In prior posts (see here and here), I provided quotations from position papers of human rights groups that detailed specific practices of the Bush administration's rendition policies they believed were either illegal or undesirable. In some of the position papers, the organizations used the labels "rendition" and "extraordinary rendition" interchangeably -- which alone undermines the liberal defense that seeks to parse these two terms.
Four pervasive themes appear in the liberal critiques of Bush's "rendition" program. Liberals argued that the program was improper because: 1. Rendered individuals were transferred without the ability to contest the transfer before a judge; 2. Rendered individuals could not consult an attorney prior to transfer (or even after transfer); 3. Rendered individuals were often rendered for the purpose of torture - or this was the inevitable consequence of their transfer; and 4. Rendered individuals were often "disappeared" and confined in secret CIA prisons.
Although human rights groups condemned all four sets of practices, the inclusion of elements 3 and 4 presumably distinguishes Bush's program from past practices (although some data suggest that some rendered persons in the Clinton administration faced torture). And this fact alone has created something akin to a liberal loophole. Defenders of Obama's rendition program (assuming the factual accuracy of the L.A. Times article) contend that elements 1 and 2 represent old-fashioned and acceptable "rendition," while 3 and 4 are elements of Bush's evil "extraordinary rendition." If Obama simply removes 3 and 4 (which he promises to do), then all is good for the defenders of rendition.
But this forms the basis of the charge of hypocrisy. Human rights groups detailed in numerous policy statements the specific aspects of Bush's program with which they disagreed. These practices certainly included rendition to torture and indefinite detention, but they also involved the lack of judicial oversight and denial of access to counsel. If liberals now believe that some activists overreached by criticizing the lack of judicial oversight or legal representation in their arguments condemning Bush, then they should express this point. It is absolutely disingenuous to argue instead that human rights groups only disagreed with rendition to torture and indefinite detention, when the organizations' own words demonstrate that they made a fuller set of arguments.
Furthermore, describing Bush's plan as "extraordinary" does very little to defend "rendition" in the Obama administration. Labels do not give rise to human rights violations. Specific practices do. And in terms of concrete policies, many human rights groups condemned the four sets of practices (see above) that this essay identifies. Obama's planned cessation of two of these practices does not respond to the full set of concerns that human rights groups expressed. If my fellow liberals defend his program, despite its replication of some of the very practices that human rights groups condemned during the Bush administration, then they are being hypocritical. If they now believe that the procedural protections are unnecessary, they should say so.
Finally, many bloggers, especially Hilzoy, have been extremely committed to elevating "form" over "substance." 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. On a generalized level, these practices are indeed connected; they all involve the removal of a person from one nation to another against the person's will.
But general dictionary meanings (even from legal dictionaries!) do not provide a basis for criticizing or validating a specific set of governmental behaviors. In practice, the CIA's rendition program does not contain the procedural protections that make extradition and deportation accepted practices. Therefore, regardless of the abstract connection between rendition and extradition, in reality the CIA's rendition program is light years from extradition in terms of the level of due process provided to individuals subject to removal and transfer.
Under extradition, for example, individuals can typically seek judicial review of the determination to send them to another territory for prosecution or imprisonment. And persons can only be extradited for concrete purposes: to stand trial or to serve a sentence. Other common provisions allow countries that do not apply the death penalty to refuse extradition of an individual who would potentially face the death penalty in the receiving country.
Many human rights groups demanded that Bush extend similar protections to individuals subject to rendition. Although the Obama administration has not indicated that it will give rendered individuals these procedural rights, liberals still try to validate his program as something fundamentally different than Bush's.
Labels, however, cannot mask specifics. If Obama enforces policies that deny a rendered individual's access to courts or attorneys prior to or after the transfer, then he will fall short of the demands made by many human rights groups during the Bush administration. Although the CIA may no longer render to torture or confine individuals indefinitely, it might continue to snatch individuals without judicial oversight or attorney representation. Prior to the Obama administration, many liberals condemned torture-free CIA kidnappings. Today, however, they defend this practice. Why?
[Editor's Note: I modified an earlier blog post to distinguish dictionary labels from specific policy; one blogger took that as a sinister maneuver. It was not. I stand by both versions of the post. The blogger's post never responds to the specific content of the critiques of human rights groups; instead, the person focuses on labels.]
Update: A version of this article now appears in the New York Times. Blogger Hilzoy has responded to my criticism of her and other liberal bloggers who defend Obama's use of rendition. Here is my response (which I have forwarded to the New York Times):
Blogger Hilzoy has responded to my criticism with the following observation: "I. . .find the idea that I relied on ‘generic web-based definitions’ of rendition odd: I cited cases, statutes, etc." But Hilzoy relied upon a Wikipedia definition of rendition in order to advance the following claim: Rendition is just moving people from one jurisdiction (in the cases at hand, one country) to another; includes [sic] all sorts of perfectly normal things, like extradition, which are not problematic legally.” I understood Hilzoy’s argument as an attempt to justify (or simply describe) the CIA’s practice of rendition by linking it to established legal concepts such as extradition. Hilzoy explained that she was not discussing the CIA program but simply the abstract meaning of rendition, and I accepted her statement some time ago.
As I explained on my blog, however, rendition as an abstract or generic concept might include concepts like extradition, but the specific CIA program -– whether described as “extraordinary rendition” or simply as “rendition” -- differs substantially from extradition because it lacks procedural due process. Unlike extradition in its typical form, the CIA’s policy does not include judicial or administrative oversight, and captured individuals do not have a right to counsel. Another common procedural safeguard associated with extradition allows countries to refuse to transfer an individual if he or she would face the death penalty in the receiving country for a crime that does not qualify as a capital offense in the transferring country.
Ironically, Hilzoy strives to distinguish Bush’s program from Obama’s on the ground that rendition in the new administration will lack the torture and indefinite detention elements. Leon Panetta, however, has said that he will use diplomacy to minimize the risk of torture, but that the CIA could seek the use of harsher interrogation methods “if necessary.” And both Elena Kagan and Eric Holder take the position that the administration can indefinitely detain torture suspects so long as the country is “at war” with Al Qaeda.
These positions substantially replicate Bush’s policies. Bush denied intentionally sending individuals to torture and stated that his use of diplomacy could prevent it. He also stated that the war against terrorism justified indefinite detention of terrorism suspects. Many human rights groups contend that diplomatic assurances are ineffective against torture, and they have passionately condemned indefinite detention. Although Obama has made some formal changes, his rendition policies still look a lot closer to Bush’s practices than Hilzoy and other liberals seem willing to
Related Readings from Dissenting Justice:
Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?
Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition
Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program
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