The Los Angeles Times reports that the Obama administration "appears" to have decided to retain the practice of "rendition," in which United States intelligence agents kidnap and hijack to other countries for interrogation purposes people suspected of participation in the War on Terra.
Rendition, condemned by the European Parliament as "an illegal instrument used by the United States," began during one Democratic administration--that of Clinton I--and now, if the Times is to believed, will continue under another.
"Obviously you need to preserve some tools--you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."
Bad idea, Barack.
First, some history.
Kidnapping people in foreign countries and hauling them back to the United States to bring them to trial in the American criminal-justice system is a dubious practice that has occurred sporadically throughout the nation's history. Such behavior received the equally dubious imprimatur of the Rehnquist Court in US v. Alvarez-Machain (1992) 504 US 665. There, the court excused agents of the Drug Enforcement Administration who, armed with a US warrant for a Mexican doctor, stole into Mexico, kidnapped the doctor, and brought him back to the US to stand trial. The doctor sued civilly, arguing that his seizure and removal to the US constituted "outrageous government conduct." Six members of the nation's highest court didn't find such conduct particularly outrageous, and so told him to get stuffed. (In his US criminal trial, meanwhile, the doctor, accused of aiding and abetting the torture and death of a DEA agent, received a judgement of acquittal.)
In the realm of "terrorism," the Reagan administration endeavored to impress into law authority for US law-enforcement agents, upon approval of the host country, to first conduct "extraterritorial investigations" in a country where a criminal act had been committed against US citizens, and then prosecute any suspects in the US for those crimes.
The Reaganoids promptly stretched this authority to lure Fawaz Yunis--wanted for participation in the hijacking of a Jordanian plane with four Americans aboard--onto a boat in international waters off Cyprus, where he was snatched and delivered to the US for trial.
Back in those quaint days, such an act was still called what it is--kidnapping--and even some of the Reagan people were uncomfortable with it. Then-FBI director William Webster argued that "the United States should not adopt the tactics of Israel, which had abducted Adolf Eichmann on a residential street in Buenos Aires, Argentina, in 1960." Eventually such objections were brushed aside, and Reagan signed a secret covert-action directive authorizing the CIA to kidnap, anywhere abroad, people wanted for acts of terrorism.
This Wild West behavior mutated into the Twilight Zone under the Clinton I administration. Sandy Berger, it is said, was the being who had the brainshower that terrorist suspects could not only be grabbed by US spooks off any street in the world, they could also be sent to any country in the world, there not to be tried, but merely interrogated. Berger crowed that his creation constituted "a new art form."
Whereas the laws enacted by the Reagan administration presumed not only notice to, but permission from, the nation where a kidnapping would occur, former counterterrorism official Richard Clarke notes that under Clinton I "'extraordinary renditions,' were operations to apprehend terrorists abroad, usually without the knowledge of and almost always without public acknowledgment of the host government."
The first time I proposed a snatch, in 1993, the White House Counsel, Lloyd Cutler, demanded a meeting with the President to explain how it violated international law. Clinton had seemed to be siding with Cutler until Al Gore belatedly joined the meeting, having just flown overnight from South Africa. Clinton recapped the arguments on both sides for Gore: "Lloyd says this. Dick says that." Gore laughed and said, "That's a no-brainer. Of course it's a violation of international law, that's why it's a covert action. The guy is a terrorist. Go grab his ass."
Former CIA agent Michael Scheuer (something of a dubious source, given his omniprescence on winger radio shows), told Jane Mayer of the New Yorker that the Clintonian rendition program "was begun in desperation." The agency had been charged with capturing Osama bin Laden, and all his many minions, and putting a stop to all their evil deeds, but was reporting little success. And the Clinton people were leaning on the agency people.
According to Scheuer, “we were turning into voyeurs. We knew where these people were, but we couldn’t capture them because we had nowhere to take them.” The agency realized that “we had to come up with a third party.”
Scheuer does not explain why the agency did not wish to "take them" to the US for trial; the answer, no doubt, lies in the fact, as Mayer notes, that "the CIA was wary of granting terrorism suspects the due process afforded by American law." It thus spurned the advice of people like terrorism prosecutor Mary Jo White; the CIA is institutionally contemptuous of the criminal-justice system, not least because of its mania for secrecy: it does not want anything it does exposed, ever, to public view. Likewise, the CIA always prefers a solution that allows it to give the back of its hand to its traditional rival, the State Department.
So rather than simply scooping up suspected terrorists abroad and transporting them to the US for trial, as permitted by then-existing law, the CIA instead took advantage of the Clinton administration's increasing concern over Al Qaeda to press for a program that would allow it to bypass the law, and public scrutiny, altogether. Scheuer & Co. settled on extrajudicial "extraordinary rendition," allowing it to snatch Al Qaeda suspects and fly them to a third country for interrogation. The third country was required because--at least at the time--it was recognized that American law simply did not allow for the indefinite imprisonment of individuals merely for the purpose of extracting information.
In 1995, Scheuer said, American agents proposed the rendition program to Egypt, making clear that it had the resources to track, capture, and transport terrorist suspects globally--including access to a small fleet of aircraft. Egypt embraced the idea. “What was clever was that some of the senior people in Al Qaeda were Egyptian,” Scheuer said. “It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated.” Technically, U.S. law requires the C.I.A. to seek “assurances” from foreign governments that rendered suspects won’t be tortured. Scheuer told me that this was done, but he was “not sure” if any documents confirming the arrangement were signed.
In the remaining years of the Clinton administration, "rendition" snatch-and-grab operations conducted in such countries as Albania and Croatia resulted in the depositing of victims in Egyptian jails. This despite the fact that Egypt was a nation notorious for the abuse of prisoners.
Egypt had been frequently cited by the State Department for torture of prisoners . . . Detainees were “stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water and sexually assaulted.”
Bob Baer, described by Seymour Hersh as "perhaps the best on-the-ground field officer in the Middle East" (and the model for the George Clooney character in Syriana), says: "If you want a serious interrogation, you send a prisoner to Jordan. If you want them to be tortured, you send them to Syria. If you want someone to disappear--never to see them again--you send them to Egypt."
There is little reason, on this blog, to review the abuses of the "extraordinary rendition" program under the George II administration. Many fine diaries have been posted on the subject. Some of them may be found here and here and here and here and here and here and here.
The first question BushCo should have asked itself about the extraordinary-rendition program--well before expanding it into a permanent stain on the American reputation--was if it was so successful, why then did it not provide warning of the 9/11 attacks?
That is a question Obama and his people should be asking as well.
The Times piece parses the executive orders signed by Obama in the first week of his presidency to conclude that, under their provisions, "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." The Times in fact further suggests that "the rendition program might be poised to play an expanded role going forward because it [is] the main remaining mechanism--aside from Predator missile strikes--for taking suspected terrorists off the street."
Although the Times piece has not traveled much, received much attention, the fact that, as set forth in the quote above the fold, an anonymous Obama person has more or less confirmed it, and no one from the White House has emerged to deny it, indicates to me that what it says is probably true.
Surprisingly, at least to me, one human-rights group seems prepared here to give Obama a pass:
"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured--but that designing that system is going to take some time."
Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said.
Yes, "a public hearing in an official court" would be nice, but it doesn't seem that Obama has promised--yet--even that. And such "hearings" could still in fact occur even in countries where, before and after such hearings, prisoners would nonetheless be subjected to torture.
As an example, in Egypt, "public hearings," involving otherwise extremely brutalized people, have been known to occur, from time to time.
Also--and excuse me for being cynical--but the George II administration already previously informed us that the victims of extraordinary renditions were rendered only when the US was "assured" they would not be subjected to torture. It's right there in the Times piece:
The CIA has long maintained that it does not turn prisoners over to other countries without first obtaining assurances that the detainees will not be mistreated.
In a 2007 speech, Hayden said the agency had to make a determination in every case "that it is less, rather than more, likely that the individual will be tortured." He added that the CIA sought "true assurances" and that "we're not looking to shave this 49-51."
And, if Scheuer is to be believed, even back in the Clinton administration, while "they insisted that each receiving country treat the rendered person it received according to U.S. legal standards . . . to the best of my memory, that is a lie." As Scheuer noted--and to this I credit him truth--during the interrogation of rendered prisoners, “we were never in the same room at the same time.”
And if you aren't there, how would you ever really know?
In my view, the Obama people should listen to this anonymous spook, cited in the Times piece:
"The reason we did interrogations [ourselves] is because renditions for the most part weren't very productive," said a former senior CIA official who spoke on condition of anonymity because of the sensitive nature of the subject.
The most valuable intelligence on Al Qaeda came from prisoners who were in CIA custody and questioned by agency experts, the official said. Once prisoners were turned over to Egypt, Jordan or elsewhere, the agency had limited influence over how much intelligence was shared, how prisoners were treated and whether they were later released.
"In some ways, [rendition] is the worst option," the former official said. "If they are in U.S. hands, you have a lot of checks and balances, medics and lawyers. Once you turn them over to another service, you lose control."
We know that extraordinary rendition results in torture, and we know that torture results in false information. We know that Clinton I had been rendering people since 1995, and yet the rendered did not produce any warning of 9/11. We know that rendition, and its handmaiden, torture, have reduced the US, whenever it might speak of "human rights," to a morally dwarfed, pointlessly yammering, hypocrite.
We know also, those of us who dabble now and again in intelligence history and literature, that the US is a baby, when it comes to secretly gathering information about its enemies . . . and friends.
The US has only been at it for about 65 years. The French have a 400-year history; the Chinese, 4000. And the intelligence services of both nations are today anchored in "human intelligence," that one, most crucial facet of intelligence-gathering to which the US, especially under BushCo, remains crippled, blind.
Thus, the French refused absolutely to sign onto BushCo's jihad against Iraq, because a member of Saddam's cabinet was on the French payroll: he knew for an absolute fact Iraq harbored no weapons of mass destruction, and said so. The French tried to pass him onto the US, but BushCo didn't want to hear.
The Chinese services, meanwhile, are so able and refined, that nobody outside that nation has the slightest clue what they are up to, or where.
Scheuer claims that during the Clinton administration:
“there was a legal process” undergirding these early renditions. Every suspect who was apprehended, he said, had been convicted in absentia. Before a suspect was captured, a dossier was prepared containing the equivalent of a rap sheet. The C.I.A.’s legal counsel signed off on every proposed operation. Scheuer said that this system prevented innocent people from being subjected to rendition. “Langley would never let us proceed unless there was substance,” he said. Moreover, Scheuer emphasized, renditions were pursued out of expedience—“not out of thinking it was the best policy.”
If this is true, there is no reason for an Obama administration to retain rendition. If a "rap sheet" can indeed be assembled against every target of rendition, let that target be brought to this country, to stand trial. There is no reason to send him--or her--overseas. If there is "substance," bring that substance to these shores.
Barack: rendition: give it up. Concentrate your clearly fine mind instead on this question: if Johnny Walker Lindh, a sad, sadsack, troubled Marin County youth, could, in the space of less than a year, get hisself entrenched first in Pakistan, and then in Afghanistan, finally to meet personally with Osama bin Laden, then why can't all your high-priced, billions-swallowing, doubledome spooks of the CIA--or folks from the other two dozen intelligence agencies that have metastasized since 1948 from out the National Security State--manage to do the same?
Selah.