Still Not Surprised

by hilzoy

From Newsweek:

"An FBI agent warned superiors in a memo three years ago that U.S. officials who discussed plans to ship terror suspects to foreign nations that practice torture could be prosecuted for conspiring to violate U.S. law, according to a copy of the memo obtained by NEWSWEEK. (...)

In a memo forwarded to a senior FBI lawyer on Nov. 27, 2002, a supervisory special agent from the bureau's behavioral analysis unit offered a legal analysis of interrogation techniques that had been approved by Pentagon officials for use against a high-value Qaeda detainee. After objecting to techniques such as exploiting "phobias" like "the fear of dogs" or dripping water "to induce the misperception of drowning," the agent discussed a plan to send the detainee to Jordan, Egypt or an unspecified third country for interrogation. "In as much as the intent of this category is to utilize, outside the U.S., interrogation techniques which would violate [U.S. law] if committed in the U.S., it is a per se violation of the U.S. Torture Statute," the agent wrote. "Discussing any plan which includes this category could be seen as a con-spiracy to violate [the Torture Statute]" and "would inculpate" everyone involved.

A senior FBI official, who asked not to be identified because the issue is sensitive, said the memo was not an official bureau legal conclusion. (...) But another senior U.S. law-enforcement official familiar with the memo, who also asked not to be identified, said the memo reflects concerns among many agents and lawyers about "rendition." Intel officials estimate that more than 100 terror suspects have been rendered to foreign countries by the CIA under a classified directive signed by President George W. Bush after 9/11."

No surprises here either, although the extent to which this administration seems to have been determined to disregard the advice of anyone who disagrees with them is, as always, mind-boggling. But mind-boggling things are not necessarily surprising, these days.

Comments

[Katherine]

No, not surprising. I hope Newsweek plans to publish the full memo. I'd like to know which Pentagon officials. Rendition started as a CIA program, though this is not the first hint that it's not only the CIA anymore.

It's the specific intent requirement again, that allows them to weasel around this advice. "In as much as the intent" is to torture them, sure it would be illegal, but we only know that it is overwhelmingly likely that they will be tortured; we don't actually INTEND for them to do it. Perish the thought. That's the theory, and it's actually less implausible than the argument that Egypt's and Uzbekistan's assurances are reliable--it is possible that we only want these people disposed of in as convenient a manner as possible, that we only want the credible threat of torture in an Egyptian prison to use against a really important prisoner, so if Egypt doesn't happen to torture this one guy it's no big loss.

It's not a really convincing argument, but they've made much worse ones with a straight face.

We ought to revise the statute to require a mens rea comparable to that for murder under the model penal code:
a) intent, b) knowledge, or c) very severe recklessness manifesting extreme indifference to human life.

[Gary Farber]

Did this one Sunday afternoon.

[cleek]

Bush voters: Objectively Pro-Torture, since 2000.

[dmbeaster]

Bush ethical theory.

If you can lie about it and conceal it, then you can say you are against it and it never happened.

Translation -- the Bush torture policy. We do it, lie about it, say we are against it and say it never happens (except for those few bad apples).

[Katherine]

There is another suspect making allegations about a rendition. To Morocco, in this case.