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