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February 03, 2009

Comments

Shezam!

"Extraordinary rendition is rendition outside normal legal frameworks."

Gee, and I was castigated when I said that last week.

I look forward to cleek explaining to Hilzoy why she's all wrong. And saying her point is stupid. And Catsy can explain that Hilzoy "can't seem to accept the fact that recent popular usage has overtaken historic usage, like someone from the 19th century who still insists on using the word 'torpedo' to refer to what we now describe as a 'mine'."

Etc. Because presumably it's not stupid and wrong when I say it, but not suddenly different if Hilzoy says it.

I hope.

ahem.

estoppel

n. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right or prevents one from denying a fact.

Yes, in law, you are not "stopped" from asserting a claim; you are "estopped".

gotta love the law.

ps: Hilzoy, there's no "a" in "estoppel".

Oh noes!

Maybe I'll leave the misspelling as one of the very few signs of my normalcy. ;)

hilzoy, seriously, if a misspelling of estoppel is the best sign of normalcy you can muster...

Q: Q&A posts- great format or greatest format?

A: Greatest.

Oh great, now Greenwald and hilzoy are rolling out the good old ticking time bomb scenario in order to justify kidnapping people on foreign soil, while the US itself is harboring war criminals and shielding them from prosecution.

plus ça change ...

In an update Greenwald brings up the counterscenario (proposed by a commenter) of some foreign entity kidnapping Bush in order to try him in a court of law because the US will not and explicitly states that those scenarios are equal, i.e. if one is legitimate, so is the other.

some foreign entity kidnapping Bush in order to try him in a court of law because the US will not

Eichmann

When weighing legitimacy, there are going to be other facts to take into account. I would guess that even if Pakistan publicly objected to a capture and kidnapping of Bin Laden, assuming he's there, that objection may well not be made in private as well. After all, who really wants a Bin Laden living in their country?

Bush is an entirely different case. Whatever he's done, he doesn't present any further danger, either here or abroad. One would expect that there would never be public or private acquiescence in his capture.

There also the 'no man's land' problem. I presume that Pakistan has been telling the US for 7 years now that it doesn't have the kind of control over the tribal areas necessary to arrest and extradite the guy. A country can certainly object to a kidnapping carried out beyond the reach of its writ, but I doubt anyone would take it altogether seriously.

Gee, and I was castigated when I said that last week.

oh, boo hoo.

I look forward to cleek explaining to Hilzoy why she's all wrong.

she can read what i wrote, if she's interested. i've made my point.

Yes, in law, you are not "stopped" from asserting a claim; you are "estopped".

i read that word and i hear the gay Hispanic guy from Legally Blonde:

Enrique Salvatore: Don' esstomp your little last season Prada shoes at me, honey.
Elle: These aren't last season!
[looks down, gasps, runs back into court room]
Elle: He's gay! Enrique is gay!

If somebody catches bin Laden, aren't they legally supposed to extradite him to Saudi Arabia first, on the grounds that he was wanted there before the USA had an interest?

Gee Hilzoy, A great example of some very tortured logic here. "Rendition" is beginning to remind me of the "derivative" word in our financial markets, in that nobody really understood what it encompassed, ie., a lot of Really Bad Debt.

The example of "..catching Osama bin Laden in another country and bringing him to the United States to stand trial..." is a lot more innocuous sounding than catching someone (bin Laden or whomever) and sending them to another country that "cooperates with us," which this executive order would encompass. Countries that "cooperate with us" would include Saudia Arabia, Egypt, Jordan, Pakistan where torture is synonymous with prison system. Certainly, the U.S. would have no control over what happened to a prisoner in one of their prisons, legally, practically or any other way. This is throwing the door wide open to torture just in a more acceptable fashion to the American Psyche, out of sight and out of mind, not to mention a healthy dose of deny ability couched in what has by now become a very confusing an little understood word called "rendition."

Try reading this and understanding that what you are expressing concern about has been forbidden.

t 1, Article 3 of the Convention Against Torture states:

"1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.


2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

as well:
All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies."
HTH.

I trust HRW on this. I don't necessarily trust Obama--unclear to me whether he means to go back to the Clinton-era policy, which did involve transferring people to countries where they were tortured even if that was less clearly the *purpose* of the transfer than under Bush, & which has been defended on grounds that they followed certain formalities--diplomatic assurances, extradition requests, trials, etc. Does a trial in absentia in Egypt count as a "real court", & can a country with Egypt's history of torture ever be relied on? Under previous Democratic administrations, we've rendered people to Egypt, they were tortured, & people have defended the program based on legalistic distinctions & deliberate semantic obfuscations about the meanings of the terms "rendition" and "extraordinary rendition" (the Bush administration did the same, in even clearer bad faith). HRW, I'm confident, does not consider an Egyptian assurance reliable or the Egyptian court system to be a real court. Does Obama? It's unclear to me & bears very close, skeptical watching.

The other thing, of course, is that I am generally not *too* assured by generalized promises to follow the Convention Against Torture, comply with the law, etc. The Bush administration made similar promises & always maintained that we do not torture, comply with the law, etc. The promise/order to follow CAT isn't what makes me think Obama's not going to send people to be tortured, nor are the arguments about different forms of rendition (how many times did Bush officials explain that rendition has been around since the 1980s, Carlos the jackal, blah blah blah?). It's no guarantee of anything at all--it's my guesses about Obama, the people in his OLC, etc. In Bush's case there was unmistakable evidence about the practices of his administration that showed those promises were lies. In Obama's case, there's no evidence he's lying, but it's hard to rule it out until he actually takes office & we learn about the details of his policies. Basically, this order doesn't tell me much of anything yet.

Katherine's points are important, but historically, the policy emerged because the Egyptians was a close ally and they were dealing with Al Gama'a al-Islamiyya, the precursor of Al Qaeda, a group linked to Sadat's assassination and whose leader, Omar Abdel-Rahman, was the spiritual center of the group who did the first WTC bombing (I note this not for Katherine's sake, but just to lay out what I know) Extraordinary rendition was a policy designed to keep our hands clean. That we did end up trying and convicting Rahman points underlines that rationale, because his imprisonment was given as the reason for the Luxor massacre. What-ifs are always tricky, but would the WTC have been such a likely target had we simply passed him on to Egypt when he entered the US as a tourist? I don't know, and I think some of the ambivalence of making a categorical prohibition against extraordinary rendition in Hilzoy's post can be derived from thinking about this.

I'd certainly agree that now, we have to reject ER, even if it may cause us harm in the short term, but it's not something that came ab ovo, by any means. Looking back, I think in an ideal world, we would have been able to try people in an international court, but in the real world, that option is blocked for any number of reasons.

Been trying to come up with a conclusion to this, but I really don't have one. This is not a defense of Egyptian justice, but when one looks at the history (Camp David, rejection by the Arab League, Sadat assassination, participation in GW1, government swore enemies of Al Gama'a al-Islamiyya) there is a certain sense of inevitability about it all. Which I guess is the saddest thing of all.

Q: Why does Michael Ledeen think you're a guy?


A: No idea. You'll have to ask her.

Me like Hilzoy. She funny.

Katherine: I honestly don't know what Obama plans to do. What I mainly want to argue is that the LA Times story tells us nothing. For those purposes, I think it matters to point out that there are different senses of 'rendition' -- otherwise, what e.g. HRW said looks like a flat abandonment of their principles, and the claim that you're OK with rendition in some circumstances, with appropriate safeguards, just means: it's OK to send people off to be tortured, as long as you fill out the appropriate forms.

I think it matters to point out that that's not what the people quoted in the LA Times are actually saying. Also, that the Exec. Order both implies that rendition to torture is prohibited, and provides safeguards against it.

That said, it could be true that the assurances in the EO are meaningless. I just don't think we have any evidence one way or the other, unless you count things like the fact that Marty Lederman will be helping to interpret the law, which does matter to me, but which I'd be nuts to count as conclusive.

We have a warrant for his arrest, but we believe that if we asked that country to arrest him, the police would tip him off and he would escape. We also believe that he is planning further attacks. Is it OK to capture him in that other country and bring him to the US to stand trial? If you think not, ask yourself whether there is any attack so awful that, if we had convincing evidence that he was planning it, and convincing evidence that the police force of the country he was in had been compromised, we would be justified in capturing him ourselves.

Sounds a lot like "If we knew about a ticking bomb, and someone who knew about the ticking bomb, and we knew he would tell us if we tortured him, and we knew we didn't have time not to torture him...."

Don't spend too much time refuting this, it's probably only superficial.

hilzoy--exactly; I don't think the EO tells us anything we didn't already know & I realize this post is a counter to people claiming otherwise.

Noumenon: I thought about that. One key difference, I think, is that in the Ticking Time Bomb case, you supposedly know that torture will work, and that nothing else will. You have to: otherwise, there would be no case for torture. But there's no good reason to think that you would ever have good reason to think that this is true.

In this case, by contrast, there's a very plausible reason to think that you can't do anything other than snatch bin Laden (or arrange for someone else who is not the infiltrated government to do so): the infiltration of the police/intelligence services. If you tell them, he will escape. This precludes e.g negotiating with the government to get their cooperation -- they might well cooperate with the arrest, but that would be the problem. And that's why you need to choose between capturing him without their involvement and not capturing him at all.

Moreover, it's quite plausible, and possibly actual, that such countries exist, and that bin Laden is in one of them.

So I don't have the sense, as I do with the TTB case, that the entire set-up is crazy.

Torture is one problem, kidnapping people on foreign soil or alternatively lobbing a few missiles their way is another problem. While I'm glad that almost everybody here and elsewhere on liberal blogs seems to be against the former, I see a disconcerting amount of casualness and even support when it comes to the latter.

The underlying idea seems to be that the US has a god-given right to conduct questionable or illegal operations in every corner of the world with impunity, because they are the good guys after all and need to be in control.

I like the post, Hilzoy. Clever in both concept and execution. And you may very well be right about President Obama's intentions (indeed, I hope you're right).

So, since we'll never know what's in Obama's mind, let's argue semantics. Your prescriptivist case that "extraordinary rendition" means "irregular" or "extrajudicial" rendition is missing a clear prescription. And the descriptivist case is almost wholly against you.

You provide good evidence that "rendition" has a definition. But that's not the issue: the issue is the definition of "extraordinary rendition." You don't provide evidence, however, that "extraordinary rendition" has a single proscribed meaning. Indeed, the most common use of "extraordinary rendition" is in reference to a rendition that results in torture.

Moreover, I think you draw the wrong conclusion from fact that the head of HRW uses the term "rendition" when it appears to be talking about extrajudicial rendition. You write: "Offhand, it seems more likely that he's referring to extraordinary rendition in its technical sense, and saying that it might be OK in some cases." But that's not the only (or most plausible) interpretation. It's at least equally likely that he uses the term "rendition" to refer to the various kinds of rendition (extrajudicial and not) that do not involve torture, and reserving "extraordinary rendition" for cases where rendition is used to deliver a suspect to torture. Rendition, after all, merely means "handing over." (The glossary of legal terms actually provides only one example of a rendition, namely, between states. But there are also renditions between provinces and other jurisdictions.)

A minor point .... but keep in mind that the Obama Administration could easily clarify its policy this if he wanted to.

Crap ... a greater number of typos than usual in my above comment. Hope my meaning is clear enough.

Great piece of work!

With a constitutional scholar in the Oval Office we can expect to see more attention paid to the fine points of the law. Isn't that a reassuring change?

Wait til the FOCA debate begins. Roe will be moot and the issue will become federalized for the first time. The catfight will be over a legal definition of "viability."

von:Moreover, I think you draw the wrong conclusion from fact that the head of HRW uses the term "rendition" when it appears to be talking about extrajudicial rendition. You write: "Offhand, it seems more likely that he's referring to extraordinary rendition in its technical sense, and saying that it might be OK in some cases." But that's not the only (or most plausible) interpretation.

Well, I think speculating on what the HRW meant when he used the term "renditions" is useless because, well, it appears that that's the LAtimes word, not his, note where the close quote comes from in that paragraph:

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."

So, who knows exactly what he was referring to that has a "legitimate place."

novakant: The underlying idea seems to be that the US has a god-given right to conduct questionable or illegal operations in every corner of the world with impunity, because they are the good guys after all and need to be in control.

Shucks, us non-Americans just can't be expected to understand that sometimes it's necessary for the US to kidnap us and take us wherever the US wants. If we had a proper concern for the security of American citizens we'd understand that.

Hm, I wonder who'll have the job of persuading non-Americans that it's safe to visit the US again? For schadenfreude, there's nothing like reading a long screed by a government appointee about the parlous state of the tourism industry in the US: why oh why don't those blasted foreigners want to come visit any more? Gosh, it wouldn't have anything to do with being treated like criminal suspects at your borders, would it?

Gosh, it wouldn't have anything to do with being treated like criminal suspects at your borders, would it?

It was interesting to me when it took me about 1/10 as long to go through customs at Heathrow the two times I traveled to Londaon ~2 years ago as a non-British non-EU citizen, than it did when I came back to the US as a US citizen.

We're a bunch of paranoid fncks.

It's at least equally likely that he uses the term "rendition" to refer to the various kinds of rendition (extrajudicial and not) that do not involve torture, and reserving "extraordinary rendition" for cases where rendition is used to deliver a suspect to torture.

As a former special assistant to Clinton, I think it is less likely that he would define extraordinary rendition as only those cases that involve torture.
link

Just to fill in my understanding of the issues here: can someone explain to me what laws (international or otherwise) are broken if we capture someone against whom criminal charges have been filed and bring them back to the US for prosecution?

It's easy to see how this could become problematic, but I'm interested in knowing when and how it becomes *illegal*.

Thanks -

Well, I think speculating on what the HRW meant when he used the term "renditions" is useless because, well, it appears that that's the LAtimes word, not his, note where the close quote comes from in that paragraph:

Ahh. I was confused by Hilzoy's double quotes. I thought that she was stating that "renditions" was HRH's word.

Katherine, great to see you here. I'd been wondering about your take on the Obama actions so far, and the LAT story.

In Obama's case, there's no evidence he's lying, but it's hard to rule it out until he actually takes office & we learn about the details of his policies.

Is that pre-Jan. 20 boilerplate? ;> You should probably edit out the 'he actually takes office' part now. There's even an Attorney General in place!

Seriously, I really do appreciate your balanced assessment. In comments sections elsewhere, I've been pointing people here and to Hilzoy's previous post when they rant and stomp as if renditions to torture had already been carried out under this administration.

That bugs the hell out of me considering the comparative silence about Obama's personal authorization of the ritual-bloodletting, non-theoretical Predator strikes in Pakistan 72 hours in. (Which have already killed more innocents than "enemy combatants", even assuming you accept that two or three of the dead men were that.)

Russell: It'd pretty clearly be kidnapping under the law of the target country, right? State monopoly on violence and all that.

Ahh. I was confused by Hilzoy's double quotes. I thought that she was stating that "renditions" was HRH's word.

I'm confused. What does she have to do with it?

why oh why don't those blasted foreigners want to come visit any more

While I'm sure that some prospective travelers are discouraged, that doesn't seem to be an overpowering consideration.

Visitors to the US from UK:

1996: 3,246,268
1998: 3,974,976
2000: 4,703,008
2002: 3,816,736
2004: 4,302,737
2006: 4,176,211
2008: 3,881,123

2008 came up a little short, but it's also missing the November and December data, which is typically several hundred thousand visitors. Source here.

lj: As a former special assistant to Clinton, I think it is less likely that he would define extraordinary rendition as only those cases that involve torture.

Before Gary responds, "You're a former special assistant to Clinton? Who knew?", let me offer a clarifying edit:

Since [Malinowski, the Human Rights Watch lobbyist] is a former..."

I'm confused. What does she have to do with it?

She's got something to do with it, I'm sure of that. Those Clintons, all sneaking about on the intertubes and causing me to type HRH instead of HRW ....

Nell: good points. ;)

I'm glad Holder was confirmed. In general, nothing Obama's done so far in office has changed my wary optimism/hopeful paranoia approach from the transition.

@Slarti: Thanks for the numbers.

However, considering the way that many visitors are treated on entry, I almost wish that the numbers were sharply reduced. That would be the most likely route to creating interest on the part of the new administration in beginning to address the situation.

She's HM, not HRH: HRH would be Prince Charles or any of the other princes and princesses.

Whew! For a minute there I was afraid you were a Larouchite, von...

I'm pretty sure there was a Supreme Court case a decade or so ago in which the Court ruled that it was OK for the US to try a wanted person in court regardless of how he got here (the case had to do with a suspect kidnapped from Mexico and delivered to authorities in the US, with FBI involvement IIRC). That was Rendition, even Extraordinary Rendition, and it was in violation of a bunch of laws. But you may recall that few people got worked up about it, because the whole point was to give some one a (reasonably) fair trial, not to disappear them or to torture them.

In retrospect, it may have been the thin end of the wedge that the Roberts Court is now using to scrap the absolutely vital Exclusionary Rule. And in a globalizing world, and one where the US has been more obviously hosting international criminals than it did before the Cheney administration, it raises the unpleasant specter that some other country could do the same to, say, John Yoo, and bring him to face a (reasonably) fair trial somewhere that feels strongly about torture, and given our own case law we'd have rather weak moral footing from which to denounce the kidnapping. But it is nonetheless a reasonable example of Extraordinary Rendition that isn't wholly incompatible with principles of defendants' rights and Habeas Corpus.

Countries that "cooperate with us" would include Saudia Arabia, Egypt, Jordan, Pakistan where torture is synonymous with prison system.

What, as opposed to the US? Charles Graner got his start in the PA Dept of Corrections.

A: No idea. You'll have to ask her.

Every ten days or so you have to take some small crappy neocon and throw him up against a wall, just to show the rest of the world you mean business.

I can't say that the prospect of John Yoo being kidnapped to face trial is something I'd consider to be an "unpleasant specter." It couldn't happen to a more deserving individual, IMO.

However, I fully acknowledge that juvenile revenge-fantasies are not a good basis for deciding our legal system.

Slarti, as I understand it, what is getting the US Board of Tourism's knickers in a collective twist is that the number of tourists coming to the US from the UK has stayed more or less the same throughout the Bush years... but UK tourism as a whole is up. Same for a lot of other countries. There is an increased market share, and the US isn't getting it.

My point is that it isn't a controlling concern, J; not that it isn't any concern at all.

Here's even more data, page 9 for the interesting stuff.

Not trying to interpret, just provide something for others to interpret, if they wish.

She's got something to do with it, I'm sure of that. Those Clintons, all sneaking about on the intertubes and causing me to type HRH instead of HRW ....

Naah, they'd make you type HRC.

She's HM, not HRH

And I understand she's a pretty nice girl.

"In general, nothing Obama's done so far in office has changed my wary optimism/hopeful paranoia approach from the transition."

"Hopeful paranoia" -- now that's one condition I don't think I've ever had.

Joining Nell, I am glad to see you commenting and enjoy reading what you have to say, Katherine. Perhaps you could elaborate a little. Thanks.

And Catsy can explain that Hilzoy "can't seem to accept the fact that recent popular usage has overtaken historic usage, like someone from the 19th century who still insists on using the word 'torpedo' to refer to what we now describe as a 'mine'."

Or, alternatively, you can refrain from taking my words out of context. That would be bully.

The context, here, is that you and cleek were arguing over what "rendition" really meant, with you arguing for the precise usage and cleek arguing for the popular usage, roughly speaking.

The context is further helped by the sentence that you omitted from your quote, where I wrote, "The funny thing is that they're both right." Both, meaning you and cleek. Perhaps you missed it on first read; it's important to understand that this was an ironic observation.

Next time you get the urge to show off how right you think you were by cherry picking quotes and misusing them to "prove" they were attacking hilzoy, leave me out of it.

Naah, they'd make you type HRC.

No they wouldn't. They're sneaky ... and sneakily in love with Prince Philip. (Did you really think HRH referred to Charles? Fools!).

"Hopeful paranoia"

Ready to find the worst, but hoping for the best. This is basically my job description.

Okay, if these distinctions are accurate, the LAT article was partially correct: Obama is maintaining the practice of "extraordinary rendition," as initiated by Ronald Reagan; he is rejecting certain aspects of Bush's changes to that practice, such as extraordinary rendition to torturing countries (though Clinton did the very same thing, to a less sever degree).

If the defining feature of extraordinary rendition is its illegality, then defenders of extraordinary rendition (of the non-torturing variety) are essentially saying, "We accept the international rule of law except when we dislike its outcome." Proponents of (by-definition law-breaking) extraordinary rendition must also hold that it's a valid practice for any other country that chooses to practice it, including on us: that's a consistent position, albeit one I very strongly disagree with.

I'm pleased to see someone else wondering about the propriety of raining tons of explosives down from the sky on a ("SUSPECT?") and whomever else might happen to be in the vicinity. I thought we only authorized our mercenaries like Blackwater, et. al. to indiscriminately kill men, women and children? Maybe, it's because it's in a war zone, but even then, I thought you had to be in a firefight to justify killing just "suspects" or innocents.?

I like Katherine "tried reading and understanding" but found myself still left with a healthy skepticism; recognizing that I always understood torture to be against the Geneva Conventions which we were a signatory to. I also listened to our government deny that we were engaged in torture when clearly we were. Why would we be "rendering,"sounds like making lard (the more traditional meaning of rendering), people to other countries that cooperate with us. What would be wrong with the more traditional legal extradition method? What would be wrong with joining the law abiding world community again? Do we think because these other people are different colors, religious beliefs, languages that they somehow are entitled to less rights than ourselves? I'm having a real problem understanding the parsing and contortions that language is being put through to explain away why we need to use a different word than the traditional, legal "extradition" word and the need for renditions extraordinary or otherwise.

At one time we, the U.S., had the worldwide credibility and goodwill to do most anything extraordinary, illegal, whatever to get Osama bin Laden but that has all been squandered and now we are confronted with joining the world community as equals are not and I think the whole world is watching and waiting and we no longer have any goodwill or credibility to squander.

"Gee, and I was castigated when I said that last week.

oh, boo hoo."

Classy way to admit you were wrong.

"i've made my point."

Yes, that Hilzoy is wrong (she's not), but you'll only tell me I'm wrong, rather than take on Hilzoy, too.

"I'm pretty sure there was a Supreme Court case a decade or so ago in which the Court ruled that it was OK for the US to try a wanted person in court regardless of how he got here (the case had to do with a suspect kidnapped from Mexico and delivered to authorities in the US, with FBI involvement IIRC)."

United States v. Alvarez-Machain, 505 U.S. 655, 669
(1992).

There's plenty more in this CRS Report on rendition I linked to the other week, the last time we had this discussion on ObWi.

An interesting case of another state abducting people from the US in order to try them would be Cuba snatching the convicted terrorists that are shielded by the US in Florida. There have been open and clandestine government (both state and federal) interventions to prevent them from having to face justice for their crimes.
Given Cuba's proximity it would not be totally inconceivable that such an action could be executed or at least tried.

http://www.salon.com/opinion/greenwald/2009/02/09/state_secrets/index.html

Aside from it being a shameful protection of executive privilege over basic human rights, how does this ruling come to bear on the Obama Administration's non/extraordinary/renditions policy?

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