Monday, February 2, 2009

Still a Flip-Flop: My Fellow Liberals Push Back Against Allegations of Inconsistency Concerning Rendition

For an analysis of Obama's comments on rendition during his interview with the New York Times, visit this link: Obama's "Interesting" Comments About Rendition.

During the Bush administration, many liberal organizations passionately criticized "rendition" (sometimes called "extraordinary rendition"). Critics argued that Bush employed rendition to "outsource" torture or to secret terrorism suspects. They also asserted that diplomatic channels could not reliably protect transferees from torture because it occurs secretly. Finally, many activists argued that even without torture, rendition violated norms of procedural fairness because the rendered individuals do not have the ability to appear before a court to contest the transfer and because they do not have access to legal counsel.

After an L.A. Times article reported that Obama will continue the renditions policy, many liberals have come forward to defend the new boss. 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. Because Obama has banned the use of torture (which pre-existing statutes and treaties already prohibited) and ordered the CIA to close its longterm detention centers, many liberals dismiss the L.A. Times article as misleading.

After reviewing much of the pro-rendition liberal pushback, I have collected my thoughts and written a response. 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
During the Bush administration liberals argued that rendition - whether for the purpose of torture or otherwise - violated human rights and constitutional norms. Many activists demanded that the U.S. abandon the rendition program altogether or that other countries refrain from helping enforce it (e.g., by allowing CIA flights over their airspace). They also demanded that the U.S. not transfer individuals to countries where they would likely experience torture or transfer anyone without judicial approval.

In January 2008, for example, Amnesty International published a very thorough report entitled "State of Denial: Europe's Role in Secret Detention and Rendition." The report makes several recommendations to prevent European complicity in U.S. rendition activities, including that:

European states should introduce measures that include: only transferring individuals to the custody of another state, or facilitating such a transfer, if the transfer is carried out under judicial supervision; and ensuring that no one is forcibly returned to any place where they may be at risk of serious human rights violations.
The report also defines rendition as a transfer that lacks judicial oversight, not one that necessarily results in torture:

Amnesty International uses the term “rendition” to describe the international transfer of individuals from the custody of one state to another by means that bypass judicial and administrative due process. Renditions violate international law by failing to respect requirements of due process, and frequently involve multiple human rights violations, including unlawful and arbitrary detention; torture or other ill-treatment; and enforced disappearance.
And in a 2006 report, Amnesty International condemned rendition generally -- regardless of whether it facilitates torture -- because it takes place without prior judicial validation:

[T]here is no legal or judicial mechanism to ensure that [rendition protects the public]. The methodology is to grab first, sometimes on flimsy or non-existent evidence, and to ask questions later.
The report makes several recommendations, including the following:

Do not render or otherwise transfer to the custody of another state anyone suspected or accused of security offences unless the transfer is carried out under judicial supervision and in full observance of due legal process.

Ensure that anyone subject to transfer has the right to challenge its legality before an independent tribunal, and that they have access to an independent lawyer and an effective right of appeal.

Do not receive into custody anyone suspected or accused of security offences unless the transfer is carried out under judicial supervision and in full observance of due legal process. . . .

Bring all such detainees before a judicial authority within 24 hours of entry into custody.

Ensure that detainees have prompt access to legal counsel and to family members, and that lawyers and family members are kept informed of the detainee’s whereabouts.

Ensure that detainees who are not nationals of the detaining country have access to diplomatic or other representatives of their country of nationality or former habitual residence.
Amnesty International does not limit its opposition to rendition to torture, but to any transfer that lacks judicial oversight and other common procedural safeguards. Although these procedures could help to prevent or to uncover torture, they are important rights on their own.

A famed 2007 report of the European Parliament also condemns "extraordinary rendition" because it lacks a judicial component. The report states that:

[E]xtraordinary rendition is an extra-judicial practice which contravenes established international human rights standards. . .whereby an individual suspected of involvement in terrorism is illegally abducted, arrested and/or transferred into the custody of US officials and/or transported to another country for interrogation which, in the majority of cases, involves incommunicado detention and torture . . . .
Likewise, in a 2006 article published in the Harvard Human Rights Journal, Professor David Weissbrodt of the University of Minnesota Law School and Amy Bergquist (then a law student) condemn the practice of extraordinary rendition on several grounds, including that the practice lacks judicial involvement and rendered individuals do not have right to counsel:

Extraordinary rendition implicitly violates Article 14 [of the Universal Declaration of Human Rights] because . . . in the first instance, [detainees] are not allowed to come before courts and tribunals. . . .[T]he most relevant and fundamental [interest] is the right to be informed promptly of the charge against the individual. It is unclear whether authorities actually charge individuals subject to extraordinary rendition with crimes, and, if so, whether authorities provide them with the other procedural guarantees established in Article 14. At the very least, those guarantees are not present prior to their transfer, and detainees are frequently denied access to counsel. . . .
Finally, Human Rights Watch demanded a complete cessation of all renditions during the Bush administration and urged other countries to withdraw support for the program (see this blog entry).

Rebutting the Liberal Pushback
Despite the broad opposition to CIA rendition, liberal defenders of Obama have labored to revise history by portraying liberal opposition to rendition as related only to the torture and the secreting of individuals.

Scott Horton, a Professor at Columbia Law School, wrote a column in Harper's Magazine, which argues that the L.A. Times "got punked." Horton contends that the fuss over the Bush policies only centered around "extraordinary renditions" (as distinct from the good-old fashioned renditions). Although some of Horton's prior work on the subject focuses on torture and disappearances, he makes the general claim that:

A central feature of [Bush's] program was rendition to torture, namely that the prisoner was turned over to cooperating foreign governments with the full understanding that those governments would apply techniques that even the Bush Administration considers to be torture. This practice is a felony under current U.S. law, but was made a centerpiece of Bush counterterrorism policy. [Editor's Note: The Bush admininstration denied doing this.]
Glenn Greenwald, one of my favorite bloggers, similarly distorts the scope of liberal opposition to rendition:

[T]he objections to the Bush "extraordinary rendition" program were that "rendered" individuals were abducted and then either (a) sent to countries where they would likely be tortured and/or (b) disappeared into secret U.S. camps ("black sites") or sent to Guantanamo and accorded no legal process of any kind. There is absolutely nothing to suggest that Obama will continue any of that. . . .
And over on Washington Monthly, Hilzoy contends that because Obama has ordered interrogators to comply with laws that prohibit torture and has ordered the CIA to close its prisons, rendition in the Obama administration will not violate the law or present the same problems that angered liberals during the Bush administration.

Hilzoy also argues that absent torture and indefinite detention, the CIA's removal of individuals becomes synonymous with extradition. This patently false assertion has floated around the web. Unlike the CIA's version of rendition, extradition contains the procedural protections, like judicial oversight, that liberals demanded Bush utilize, but which they now say are unnecessary.

Individuals who are extradited are turned over for very discrete purposes: to stand trial or to serve a sentence for a conviction already obtained. The subject must be turned over to a state actor. And a judge can typically veto the decision to extradite and must conclude that "probable cause" exists to try the person for the alleged crime. None of these factors attach to the CIA's program of rendition (extraordinary or otherwise). [Editor's Note: Interpol has a great webpage that summarizes the typical conditions of extradition. And a Brookings essay also distinguishes the two practices.]

Liberals condemned rendition during the Bush administration because it lacked judicial oversight, did not afford individuals access to counsel, and because it often subjected persons to torture and longterm detention. Because Obama has ordered governmental interrogators not to engage in torture and has ordered the CIA to close its longterm detention centers, liberals now say that rendition does not raise any problems. Apparently, snatching people without a court order, not giving them a lawyer, and then placing them in a remote country were never too much of a problem after all.

Admittedly, liberal opposition to rendition became most intense during the Bush administration because of the torture issue, but human rights activists condemned other aspects of the program as well. Perhaps they now believe they overreached in their criticism, but that's very different than having not taken the position in the first place.

Update: The term "liberals" does not = everyone on the planet who identifies politically as a liberal -- just in case you thought it did.

Related Readings on Dissenting Justice:

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

Major Flip-Flop by Human Rights Watch: Organization Waiting for Obama to Develop Kinder, Gentler Rendition Program

"Extraordinary Rendition" Remains Under Obama Administration


Anonymous said...

So what does Andrew Sullivan say? Well you'll have to wait for him to take his head out of his nether orifice along with every thing else that goes in there.


MarkJ said...

Here's my visual conception of liberal thinking on the issue of rendition, etc.

Am I right...or am I right?

Diggs said...

Sooooo, lefties put Obama before Country. What's new about that? The list of things Lefties put before Country has grown by one, which is about a 0.00001% increase.

Darren Lenard Hutchinson said...

Hello. I know these threads appeal to conservatives, partisan or otherwise. But I will reiterate: the problem of backtracking and distortion is not ideologically based. It's a political issue!

A Jacksonian said...

I have always been fascinated that those who disdain the Nation State system and the Law of Nations, that renounce Nationality and Citizenship by doing things contrary to the Nation State system and all treaties are then touted as being covered by the very things they have disdained by their actions.

The Universal Declaration is a treaty within the Nation State system under the Law of Nations and has that as its pre-text and affords to those Nations and those who abide by the common agreement to have Nations and Nation States those sanctuaries of legal recourse. Those who voluntarily give up such protections by word or deed have no recourse to them: they have reclaimed all of their natural rights and liberties to themselves. We do forget that international lawlessness starts at the level of the individual doing such things. What is even more shocking is that this view was known at the founding and that individuals can and must abide by these constructs to secure their liberty. Even more disingenuous is that those Nations offering Nationals up for rendition are the ones that should be keeping track of them... they, too, are a responsible party in all of this. But then that is placing accountability where it belongs, not to score partisan, political points... the thing necessary to be considered 'civilized' and have the defenses of civilization around to protect you. This has never been a single-actor set-up on the Nation State level. Thus 'nuance' begats simplic views by ignoring complexity when it is emergent due to the nature of the system.

Anonymous said...

Well said and reasoned. If we are to be a nation of principles and laws, we must adhere to those. It's important that we hold our administration to the ideals that brought about the change of government.

I would like to see an accounting from the administration of what renditions have been done, what the results of those were, and what they plan on doing in similar cases in the future. Closing down Guantanamo only to subject the prisoners there to rendition would not be a victory for the rule of law.

Anonymous said...

Thank you for this straightforward analysis. I have no criticism for Obama's decision to maintain the rendition option, but I am appalled by the willingness of groups that loudly opposed rendition under Bush to suddenly accept the practice under Obama.

If human rights organizations are going to have ANY credibility, they must apply the same standards to the presidents they like as to the presidents they oppose. In fact, by the logic of these groups that the US should be held to higher standards because of our own ideals, then Obama should be held to a higher standard than Bush.

The effort to rewrite history reveals these groups to be less interested in human rights than in partisan politics. That's a shame, because while I do not always agree with the policy recommendations of many human rights groups, I sincerely believe that a credible voice that speaks up for human rights and brings often overlooked facts and data to public attention is a valuable check on abuse of power.


Anonymous said...

I'm not a lawyer, so I have a stupid question for the "pushback liberals": how can Obama guarantee that any particular rendition case will not be "tortured"? Do we just take his word for it, unlike Bush?

Infidel753 said...

A simple thought experiment: if Bush had made exactly the same changes in the practice of rendition that Obama has, in fact, made, would the same people who are now rushing to defend Obama be rushing to defnd Bush in the same way?

Anonymous said...

Sure it seems like a flip-flop for the left. But, not really because their core principle, fed by their post-modern nihilism, is the pursuit of power. Any other principle is maleable enough if that's what it takes to tear down opponents and win office (think about their double standard about sexual harassment, for example). I bet Andrew Sullivan would wet himself with glee if he knew the Obama Administration was rendering opponents of the gay social agenda.

Anonymous said...

Thank you for your clarity and consistency of thought.

It is patently absurd to justify rendition with the "no torture" qualification.

Darren Lenard Hutchinson said...

Anonymous - Some of my best friends are post-modern nihilists.

Outis said...

Hello. I know these threads appeal to conservatives, partisan or otherwise. But I will reiterate: the problem of backtracking and distortion is not ideologically based. It's a political issue!

Correct. For example, many conservatives have suddenly rediscovered a dislike of big government now that Dems are in charge again. Too many of those people were okay with it during the Bush years.

(For the record, I was against Bush's profligate spending, and I'm against the current profligate spending. I'm ambivalent about rendition: I would prefer we hold anyone that might otherwise be considered for rendition ourselves in places like Gitmo or even more secretive locations. If those options aren't available, rendition might be a servicable alternative. Unfortunately, extra-legal (i.e. illegal) methods are sometimes necessary.)

plutosdad said...

I agree it's just insane for anyone to try to convince us it is not a reversal of position.

I thought more likely we'd keep Gitmo open and stop rendition. At least then interrogations can be made by people who are beholden to US law. (though I am not interested in witch hunts against them, just control of the process and procedures).

I still support Gitmo (beyond waterboarding nothing I've read about constitutes torture in my mind) and processing these detainees in the open, rather than hidden away. And if you disagree with me about what is torture, that is fine because it's in the open and we can come to agreement on what to do.

Datechguy said...

And that is just looking at what liberal these groups are saying. Believing that it will be done differently is the ultimate faith based program as explained in detail

Bill said...

Hello. I know these threads appeal to conservatives, partisan or otherwise. But I will reiterate: the problem of backtracking and distortion is not ideologically based. It's a political issue!

Yes, I seem to remember conservatives opposing rendition when Clinton did it. When it comes to short term memory, pols are indistinguishable from Goldfish.

Anonymous said...

Bill, I don't recall conservatives opposing Clinton's rendition program.

Do you have any cites, or can you at least name any of the particular conservatives / conservative groups you're referring to?

rrr said...

Conservatives do not, generally, oppose rendition now. But we do find it ironic and suspect that now that the One is in office, the left suddenly sees the light.

Of course, anonymous, you'll suffer to find libs that opposed rendition when Clinton did it. Once again, political-expediency trumps any so called moral high ground.

Charles Davis said...


Keep up the great work on this issue. I was similarly unswayed by the supposed rebuttals to the LA Times story from Greenwald and Horton. Though I have a great deal of respect for both of them, on this issue they seemed a tad too willing to use their civil libertarian credentials to cast the Times story as much ado about nothing -- and to pretend that the only substantial objection to rendition under the Bush administration was that some of those kidnapped were then tortured (when, as you clearly demonstrate, that wasn't the case).

Unfortunately, I expect many of those who so criticized the Bush administration for its many legal transgressions to look the other way now that a good, liberal Democrat is in office -- abuse of government power being a uniquely Republican trait, don't ya know. Liberals had no serious qualms with undeclared wars and rendition when Clinton was president, after all, and they have been remarkably silent when it comes to the Obama administration extra-judicially killing suspected militants and their families with Predator drone attacks in Paksitan. And while I think Greenwald in particular will continue to take Obama to task for his more severe civil liberties violations -- he appears to have already backed off explicitly defending the new administration's apparent rendition policy -- I suspect many critics of the Bush administration will continue to feel pressure to defend Obama on pragmatic grounds when he pursues the same policies, both in order to demonstrate their mainstream credentials and to differentiate themselves from those purist, damn-them-all ideologues with the gall to demand the government respect basic human rights even when Democrats are in charge.

Tsutsugamushi said...

Since the central theme of "the program" was making torture available (regardless of what the administration says numerous sources have identified the interrogation techniques as torture) and Obama has stopped the use of torture as accepted policy there clearly is a diffence. Bush needed torture, Obama refutes it.

DR said...

Can you point to any person who actually flip-flopped?

You use the generic "Liberal" term to show that some liberals were against any form of rendition. Then, you show us other liberals who don't mind rendition if there is no risk of torture.

These are not the same people! Amnesty International has not changed their position. They still oppose all forms of rendition without a judicial component!

Anonymous said...

Tsutsugamushi, you are foolish if you think that is true. Honestly, the best approach was to stop foreign rendition (uncontrolled)and to keep Gitmo open (controlled), as suggested earlier. But Gitmo has been cast into a political liability by the Anti-Bush crowd, so Obama must close it as well. -Chris

Jon Marcus said...

What DR said.

In the conservative imagination, liberals wanted to give Osama bin Laden et al access to the full panoply of rights available to US citizens. Those imaginary liberals* have certainly flip-flopped. But most real-world liberals opposed BushCo's torture and abuse of prisoners, not the possibility that captured combatants might "only" get access to the Red Cross instead of an trial in an open court.

Jon Marcus said...

Oops, hit return too quickly.

* Yes, I'm sure you can find a few liberals who really did want to have Bin Laden properly Mirandized and tried in an open court. Google will find you just about any damfool opinion you want. But they're hardly representative of the generic "liberals" you're attacking here.

riffle said...

You wrote "Hilzoy also argues that absent torture and indefinite detention, rendition includes practices like extradition. This patently false assertion has floated around the web. "

On the contrary, your statement above is just false, it's empirically false. Extradition is a category of rendition.

"For criminal suspects, extradition is the most common type of rendition. "

Hilzoy was making a distinction between ordinary rendition (which includes extradition) and extraordinary rendition. You seem to make that distinction when you want and ignore it at other times when it's inconvenient.

Once again, everybody: For criminal suspects, extradition is the most common type of rendition.

Anonymous said...

riffle, the CIA does not carry out judicial extraditions. The discussion is about the continuation of the CIA rendition program by Obama. Please stop trying to confuse terms.

Also, it's good to know that, according to Jon Marcus, all liberals support the illegal kidnapping of "terrorists" so the U.S. President can send them to a country of his choosing to be tried under whatever judicial system he thinks is best for them. (And not only do they support it now, but they've always supported such kidnappings and renderings for selective justice.)

Anonymous said...


The Left doesn't really believe in the things they lecture us about.

Please keep this in mind next time a Democrat is hectoring you with their typcial self-righteous moral superiority. Their ethics are situational [see: Clinton, sexual harassment of Jones, Lewinksy, Wiley]

Amos said...

"Correct. For example, many conservatives have suddenly rediscovered a dislike of big government now that Dems are in charge again. Too many of those people were okay with it during the Bush years."

Really? Seems to me the vast majority of Conservatives were distrustful of Bush's "Compassionate Conservatism" before he ever attained office. It was Conservatives - not Progressives - who complained loudest about Bush's spending and his unwillingness to use the veto pen. Moreover, there were very few Conservatives willing to defend big spenders like Ted Stevens. It was also Conservatives who were upset with Bush's (apparently ineffective) actions to "save" the economy.

The best you could get out of Progressives was either, "we want it spent on our little programs" or "see? You're teh Socialists, too!"

Anonymous said...

"Rendition" in various guises well pre-dates the Bush administration. The DEA, either directly or via proxies, for years has grabbed narcos, for example in Mexico,and thrown them across the border where they were arrested by waiting US officials. The FBI, likewise, well before Bush, grabbed terrorists (in Cyprus, for example) and spirited them to the US. The US courts upheld the practice saying they were not in a position to rule on how a person came into US jurisdiction. The "mistake" made by Bush was to try to declare the terrorisyts some new category of detainee: we should just declare them POWs for the duration of the war, i.e., forever.

Darren Lenard Hutchinson said...

Riffle - you are still wrong. If you take rendition to mean simply moving someone against their will from one country to another, then yes - it is related to extradition. But the CIA rendition program and the extradition have very different meanings -- as I spelled out. Please examine the Interpol and Brookings sites. They make the case. People are not snatched and extradited. They receive procedural protections that simply do not attach in the rendition program. In fact, the executive order talks about removing them when it would not be appropriate or possible to utilize the extradition process.

gregq said...

But I will reiterate: the problem of backtracking and distortion is not ideologically based. It's a political issue!

Hi Daren,

Sorry, but that proves not to be the case. The problem here is that left wing ideology can be (correctly) summed up as follows: If it brings us power, it's good. If it doesn't, it's bad.

Everything else flows from that. Bush's polices were "bad" because they were done by a Republican, not because there was any real problem with them (since if there'd been an actual problem with rendition, the "human rights" groups would have complained about it when the Clinton Administration did it). Obama's policies are "good" because he's a Democrat.

It's nice that you're not such an immoral and sleazy human being. It's sad that you're willing to associate yourself with people who are that scummy.

The Bush Administration practiced the policies they did because we're at war with people who do not follow the Geneva Conventions, and as President of the United States, it was his job to win that war.

All those who don't want the US to win that war are invited to go to the top of the Sears Tower in Chicago and jump off it. (Since there's no more WTC, that's the closest you can get to experiencing what all too many people experienced the day President Bush was forced to admit that war existed.)

President Obama has apparently decided that trying to win that war is his job, too. Since the posturing, whining, moral retards of the left don't want him to interrogate and hold enemy illegal combatants in US facilities, he'll find other facilities to do the dirty work. They won't do it as nicely as we would. To someone with an actual moral code, that would be a problem. To the whiners of the left, who have no moral code, just "feelings", out of sight = out of mind, so they're ok with it.

If you want to find Americans who were in favor of winning the War on Terror so long as there was a Republican President, but who are opposed now that there's a Democrat in charge, feel free to point out such loathsome creatures. Lacking that, it is an ideological problem, a problem of the Left.

submandave said...

Tsutsugamushi, upon what do you base your claim that "the central theme of 'the program' was making torture available?" The numerous photographs of evil Republicans wringing their hands or twirling their Snidely Whiplash handlebar moustaches just thinking about the prospects of inducing pain upon another human? Hmmmm, let's watch him squirm a bit more, heh heh heh, BWAHAHAHAHA!

Just slowly step away from the DU stereotypes and frothing and maybe a contructive conversation and understanding can be reached. From his blog, I have little doubt that Prof. Darren and I would disagree on many policy points, but I also believe we could have a respectful discussion that wasn't predicated upon an assumption the other was an evil ______.

submandave said...

I say again that I see no inconsistency in HRW's positions.

1. Pres Clinton (D) - silent on starting rendition program
2. Pres Bush (R) - condemned on using rendition program
3. Pres Obama (D) - supported on continuing rendition program

The cognitive dissonance only occurs if one assumes HRW's primary goal is supporting human rights and not the Democrat party.

Charles Gittings said...


You do see a difference between Clinton and Bush here, correct?

Personally, I think obeying the law is just a good idea, and that treating the crime of terrorism as a war is idiotic -- witness the last seven years.

But the bottom line on all of this stuff remains the same: there's a difference between trying to enforce the law and committing crimes. Cheney and Bush were war criminals who set out to systematically subvert the laws of the United States wholesale on the demented theory that the US Constitution gives the President the absolute powers of Adolf Hitler or Joseph Stalin.

Obama does not agree with them, and if you think otherwise, you are greatly mistaken.

Hershblogger said...

Thank you. A reasoned, thoughtful and above all non-partisan analysis.

Frankly, the indications are that George Bush would have liked to end Guantanamo detentions as much as Obama does. They both face(d) a difficult problem.

Placing prisoners on US soil carries with it many difficulties that Bush was told by his Justice Department might be avoided by using Guantanamo. Turned out not to be the best advice.

Still, it was worth a try and as you point out torture is a separate issue. In any case, we have the ACLU in Colorado claiming that it would be torture to put the detainees in a supermax facility there. Where could they have been put?

I will be adding Dissenting Justice to my blogroll.

Darren Lenard Hutchinson said...

Charles - according to some human rights scholars, rendition -- regardless of whether it leads to torture or indefinite detention -- is a violation of international law. The same set of laws that prevent torture guarantee due process for detained individuals. So, no - I do not see the difference. Well, correction: the major difference I see is that due process violations by Bush sent the progressives into fits of rage, while due process violations by Obama receives nuanced explanations and defenses.

RoddyB said...

What will all those frothing at the mouth lefty douchebags gonna do now that Bush is gone?

Nickleby said...


Did you see Hilzoy's most recent column, where she points out that you changed your original article--which might very well be kosher, if only your change didn't end up mis-stating her original position.

As for your recent comment about how liberals are excusing Obama when they excoriated Bush for the same thing, well, you do realize the whole issue here is that they're not the same thing, right? That is, some human rights scholars may oppose all rendition, but most people would be glad if we started by simply not torturing people.

So liberals aren't being hypocrites, we're sticking with what we've said from the beginning: torture is bad.

Charles Gittings said...


I'm inclined to that view myself actually, but as for the differences -- did Bill Clinton...

Set up a secret gulag so he could disappear people and torture them?

Did he kidnap people who were utterly innocent of wrong doing on the flimsiest sort of guilt by association?

Did he have DOJ construct an elaborate set of fraudulent legal opinions to assert he could violate any and all US laws at will?

No he didn't, but George Bush did all of those things and more, like for example, RAPE Iraq because he thought it was politically expedient to make an example of them.

Barrack Obama isn't George Bush or Bill Clinton -- he's the guy that has to clean up the messes they made. As far as I know, he hasn't authorized a single rendition, and I can't imagine why it would be necessary for him to do so.

Nickleby said...


Actually, I just now saw your response to Hilzoy over on Obsidian Wings (whereas I usually read her on Washington Monthly).

I'm impressed by your willingness to engage in dialogue, but not by your argument, none of which actually refutes her original point, i.e., that "rendition" doesn't necessarily mean torture. It's the example du jour, but Eichmann's rendition was accompanied by a trial, and that seems--if the word doesn't seem improper--Kosher under the Obama administration's understanding of the Constitution and our observance of the ratified (with slight emendation) UNCAT.

In other words, I hope you're not my lawyer any time soon.

Nickleby said...

On second/third thought, I think Hilzoy was right to take you to task on changing the meaning of her comment--not that there's anything wrong with correcting yourself, but the minimum of transparency would have been to add an editor's note to that effect.

And I also still think that you're collapsing the categories of human rights advocate (who might consider all rendition illegal) and liberal (who was more concerned with torture)--while those two categories may overlap, they are not necessarily synonymous, so it makes no sense to claim that liberals are inconsistent for not supporting the position of human rights advocates (that is, a position that many of them did not hold).

(If you think you didn't elide these two separate categories, check out your penultimate sentence: "liberal opposition to rendition..., but human rights activists....")

However, that said, I'd like to emend my snarkiness and commend your article for its willingness to criticise and start a discussion.

I just happen to think you're wrong.

hilzoy said...

Prof. Hutchinson (and anyone else who is interested): just wanted to let you know that I replied to your reply over at ObWi. It's here:

Aratina said...

The whole problem with the war on terror is that the enemy is not in allegiance with a state, and several of the states in which the battles are being fought have weak governments. If you hand a captured al-Qaeda agent over to an Afghan authority, are you assured that the agent will get a fair trial? Depending on the particular tribe in power, the agent could be immediately freed, immediately killed, or held indefinitely. And what if the al-Qaeda agent is not Afghan? What then? I reasonably believe that these are the questions President Obama is facing and that Bush faced. A better path would be to take this question to the U.N. and make an international law for how to handle such situations.

Anyway, I have not yet read a blog post by a liberal who thinks extraordinary rendition is the problem. All of them are consistent in saying that it is the violation of human rights that is the problem, even the ones you quote. Quite a few were up in arms against Obama over the LA Times story, too, until everyone got the memo that the president had already banned the practice of torture.

So I think this reading of liberals is focusing too narrowly on little pieces of a much larger conversation liberals have been having. Liberal bloggers understood that Bush tortured prisoners and that extraordinary rendition was one of the primary tools he used to enable torture to take place, that's why they opposed it over these past four years.

Anonymous said...

Check out WashingtonMonthly. Hilzoy caught Hutchinson changing his arguments without noting that he did so. Hutchinson screwed the pooch the first time.

BTW, from what I can tell from the comments here, Wick Allison was right.

Darren Lenard Hutchinson said...

Nickleby - go back and read my response to him. I did not misstate him. He is using dictionary terms and I am referring to speciic policy. I edited it to clarify that point. He is WRONG on either ground. Sorry. That's just true.

Darren Lenard Hutchinson said...

PS: Nicklby - liberals are being hypocrites. To argue that ALL rendition should stop and defining that to include any snatching of a person without judicial process, regardless of whether it leads to torture -- but only if that involves President Bush is in fact hypocrisy. Instead of dealing with specific policy, you and Hilzoy keep focusing on "labels." But that is absolutely irrelevant; many of the human rights groups never even used the phrase "extraordinary rendition" or they used "extraordinary rendition" and "rendition" interchangeably. Imagine going before a human rights tribunal and asserting that a program is illegal based on its name. That's preposterous. Instead, you have to specify the type of actions that make the program illegal. I have provided quotations from human rights groups that specify what policies bothered them. The label is irrelevant. Obama is continuing some of those practices, but they are now just fine.

Darren Lenard Hutchinson said...

Nickelby - I guess we agree on one thing: I do not want to serve as your attorney either.

Please show me, however, where I have equated rendition with torture? If you point out the passage, I will edit it because I do not believe the two are the same. That does not mean that rendition does not violate human rights law, which offers much more than protection against torture.

Question: have you taken the time to read the quotations by human rights groups to their specific objections to the Bush program or are you stuck on the tyranny of labels?

submandave said...

"tyranny of labels" - I love that term, and it is so appropriate.

Charles speaks of "a secret gulag" set up so the evil Bush could "disappear people" seemingly without any consideration for what a gulag actually is or how the verb "disappear" has always been used to describe the practice of a government to get rid of political dissidents, something Bush most obviously never did given both the volume of abuse he received and the willingness of any random parrot to engage in same with no fear of retribution.

Like many, he references "torture" and "fraudulent legal opinions" with the assurance that these are foregone conclusions. While IANAL I can read and I have yet to see a list of allegations that I believe actually meet the definitions of torture as proscribed in 18 USC 2340. Likewise, the infamous memo, from my non-impassioned perspective, read more as a summary of law and precedence with regard to where the nebulous "torture" line lay than the "Get Out of Jail Free" card it has been characturized as.

By the time I got to his anthropomorphic hyperbole of GWB "raping" (oops, sorry, that was supposed to be "RAPING") Iraq, I had, myself, surrendered to the "tyrany of labels" with regard to Charles.

Charles Gittings said...


I don't feel much need to quibble over who counts as a "political dissident" or "terrorist" in either the Bush or Soviet versions of a Gulag, but they seem to have lot in common when it comes to torturing innocent people.

And water-boarding IS torture within the meaning of 18 USC 2340. It's also a violation of 18 USC 2441(c)(3) among other things, like aggravated assualt for example.

As for the fraud, let me refer you to the mother of all Yoo memos:

"In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."


Do you agree with him or not?


As for the rape of Iraq, it's just an accurate description of a despicable crime.

LarryE said...

Just FYI, I had my own thoughts on this here but I'll add here that I think that Hilzoy (and several others in the comment thread over there) are simply trying to say whatever it will take to absolve Obama of any responsibility for anything bad.

A while back I was asked to name 5 bloggers for a "Thinking Blogger" award. In naming my 5, I said one of the reasons I chose them was because I was confident they wouldn't immediately turn from attack dogs into lapdogs if a Democrat entered the White House. Hilzoy seems a clear example of the latter.

Charles Gittings said...


Baloney -- you eagerness to find fault in every little thing Obama does isn't a function of anyone else being a lapdog.

I think Obama has already made one really awful mistake: retaining Gates as Defense Secretary. Make that two: same goes for Petraeus as CIC CENTCOM.

Those two will be sabotaging his presidency -- and undermining our national security -- until such times as Obama wises up and fires them both.

But Obama is still a more intelligent, able, and decent human being than a demented gangster like Dick Cheney or an incompetent fool like George Bush ever will be.

The clueless dishonesty and dementia of you Republicans is just beyond belief.

Abdullah said...

Well-written piece, Professor. Too few individuals on either side have the strength of principle to point out the hypocrisy of those "pragmatists" among them whose opinions seem to change with the wind. Keep on speaking truth to power.

Anonymous said...

I am appalled, but not surprised, at this backing-away-from promises of a more ethical government by Obama and his administration. He is back-pedaling on rendition, I now expect him to fully embrace the (so-called) Patriot Act and the use of torture. Next will come a distancing of himself from promises of universal health care. I don't think we will see it UNLESS it becomes clear that American Industry won't be able to compete internationally with competitors whose governments provide health care for all.

I am a Democrat, and a Liberal, but I fully expect to be betrayed.

LarryE said...
This comment has been removed by the author.
LarryE said...

I deleted the previous post because after posting it I found an embarrassingly large typo. This is the same comment with the correction:

This is way too late to be read, but I couldn't resist saying it anyway. I got pulled back here because I noticed that early today someone followed a link from here to my blog and I couldn't remember the context, so I came to look.

I have this for Charles Gittings:

clueless dishonesty and dementia of you RepublicansThat is hilarious! Did you read the linked post? Did you even look at it before you went off on your petulant rant?

Of course you didn't. If you had, there is no way you could have missed the fact that the second sentence said Obama's orders at issue "were justly celebrated in many quarters." The problem was not with what the orders did cover but with what they didn't.

And "Republican?" Oh. My. Word. If you had made the minimal effort to even glance at the link before foaming at the mouth, you would surely have noticed the subtitle of the blog, which says it's of the "nonviolent, radical Left," as well as the "About Me" paragraph in which I describe myself as "a democratic socialist/green with an anarchist bent and a civil liberties absolutist who has ... a commitment to active nonviolence."

Which means, in short, that you wrote out of deliberate, self-indulgent ignorance. Which in turn puts a context to your other comments.

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