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February 03, 2009

Comments

hilzoy - as I noted in your prior post on the Latimes article, in response to a comment from von, "rendition" is the Latimes word in the quote about "limited circumstances" and a "legitimate place", and not what the HRW guy used, based on the placement of the quotation marks. So, how one might "wonder how on earth anyone who claimed to be a human rights advocate could possibly say what this HRW person is quoted as saying" is kind of misplaced, we don't know what term the HRW person used, and presumably he used something other than rendition as there would not be the necessity of cutting of the quote and he probably would have said it was ok in "limited circumstances."

Just FYI.

Ugh: true enough.

In case anyone is wondering why I said that I wouldn't change posts absent some incredibly compelling reason: shortly after I started at the Monthly, I wrote a post about Michele Bachmann and said that we should vote her out of office. I then got an email saying: yikes! didn't we mention that as we are a non-profit, and we can't endorse people? Can you delete that paragraph? -- So I did (there but not here.) I can't think of anything involving only me that would lead me to do such a thing, but I really do not want to inadvertently ruin the Monthly's nonprofit status, and under the circumstances, putting a line through what I had written didn't seem adequate.

Just for the record.

Ugh: true enough.

well sure, and now re-reading my comment I see I forgot a "not", as inserted below in bold

he probably would not have said it was ok in "limited circumstances."

So you're in favor of extraordinary rendition as long as nobody gets tortured - never mind the terminological confusion, that is a big shift in goalposts for a liberal.

Hilzoy, thanks for responding. I edited the content of my thread for clarity - not to deceive anyone. And I stand by my post and my criticism of yours.

Rendition is a generalized practice that exists beyond Bush or any other president's policies. It exists in other nations. It is a broad term that describes the removal of people from one jurisdiction to another against their will.

Dictionaries provide generalized information, not speficic policy. So your citation to various legal dictionaries, though done in good faith, does not advance the discussion at all.

If you actually pulled an executive order or statute on the subject, you would not find a dictionary reference. Why? Because the law is far more specific than a dictionary could ever capture.

Within this broad, generalized category, rendition could include things like deportation and extradition. So, on this basic -- yet irrelevant level - you are correct. But you are PATENTLY INCORRECT when you try to equate or even connect the policy of rendition practiced by the CIA with extradition. This holds true even under the "extraordinary" or general rendition programs of the CIA. I posted a general link on rendition by Interpol and an essay on the subject by the Brookings Institute. You, however, failed to mention those in your lengthy rebuttal. They provide the complex analysis that a legal dictionary does not.

The Bush policy of rendition - whether we call it extraordinary rendition or simply rendition -- received criticism on the following fronts: 1. the CIA did not seek judicial approval prior to transfering individuals; 2. individuals could not access counsel prior to being transferred; 3. individuals were often subject to torture post-transfer; and 4. individuals were often detained indefinitely and cut off from others. Fussing over whether this is extraordinary rendition or simply rendition does not alter the specific content of the policy, and NO COURT would decide the legality of the policy based on the name used to describe it.

Assuming that the LA Times article is factually accurate, Obama will continue rendition. The article never said that he would subject people to torture. Instead, it said he would continue the policy of rendition. You and others have falsely claimed that the critiques of the Bush program never centered around rendition stripped of torture and prolonged detention, but I posted several quotes that counter your assertion. Civil liberties groups contested all of the dimensions of Bush's program that I have identified. Calling his plan "extraordinary rendition" does not change that. If Bush had stopped transferring individuals to jurisdictions where they could be tortured or ended prolonged detention, he still would not have satisfied the demands of Amnesty International and other human rights groups. If he had done the above and altered the name of the program (dropping "extraodinary"), he still would not have satisfied the demands of human rights groups. But this is exactly where we are with President Obama. The name of th practice is "rendition"; he promises not to render anyone where the person risks being tortured and he has closed the "black cells." Whereas this is fine for Obama, Bush still would have faced criticism. It is impossible to deny this (honestly).

Finally, as specific policy, the CIA's rendition program is vastly different from extradition. Under a typical extradition scenario, a court or administrative agent determines whether extradition is appropriate. The person can only be returned to a country for specific reasons: to face trial or serve a sentence. The individual has right of counsel. A person cannot be removed from an anti-death penalty state and taken to a death penalty state where the crime is a capital offense. The state-to-state rendition that you pulled from various webpages is irrelevant, because that's a matter of domestic law.

Did I say I was in favor of anything?

I think it's comprehensible that someone who works in human rights might think that, say, the Eichmann case was OK (given that he was not, as far as I know, tortured, and that he stood trial), in a way that it's not comprehensible how such a person could think that outsourcing torture was OK.

PS: I am not a professional blogger. I amended my post after I returned from teaching classes and attending meetings.

Professor Hutchinson, it doesn't take a professional blogger to realize that your "corrected" sentence, "Hilzoy also argues that absent torture and indefinite detention, the CIA's removal of individuals becomes synonymous with extradition," is not true.

Also, as Ugh has pointed out, the entire "flip-flop" accusation that's so exercised the rightosphere is based on a single sentence in which the word "renditions" isn't even part of the quote:

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.

It might have been good for someone to find out what Malinowski actually said -- what language he used and what he meant by it -- before calling him a hypocrite.

I'd suggest that it is general courtesy to note updates or changes. You are also conflating 3 types of extraordinary rendition (I use the US as an example for simplicity's sake)

-The US captures someone and brings them back to the US
-The US captures someone and sends them to a country where they are a citizen
-the US captures someone and sends them to a third country
(Guantanamo yields a fourth option, but setting that aside)

All of these are 'extraordinary rendition' because they are beyond the normal legal channels. In attempting to define ER as 'something that the CIA does', you miss a large part of the problem, because the three options do not exhibit the same problems of morality. The first example is a la Eichmann. However, in regards to the second, according to the notion of nation-state, a country can have some obligation to return a citizen to the state to which he is a citizen. With the Holocaust, where the Nazis claimed the right to deal with its citizens as it saw fit, the problems of the concept are clear, but with Clinton era renditions, where the large number of cases were Egyptian citizens being returned to Egypt, there was a nominal adherence to that notion. While the UN Convention against Torture would prohibit that, certainly the enforcement of that treaty has been spotty to say the least. Your argumentation narrows the domain of extraordinary rendition solely to the third, suggesting that if the proper paperwork were in place, you would have a hard time defining Arar's case as extraordinary rendition

There are a lot of wrinkles to the problems of nationality and a failure to acknowledge them simply substitutes good intentions for actual workable law.

btw, I wonder if Malinowski could be invited to post a guest piece about this, either at WaMonthy or here.

Prof. Hutchinson: Thanks for commenting. For what it's worth, I'm not a professional blogger either, just an academic like yourself, though I don't teach law. And I know about classes -- mine account for the interval between when I first saw your post and when I got around to responding to it.

Prof. Hutchinson: about your more substantive comments:

(1) "you are PATENTLY INCORRECT when you try to equate or even connect the policy of rendition practiced by the CIA with extradition."

If you could show me where I did this, I'd be greatly obliged. In my initial post, I tried to consider two questions:

(a) Does Obama's executive order leave the CIA free to continue Bush's rendition policy, i.e. rendition to torture? I answer no, based on the order itself.

(b) Why did the LA Times say what it did? (This part begins where I say: "So what accounts for the LA Times' story?") Here I decide to disregard the statements of Bush administration officials, and then note that the quotes from people currently serving mention "rendition", not "extraordinary rendition", and speculate that the Times writer is not clear on the distinction, or (I don't know whether I said this) on the fact that extraordinary rendition encompasses more than rendition to torture. The Obama Exec. Order does leave open the possibility of other kinds of rendition; just not rendition that either is intended to lead to torture, or would have that effect. If the writer didn't know the difference, that would explain a lot.

I don't see where, in that post, I ever equated the CIA's program with extradition. It would help to know which passages you had in mind.

(2) " So your citation to various legal dictionaries, though done in good faith, does not advance the discussion at all. If you actually pulled an executive order or statute on the subject ..."

Um: I went over the Executive Order in some detail in the post you linked. In the post you just commented on, I pulled a whole bunch of statutes. In the post I wrote last night, I pulled a case, for good measure. I didn't just rely on a dictionary.

(3) I did not "fuss over" whether or not the Bush policy was extraordinary rendition. Of course it was extraordinary rendition. Again, if you could show me where I said, this, I'd be grateful; I certainly didn't intend to say any such thing. Again, my point in bringing up other forms of rendition was just to say: in interpreting someone's remark about "rendition", it helps to know that it has various senses.

(4) "You and others have falsely claimed that the critiques of the Bush program never centered around rendition stripped of torture and prolonged detention" -- Again, I am not sure where I said this. I normally try to speak for myself, not for others.

(5) "Finally, as specific policy, the CIA's rendition program is vastly different from extradition." Again, I would be grateful if you could show me where I deny this.

(6) "The state-to-state rendition that you pulled from various webpages is irrelevant, because that's a matter of domestic law." -- I was adducing these statutes as evidence about the usage of the term. I'm not sure why the fact that they are domestic makes them irrelevant for that purpose.

Thanks.

To be fair to the professor, he probably missed the long, informative discussion about usage in the previous 2 threads.

With that background, he might see Hilzoy's point more clearly.

Did I say I was in favor of anything?

Well, the fact that you came up with your own version of the ticking time-bomb scenario and that you mentioned the capture of Eichmann by Israel, at least strongly suggested that there are cases were you would favour extraordinary rendition. If you are against such tactics on principle, feel free to say so and I'll be happy to concede that I was wrong.

Don't know if it is the name, but I'm reminded that Kant felt that any form of deception violated a categorical imperative.

Funny that you mention Eichmann. Argentina initially contested the invasion of their sovereignty, to which Israel responded with shifting explanations -- saying that the kidnappers were private citizens (ergo, no violation by the state of Israel) and that the breach was minor. Although Argentina petitioned the UN, it ultimately waived the claim, which allowed for the prosecution.

A classic, inhrently anti-liberal argument seeks to justify violations of due process by pointing to the ends. E.g.: It's ok that we conduct warrantless wiretaps, because we can find terrorists. It's ok that we torture, because we can prevent terror. It's ok to search someone's home without a warrant because we found a murder victim. It's ok to drug test kids in schools, because we can stop them from using drugs. As a staunch progressive I resist the temptation to engage in such logic. Your arguments are compelling without raising Eichmann.

Here's my latest (and perhaps final) post on the subject (it relates to you): Elevating Form Over Substance: Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

Liberals Now Argue that They Oppose the Label of Bush's Program, Not the Substance

But, of course, that's true only to the extent that Prof. Hutchinson qualifies as a "liberal." Obama has promised to change the substance of Bush's policies, but people like Prof. Hutchinson are upset because Obama's policies keep the word, "rendition," arguing that use of that word implies that Bush's policies will be continued.
Hilzoy points out that the word, "rendition" imples no such thing, and Prof. Hutchinson responds . . . incoherently.

Prof. Hutchinson: about your more substantive comments:
(1) "you are PATENTLY INCORRECT when you try to equate or even connect the policy of rendition practiced by the CIA with extradition."
If you could show me where I did this, I'd be greatly obliged.


Perhaps here: “The author of the Times article, however, defines "rendition" as "secret abductions and transfers of prisoners to countries that cooperate with the United States." It's not clear whether he knows that rendition includes perfectly normal things like extradition. It's also not clear that he knows that extraordinary rendition includes not just cases in which we transfer a detainee to another country, but cases in which we capture someone abroad and take them to this country to be tried.” http://www.washingtonmonthly.com/archives/individual/2009_02/016703.php


In my initial post, I tried to consider two questions:
(a) Does Obama's executive order leave the CIA free to continue Bush's rendition policy, i.e. rendition to torture? I answer no, based on the order itself.


I have agreed that Obama has prohibited torture—which was already prohibited. But the LA Times article does not say that Obama will continue torturing individuals. And human rights activists objected to more than rendition to torture (and prolonged detention).


(b) Why did the LA Times say what it did? … The Obama Exec. Order does leave open the possibility of other kinds of rendition; just not rendition that either is intended to lead to torture, or would have that effect. If the writer didn't know the difference, that would explain a lot.


I repeat: the author never said that Obama would utilize rendition to torture. He clearly knew about the torture aspects of the Bush program, because he mentioned them in his article. But he is clearly aware that many activists condemned the CIA’s kidnapping policy more broadly than its association with torture.


(2) Um: I went over the Executive Order in some detail in the post you linked. In the post you just commented on, I pulled a whole bunch of statutes. In the post I wrote last night, I pulled a case, for good measure. I didn't just rely on a dictionary.


Fair enough – but the executive orders do not refute the point I made either: that liberal organizations condemned the lack of judicial oversight and the lack of access to counsel inherent in a kidnapping/rendition action by the government; now, however, most of the commentary says it was all about rendition to torture and prolonged detention. Can you admit that this is not completely accurate (even if that’s all that many people had in mind)?

Also to the extent that you cite to state laws regarding rendition, this is the same mistake as the rendition is linked to extradition argument. State governments clearly are not kidnapping crime suspects and sending them to other states!


(3) I did not "fuss over" whether or not the Bush policy was extraordinary rendition. Of course it was extraordinary rendition. Again, if you could show me where I said, this, I'd be grateful; I certainly didn't intend to say any such thing. Again, my point in bringing up other forms of rendition was just to say: in interpreting someone's remark about "rendition", it helps to know that it has various senses.

Well, others have taken your words as a defense of "rendition" (stripped of torture and prolonged detention). And you must admit that if you can link rendition to perfectly acceptable practices, then this calls into question my arguments and the LA Times article -- which is, perhaps, why you have gone to great lengths to defend that particular aspect of your post, before even attempting to focus on my substantive comments.

Also, please see my latest post. You are elevating form over substance. On some level I agree that terminology matters, but it’s less relevant here for a couple of reasons (that I mention in my latest post). First, the label does not address the legal arguments surrounding either program. Courts have a long history of rejecting this type of argumentation. For example, a lot of cases exist where parties type the word “contract” on the top of a document and then sign it. In substance, however, the document lacks some requirement that would make it a binding contract. It does not magically become a contract because of the word “contract” appearing on the face of the document.

Similarly, a legal argument concerning the legality of kidnapping by the US government cannot turn on the name of the program. Instead, a court would have to examine the specific content of the policy. I have done this in my analysis. So did Amnesty International and the other human rights groups I cited. I encourage you to do the same.


(4) "You and others have falsely claimed that the critiques of the Bush program never centered around rendition stripped of torture and prolonged detention" -- Again, I am not sure where I said this. I normally try to speak for myself, not for others.


You seem to agree with the notion that rendition stripped of torture and prolonged detention is nonproblematic, but mainline civil liberties groups did not hold that position. And the author of the LA Times article reported on Obama continuing the controversial rendition policy - stripped of torture and prolonged detention (which he has banned). Your passionate effort to rebut the article led me to the conclusion that you thought the explosion over Bush’s policy only centered upon torture and detention. But I hereby retract that comment if it doesn’t reflect your actual views. That does not change my broader point. At this stage, we are parsing the meaning of “is.”


General point:
A lot gets lost in the blog world and a lot gets added to a person’s idea through the process of reader participation (meaning, the comments section can distort what we actually say). Stripped to its most narrow reading, my argument is: Rendition is a specific policy. Affixing “extraordinary” to it is irrelevant for the sake of legal analysis. Liberal opposition to Bush’s rendition policy, though varied, centered primarily around four themes – the lack of counsel, lack of judicial oversight, rendition to torture, and prolonged detention. Obama’s executive orders only specifically address the torture and detention elements – not the judicial and counsel dimensions. When liberals (not you) deny that earlier criticism focused on all four of these elements, they are being disingenuous. When liberals try to equate or draw close similarities between the CIA’s version of rendition and extradition, they are vastly misrepresenting the reality of both in an apparent effort to portray the former as nonproblematic.

Prof Hutchinson, you accuse Hilzoy, among others, of elevating form over substance or bowing to the tyranny of labels. But it looks to me like you're doing the same. Your comments above, especially starting at "Stripped to its most narrow reading, my argument is: Rendition is a specific policy," just prove it. Hilzoy was arguing the exact same thing! That you disagree on what rendition is does not make one or the other of you more or less beholden to form. It's just a red herring at this point, not adding anything to the discussion.

Did "liberals" oppose the war in Afghanistan? Some did. Would a headline in October 2001 that said 'Liberals Oppose War in Afghanistan' been deeply misleading? It would have been.

Correcting the many problems with past policy is an incremental process, and the people writing these orders are going with limited information, and less sleep. I'll be ready to complain about bad elements of past policy retained when I see affirmative indications that the new people are going to do something wrong, knowing about objections, rather than from gaps in coverage of executive orders.

Mike - your point is not true. I do not care what the labels are to the extent that chosing one over the other determines whether the policy is legal or not. I also do not believe that chosing one over the other fully captures the liberal criticism of the specific behaviors of the Bush administration. Notably, many organizations used the terms interchangeably, which goes to my point.

When I say that rendition is a "specific policy," I mean that it represents much more than the label. We could call it any number of things, but in order to assess its legality, we have to look at specifics. The only point of talking about the policy known as "rendition" was to spark a conversation over the legal and political debates that have taken place over the last eight years. I have provided ample quotations from human rights briefs that argue against the very policies that Obama has presumably maintained. This is an important element of my argument that gets lost in the quibbling over terminology.

Professor Hutchinson, clearly you do care about labels, since you have elevated a quote from Tom Malinowski which might suggest that "rendition" is acceptable in some circumstances (though apparently Malinowski himself didn't even use that word, which was supplied by the LA Times) into an accusation of hypocrisy and a blog firestorm attacking his reputation, without worrying about what exactly he was referring to. The use of the label "rendition" in the newspaper article was enough to set you off.

Anyone have a view on whether this is worth responding to?

"Hilzoy and others have attempted to legitimize the CIA's old-fashioned "rendition" program by using generic web-based definitions of rendition, which link the practice to established and widely accepted concepts like deportation and extradition."

http://dissentingjustice.blogspot.com/2009/02/elevating-form-over-substance-liberals.html

The reason not to would be that Prof. Hutchinson and I have gone over this, without either of us seeming to understand the other. The reason to respond is that to me, the idea that I'm trying to legitimize the CIA's program of extraordinary rendition is not just wrong, but offensive.

Thoughts?

Particularly, the circumstances under which a noncitizen is entitled to counsel and judicial review are complicated and very fact dependent, and Prof. Hutchinson's claim that their is a right to counsel and judicial review in all circumstances is just nonsense. For example, if we seize Osama bin Laden in a cave in Pakistan, and ship him off to the US for trial without frist giving him counsel and judicial review, that would not violate his rights (a noncitizen outside the country doesn't have any rights under US law), although it might violate Pakistan's sovereignty. Use of Guantanamo to avoid having to accord noncitizens rights has been plainly rejected by the Obama Adminstration.

To the extent Prof. Hutchinson is calling for counsel and judciial review of decisions to deport noncitizens, or of decisions relating to admission of noncitizens to the country--well, that's primarily a matter of immigration law, and I have some doubt that US policies in those areas can be changed by executive order without Congressional action.

Mainly, Prof. Hutchinson is just being incoherent, desperately looking for some argument to support his view that Obama = bad.

Thoughts?

You could swing by his office hours next time you're in DC.

Professor Hutchinson: purely as a point of clarity, might I suggest you use either quotation marks, or blockquoting, to indicate when you are quoting? Thanks muchly!

What it boils down to is this:

Obama's order will not prevent the US from kidnapping people on foreign soil, thus both disregarding the sovereignty of other nations and the procedural guarantees inherent in the extradition process. Indeed it is the aim of the Obama administration to continue such operations, it is one of the "tools" the Obama adviser said were necessary to be able to "go after the bad guys".

Some liberals and apparently HRW seem to be fine with that, as long as torture and prolonged detention are out of the picture. Other liberals and human rights groups are not fine with that at all. And some are seemingly unable or unwilling to clearly state where they stand on this and prefer to play a terminological cat and mouse game.

So if everybody could unambiguously state if they are for or against the US circumventing the extradition process and kidnapping people on foreign soil, we could at least get some clarity.

I'd tend to wait for him to put his counterarguments together with a bit more coherence, but that's probably just me being lazy.

I'm not really sure what he's accusing you of, hilzoy. He seems to be making counterpoints that are mostly perpendicular to your points.

Novakant, are you a pacifist? I'm just trying to clarify, since I can imagine circumstances in which I'd support kidnapping people on foreign soil in preference to starting a country. But perhaps you're opposed to war in all cases as well.

"Hilzoy [has] attempted to legitimize the CIA's old-fashioned "rendition" program ...

I think you've covered it. He's decided that your analysis has the unfortunate effect of legitimizing what he has in mind by "rendition" even though your whole point is plainly the exact opposite. He's then blithely gone one step further and decided that you're totally doing it on purpose [wtf], which = wrong on the internets.

Obama's order will not prevent the US from kidnapping people on foreign soil, thus both disregarding the sovereignty of other nations and the procedural guarantees inherent in the extradition process.

(1) "the procedural guarantees inherent in the extradition process." are all on the end of the country being asked to extradite. The prisoner, of course, is entitled to due process of law once he's in US hands.

(2) As to whether we ought to defer to other countrys' soveriegnty and and laws, well, that depends on the country. We ought not to be kidnapping people of the streets of Italy in preference to invoking the extradition process--but Afghanistan under the Taliban might be a diffferent question. We make this distinction all the time when other countries are asking us to extradite--we wouldn't turn over Rushdie to Iran for trial on blasphemy charges, for example. If Pakistan doesn't have sufficent control over its territory or the political will to give us bin Laden, for example, I don't think we would be doing anything very wrong by taking him

I'm still trying to figure out who this Hutchinson troll is, and why we should care.

Misunderstanding Hilzoy is one thing; continuing to argue after it's been spelled out in Basic English is trollery.

Hutchinson says he stands by both versions of the sentences he changed, so he's continuing to spread falsehoods about you even after you've repeatedly called his attention to it. Like others in the anti-Obama left, he's making common cause with right-wingers to smear the enemy. I'm not hopeful that further communication will be any more productive than the communication you've had so far, because at this point I'm not at all sure that he's operating in good faith.

Rea - you have made a patently false claim. I am not upset that Obama's policy uses the word "rendition." I have not even stated a position on renditions! My argument is that progressives criticized elements of the program retained by Obama, and many of them are now backtracking (HRW being the clearest example). Also, merely claiming that an argument is incoherent does not prove that it is.

whoa nelly. Massive confusion reigns.

As a member in good standing (ha!) of the ObWi bar (California committee), I assert my right to weigh in.

Bringing a legal perspective to a legal problem, I see both a process problem and a substantive dispute.

Process: Prof. Hutchinson failed to disclose his edit. While it's his blog, subject to his rules, it's worth noting that the edit substantially changed the meaning of the post.

Prof. Hutchinson's revised version is now a better statement of the law. However, the revised version now accuses Hilzoy of making an argument she did not make.

As Prof. Hutchinson's comments in this thread indicate, he is now backpedalling like mad, trying to revive his claim against Hilzoy that he gutted by his own edit.

Substantive Issue: Prof. Hutchinson's first version was incorrect as a matter of law. Rendition does include extradiction. (Extraordinary rendition, by contrast, excludes extradiction because the very purpose of extraordinary rendition is to deny the target his due process rights in the country in which he is currently residing.) Hilzoy was correct; Hutchinson was not.

Solution: On the process side, it'd be nice if Prof. Hutchinson would recognize the effect of his edit, apologize to Hilzoy for inaccurately characterizing her posts, and move on.

On the substantive side, there's actually room for an interesting discussion. In US v. Alvarez-Machain, the Sup. Ct. on a 6-3 vote upheld the jurisdiction of the federal government over a Mexican national brought to the US by forcible abduction conducted by other Mexican nationals working at the direction of the US federal government.

Prof. Hutchinson appears to be arguing that that case was wrongly decided, or that it should be narrowly construed, or that forcible abduction is bad policy. Based on his post, I can't tell. It'd be nice, however, for a law professor to at least recognize and cite Supreme Court authority that's directly on point.

Personally, I recognize that there are a lot of corrupt governments out there where people legitimately wanted by the US Government for crimes against US persons can take shelter, confident that the government will not turn them over. If federal agents are willing to risk the kidnapping charge, I have no particular problem in them grabbing people facing indictment in the US, so long as the target then receives appropriate due process rights in the US.

What I object to is the act of seizure by US agents which is not then followed by US due process. Whether it's delivering the target to Egypt, or Syria, or GITMO, the US does not get to disappear people.

Rea - you are intentionally misreading me or just being sloppy. I have not taken a position as to whether the kidnappings/rendition violate the due process clause. Instead, I have said that many human rights groups demanded that the government extend such protections and that it appears the Obama administration will not. In your apparent zeal to view my arguments as "anti-Obama" you condemn me for demanding more due process -- which I have not even done. Instead, I have just pointed out the inconsistent approaches. I might actually agree with today's version of HRW -- but I never took the exact opposite position in the past!

KC in DC - plucking sentences out of context and then distorting the content of the overall post is worse than editing a post for clarity. Yours is an intentional distortion; mine was unintended. I am not spreading falsehoods, and in several posts I have explained the reason for the edit anad why it only clarifies rather than changes my argument materially.

If you disagree, then make the point. But saying that I am making "common cause with right-wingers to smear the enemy" is way too much hyperbole for a debate. I'd rather debate what I said, rather respond to psychoanalytic conjecture.

Slartibartfast - yes, I think you are just being lazy.

The BlogPulse graph of links to Hutchinson's blog suggests that it was virtually unknown until he starting posting on a subject that gained him links from the rightosphere. Now he's unwilling to back down from any of the claims that led to his new-found fame, even if some of them are ill-founded.

Francis - thanks for your intervention, but you are misstating my point. I have stated repeatedly that when I initially contested the relationship between rendition and extradition that I did not mean this in the generic sense of the word. I was instead referring to the CIA's policy. As an attorney, it is reflexive for me to think of legal terms in their own specific legal setting -- not in some generalized sense. I edited my blog, not knowing that Hilzoy had actually read it. I did not see a post by her on my blog, and I only modified it after a couple of people raised the point in my comments section -- to which I had already responded PRIOR to modifiying the blog itself. So there is a record of me clarifying the point before I edited the blog. Blowing up this issue is a mere distraction -- as I have explained myself repeatedly. If you disagree with my argument concerning the revision, please state why -- but baldly asserting that I am backtracking is unhelpful to discourse.

Second, I have absolutely no opinion on the caselaw you site or on the general question of what procedural protections should apply to rendition. Others have also argued that I am demanding addition process, but I have not done this. Instead, I have argued something far more specific: Human rights groups demanded these procedural protections during the Bush administration (in addition to ending rendition to torture and prolonged detention) but now, some of them have specifically backtracked (HRW), while others have distorted the range of liberal opposition to Bush's policies by describing the criticism as focusing solely on torture and detention.

Prof Hutchinson,
You seem to take exception to the Eichmann estraordinary rendition, pointing out that Argentina initially protested. Do you think it is illiberal to accept that the Eichmann situation can be used? Do you believe the Israel should not have captured Eichmann and put him on trial?

To try and conjure up an example, imagine that US troops are part of a rapidly deployed multinational force to a place like Rwanda in order to quell ethnic violence. If US troops capture someone who is recognized as being responsible for genocide, but there is not a legal system or consensus with what to do with the person (rapidly deployed, a la the Balkans), should the US troops be unable to hold him or turn him over to other authorities? Suppose the person is wanted in another country. Does the US have the right to transport him to that country?

You seem to argue that extraordinary rendition is unacceptable under any circumstances so I'd like to know precisely what your objections are to the above scenarios are.

Hilz - I have not argued that you support torture and prolonged detention.

Francis: I posted a response to you, but it vanished. I do not have time to retype!

"Blowing up this issue is a mere distraction -- as I have explained myself repeatedly"

No, it's a lack of sense of blog etiquette of the last seven years or so. It's not a big deal that you're ignorant of that; most folks haven't been around that long. But that it is a point of your ignorance of common blog practice is worth acknowledgeing, as a point of your error, rather than claiming that what hundreds of thousands or millions of folks more knowlegeable than you as to what is common practice on blogs are wrong. On the one case, you made an innocent, and forgiveable mistake; on the other case, you are being a belligerent and ignorant asshole.

"I edited my blog, not knowing that Hilzoy had actually read it."

See, weaselly changing what you wrote without acknowledgement is what people on blogs think is "wrong." Anyone of us can change what we like for the better, but we don't, because it's irresponsible to not take responsiblility for what we right, past a few minutes to correct typos.

This is a difference between blogs and offline writing, and it's believable you didn't know this before, but, hey, now you know.

"for what we right,"

For what we write, of course.

I have stated repeatedly that when I initially contested the relationship between rendition and extradition that I did not mean this in the generic sense of the word. I was instead referring to the CIA's policy.

The fact that you are using a word in a particular way does not mean that Hilzoy, or HRW, or the LA Times, or anyone else must be using it in the same way. And your "clarification" misrepresents Hilzoy's position by asserting that she was using the word the way you do, even though you've been told repeatedly that that's not the case.

As perhaps one of the most non-lawyerish of anybody commenting I want to make one observation.

To me, it appears that Professor Hutchinson's major argument revolves around the following statement: "Liberal opposition to Bush’s rendition policy, though varied, centered primarily around four themes – the lack of counsel, lack of judicial oversight, rendition to torture, and prolonged detention."

His argument is that Obama is maintaining the first two aspects and therefore any approval of Obama's policy by anybody who considers him/herself a progressive/liberal is hypocrisy.

Here is where, IMO, he runs into trouble. True there are some on the left who view it the way that he does, i.e. novakant. I know some people who feel that if we have bin Laden in the sights of a predator it would be wrong to pull the trigger.

However, as far as I can tell from all the reading on blogs that I have done over the years, that absolutist view is not representative of the majority on the left.

Rather, the critiques of Bush's policy concerning lack of counsel and judicial oversight are related to post "abduction" not "pre-abduction." And Obama's policy appears to answer those criticisms.

I would also hope that the Obama program will work to make sure that anyone who is taken under this program really qualifies as a danger, and is not just some taxi-driver who someone else had grudge with and pointed him out to US authorities.

It's funny to come back to ObWi after all this time and see that nothing has changed.

When a person changes their core value's with the wind, what's the point in trying to understand their perspective?

Hilzoy -- It seems to me that you shouldn't respond, or that if you do you should change the subject.

Prof. Hutchinson is right that the Bush policy of rendition included the four components he identified, and that each of these components has been an object of criticism from human rights advocates on the left. He is also correct to note that the Obama administration policy -- what we know of it at least -- would eliminate only two of those four components. In particular, under the Obama Administration policy detainees will not be tortured and will not be disappeared, but will still be subject to transfer between jurisdictions without access to counsel and without judicial oversight.

What Professor Hutchinson seems to be unaware of is that the LA Times article appears to indicate (and many on the right have in fact taken it to indicate) that the Obama administration's policy is identical to the Bush administration's policy. This situation provided the context for the original post, the point of which was to push back against this misunderstanding.

It's ironic, I guess, that Hutchinson has himself so misunderstood that post, but there's the internet for you. That said, it doesn't seem to me that he's making the mistake that you were worried about in the original post, so you don't further that project by responding to him.

That said, I think Hutchinson does provide a useful way of thinking about the difference between the policies, and an interesting post could be written (by you, I mean) that takes on the question of what liberal opponents of the Bush policy (like you) should think about the Obama policy.

KC - sorry, but my arguments do not relate to "traffic." I have been a law professor for 11 years, making arguments before blogs ever existed. Sorry - but you are wrong again.

PS: Perhaps we should just "debate" rather than search for some sinister unspoken reason for me making arguments.

To all of the people who mistakenly argue that I have taken a position on the due process question -- please go back and re-read my posts. Please exhibit somewhere close to the amount of precision you have demanded of me. If I wanted to sketch out a due process argument for rendered individuals, I would have done so.

Prof Hutchinson wrote: Major Flip-Flop by Human Rights Watch ... Today's L.A. Times contains an article which reports that President Obama will continue the highly criticized program of "rendition." Through the rendition program, the CIA transfers terrorism detainees to foreign countries

My thoughts: No flip-flop by HRW. This is an inaccurate description of CIA program. CIA program that has been criticized is extraordinary rendition, not rendition. Rendition includes what was done to Alvarez-Machain.

Prof Hutchinson wrote: My Fellow Liberals Push Back Against Allegations of Inconsistency ... The typical liberal defense argues that rendition is not wrong in and of itself, but that removal of persons for the purpose of torturing or indefinitely detaining them violates human rights norms. ... Here's a summary: the liberal defense is strained, dishonest, surprisingly nuanced, and contrary to true progressive politics because it elevates "party" over principle ... Liberals Opposed Rendition Regardless of Whether It Led to Torture

My thoughts: Gee, I never knew that liberals spoke with one voice. I think the "typical liberal defense" is fair, just and accurate. Alvarez-Machain got due process; the GITMO detainees did not.

Prof. Hutchinson wrote: Formalism is the big trump card for liberals who strain to reconcile their opposition to Bush's "rendition"/"extraordinary rendition" program with their support of the reported continuation of certain aspects of this practice by Obama. As a constitutional law professor, I believe that language is highly relevant.

My thoughts: You're accusing Hilzoy of formalism in this context?!!! Dude, look in the mirror. You protest too much, methinks.

Prof. Hutchinson writes in comments: I have absolutely no opinion on the caselaw you site or on the general question of what procedural protections should apply to rendition

My thoughts: You don't? Really? But that's the whole point!

Here's a typical liberal position:

A. Forcible abduction followed by torture and indefinite detention without due process -- BAD.

B. Forcible abduction preceded by indictment and followed by trial, no torture -- Not Great But OK if circumstances warrant.

C. Names don't matter. Call the first "banana" and the second "apple". What matters is what's done.

Poor work, professor, very poor work.

KC -- I have read Hilz's statements, and she has read mine. I have not heard back from her. Perhaps she is busy at the moment, but I thought we clarfied the matter. I understand what she meant; perhaps you could try to accept what I have stated rather than continuing to project meaning upon me.

To all of the people who mistakenly argue that I have taken a position on the due process question

I'm not sure if this is addressed to me, but I'm asking if you could address those questions. Since your contention is that hilzoy is ignoring those considerations, it would be good to know where you stand on them.

John Miller -- close but no cigar! I am not arguing that ANY liberal who does not condemn items 1 and 2 on the list is a hypocrite. Instead, I am arguing that liberals who themselves condemned items 1 and 2 under the Bush administration or who say that liberals generally did not condemn items 1 and 2 during the Bush administration are either hypocrites or distorting history (intentionally or otherwise). I have not taken a position on whether 1 and 2 should be an element of any CIA policy -- although many people on her insist upon assigning a position to me regarding this matter.

Gary - thanks. Perhaps you could publish a Miss Manners of blogging.

Rea - you have made a patently false claim. I am not upset that Obama's policy uses the word "rendition." I have not even stated a position on renditions!

Then what the heck are you talking about? You seem to have abandoned every single substantive claim in your posts.

My argument is that progressives criticized elements of the program retained by Obama, and many of them are now backtracking (HRW being the clearest example).

The inconsisency seems to be in your head, not in reality. Name one progressive who ever said that there were no conceivable circusmtances under which the government would be justified in seizing a criminal or terrorist by force rather than by formal extradition, or anyone anywhere who thinks we have to given someone counsel and US judicial review before taking him form a foriegn country.

Also, merely claiming that an argument is incoherent does not prove that it is.

I need no more proof than your posts and comments.

As an attorney, it is reflexive for me to think of legal terms in their own specific legal setting -- not in some generalized sense.

Oddly, as an attorney, I tend to think that legal terms have the meaning they are given in statutes and caselaw, as well as in ordinary usage. If somebody uses a term like "rendition" without specially defining it, I would look at how that term is used in similar contexts, and how dictionaries and other sources define the term.

Your approach to meaning seems to be more Humpty Dumpty-like than lawyer-like:

"`But "glory" doesn't mean "a nice knock-down argument",' Alice objected.

"`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'

"`The question is,' said Alice, `whether you can make words mean so many different things.'

"`The question is,' said Humpty Dumpty, `which is to be master -- that's all.'"

Sorry John...I'm typing too quickly trying to keep up. I intended to say that liberals who themselves condemned positions 1 and 2 but who now accept them are behaving hypocritically and those who say that no liberals ever condemned 1 and 2 are distorting history. .....Not that any liberal who does not condemn 1 and 2 is a hypocrite. I have not taken a position on 1 and 2.....

Well in my book Prof. Hutchinson gets points for sticking it out this long.

Although I have no legal training, I did care a lot about the Bush rendition program and read many human rights releases and listened/read to many reports from abroad as well. I can not remember one of them being in outrage over the kidnapping part of the rendition...it was always about the lack of trial and well, the torture obviously. And then when they were released it was about the lack of recompense by the US government.

The foreign sources were angry with their governments for letting the US bully them into holding their citizens without trial, but for the most part the "they are kidnapping them off the streets!" wasn't a big highlight. Although the Italians did want to bring charges against the agents that kidnapped one of the people but only after it became known that we told them to buzz off when they asked for intelligence sharing. It was definitely political.

If someone shows otherwise I'll rely on that rather than my memory but personally I don't mind Obama's rendition program if a) there is no torture and b) they are taken back to the US and given a full civilian trial. [In contrast I wouldn't be upset if Clinton, Gore, et al. were charged with breaches for their own rendition program to countries that tortured or top Congressional Democrats for enabling Bush's...so it has nothing to do with Bush.]

Dr - thanks for your post. The LA Times article clearly distinguishes Obama's policy from Bush's by describing what is left out and retained. Some people were moved by the label ("extraordinary rendition") and that's fine, but the article itself distinguishes the two administration's activities. Here's an example:

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

The author clearly notes that Obama has prohibited the prolonged detention problem.

In his executive order on lawful interrogations, Obama created a task force to reexamine renditions to make sure that they "do not result in the transfer of individuals to other nations to face torture," or otherwise circumvent human rights laws and treaties....

The author clearly notes the additional protections against torture....

Also:

The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

The author clearly notes that elements of executive branch policy that have been amended, and he also does not describe rendition as invetably involving torture and prolonged detention.

I think much of the anger towards the article fails to actually look at the specifics of the author's description of federal policy. The anger seems unwarranted.

Francis - did you read the HRW report on rendition? It called for the inclusion of the procedural due process protections that normally do not occur with rendition. I encourage you to take a look at it (especially before you say I'm sloppy). And the point is to demonstrate the contradictions. This conversation would have a very different tone if we were discussing caselaw. I would have paid far more attentions to treaties and to constitutional analysis! If you do not find the other stuff interesting - then that's fine. But to imply that there's not point to the other conservation contradicts the thousands of posts this issue has generated around the web!

Rea -- executive orders define the content of rendition - so we do not need a dictionary (espcially when the dictionary meaning might conflict with the actual practice).


And I have not abandoned the substance of my post. If you take my edit as an abandonment, then we will have to disagree. If I wanted to abandon the point, I would not be on this website having the discussion. Also - since you make the pretty bold assertion that I have abandoned a position on the due process issue - please show me where I mapped out my position on the due process issue -- instead of showing how mainline human rights groups discussed the issue during the Bush administration. I am clearly outnumbered here, so I cannot beat a mass perception about my integrity, but I can at least set down a record that demonstrates for others that a lot of very blanket assertions have been made detached from any quotation from my blog. But I guess it's fine to demand more from others than we are willing to do ourselves....

Francis the original... -- you still have not demonstrated (1) that I have taken a position on judicial review and access to counsel or (2) that it matters. Also - saying I am the "worst offender" proves nothing.

Darren, I appreciate your staying engaged in the conversation, especially when so outnumbered, but I continue to be disappointed by your unwillingness to back down from any of your many accusations against your "fellow liberals" that seem to be lacking in evidence. You stand by your false statement about Hilzoy: "Hilzoy also argues that absent torture and indefinite detention, the CIA's removal of individuals becomes synonymous with extradition."

You make broadly targeted accusations of hypocrisy that seem to be based either on the idea that liberals are a hive mind, so that anything one liberal says that contradicts something another liberal said in the past is hypocrisy, or on contributing to the confusion over various actions lumped under the term "rendition" (so that anyone who has opposed something that is sometimes called "rendition" must oppose anything else called "rendition" or else be labeled a hypocrite or flip-flopper).

That confusion has been used by the right for years in their justifications of Bush's rendition to torture, grouping it with situations like the Eichmann kidnapping and claiming that "everyone does it". By undermining Hilzoy's attempt to clarify the differences between kinds of "rendition", you are aiding the torture proponents, which is why they are gleefully linking to you.

did you read the HRW report on rendition? It called for the inclusion of the procedural due process protections that normally do not occur with rendition.

No, it didn't.

http://www.hrw.org/en/node/62263/section/2

And to join with Gary in explaining internet etiquette to Prof. Hutchinson, let me respectfully point out that a claim like, "the HRW report on rendition . . . called for the inclusion of the procedural due process protections that normally do not occur with rendition," is ordinarily accompanied by a link or other reference.

Slartibartfast - yes, I think you are just being lazy.

Thanks for thinking of me.

Perhaps we should just "debate" rather than search for some sinister unspoken reason for me making arguments.

Splendid! Probably attributing arguments to hilzoy that she has not made should be considered out of bounds as well?

KC - I am here to debate, and I will continue to try and answer the questions presented to me.

On the issue of my position on Hilz's article and the issue of rendition and extradition, Hilz referenced materials linking extradition and rendition. I understood her as suggesting that the CIA's rendition program is like extradition. She says that's not what she meant. I accept that explanation. I edited my post without ever hearing her respond to clarify that I was talking specifically about connecting extradition and the CIA's rendition plan. At least two bloggers here (Francis and Hilz) say that they accept my edited version. I did not conduct any research on the subject prior to editing it. I just edited it for clarity. Sooooo- in the interest of good discourse, can we bury it? I will even write a big "mea culpa" for Hilz -- how's that???? I'm just oozing with good faith.

Second - I will admit that in places I could have modified "liberals" with "some" or "many" or "several." But I think some of the anxiety over that has to do with the conservative appropriation of my point - which is a Leftist argument. While conservatives hate liberals, I do not. Nevertheless, I stand by my claim that to the extent that Horton, Greenwald and Hilz portray liberal opposition as exclusively related to torture and detention this misstates history. I did not say that they were contradicting their own words! Instead, I said that they distorted the range of liberal opposition to Bush's rendition program. Do you believe that the historical record supports a conclusion that "some" liberal organizations demanded a complete overhaul or abandonment of every aspect of rendition - not just torture and prolonged detention? If so, then we can move on from this point as well.

Finally, I have actually joined Hilz and others in describing the various things that distinguishes Bush's program from Obama's. I have explicitly said -- as did the author of the LA Times article -- that Obama has explicitly banned torture and ordered the closure of the CIA prisons, which deals with only part of SOME liberals' criticism of the Bush policies. So, could you please reconsider you claim that I refuse to acknowledge any difference?

The number of posts is overwhelming, but I love to debate and will try to respond to as many as possible. All I ask is that you practice the same openness and respect that you demand in me....

Thanks for the engagement....

Do you believe that the historical record supports a conclusion that "some" liberal organizations demanded a complete overhaul or abandonment of every aspect of rendition - not just torture and prolonged detention?

It's possible that's true, but unless you have evidence that (1) these "some" make up a large proportion of "liberals" or (2) these specific organizations have modified their views, then I don't consider that important, certainly not to the extent that it's worth the amount of frenzy you're stirring up about it.

some of the anxiety over that has to do with the conservative appropriation of my point - which is a Leftist argument.

To recapitulate:

(1) Prof. Hutchinson is not taking a position on anything substantive.

(2) He is merely criticizing HRW and "some" others on the left for alleged hypocrisy.

(3) And that's a "Leftist argument." :)

That seems to be the crux.

Point to specific cases of hypocrisy (meaning liberals - or conservatives - that complained about certain aspects of Bush's use of renditions but have given those same aspects a thumbs up when practiced by Obama).

You either point to those specific cases of hypocrisy, or you really don't have much of a point.

And the LA Times quote failed to demonstrate this hypocrisy because one of the key portions of the statement was not, in fact, a quote.

I have explicitly said -- as did the author of the LA Times article -- that Obama has explicitly banned torture and ordered the closure of the CIA prisons, which deals with only part of SOME liberals' criticism of the Bush policies.

Perhaps, but your series of inflammatorily titled posts attacking liberals for flip-flops and hypocrisy because they opposed some of the wide variety of things included under the term "rendition" without opposing all of them overshadows whatever distinction you may have attempted. The right-wing propaganda, for years, has been that rendition is rendition (no need to look at the specifics), that Bush has done nothing new, and you are feeding into that. At some point when the excitement of the attention dies down, I hope you'll consider whether getting into bed with torture supporters is the best use of your talents.

Congratulations, professor, you've slain the strawman. [/sarcasm]

1. You accuse HRW of flip-flopping. I disagree. I think you're interpreting their earlier document a little too finely. It's not clear to me whether HRW would have objected to a Bush-led rendition program if all the targets were given the same due process rights as Alvarez-Machain. But there's room to have an honest disagreement about how much HRW has shifted its position.

2. You accuse "liberals" of having held a uniform position on rendition, and now changing that position. hmm, I don't recall being asked my position, or giving my proxy on this issue to someone else. There's a lot more to American liberalism than Ammesty International and the European parliment. This post is pretty offensive in the way it sweeps so broadly and inaccurately. And in the final version of this post you simply misconstrue what Hilzoy wrote.

3. You accuse liberals of elevating form over substance. Now this post is really outrageous. You've been playing definitional games all along, and now you've admitted in these comments that you don't know the law on point. If anyone has been elevating form over substance, it's you.

4. The four themes -- the lack of counsel, lack of judicial oversight, rendition to torture, and prolonged detention -- do form the core of liberal opposition to Bush-style rendition. But we simply do not know at this time whether the changes proposed by Obama will address the first two. As Hilzoy and the Sup. Ct. in Alvarez-Machain both noted, sometimes foreign governments will not turn over individuals who are wanted in the US. We can either leave them there or seize them and give them due process in the US. The due process rights given to seized individuals once they arrive in the US are critical.

And (a) you have no opinion on this issue; and (b) Obama has not told the public what those rights will be.

So your characterization of liberals as being flip-floppers, putting forth a defense that is "strained, dishonest, surprisingly nuanced, and contrary to true progressive politics because it elevates 'party' over principle" is not only false, but factually unsupported as well.

Your claim, to be blunt, is so off-target that it's not even wrong.

Here's a few suggestions:

Don't accuse an entire political movement of hypocrisy; limit your bile to those who have identifiably changed position due to the change in presidents. I don't appreciate being accused of hypocrisy by anybody, including an under-informed law professor.

Learn the law. You assert your position as a constitutional law professor to demand deference to your use of language as compared to that used by "liberals". Yet you admit you are owed no deference on this issue because you don't know a d*mn thing about it.

feh.

Rea, it's not clear, but I think Darren's point was that those pointing out how useful the torture proponents are finding him are making a Leftist argument that's not really addressing the substance of what he's saying.

KC - I have not stirred up a frenzy. Weren't you the one who said that prior to my writing on this subject you did not know who I was? I never expected that to change. Also, the organizations are fairly huge in the human rights community -- Amnesty International and HRW. That represents a lot of constituents.

Rea - if you do not believe that progressives can criticize each other and still remain progressive then you are exactly like Bush and his posse who slammed dissent. I have not taken a point on the substance of due process jurisprudence in this area, but that does not mean that my arguments lack substance.

Rea, it's not clear, but I think Darren's point was that those pointing out how useful the torture proponents are finding him are making a Leftist argument that's not really addressing the substance of what he's saying.

Well, maybe--but that doesn't make any more sense than what I thought he said. After all, he claims he's a leftist himself.

KC - if you or anyone else draws broad conclusions from the title of a blog essay, rather than the author's content, then the Internet age is worse than I suspected. I imagine that a lot of people's hostility concerning the LA Times piece comes from its title as well. IF you read the actual article, however, the author does a good job showing the changes Obama has made. I also demonstrate the various aspects of rendition in my essay. But, still, you say I am sleeping with torturers - which is, well, more melodramatic than anything contained in one of my titles!

I am so biting my tongue. Strenuous objection to disagreement reminds me of something, but I just can't put my finger on it.

Hypocrisy or not, I am rather speechless and disappointed.

I didn't think that the disregard for the rule of law (justification of kidnapping/breach of national sovereignty/US exceptionalism) or the all too familiar rhetorical strategies (ticking bomb scenario/ ends justify means/get the bad guys) would raise their ugly heads so soon after many of us thought the US would usher in a new era of adherence to international law and multilateral cooperation.

I am neither a pacifist nor a member of the fringe left, instead I belong to the mainstream European center-left and I can assure you that my viewpoint is the norm, rather than the exception in Europe. If this thread is representative of US liberal thought, then gulf between us is much deeper than I thought.

Francis, you have overkilled a strawman!

HRW - let's agree to disagree. I wonder if the organization will make a public statement.

Liberals and uniformity - No - persons like Horton said that liberal opposition was limited two two points; I found contrary evidence. At best, it's a mixed bag. But four themes stick out. Don't you agree? I never accused Horton, Hilz, or Greenwald of contradicting their own words. But the lack of opposition by those who condemned due process issues is hypocrisy. Here's the modification: "Some" liberals.....

I have not elevated form over substance. To do that, I would judge the program based on the name alone, which I have not.

Obama's changes to date have NOT addressed the first two. The fact that it has not led to outraged gives some credibility to the author's point. "Wait and see" is not the approach that people previously took on the subject.

The remainder of your post runs across a line that I do not care to cross. Fair-minded people will understand that.

Darren, you are contributing to the frenzy by being "even this liberal law professor" for the torture supporters to reference, and by continuing to supply the torture supporters now fawning over you with more inflammatory attacks on your fellow liberals.

If your argument is restricted to HRW and Amnesty, I'd appreciate it if you would be less sweeping in your accusations and if you could present evidence (not based on LA Times non-quotes) that these organizations are in fact supporting specific policies (not simply vague "rendition") that they previously opposed.

Novakant, thanks for the clarification. I disagree, as Hilzoy has, that the argument is comparable to the ticking timebomb. Do you have an answer to Glenn Greenwald's question?

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

What, if anything, is the U.S. (under current facts) permitted to do about Osama bin Laden, who -- we're assuming for purposes of these discussions -- clearly perpetrated the 9/11 attacks and is in the process of plotting new attacks? As far as I can tell, the options would be: (a) drop a bomb on him and kill him with no due process; (b) enter Pakistan, apprehend him, and bring him to the U.S. for a trial (i.e., rendition); or (c) do nothing, and just leave him be.

Do you support bombing, or doing nothing, or is there some other option you see?

Rea - if you do not believe that progressives can criticize each other and still remain progressive then you are exactly like Bush and his posse who slammed dissent.

Another strawman. If you have a substantive disagreement with HRW on rendition, by all means state it--but you say you don't--you say you don't have a postion on the substantive issue at all. Pointing out hypocrisy on the part of your opponents, in aid of your substantive position, is a legitimate debating tactic. Calling people hypocrites while declining to take a substantive position on the issue yourself is just purposeless, obnoxious noise.

KCinDC: well, the 4th option would be to pay some Pakistani army officers to arrest him, torture him and ship him to GITMO, but I'm kinda against that alternative. Been there, done that.

As I've written earlier, so long as the seizure is preceded by an indictment and followed by a trial held in conformity with Constitutional standards, I think that ordinary rendition is the best of the alternatives.

It seems to me that Prof. Hutchinson started out with a post that slotted fairly nicely into the rightwingers' general response to the LA Times story, which general response (not precisely Hutchinson's) I'd summarize as:

Hope-swilling cultists like Hilzoy refuse to acknowledge that Obama will continue Bush's Rendition program
Hilzoy patiently and convincingly proved (again!) how wrong the LA Times story and especially the rightwingers exulting over it were, and took exception to how Hutchinson characterized her position. After some largely unproductive debate, Hutchinson has apprently retreated to a position that I'll summarize using a brief quote from one of his comments:
And human rights activists objected to more than rendition to torture (and prolonged detention).
There's only one problem with this claim: it's completely unsubstantiated. Well, there's a second problem, but it's a corollary of the first: the claim is, so far as I am aware, actively untrue.

Yes, kidnapping people and transferring them unwilling across borders violates all sorts of laws and other countries' sovereignty. There are genuine questions about when it's defensible (the obvious example of a fully justified illegal rendition is of course the oft-cited Eichmann case).

But I don't think many people were particularly exercised about people being whisked across borders: they were upset about precisely the two aspects minimized in the text I quoted, i.e. the torture and the combination of secrecy and deprivation of due process.

Probably not coincidentally, Obama specifically banned both of those practices, and notably did not disavow possible kidnappings and renditions so long as the people thus rendered retained their rights of due process. Professor Hutchinson may wish to keep in mind that throughout the campaign Obama was openly willing to bomb terrorists he couldn't otherwise reach, to relatively little outcry on the left; I think we can assume that if Obama will kill those he can't kidnap, he will kidnap those he can't arrest legally. And so long as there is openness and due process and responsibility is taken, it will at the least be a great improvement over Bush.

Darren,

Your comments suggest that you see various commenters here as consistently misreading your blog posts and comments. Is that correct?

If so, might I suggest that you have failed to communicate rather spectacularly? When one person misunderstands what you're saying, they're probably just confused. When many smart people consistently don't get what you're saying, I think it is time to step back and ask why.

You are new to blogging and I will note that you have failed to adhere to some conventions that help facilitate productive discourse. These are not ironclad rules, but these are suggestions are helpful for keeping discussions from from exploding into confusion where no one understands what you're trying to say.

For starters, it is helpful to narrow your claims to specific defensable points. You write about how "liberals" or "some liberals" did such and such, but surely you realize these statements are utterly meaningless. I mean, there are some liberals who are child molesters, right? Would it be fair to say that "liberals are child molesters"? Perhaps in some technical sense that's true, but in practice, this sort of thing does not advance fruitful discussion. If you're going to talk about a large heterogenous group of people, you need to very carefully explain what fraction of the group you're making claims about, what examples you have to substantiate those claims, and why you think your claims generalize from those examples to the group at large. With respect, your writing has been very sloppy in this regard.

Secondly, it really helps if you refrain from describing what anyone else does or does not believe without explicitly quoting them. Language is slippery and it is shockingly easy to misrepresent what other people think. It is much harder to do this when you quote their exact words. That way, when questions or disputes arise, we can productively discuss your interpretation of HRW's (or whomever's) words.

But I don't think many people were particularly exercised about people being whisked across borders: they were upset about precisely the two aspects minimized in the text I quoted, i.e. the torture and the combination of secrecy and deprivation of due process.

Your claim is simply wrong - the whole affair created a veritable shit-storm across Europe and all of the aspects mentioned were points of contention (have a look here for starters).

It's amazing how nonchalantly some people in the US treat the sovereignty of other nations as if there was some god-given right for the US to do whatever it wants wherever it wants - many, many people were outraged not only by the accusations of torture, but by the fact that a foreign power was using their countries as a staging ground for its very unpopular "war on terror" with little or no regard for the laws of the land.

Is that really so hard to understand? How would you feel if China, Russia or France operated prisons in the US and transferred detainees back and forth across borders?

Your claim is simply wrong - the whole affair created a veritable shit-storm across Europe and all of the aspects mentioned were points of contention
Perhaps I should have written more carefully: I meant that few on the American left paid particular attention to the kidnapping aspect rather than the secrecy and torture, and I'd stand by that claim.

Even as regards the international complaints, I'd suggest that the kidnapping was a minor aspect of the complaints compared to the torture, the secrecy, and the deprivation of due process. Prior to Bush, illegal kidnapping was seen as a last resort to be contemplated for use in lawless areas and then only against certified malefectors, and not as something to do on Italian city streets, in an American airport, or to a European citizen legally crossing a Macedonian border (all, of course, actual examples under Bush/Cheney), or not to be used t otarget people against whom no substantial evidence could be brought. But although I suspect that the Obama administration's policy would, as written, permit all of those instances in theory (though not the secrecy and torture that accompanied them), they aren't the sort of incident that preceded Bush, and they aren't the sort of incident that any reasonable person was suggesting the Obama administration envisions perpetrating.

novakant,
as a regular commentator who has made many good points in the past, I accord your opinions a measure of respect, so I hope you can draw a precise line for us of your opinion as to where the question of bringing someone to trial and the jurisdiction of those who want to bring someone to trial ends. Absent that, your argument seems like Prof Hutchinson's, in that he refuses to describe his opinion on certain aspects because he's afraid it would be subject to the same scrutiny he wants to apply. I'm sure that's not what you intend, but if you simply argue that people wrestling with this are simply sanctioning kidnapping, the discussion is not going to move forward unless you lay out your own position.

The fact that Obama is unwilling to forswear all war does not mean he's going to invade Canada.

Prior to Bush, illegal kidnapping was seen as a last resort to be contemplated for use in lawless areas and then only against certified malefectors,

Well, I think this is part of the problem. Once you say illegal kidnapping is ok, people's view of what's a "last resort" or "lawless area" or "certified malefactors" can differ, or even whether any of those conditions are sufficient or necessary to resort to illegal kidnapping. Frankly, I was shocked that the Bush Administration would kidnap people from Italy, even if they were certified malefactors and Italy had refused to extradite.

"I edited my blog, not knowing that Hilzoy had actually read it"

Besides the point: blog etiquette says that any edit after a few minutes -- maybe up to half an hour at most -- after posting, should be acknowledged and described. It's fine if you're ignorant of this, and did it innocently, but it's still more or less common sense and called for, and not something to do other than apologize for.

"PS: Perhaps we should just 'debate' rather than search for some sinister unspoken reason for me making arguments."

Someone report this to the blog of unnecessary quotation marks. Or at least "report" it.

"KC -- I have read Hilz's statements, and she has read mine. I have not heard back from her. Perhaps she is busy at the moment,"

Yes, perhaps, because she rarely comments during weekday days, because, you know, she's a major professor at a major university, as most of us know. Nice of you to consider the possibility.

Eh, no reason he has to know anything about me that can't be gleaned from the posts he's commenting on. (Plus, not that major.) (Me, I mean. Hopkins is cool.)

I mean, one of the ancillary reasons I post under a pseud is that I don't think any of that stuff matters. I like the fact that for ages no one knew (for instance) whether Atrios was a Nobel laureate or a precocious twelve year old.

And yes, I was off teaching. ;)

And yes, I was off teaching. ;) poisoning the minds of our youth

Fixed! ;-)

I hope you can draw a precise line for us of your opinion as to where the question of bringing someone to trial and the jurisdiction of those who want to bring someone to trial ends.

I'm not a lawyer, but basically it's quite simple really: kidnapping and ignoring the jurisdiction of other countries is illegal, so don't do it and obey international law.

On the positive side, you can request extradition, enter into bilateral intelligence and security agreements or appeal to a variety of multilateral authorities to sanction appropriate action (joining the ICC would be a good idea). You can exert diplomatic, economic and moral pressure.

And if all that doesn't work, well, tough - you can't always get what you want. There are plenty of domestic criminals that are running around free, because you can't build a case against them or they have been let off on technicalities - that's the price we willingly pay every day, beyond that is only vigilantism.

Of course, due to its position in the world the US can ignore all that and resort to the law of the jungle, but surely you don't expect me to sign off on that. The mere existence of "bad guys" who want to harm the US doesn't justify anything outside the rule of law.

Novakant, we Americans are a practical people, and don't like making the perfect the enemy of the good. (A lesson many on the Left had to relearn in the 2000 election).

Our army did not ask permission of the Vichy government -- which had legal authority at the time -- to deploy in Normandy in June 1944. I wouldn't say that it's impossible to find an American who's sorry about that, but I don't imagine them to be particularly thick on the ground.

If so, might I suggest that you have failed to communicate rather spectacularly?

Do you mean to say there are others like me?

Or maybe other. But I can always hope.

Thanks novakant. The reason I ask is that there is actually a body of cases, unrelated to terrorism or genocide, that really make that clear cut line difficult to hew to, which are the problems with child abduction. Living here in Japan, I've done a bit with a few cases as well as been exposed to the problems. Here's the state department flyer outlining the problem. Obviously, I've been helping out non-citizen parents, so that is a particular viewpoint, but I'm not really prepared to tell a parent like Murray Wood to suck it up.

I believe that extraordinary rendition increased because US forces in the Balkans captured possible combatants who were holding Egyptian passports. The question 'who is this guy?' was asked and the Egyptians answerred, saying 'we want that guy, he's an Egyptian citizen'. It was extraordinary because for ordinary rendition, the person in question must come under the regulations of the US, and the situation in the Balkans was not clear cut, and will remain confused in the future, where there is no formal declaration of war which then puts prisoners under the Geneva conventions. A historical event that I think are related to this is the Betrayal of the Cossacks, which, as the Wikipedia article notes, also occurred at Fort Dix. (sorry, link limit, but easy to google)

If we apply your reasoning to this, what right does the US have to say 'I'm sorry, we are not going to turn him over to you?' to the Egyptians? Or, conversely, has the duty to give the person his freedom.

One can argue that because Egypt prisons tortured prisoners, the US had a duty to not turn over the persons. In an ideal world, perhaps, but in pragmatic terms, I don't see how that will be the default state. At any rate, the sorry state of prison systems around the world suggests that for many countries, a conviction means conditions that are akin to torture, which might include the US demanding that people be extradited to the US.

But you have stipulated that it is the rendition that is the problem and not the torture, so assuming that a person is not going to be tortured, in the traditional notion of the nation-state, the citizen is subject to the rules of the country he holds citizenship. If they make a positive request, you have to postulate a whole new set of laws that protect the rights of that person. We are in the midst of formulating such rights, but the project is incomplete and will remain so until nations agree to some sort of body that can hand out judgements that would be respected, something which is unimaginable in the even medium term future. Extraordinary rendition is not necessarily accomplished by teams of agents doing a Bourne Conspiracy type mission, it is a person going thru immigrations/customs and getting pulled aside. He's then told that he can't enter the country and, since he's listed as Syrian citizen, he's going to get put on a plane going to Damascus. Is it simply the fact that it was Syria that makes this problematic and if it had been a nicer country, we should do that? I don't think so.

One case that might be interesting in this regard is the Ira Einhorn case. (the wikipedia page has the info) While I wish that everyone had certain individual rights regardless of their country of origin, I know that this is not the case, so I am left wondering how we balance the demands of the nation-state with the rights of the individual and from that standpoint, your distinction doesn't seem so clear-cut.

There's a new post up at Dissenting Justice, written just for you Hilzoy.


dissentingjustice.blogspot.com/2009/02/panetta-rendition-will-continue-would.html

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