Tuesday, February 10, 2009

Rendition, Secrecy and Torture: Inseparable?

A week ago, L.A. Times journalist Greg Miller published an article which reported that the Obama administration would continue Bush’s rendition program. Rendition describes the CIA's transfer of individuals to other countries for interrogation, prosecution or detention. During the Bush administration, many human rights groups and activists condemned rendition on four discrete grounds: 1. Rendered individuals lacked access to courts; 2. Rendered individuals lacked access to lawyers; 3. The government used rendition to “outsource” torture; and 4. The government rendered individuals to prolonged detention in CIA prisons.

Miller acknowledged in his article that Obama has ordered interrogators to comply with laws prohibiting torture and commanded the CIA to close its prisons. Nevertheless, the article stated that Obama would continue and perhaps expand the use of rendition.

Miller’s article generated a very vocal pushback from many liberals. The standard argument in Obama’s defense contends that Miller grossly distorted the nature of Obama’s rendition program by linking it to Bush. Unlike Obama, Bush practiced “extraordinary rendition,” not “rendition,” because he sent people to torture and indefinite detention. Liberal defenders of Obama’s rendition program dismissed the article as the product of a “punked” journalist, and many of them deemed critics of Obama’s continuation of rendition as either right-wing conservatives looking to bash the president or well intentioned liberals confused over the meaning of rendition.

Liberal Defenders of Rendition Condemn Obama's Assertion of the State Secrets Privilege
The last few days, however, have produced a lot of clarity on this subject, and many individuals who originally defended Obama's use of rendition now express outrage. Their anger arises primarily from Obama’s recent decision to assert the “state secrets privilege” in a rendition-related lawsuit.

Civil liberties groups criticized Bush for broadly invoking the privilege in order to resist disclosing information related to rendition. Many courts have recognized the privilege and dismissed lawsuits filed by individuals who claim the government rendered them to torture and other abuses. Human rights groups believed that Obama would completely abandon this practice. They were wrong.

The ACLU described the Obama administration's recent assertion of the privilege as offering “more of the same.” The ACLU represents the plaintiff in that particular case. Nevertheless, several liberal bloggers who initially defended Obama's rendition policies now express deep disappointment over his assertion of the state secrets privilege.

Glenn Greenwald
Salon blogger Glenn Greenwald (one of my favorite commentators) blasted Miller’s analysis as “wildly exaggerated and plainly inaccurate.” Yesterday, however, Greenwald argued that by invoking the state secrets privilege, Obama “resoundingly and disgracefully” failed his “first test on civil liberties and accountability.”

Andrew Sullivan
Pro-Obama blogger Andrew Sullivan predictably defended the president after the publication of Miller’s article. Sullivan argued that Miller “got rolled by the usual suspects” and that Obama’s new policies make “the detention and rendition of terror suspects much less worrying.”

Now that the Obama administration has invoked the state secrets privilege, Sullivan suddenly appears “worried.” Sullivan says that the decision “is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

Popular liberal blogger Hilzoy also criticized Miller’s article (which sparked an exchange between the two of us) for not properly distinguishing Obama's policies from Bush. Hilzoy argued that: “It's important . . . to note that extraordinary rendition is not the same as rendition proper. Rendition is just moving people from one jurisdiction . . . to another; includes [sic] all sorts of perfectly normal things, like extradition, which are not problematic legally.”

Obama’s assertion of the state secrets privilege, however, troubles Hilzoy. She offers the following critical analysis of Obama’s legal arguments: “Like every other Bush administration court filing I have read, it is striking not just for the breadth of the powers it claims for the government, but for the complete absence of any concern for justice.”

Supporting Rendition Contradicts Liberal Concerns Over Secrecy and Civil Liberties – To Some Extent
Although some liberals support rendition (minus the intentional or effective rendering of individuals to torture or prolonged detention) their position is potentially unstable because rendition conflicts with their expressed concern over governmental secrecy, their desire for transparency, and their defense of civil liberty. Consequently, I predict that the Obama administration will continue to disappoint liberals who desire absolute transparency and a strong commitment to civil liberties under all circumstances -- but who, nonetheless, support rendition (as distinct from "extraordinary rendition"). Here’s why.

First, for the last eight years, human rights activists have argued that diplomatic assurances are ineffective against torture. But during his confirmation hearings, CIA director Panetta said that the Obama administration would in fact call upon the State Department to make sure that the CIA does not render individuals to torture. If rendered individuals face torture during the Obama administration, then liberals will have to question why they supported the practice in the first place -- especially in light of human rights literature which states unequivocally that diplomacy cannot prevent torture.

Second, Panetta also stated during his confirmation hearings that he would seek permission to use harsher interrogation methods “if necessary.” This position sounds exactly like Bush’s promotion of “enhanced interrogation” practices, which previously angered liberals. Moreover, some human rights organizations argue that the Army Field Manual -- which Obama has ordered interrogators to follow -- permits torture under certain circumstances.

Because rendition lacks judicial or administrative oversight, CIA agents will have greater opportunities to utilize harsh or tortuous interrogation methods -- or to outsource the practice to other nations. Thus, liberal support for rendition does not help to safeguard the bodily integrity of terrorism suspects.

Finally, while some liberal bloggers try to link “rendition proper” with accepted practices such as extradition, the CIA’s policy of abducting individuals (regardless of whether the government renders them to torture or prolonged detention) differs dramatically from extradition because it lacks judicial or administrative oversight and because individuals do not have a right to counsel. The lack of judicial review and legal representation allows violations of anti-torture laws to go undetected or unpunished – which is exactly why Obama’s (and Bush's) assertion of the state secrets doctrine bothers many liberals. Some amount of secrecy, however, comes with this messy territory. Public and open "abductions," to which due process attaches, do not resemble true abductions; instead they look much more like ordinary arrests (which could lead to extradition).

Thinking Out Loud: My Unsettled Position on the State Secrets Privilege
If rendition is legal and acceptable (which some liberals contend), then I would argue that the government can legitimately shield a lot of the details from public disclosure. Many bloggers argue, however, that the government has used the privilege to protect from disclosure actions that cannot qualify as relevant to national security or which constitute or reveal deprivations of human rights. But privileges often operate prophylactically by shielding certain categories of information from discovery -- even if disclosing such materials would reveal wrongdoing or if disclosure would not frustrate the very purpose underlying recognition of the privilege (in this case, to safeguard intelligence and to protect national security). Courts apply privileges broadly because the risk of disclosure could “chill” otherwise legitimate communications or actions; also, courts could erroneously require disclosure of damaging material unrelated to the litigation.

In this setting, however, courts have applied the privilege quite broadly, and this has inevitably resulted in the dismissal of litigation. Some critics argue that those courts should have examined every item of potential evidence and determined on an item-specific basis whether to apply the privilege. But if these same courts had actually followed this more transparent approach -- yet deferred to the government's determination that disclosure of an individual item of evidence would implicate national security -- the courts would likely have reached the same conclusion and dismissed the litigation.

Unlike many of my colleagues, I have not taken a firm position on the state secrets privilege. Nevertheless, I believe that Obama has a strong argument (as did Bush) that the nature of rendition requires vigorous protection of the privilege. Supporters of rendition (including many liberals) argue that it promotes national security. If this is true, then the government should probably have a great deal of control – if not absolute control -- over the details of the program.

If rendition does not advance national security (or if does so infrequently), then liberals should rethink their support of the practice. Perhaps they should advocate alternative procedures for transferring suspects -- like extradition -- that are more open and transparent. By endorsing rendition, liberals are crediting, to some extent, the government’s assertion of privilege and secrecy, which in turn facilitates the human rights abuses that liberals passionately condemn.

Related Readings on Dissenting Justice:

Just As I Predicted: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

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

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


John Thacker said...

The LATimes has another article from Washington. Seems that solicitor general nominee Elena Kagen agrees with the idea that detainees can be held indefinitely.

Apparently "change" is only about closing Guantanamo, but the prisoners will still be held somewhere else. (And frankly, I think Supermax prisons like Fort Leavenworth and ADX Florence are more frightening than Guantanamo, and that the everyday treatment there rises to the level of torture.)

BigBison said...

Seems to me, this is more of a civil libertarian issue, than a "liberals" issue. I'm no liberal, but I am a civil libertarian.

I'm against renditioning, in general. But I can't get around the need to use that tool, within limits, especially when extradition just isn't going to happen.

I favor Clinton's renditioning of Carlos the Jackal, and other known terrorists. It was a very limited program, in that it didn't round up 150 people, many on the basis of mistaken identity, like Bush's program.

So, while I would like to see Bush's variation on renditions ended, the problem of A.Q. Khan remains... isn't he the perfect poster-boy for this debate?

While I'm aware of the downsides to renditioning, in my mind they don't outweigh the upside of renditioning Khan to The Hague, or to the U.S. Courts and, ultimately, the slow torture of Supermax.

He's too dangerous to be out walking the streets, but I can't think of how to get him incarcerated without renditioning...?

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