky we were, black and white alike, to have the civil rights movement led for so long by a man like King? It's not that the stated ends don't matter. Of course they matter. But the means predict the actual ends far better than the stated ends do.

This isn't an original insight of mine, either. You can find it in novels from 1984:

('You are prepared to commit murder?' 'Yes.' 'To commit acts of sabotage which may cause the death of hundreds of innocent people?' 'Yes.' 'To betray your country to foreign powers?' 'Yes.' 'You are prepared to cheat, to forge, to blackmail, to corrupt the minds of children, to distribute habit-forming drugs, to encourage prostitution, to disseminate venereal diseases -- to do anything which is likely to cause demoralization and weaken the power of the Party?' 'Yes.' 'If, for example, it would somehow serve our interests to throw sulphuric acid in a child's face -- are you prepared to do that?' 'Yes.')

to the Brothers Karamazov:

(That's rebellion," murmered Alyosha, looking down.

"Rebellion? I am sorry you call it that," said Ivan earnestly. "One can hardly live in rebellion, and I want to live. Tell me yourself, I challenge your answer. Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature- that baby beating its breast with its fist, for instance- and to found that edifice on its unavenged tears, would you consent to be the architect on those conditions? Tell me, and tell the truth."

"No, I wouldn't consent," said Alyosha softly.

"And can you admit the idea that men for whom you are building it would agree to accept their happiness on the foundation of the unexpiated blood of a little victim? And accepting it would remain happy for ever?"

"No, I can't admit it....)

to Lord of the Rings (too many examples to quote one. It's 1/3 of the damn plot, or more: the Ring cannot be used to do good, even for the wisest person or the strongest person or the person with the best intentions. "That is where it would begin, but it would not end there, alas!" Or words to that effect.)

Alyosha's answer is the right answer, and Winston's is the wrong answer, even if you're a pure utilitiarian. If someone tells you that the way to achieve human happiness or liberation or God's will is to torture an innocent child to death--whether it's a voice claiming to be God, or the party leader, or the leader of the resistance, or anyone else--they're almost certainly lying, whether deliberately (as in 1984) or not.

This isn't to say that the ends don't matter, or don't ever justify the means. Of course they do--I always found it silly to say otherwise. Just, they tend to do it much less often than people tell themselves at the time.

oy. not so brief, as it turned out.

p.s. one more time: more grateful for Sebastian, Moe's , Slarti's and Charles' reaction than I can say, and really really regretting every unfair thing I ever said to any one of you (especially Moe.)

[Slartibartfast]

Ah. All is well, then. I take it all back.

[Slartibartfast]

That last was directed at Jesurgislac. I can't recall ever having said or thought anything uncomplementary of you, Katherine.

[carpeicthus]

Do you mean he's actually the techno artist Moby, or just a really big troll? Learn something new every day.

[Sebastian Holsclaw]

The term 'moby' with respect to a troll refers to a person from one side of a debate who pretends to be on the other side so as to make ridiculous claims to make that side look bad.

[Slartibartfast]

Oh. And here I thought it was sort of a polite way to call the target of the term the word that's normally associated with "Moby".

[carpeicthus]

Interesting; do you know the etymology on that?

[Jesurgislac]

And here I thought it was sort of a polite way to call the target of the term the word that's normally associated with "Moby".

Whale?

[Sebastian Holsclaw]

It is related to the singer Moby. The story is that at some time or another he advocated the technique but I don't know the details.

[Slartibartfast]

Whale?

I was thinking more in line of the title to a famous book. Strike "that's associated with" and replace "immediately following".

[JerryN]

Geez, I'm getting old. Back in the day, moby was geek slang for huge in the bignum or mondo sense. See the original hacker's dictionary for the etymology.

[crionna]

Excellent Post Sebastian, and your comment too Katherine. Thank you both.

One of my questions that never got answered by anyone last time is whether the threat of torture* has been shown to have power to elicit responses or if the threat alone is enough to skew the responses towards the not useful?

If the former, why not a "Don't Torture, Don't Tell" policy? Wouldn't this placate the concern of many that by making the use of torture illegal we take away any reason for a prisoner not to just wait his/her questioner out while also assuring that torture is not used? I mean, so long as the actual questioners knew that torture was verboten, who else has to know?

*I know that gets us into questions like "If I roll a car battery with electrodes on it into an interrogation room and become more menacing in my manner, is that torture in and of itself based on the mental anguish it may cause?" and "Well, that may not break the actual prohibition against torture, but does it break the spirit of the law?", but as said before, perhaps that's best brought up on another thread.

[crionna]

PS. Has anyone heard from Edward? Anyone know how to contact his partner?

[hilzoy]

Sebastian: I'd like to echo someone's suggestion that you consider publishing this in an actual newspaper. It's really good, and the more I think about it, the more I think it needs to be in as many venues as possible.

And about Katherine's point (about means): once, about 20 years ago, I got to listen to an argument about nonviolence between two groups of basically liberal activists, one from India (against violent resistance), and one from South Africa (for.) The South Africans basically said: look, it's so bad that we cannot afford to use these slow, 'decent' means. People are dying. The Indians basically said: you have to. Anything else will corrupt your movement and do horrible things to your country. The South Africans saw the Indians as recommending some sort of niceness, for which they didn't have the time. But as far as I could tell the difference between the two was basically that the Indians, unlike the South Africans (then), had already achieved power, and were in a position to see how completely destructive it is to set certain sorts of means loose in a community: how much the idea that it's OK in a pinch to settle disputes through violence damages the country you eventually have to govern. (I was sort of attuned to this, having recently returned from the Middle East, where I had gotten very gloomy about the long-term consequences of the PLO's having run the camps in Lebanon in such a way that an entire generation of kids knew almost nothing except how to use RPGs.) So the Indians weren't saying "be nice to your oppressors", but: "for God's sake, don't make this horrible mistake; it may destroy you."

I always thought the Indians were right. Not that I didn't understand the South Africans, whose views, thank heaven, did not prevail in their country. In the face of horror, requiring moral restraint towards your enemies can look like a sort of luxury that must be dispensed with. But I've always thought it's not about being nice to people who may not deserve it, it's about a kind of self-preservation, including the preservation of one's own basic moral compass in difficult times. Not a luxury at all.

[liberal japonicus]

Morning all,
Gary suggested that Thailand has experience with Islamic extremism, which is true, but that experience is a drop in the bucket compared to Egypt, who had their president assassinated by Muslim extremists. Also, language problems intervene and it is difficult to imagine that the Thai police have the requisite intelligence information to make rendition worthwhile. In fact, the process of rendition to countries like Thailand and Pakistan makes it _more_ likely that the information will be mistaken because the likelihood of innocent people being forced to say what is perceived as wanted.

I'm sorry to bring up the point about Clinton, especially in an essay I agree with on so many levels, and I don't want to pick a fight about one line, but I think this question of the relationship between Clinton's policies and Bush's needs to be set out and explained. Perhaps Katherine might know, but I believe that all 9 of those rendered were not US citizens. Given that they were not US citizens, there is not, legally, very much we can do unless we have evidence that they committed a crime. You can call that hair-splitting if you want, but it betrays a fundamental misunderstanding of the issues involved.

It also disturbs me because it suggests the 'have it both ways' side of this administration. If Clinton had simply followed the rules and deported those 9 people to a country that would have accepted them (which probably would have been Afghanistan), is there any doubt that we would know about it now?

Again, this is not picking a fight. But I really have to wonder what Clinton should have done pre 9-11

[Katherine]

"If the former, why not a "Don't Torture, Don't Tell" policy? Wouldn't this placate the concern of many that by making the use of torture illegal we take away any reason for a prisoner not to just wait his/her questioner out while also assuring that torture is not used? I mean, so long as the actual questioners knew that torture was verboten, who else has to know?"

Because it is completely indistinguishable, to the eyes of an ordinary citizen, from a "go ahead and torture" policy. I would not trust any administration with that and I certainly don't trust this one.

[Katherine]

LJ--Actually I think you're pretty far off base.

That wasn't supposed to be an exhaustive list of prisoners under Clinton. That's the 9 I know of, by name. George Tenet testified to "70 rendition activities" before 9/11; whether all were extraordinary renditions I do not know. Egypt may have more cultural similarities and experience in dealing with Muslim terrorism. Based on the descriptions I've read, it also has one of the most horrifyingly brutal systems of state sponsored torture in the world. Reading the description of various renditions to Egypt makes Arar's torturers sound like rank amateurs. (In reality this may say less about the difference between torture in Syria and Egypt than it says about the treatment of prisoners when their country is making at least some effort to protect them, and when they are not--Arar's most severe torture came before the Canadian consul attempted to contact him, and Abdullah Almalki seems to have been treated worse. So I wouldn't necessarily say that Egypt is worse than Syria, but they are no better, and they are much, much worse than Thailand. IIRC there were no allegations of systemic torture in Thailand in last year's state Department report. If you want to pick a country to make Bush look worse than Clinton go with Uzbekistan.)

This is not to say that there weren't differences between rendition under Clinton and Bush. These are the differences:
1) The prisoners were more likely to be guilty and more likely to be high ranking Al Qaeda members. However, I don't know that this is true in every case.

2) The prisoners were more likely to be sent back to a country where they were really a citizen and were really wanted for a crime--though they often had legal immigration status somewhere else--as opposed to a third country or a country that they were only a citizen of because Egypt and Syria just don't allow you to renounce your citizenship when naturalized elsewhere. We also seemed to have worked less closely with the interregators. Now, you are still not supposed to do this under the Convention Against Torture. But it does make it seem more as if this was an effort to "get these people off the street" as Scheuer said instead of a tacit conspiracy to torture.

Again, though, there are still cases where Egypt issued the charges more or less because we wanted to. And I don't actually know the extent of the collaboration in the interrogations.

3) The Washington Post has reported that there were some efforts to get Egypt not to torture people, and we may have even suspended renditions after they kept violating their assurances. I don't know if this is actually true, it wasn't so well-sourced. I do know that many of the prisoners we sent to Egypt were tortured, and in one case so was a prisoner's brother and possibly even a prisoner's wife.

It is clear that we are making no such effort now, when prisoners are being sent to Guantanamo after being in Egyptian custody, in apparently horrible condition, and there are allegations that we are denying them medical care as an interrogation technique, and where after all this we may have considered sending one back to Egpyt for a second round.

So it is not the same. But then, the provocation and the urgency of the perceived terrorist threat is also not the same. We don't know what Clinton would have done after 9/11. I hope, and think he would've done better, I certainly don't think his OLC would argue that it's unconstitutional for Congress to tell him not to torture people or that he can indefinitely detain U.S. citizens as enemy combatants, but we simply have no way of knowing.

As for people who say "where's the outrage about Clinton" though, that's pretty much bogus. The first newspaper stories about Clinton era renditions appeared in 2001. I first learned about Clinton era renditions in 2004. That was probably much earlier than most Democrats--most Democrats probably still don't know whatthe term "extraoardinary rendition" even means. But that's not the argument Sebastian was making.

[Katherine]

(also, you may be under the impression that they were trying to reach the U.S. They weren't. They were mainly in the Balkans, and we worked closely enough with the local security services in rendering these people that it seems like they also would have been quite cooperative about charging them, or imprisoning them and interrogating them without charging them but also without torturing them. We could also have demanded actual verification of some kind from Egypt that they would not be tortured--access by family members or Amnesty or ICRC or some such. Not that Egypt would be psyched about that, but we probably could've prevailed upon them.

and no U.S. citizens have been rendered under Bush either. That's a line I don't think we'll cross, though I've been proven wrong about such things before, obviously.)

[liberal japonicus]

Thanks for your comments. A couple of clarifications. I am not defending the process of extraordinary rendition. Not at all. As I have said before, the thing I hate most about this Bush administration is that it has pushed me into if not being a more realpolitik person than I ever thought was possible, at least taking into account the realpolitik aspects. I do think we have to understand how extraordinary rendition arose and why it took place, which is because we have a system of state based laws that do not overlap or have any (or very little) articulation between them. (as a side note, the current SCOTUS kerfluffle over whether foreign legal precedents can be cited partakes of this problem)

I'm also not accusing the Thai police of being on the same level as Egypt. I can imagine, in the pre 9-11 world, that rendering people who I think travelled on Egyptian passports to that country may have seemed like a sensible strategy. Looking at it as a travesty of justice and you can't trust either party puts you in Nader territory. I'm just trying to figure out how we got to a point where we have prison facilities (whether they be directly controlled or set out like Mickey D franchises) in Thailand. Putin has problems with Islamic separatists, why don't we throw him some business? China has a problem with Islamic separatists, why don't we outsource there? My understanding is that extraordinary rendition from the US went primarily (or solely?) to Egypt during the Clinton era. Given that turning them over to our other prime "ally", the Saudis, would have been equivalent of giving them a get out of jail free pass, I'm not sure where else we would have sent them.

As you note, the rendition activities, as Tenet so charmingly put it, included a large number of activities in the Balkans. In the pre 9-11 world, what options were available? We could either release them, try to get them to the Hague, or turn them over to a country where they nominally had citizenship. As much as I would like to acknowledge the possibility of the Hague as a meaningful court of justice, we have not put the effort in to making it such, and if we had tried to simply send them there, it would have been a symbolic solution rather than an actual one.

that's not the argument Sebastian was making.

I really tried to be explicit that I was responding to the coded message of 'Clintonian hair-splitting' rather than any argument. But at what point does this kind of code word (and Seb, they are going to take your decoder ring away if you keep giving up secrets in forums like these ;^)) undercut the argument that is being made? I don't know and I tried to give Seb all the credit possible for his argument.

Again, please accept that I am not trying to defend the policy. But if we simply stop the policy of extraordinary rendition without addressing the underlying reason why it took place, we haven't really stopped it, we have just put it on hold. There are enough clever lawyers about who can find a way to not call it extraordinary rendition and we'll be fighting this fight over some other term such as "inadvertant dedition" or "transnational relinquishment".

[Katherine]

"In the pre 9-11 world, what options were available? We could either release them, try to get them to the Hague, or turn them over to a country where they nominally had citizenship. As much as I would like to acknowledge the possibility of the Hague as a meaningful court of justice, we have not put the effort in to making it such, and if we had tried to simply send them there, it would have been a symbolic solution rather than an actual one."

I'm not sure what's unclear here but one more time: I am not talking about the Hague. I am talking about one of many things:

1) Arrest, interrogation, indictment criminal trial in the country where the terrorist conspiracy was committed.
2) Arrest, interrogation, and detention on immigration violations in the country where the terrorist conspiracy was committed.
3) Arrest, interrogation, extradition proceedings, detainee can ask (informally or formally) for postponement of removal because of the threat of the torture. If he gets it, you can detain him until he can safely be extradited.
4) Rendition to Egypt, accompanied by assurances not to torture and a good faith attempt to verify that those promises were kept.
5) Temporary illegal detention & interrogation while you figure out what the heck to do.
6) If they were planning attacks on U.S. targets--developing some system of military tribunal or court martials that strikes a reasonable bargain between security and justice.

I'm not clear on the legalities here, because I know pretty close to nothing about Albania's legal system. But to say that the only alternatives to sending them to be tortured in Egypt were sending them to Afghanistan, and sending them to the Hague--no, that's just false. That's false even as far as legal alternatives go. And, since rendition isn't legal, there are other alternatives that are no more illegal and a lot less immoral.

Screwing this up the first few times is understandable and perhaps inevitable. But that's not what happened. Which brings me to this:

" if we simply stop the policy of extraordinary rendition without addressing the underlying reason why it took place, we haven't really stopped it, we have just put it on hold."

I agree. Which is why I said something quite similar in the very first post on this thread. Which is exactly where I think Clinton failed: it's a total abdication of responsibility, when the CIA tells you that we need to get these guys off the street, to shrug your shoulders and say "you guys figure it out." Like I said, maybe that's fine in the first few cases. But we're talking about a period from 1995-2001, here.

"Given that turning them over to our other prime "ally", the Saudis, would have been equivalent of giving them a get out of jail free pass, I'm not sure where else we would have sent them."

Jordan's preferable to Egypt. From what former agents have said (specifically Bob Baer), in Jordan they interrogate people using means that would be illegal in the U.S., and sometimes torture, but there's not the same amount of gratuitous brutality and you actually get better information.

"Looking at it as a travesty of justice and you can't trust either party puts you in Nader territory."

That is not what I was trying to do. It is the exact opposite of what I meant to do. I wasn't saying you can't trust the Democrats. First, Clinton's record is better than Bush's on rendition and much better in a bunch of other areas of the way prisoners are treated. Second, I trust the Democrats in Congress, and John Kerry, much more than Bill Clinton. I am actually a pretty big non-fan of Bill Clinton. Great charisma, great economic and domestic policy, but not so good on foreign policy or political courage. But more than that, it's a post-9/11, post-Abu Ghraib thing. The Democrats have screwed this up too, albeit less, and the Democrats have learned. Maybe the Republicans can too. At any rate maybe a handful of Senators can.

I hope this clarifies, but whether it does or not: bed time.

[Katherine]

Hey, look at this:

The ranking Democrat on the House Intelligence Committee said that she intended to introduce legislation that would ban torture by U.S. interrogators and bar transfers of detainees to countries that engaged in torture.

Rep. Jane Harman (D-Venice) said during a speech at Georgetown University that she and other lawmakers would introduce the bill to ban torture "even for the ticking-bomb scenario," she said, and prevent the CIA from transferring prisoners to countries that use torture.

The bill would allow certain "coercive" interrogation techniques in special circumstances.

I'm guessing this means that someone high up--maybe even the President--must individually authorize the techniques, & notify a limited # of Congresspeople (say, the chairs and ranking members of the intel committees). I assume there's a clearer definition of what techniques are and aren't torture, too.

I'd have to read it, but I think this is very good news. Harman really knows her stuff.

[Sebastian Holsclaw]

Isn't my piece a bit long for a letter to the editor? I wouldn't mind submitting it somewhere, someone give me advice. :)

[hilzoy]

It's 867 words, which I don't think is way off for an op ed. (Yet another occasion to say thanks to Word's word count feature.) I don't know how to do this myself, but I suspect Katherine might.

[rilkefan]

[annoying linux snark, please ignore]
Word can count words? I knew it had to be useful for _something_. wc takes up a lot less memory though.

[hilzoy]

rilkefan: if we try hard we can start a 'whose OS is best' fight. (Me: Mac.) I keep having to send people documents in Word, and besides, my marvelous footnote program plays best with it. And then there's the fact that where I work Office in its entirety costs about $20. (Not that I ever use any of it but Word and occasionally Excel -- my TAs have taken to sending me final grades in Excel charts, and without Excel to open them, I would never be able to turn in any grades at all.)

[Anarch]

rilkefan: if we try hard we can start a 'whose OS is best' fight.

Trust me: with this lot you won't have to try that hard.

[Sebastian Holsclaw]

Funny thing is that I think a lot of more liberal papers would think it was too gorey and would object to the Clinton references--unfortunately missing the intended audience. But if someone can give me a touch of guidance, I'm willing to try for it.

[rilkefan]

I think a lot of liberal newspapers would like him.

[Sebastian Holsclaw]

I have the AMPHIGOREY.

[liberal japonicus]

Sorry to skip over the OS fight thing. I feel guilty responding to Katherine, because she has lots better things to do than answer me, but I hope you won't mind me pursuing it a bit.

The nine people you listed for Clinton renditions were, if my googling is correct, all Egyptian passport holders and were captured in Albania. I was wrong to think that this was linked to extradition from the US and I appreciate you setting me straight on that. The option of taking them back to the US to try them, I think we can agree was not possible pre 9-11 and I don't think it possible today, unless we take them to Gitmo. The third country option of Jordan, etc has (and I'm talking pre 9-11 here) two problems. The first is that Egypt wanted these people and Egypt was on our 'side' (and still is, given that it gets more foreign military aid IIRC than any other country other than Israel). The second is that would a country like Jordan have wanted to take them (perhaps it was explored, I don't know) Logic would suggest no, they wouldn't want to open themselves up to attack and there was no logical reason for them to take them (remember that our problems in Iran started when we took the Shah for medical treatment and IIRC several countries refused to take him because of similar reasoning)

I don't say this to particularly contradict any of your main points. I can understand your disappointment at the Clinton approach to foreign policy, and I appreciate that you aren't a fan. But to admit that this policy is the same as Clinton trying to define 'is' doesn't make sense to me. I personally think that the meme of 'hair-splitting' is applied more appropriately to an argument that torture consists of pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death" than the situation that the Clinton administration faced.

[Sebastian Holsclaw]

Liberal Japonicus, I really don't think you are understanding the Clinton hairsplitting thing. Extraordinary rendition IS a legal hairsplitting case. We can't torture people here. It isn't legal. So extraordinary rendition attempts to get around that prohibition in a hyper-technical exercise of temporary custody with people who are allowed to torture. That is legal hairsplitting because it clearly subverts the intent of the law and also avoids numerous legal protections provided by the United States for anyone found in its custody. It may be technically legal, but it is only a matter of exploiting loopholes.

I call it 'Clintonian' because it A) was done by Clinton, B) is a word that suggests amoral hair splitting, and C) is a very effective and understandable term considering the intended audience.

Everyone else, the comments on RedState are one thing, but I'm finding the comments on MichaelTotten's link to my post even more disturbing. His audience is pretty much centrist to liberal-warhawk as opposed to RedState's definite conservative bent, but if anything the comments are much scarier.

[liberal japonicus]

I read the comments on Totten's and they were disturbing to me as well. I hope my comments are not coming off like that.

20/20 hindsight means that we could construct a perfect policy for Clinton, but to deny the circumstances around the rise of this policy seems bizarre. To take your points, I understand a) and c), and I specifically acknowledged the latter. It is b) that I have problems with.

US troops captured Egyptian citizens in Albania who were enemies of a major ally and had allegedly carried out acts of terror there but apparently did not have any plans on the US and who had been convicted in abstentia. Remember, this is before 9-11, so you can't claim that there was some danger or some information that we needed out of them. We apparently have had an extradition treaty with Egypt since the 1800's. On the other hand, our extradition treaty with Jordan (which wouldn't have mattered, why would we turn Egyptian terrorists over to Jordan and why would they want them?) dates from 1995. Should we have said that we aren't turning them over because we knew that Egypt would torture them? Should we have arranged with Jordan to take them, even though, again, we weren't interested in the information that they had and Jordan (I'm assuming) was not interested?

the intent of the law and also avoids numerous legal protections provided by the United States for anyone found in its custody.

This is going to sound like pilatory division, but which law? How can people be found in the custody of the US in a third country? Yes, this is legal 'hair-splitting', but it seems that you are upset that Clinton didn't do something ad hoc with no basis in law. I'm not a lawyer, but for a lawyer to argue this seems strange to me.

I said earlier that the problem of this century will be how we regard citizenship and human rights. Those rights don't just magically appear. There has to be a way to grant them, acknowledge them and guarantee them. I hate to hit you with a comment from the Totten thread, but this underlines the gulf between what should be and what actually is.

There is a total absence of constructive criticism; the only conclusion I am able to arrive at is they want us to treat terror suspects like our citizens are treated in criminal justice proceedings.

I don't agree with this at all, but how can I argue that non-citizens have a certain level of rights based on anything other than my strong moral sense? I believe that there is a fundamental level of human rights that all humans should have, but there is nothing I see that sets that out. What document can I point to that grants every person a certain basic level of rights? What basic rights do non-citizens have? Not what rights should they have, but what legal rights do people have outside of whatever country they may reside? It is sad, disgusting, pathetic, whatever word you would like to use that Clinton did not tackle this. But you know what? No one else had and there was no incentive to tackle it. Given that you and others here have argued for the dissolution/reconstruction of the UN (which is the only true arbiter of an international level of human rights), and for the inapplicability of Geneva conventions to non uniformed combatants, can one really condemn Clinton for what he did?

One could view this as a defense of Clinton, but it is more a plea to examine why we are at this crossroads. I understand that you might have to throw a bone to your conservative readers, but it doesn't really reflect the true history.

Please forgive me if this comes off overly aggressive. Maybe I'm missing something from your argument, but I really don't know what it is.

[Slartibartfast]

I don't agree with this at all, but how can I argue that non-citizens have a certain level of rights based on anything other than my strong moral sense?

Good question, so I consulted a vital source document:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Not a legal document, to be sure; more like a mission statement. But we ought to take this to heart: the postulate is that these rights are self-evident before the establishment of a government designed to support these rights. Do we really think that going counter to the mission statement is in any way desirable?

[Sebastian Holsclaw]

I think you should understand that Clintonian as a word for hairsplitting (whether fairly or not is way beyond the scope of this post) derives it meaning from instances separate from extraordinary rendition.

"How can people be found in the custody of the US in a third country?"

I don't understand this question. If they aren't in our custody, how are we sending them over to other countries for torture? We can't send people that we don't have a hold of anywhere. Remember this is specifically NOT extradition--a process governed by its own rules that Clinton's administration (and now the Bush administration) wanted to avoid.

My point with both administrations is not that the problem of what to do with these in-the-gap prisoners is easy to solve, but that the issue shouldn't be solved by intentionally exploiting and widening the legal gap.

[Dantheman]

"I think you should understand that Clintonian as a word for hairsplitting (whether fairly or not is way beyond the scope of this post) derives it meaning from instances separate from extraordinary rendition."

Nonetheless, it contributes little to the argument and causes a significant fraction of your audience to stop listening. I suspect you would feel insulted if liberal commentators routinely used "Reaganesque" to mean making statements which have no basis in fact behind them, but which support convenient myths.

[Jesurgislac]

Dantheman: Nonetheless, it contributes little to the argument and causes a significant fraction of your audience to stop listening.

This post was written, explicitly, to be posted on Redstate, a very conservative blog. There are turns of phrase in it I might well disagree with on another topic (or in another context), but I take no issue with Sebastian writing to convince conservatives that extraordinary rendition/torture is wrong in the language they understand: indeed, I applaud it.

[Dantheman]

Jes,

I would agree with you if this were only a post at Redstate. We are not at Redstate, but the word is used here, and not retracted. Sebastian said that an issue with turning this into an op-ed piece is that editors may reject it over that word. This suggests to me that he is unwilling to remove that word, even when he is speaking to other audiences.

[Katherine]

LJ--what you are doing is very different in degree from Totten's commentators. But in fact, there is a core similarity. You, like them, appear to be starting from the conclusion: he was a good president, so this must be justified, or at least understandable. And you reason backwards from there. In doing so, you end up making incorrect statement after incorrect statement, about both the facts and the legalities. When I try to explain why one is wrong, you sometimes acknowledge it and sometimes don't, and you immediately come up with another incorrect statement. And I am really getting tired of it, so this will be my last attempt.

"I don't agree with this at all, but how can I argue that non-citizens have a certain level of rights based on anything other than my strong moral sense? I believe that there is a fundamental level of human rights that all humans should have, but there is nothing I see that sets that out. What document can I point to that grants every person a certain basic level of rights? What basic rights do non-citizens have? Not what rights should they have, but what legal rights do people have outside of whatever country they may reside?"

As to non-citizens inside the United States: Oh, I don't know, how about the U.S. Constitution?!? All of these provisions apply, by their own words and by court interpretation, to both citizens and non-citizens:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

There are plenty of passages that apply to "citizens". These do not. They don't even only apply to legal immigrants. There is a geographical restriction, but that's it.

But perhaps you simply misspoke, and said "citizens" when you meant to say "residents." Perhaps you were also only talking about outside the boundaries of the U.S. In that case, you're still wrong. Here's one such document. Here's another. There's also this, from the 1998 Foreign Affairs Reform and Reconstruction Act,8 USC 1442, which I can't find a link to, but which states "It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." You might also try looking up the Geneva Conventions. Also the Uniform Code of Military Justice, which technically restricts the conduct of our soldiers rather than conferring rights, but in effect guarantees people the legally enforceable right not to be treated in certain ways by our soldiers. That's just off the top of my head. There are many, many, many other examples.

[Sebastian Holsclaw]

"This suggests to me that he is unwilling to remove that word, even when he is speaking to other audiences."

That is because no matter where published (as if) it would remain an exhortation to Republicans.