Obama preserves renditions as counter-terrorism tool

Reporting from Washington -- The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.

Thank God we elected Obama or else things could have been worse!

Btw, does this count as anti-Semitism? You can never really be sure these days.

The LA Times article is false has been refuted. See the links cited by Glenn Greenwald here: http://www.salon.com/opinion/greenwald/2009/02/02/renditions/

I'm seeing mixed signals on this question, and hope that it is not true. Will stay tuned.

And no, Codyed, this example doesn't count as anti-semitism, but the question makes me fear that your sense of humor has acquired a tin ear. ("Ah, remember the old days, when the guy could be funny..?") I'd loved to be proved wrong. You've done it before.

Here's one account of the potentially corrosive (and dangerous) effects of U.S. torture:
http://www.economist.com/world/britain/displaystory.cfm?story_id=13062575

Related: Obama Administration Invokes State Secrets Privilege in Anti-Torture Lawsuit

Even Glenn Greenwald is none too pleased.

So, a thought experiment.

Let's imagine for a moment that "state secrets" is not invariably an attempt to hide guilt or evade responsibility. Let's imagine that there are—sometimes—legitimate national-security problems to revealing some data or the source of the data.

Let's imagine, for example, that the Enigma program revealed not just Nazi plans and strategies but the name of a highly-placed Nazi spy. The man was arrested—he had to be; he could do serious damage to US war efforts if he were able to go free and tell the Nazis something. A habeas corpus petition was filed, asking on what grounds the man was being held. Revealing the source of the information would compromise a critical part of the US war effort.

Okay, you're president. What do you do?

Since I'm setting up this game, you're not able to say "This is different." I want to know what you'd do in the perfect case. Then, when we've established what can be done, we can talk about whether this situation is similar, including whether or not, sitting in front of your Dell with a cat on your lap, whether you are sufficiently informed as to the particulars of the case, which is inherently secret.

I don't give a shit whether you set up the game or not; it is different because, at one level, we are not fighting a war in which entire continents are engaged in an all out, balls to the wall, battle for civilization. Some neoconservatives may disagree with that view, believing the Caliphate will arrive Any. Day. Now., along with a slew of missing Russian nuclear weapons.

But let me ask you this, Tim. If whatever means is used to garner whatever valuable intelligence necessary to fight whatever war, is it acceptable if that intelligence is garnered through otherwise immoral means? Say, for instance, by torture?

Sometimes "state secrets" is not used to hide guilt or evade responsibility. But it certainly can be, and the incentive to do so is there. Then again, I am not one to place my trust in a politician believing that he or she has my or my country's best interests at heart.

Honestly, I am not arguing that it is different. I am arguing that you—and many others—can't examine the arguments here from a non-political standpoint. The facts and arguments that Bush made and Obama's people are now making (to some extent) are like water on a duck—you don't acknowledge the facts could be as they say they are, so you never confront the underlying arguments. This is surely the source of much frustration to the politically minded, insofar as federal courts do not generally respond to dire warnings of national security damage from the Executive Branch with an "Aw, bullshit."

Principles matter. If your own differences with Bush, for example, on this issue are really about whether the effort/war/whatever is an important or serious one, then I think your civil liberty thought is pretty weak—situational, so to speak. There are things I don't want my government to do—ever. And there are things I don't mind if they do in certain circumstances. I'd rather we all agreed on what those things are, so that when the US gets the war *you* approve of, fought by the president you approve of, the matter is a legal one, not a political one.

(A) I am not convinced that the particular trials in question involve real state secrets. They involve facts that make the US and the previous administration look bad, as well as some other countries that colluded with this nastiness, but they aren't secrets from our enemies. For the most part, they are secrets from our citizens.

(B) The NY Times reported that the attorney general, I forget his name right now, has not decided whether to invoke states secrets privilege. So Greenwald may have jumped the gun -- I'm not sure.

(C) The assertion of state secrets should not prevent key wrongs from being admitted and redressed, such as the deportation of Maher Arar. Courts do have some procedures for judicial review of the supposed secrets to see if the assertion is justified. And if the judge finds thats that the trial can't proceed without the disclosure of important state secrets, the government should admit fault and compensate Arar anyway, which would not require any disclosure.

(A) Neither am I. Although making other countries look bad may well not be in our national interest. For example, if Yemen took a bunch of people on the condition that it never be known, well, it hurts us to reveal that.

(B) Interesting.

(C) Yeah, that may be the case.

There is a wing of the Left which sees America as the world's greatest terrorist state, and thus wills its defeat in the current struggle with Islamism. These people are not committed to the "rule of law" except insofar as it may be used to hamper our side in this struggle. If the murderer OJ Simpson is acquitted, they are pleased, and urge us all to obey the law -- if the policemen who arrested Rodney King are acquitted, they approve of the savages who go out and riot and pull people out of their cars and beat them to death.

There is a wing of the Right which is not committed to the "rule of law" except insofar as they can use it to their own advantage. In particular, they do not see that the current struggle is not only a strictly military one, but a long-term struggle to sell our way of life, in which the rule of law is central, to the Muslim world.

The whole point of the rule of law is that sometimes you have to do things, or refrain from doing things, which you -- "you" being the ruling authority -- want to do, even if everyone admits that it would be right, in some sense, to do them. We have decided that in the long run, this works better than trusting in the unlimited power of anyone. Outside the West, this principle is not adhered to very much. It's a white thing.

Wartime puts strains on this historic decision to adhere to the rule of law, and when the principle is violated, the tacit justification is that the rule of law is trumped by the law of survival.

9/11 pushed us towards the "wartime" mode of thinking. All the 9/11s that did not happen after it have pushed us back. If we had had one or two 9/11s every year after the first one, we probably wouldn't be having this debate. Whether the lack of 9/11s can be traced directly to the rule-of-law-skirting actions of the former Administration is an open question.

These meanderings probably sound like they're from someone who does not have a settled judgment on these questions, who doesn't trust any of the loud voices who have condemned, or defended, the last Administration, and that's exactly right. It will be very interesting to see how liberals in power deal with these issues.

Tim, you seem to believe that it is possible the facts could be what they are. But we can't know that unless those five plaintiffs are allowed to go forward with their lawsuit. And that's the rub of it. If those individuals are not allowed to go forward with their lawsuit, then justice would not be rendered (speaking of principles). The "states secrets" privilege allows the government to short-circuit their pursuit of justice (oh, the romance of it all!).

Allow the courts to rule on these matters could have considerable implications for the plaintiffs, even bigger implications for our country if their allegations turn out to be true.

Principles do matter. You are right about that, Tim. And that I will not disagree with you. But don't other principles matter too, like, you know, not torturing people?

I also find it very naive of you to think that "law" and "politics" are mutually exclusive subjects, neither one influenced by nor interacting with the other.

But don't other principles matter too, like, you know, not torturing people?

No disagreement there. I suppose I'd like to see it clearly defined when civil law applies and when it doesn't. It seems perfectly clear to me that there is some Presidential power to detain and keep relevant secrets—that a Nazi spy caught in a foreign country in wartime need not get a habeas corpus right within 24 hours, for example. I'm just trying to figure out where that applies and where it doesn't.

As noticed by many others, the Bush administration used powers—in law or implicit in his status as Commander in Chief—that best fit exigent wartime situations with a defined, uniformed, hierarchical enemy who would go home happy at the end of the defined, time-limited war in a specific place. The power assumed and transfered seem virtually limitless, for example picking up an American citizen on US soil who might have been plotting something and holding him in a military jail without access to law. It doesn't follow, however, that Obama has nothing to stand on when it comes to the enemy at hand—a vague, ununiformed, cellular enemy who won't go home happy and whose war has no end or territory.

I also find it very naive of you to think that "law" and "politics" are mutually exclusive subjects, neither one influenced by nor interacting with the other.

I think they do a great deal in practice. But to the extent they do—leaving aside the law making function of politcs—the law is not fulfilling its purpose. If the law merely gave us what politics allows, why have it at all? I'm sure you agree.

>6 timspalding:
OK, I've done this "perfect case" thought experiment (what could be more "perfect" than instrumentalizing Nazis yet again ... ) and concede that the niceties of habeus corpus could be delayed in a wartime crisis.

Ah, such an imperfect world. And I am impure. I've been resigned to that for quite some time now. You win, sport. (You and your nazis.)

And now, for the second part of the game, about whether the current situation is similar and my armchair speculations matter, well, I think there is ample evidence (some of it alluded to in posts above) that our rulers (Republican, Democratic, whoever) need to do a lot more explaining and justifying of themselves for their actions to be credible. If they can't do better than they have so far, then no way am I going to embrace the passivity that you imply.

Quote: Outside the West, this principle is not adhered to very much. It's a white thing.

Say whatttt? That kind of stuff isn't funny.

Turns out I was wrong about this (from above):

"(B) The NY Times reported that the attorney general, I forget his name right now, has not decided whether to invoke states secrets privilege. So Greenwald may have jumped the gun -- I'm not sure."

The Obama administration took the worst possible position in this case. This represents a 180 degree about face and a betrayal.

OK, I've done this "perfect case" thought experiment (what could be more "perfect" than instrumentalizing Nazis yet again ... ) and concede that the niceties of habeus corpus could be delayed in a wartime crisis.

Mayhap a better example would be the Rosenberg trials. The evidence of their guilt that the government had and the evidence that was able to be diplayed to the public were on two different levels.

I think that's a good comparandum. I don't know the history as I ought but I suspect the prosecution was confident they could get them without the Venona intercepts—and they were right. But it must have been annoying to have much better proof and not use it.

It does illustrate that sometimes the popular press and smart, informed people do not actually know everything there is to know. The basic argument here is that secrets are just a dodge. Maybe they are here. But there are real secrets sometimes.

From Stephan Kinsella (click for reference links in the original post):

To the chagrin of at least some leftists (Salon, Slate, HuffPo), Obama has decided to stick to the Bush administration's view on the State Secrets Privilege. This was made clear earlier this week when Obama's lawyers took the Bush line in still pushing to have the case Mohamed, et al. v Jeppesen Dataplan, Inc dismissed, just as Bush had done. In this case, five men claimed to be victims of "extraordinary rendition"--being sent to other countries by the US to be tortured. The case was thrown out a year ago on the basis of national security, relying on the State Secrets Privilege. On appeal, Obama maintained the same position as Bush.

Interestingly, as detailed in Daughters of the Cold War, the State Secrets privilege originated in a 1953 Supreme Court decision, United States v. Reynolds, in which a military B-29 Superfortress bomber had crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. But in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports only contained information about the poor state of condition of the aircraft itself--it would have embarrassed the Air Force and made it lose its lawsuit, perhaps, but it was not the dire, top-secret situation the Court assumed when it recognized this privilege. As Emil Bazelon in Slate notes, the federal government "was really engaged in a cover up, not some worthy protection of state secrets." Oh well, what's done is done. And now it's being used to prevent victims of "extraordinary rendition" (sending terrorist suspects off to Syria to be tortured) from suing for damages.

Sometimes the government lies to us.

Isn't it also odd that we consider Syria to be such a menace that it is considered an honorary member of the Axis of Evil but that we have no problem sending people to that country to be, oh, what's the term I'm looking for, given a strong verbal warning.

Sometimes the government lies to us. And sometimes it doesn't. How do you resolve that problem? How do you decide when federal courts get to listen to the president on national security, and when don't they?

I think your answer is, you don't, it's not and never a problem and la la la I'm going to stick my fingers in my ears to all claims of national security.

You seem to be the thickheaded on here, Tim. You don't want to entertain the idea that many claims to national security aren't. And your unquestioned loyalty to the government and its actions seems worrisome.

See, that's just nonsense. Read over my posts—each of them. In each case I say that it's possible (indeed, quite possible!) that this is all about covering up for non-national-security-related blunders.

I'm not defending the government. I'm asking a serious question that you're simply ignoring. To repeat: How do you resolve that problem? How do you decide when federal courts get to listen to the president on national security, and when don't they?"

The question is of course broader than that, as it isn't just president vs. courts. But the basic dynamic is there. Sometimes the government is just covering up. Sometimes it's protecting a legitimate national-security interest. Sometimes it's a little of both. That's life.

I think it's worth considering here that Obama has every reason to overrule and expose the Bush administration if this is just about covering up malfeasance. Exposing Republican misrule is inherently attractive to a Democratic president. It would get it off his "plate"—and not implicate him in the malfeasance. And it would avoid pissing off people on the left.

So, maybe, just maybe, he's acting against his interest to protect national interests. Impossible?

How do you decide? Well, one approach would be putting the evidence in front of the judge in camera, to see if the claim of security privilege has any merit. Another approach, which is certainly appropriate in the Arar case, is for the government to acknowledge fault and settle the case out of court. The current approach is for the executive branch to claim the privilege applies to whatever they choose, without any check or balance whatsoever, and that is incompatible with democracy.

>22 timspalding: "Obama has every reason to overrule and expose the Bush administration if this is just about covering up malfeasance."...

I'm not so sure about that. My unhappy speculation at this point leaves me with other possibilities. These include:

Maybe Obama is basically offering more of the same as the Bush administration, and the normalization of American torture continues apace; or

Maybe he is indeed making substantive changes for his administration, but in order to pursue his policy agenda (not just for security but for the economy or other areas), he thinks it best to sweep some of these past events under the carpet. If he's seen as facilitating those who want the Bush administration to answer for war crimes, it would be a bitter, divisive and highly emotional fight, and would cost him, politically. He's making a calculation.

I don't think Obama can undo the damage created by Bush over the course of eight years in a few weeks or with a few executive orders. No doubt, there will be some continuity with Bush policy (hopefully, with more competence). Over time, we might expect to see qualitative and quantitative moves in a new direction. Obama signals that he wants to look forward, and is not interested in settling old scores and fetishizing old hurts, both in terms of domestic politics and foreign affairs. In this regard, Obama is both post-partisan and post-Oedipal (especially in comparison to people like Boehner, Kantor, and McCain). So far Republicans in the Congress are proving to be every bit as recalcitrant as the Iranian President with respect to reaching for Obama's "extended hand" (although I suspect Obama has a better chance of moving the latter to a more ratlonal position than the former).

"Isn't it also odd that we consider Syria to be such a menace that it is considered an honorary member of the Axis of Evil but that we have no problem sending people to that country to be, oh, what's the term I'm looking for, given a strong verbal warning."

Codyed... I just have to say... I got a really warm, fuzzy feeling upon noticing that you were the one who wrote that.

:)

Give it a while. I'm sure that warm, fuzzy feeling you have will dissipate in no time. :)

Being shipped off to a foreign country for the express purpose of being tortured, held without charge, held incognito, and with an open ended incarceration is a mighty, mighty heavy price for a real live person, one with a wife, children, family, a day job, friends, neighbors, likes, dislikes, talents, personality, cares and fears, to pay for a governmental mistake. It makes the US no different than the Soviet Union under Joseph Stalin. The enemy of all that America stands for, as I recall from my youth. We are the enemy we once abhored.

Allowing these people to sue, regardless of the merits of national security, will most certainly highlight a most egregious perfidy by America against its principles. Is it better to hide this mistake behind national defense mumbo-jumbo than to acknowledge it, make restitution when and if possible, chalk it up to a lesson learned (again), and move on?

What national secrets are going to be revealed? The logistics of rendition? Is that a national secret we really want to protect? If revealing the ins and outs of rendition places people, techniques, and forms of cooperation between states in jeopardy, maybe that should have been considered before engaging in such morally reprehensible, repugnant activity. Tough toenails. There is nothing in the rendition program that should affect the national security of this country. If there are, then they become another casualty of the program and problems associated with revealing them fall squarely on the shoulders of those who created the system, not those who reveal it.

As long as there are nation states (which function as protection rackets in Tilly's description), there will be Rubashovs and Harelips no matter how much legal restitution exists.

Another installment in this shabby story. From the NYT:

Mr. Obama condemned what he called a “dark and painful chapter in our history” and said that the interrogation techniques would never be used again. But he also repeated his opposition to a lengthy inquiry into the program, saying that “nothing will be gained by spending our time and energy laying blame for the past.”

Full story: http://www.nytimes.com/2009/04/17/us/politics/17detain.html?_r=1&ref=todaysp...

If the Republicans would grab the bull by the horns and initiate the necessary investigations themselves they would gain instant credibility. Such a move would ease their entry back into American politics as a viable political party. Not a position they enjoy right now.

>31 geneg:

No, they'd be in the same trap as on spending—having been at least silent during the long party of deficit spending, they lack the credibility to protest when party turned into orgy.