Friday, February 6, 2009

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Earlier this week, an L.A. Times article, which reported that Obama would continue the highly criticized policy of "rendition," sparked a fever-pitched pushback from many liberals. Although the article clearly stated that Obama had issued executive orders prohibiting the use of torture and ordering the closure of CIA prisons, many partisan liberals screamed foul play, arguing that the author of the article failed to distinguish "rendition" from "extraordinary rendition" (which many liberals claim separates Bush from, well, civilized society). Under extraordinary rendition, the critics argue, Bush transferred individuals to other countries for the purpose of torture and for prolonged detention. Because Obama has ordered the end of torture and the closure of CIA prisons, many liberals dismissed the article as the work of a misguided or even "punked" journalist.

Rendition: Apparent Shift in Positions
My review of previous positions of several liberal organizations regarding rendition shows that many of them disagreed with more than just the torture and prolonged detention aspects of Bush's rendition program. Instead, they believed that rendering individuals without judicial oversight or legal representation violates due process norms secured by international and domestic law. Some also argued that diplomatic assurances could not prevent torture.

During the Bush administration Human Rights Watch argued against using diplomacy to prevent torture against rendered individuals and called for the complete cessation of rendition. The L.A. times article, however, quotes a spokesperson for Human Rights Watch who says that rendition can work so long as individuals receive access to courts after a transfer occurs.

Panetta Backtracks
Yesterday, Leon Panetta, Obama's nominee to head the CIA, echoed the allegations of many members of the human rights community when he said that Bush outsourced torture through the rendition program. Today, however, Panetta has retreated from this position and says that "On that particular quote, that people were transferred for purposes of torture, that was not the policy of the United States. . . ."

Panetta also says that rendition will continue under the Obama administration but that he will try to guarantee through the State Department that rendered individuals are not tortured by officials in other countries. During the Bush administration, however, many leading human rights organizations rejected the argument that diplomatic assurances could effectively protect rendered individuals from torture.

Although the following position does not backtrack from previous statements, it is worth noting that Panetta has also indicated that the Obama administration will not prosecute Bush administration officials who utilized torture, despite the demands of many liberals. Panetta explained that the officials operated under assurances from the Justice Department that they were acting within the law (although it is doubtful that the these assurances could immunize them from violations of human rights). Many liberal activists, however, condemned DOJ officials for defending torture. In particular, they have even called for the prosecution of John Yoo, a lawyer in the DOJ (now back at UC Berkeley), who wrote the infamous "torture memo." Panetta, however, remains open to "limited" prosecution of officials who defied the law in the absence of "cover" from the Justice Department.

Will Seek Greater Leeway During Interrogations If Necessary
Panetta also stated during the hearing that he would ask President Obama to authorize CIA agents to utilize harsher interrogation methods than the Army Field Manual permits if necessary. Human rights activists and other liberals have insisted that governmental interrogators adhere to the manual, and Obama has issued an executive order that mandates such compliance. The executive order, however, leaves open room for the CIA to play by separate rules, "if warranted," which Panetta's words echo. The Center for Constitutional Rights calls this provision the "torture loophole" or "escape hatch." Apparently, 2006 amendments to the Army Field Manual also permit some forms of torture; Obama's executive orders do not remedy this situation.

Despite the outcry among liberals concerning torture, it appears that the Obama administration wants to retain flexibility to utilize more aggressive interrogation methods:

Panetta said he would if necessary ask Obama to allow harsher interrogations than those covered by the Army Field Manual, which the president last month set as the government standard. The manual bans techniques such as waterboarding.

"I would not hesitate," to seek broader interrogation authority, Panetta said, adding "I think that this president would do nothing that would violate the laws that are in place."

He promised to tell Congress if Obama were to authorize a departure from standards the president imposed last month.

Summarizing the Situation
Since the L.A. Times first broke the story that rendition would continue during the Obama administration, I have had time to collect a lot of information about prior liberal criticism surrounding the practice. Panetta's testimony provides some insight as to how the Obama administration will approach the subject. So let's examine the present and past situations with these developments in mind.

Under the Bush administration, many human rights and civil liberties activists criticized "rendition" (or "extraordinary rendition" -- the name does not matter) on four grounds: 1. rendered individuals did not have access to judicial review prior to or even after transfer; 2. rendered individuals did not have access to counsel; 3. the government rendered individuals to torture -- or it could not, otherwise, secure their safety post-transfer; 4. rendered individuals were sent to prolonged detention in CIA prisons. The Bush administration, however, denied that it rendered individuals for the purpose of torture. Panetta has agreed that this was not official policy.

The Obama administration has banned the usage of torture (which was already banned) and has ordered the CIA to close its longterm prisons. But Panetta says -- and Obama's executive orders anticipate -- that he will seek more leeway for the CIA to utilize different methods when questioning individuals if necessary. Panetta also says that the Obama administration would utilize diplomatic channels to make sure that rendered individuals are not tortured.

The primary differences between Bush and Obama's "rendition" at this point include the closure of longterm detention facilities and the restatement of the ban on torture (which the loophole mitigates). It is unclear whether or when the CIA will utilize judicial review and provide counsel to rendered individuals. It is unlikely that the program will seek judicial review prior to any transfer, because that would make it look a lot like ordinary extradition -- which really does not require justification. The lack of procedural protections makes the CIA's rendition program dramatically different from extradition.

Other Recent Post:

Pot Users Lose High After Obama Administration Continues Medical Pot Raids

Related Readings on Dissenting Justice:

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

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


Panetta Open to Tougher Methods in Some C.I.A. Interrogation

Panetta Takes Back Remarks on Detainee Rendition

Obama CIA Pick Backtracks on "Torture" Charge

Obama CIA Pick May Back "Limited" Abuse Prosecution


Charles Davis said...

Mr. Hutchinson,

Perhaps when Panetta uses the term "rendition", he doesn't mean extra-judicial kidnapping, but merely "perfectly normal things" like extradition? (sarcasm)

Darren Lenard Hutchinson said...

LOL - thanks for saying "sarcasm." After the influx of Obama loyalists this week, I was not sure if you were being serious or not. Imagine being convicted of a crime but escaping. Then, you are caught in another country, and asked to return. A court would evaluate the situation. You would not be kidnapped in the middle of the night and hauled away....The linkage of the CIA kidnapping program and extradition is preposterous. But of course, this apparently was not the intent of anyone on the planet, so we can move on. :)

Anonymous said...

If you've ever experienced or been trained in WB then please... "save your breath"; you would know what I mean if meeting either of the above criteria.

If not, then just shut you mouth.

Jeffrey Kaye said...


Am enjoying your coverage of these important topics. I do want to draw your attention to how you present the issues surrounding the Army Field Manual. While the Pentagon and most liberal bloggers (what a combination) present the Army Field Manual as a humane and legal model for military and CIA interrogations, in fact the document is seriously flawed.

Both in its main text and in its Appendix M (on "Separation"), the AFM allows for interrogation techniques that amount to cruel, inhuman, and degrading treatment, if not torture. Included are the use of isolation, sleep deprivation, forms of sensory deprivation, producing "new" fears in detainees, and an absence of prohibitions against stress positions or use of drugs (so long as the latter don't cause permanent or lasting damage).

The Center for Constitutional Rights has come out against Appendix M, and launched a campaign to that end. Physicians for Human Rights has long opposed the use of these techniques. Others speaking out against the AFM include Marjorie Cohn, the ACLU Blog of Rights, Daily Kos's Meteor Blades, and others.

I've been writing on this issue since September 2006, and only recently has the truth finally broken through to a larger audience. I hope you will take the time to read up on this and incorporate the issue into your writings when appropriate.

You can read my two pieces at AlterNet about this, both published since the first of the year.

How the U.S. Army's Field Manual Codified Torture -- and Still Does (

How the Press, the Pentagon, and Even Human Rights Groups Sold Us an Army Field Manual that (Still) Sanctions Torture (

Darren Lenard Hutchinson said...

Hi, Jeff. I saw that story earlier in the CCR literature. Thanks for the reminder. I have updated the main entry.

Valtin said...

Thanks very much, Darren. I hope you do read the articles, too, that I linked to. After that I bet you will drop the modifier "apparently".

Decidere said...

Well, apparently tasering someone 8 or 10 times doesn't qualify as torture, so I guess we need new authorizations to justify unusual times and those odd situations when you realize tasering and water boarding aren't doing the trick and you need that extra sizzle.

Thanks, Leon. Perhaps hearing "I will not discuss particular techniques" would make us feel nostalgic and somnolent again.

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