State Department: Better a Nobel Prize Than a Shoe

I believe that Obama has not accomplished enough related to "peace" to justify giving him the Nobel Prize. Nonetheless, the State Department's response to critics of the award is funny.

Contrasting Obama's award and the shoe-throwing incident involving former President Bush, Assistant Secretary of State P. J. Crowley stated that:

Certainly from our standpoint, this gives us a sense of momentum — when the United States has accolades tossed its way, rather than shoes.

Yeah - funny.

PS: Although I find Crowley's statement funny, I do not condone shoe-throwing!

Apparently, the Obamas Should Have Gone to Crawford Instead of New York for Date

Some Republicans -- hopefully not many -- are having a meltdown because the Obamas took a roadtrip to New York (which is a summer pastime here in the mid-Atlantic region). They are complaining that he went out for a day of fun even though the auto industry is struggling.

Perhaps he should have gone to Crawford, Texas instead. That destination seems less controversial -- even during times of great national crises, like wars and unpopped housing bubbles.

Of course Democrats also complained about Bush's Crawford trips, the first one occurring six months into his presidency -- a month-long excursion. Bush had a wonderfully cynical line in response: "I think it is so important for a president to spend some time away from Washington, in the heartland of America." New York City is not the "heartland" (I'm not sure Crawford is either), but it is certainly a magical place. So, let the Obamas enjoy a day away from DC.

The End.

Selective Memory Alert: Forbes Article Blames Obama for North Korea's Recent Missile Launch

In a stunning defiance of history, Bahukutumbi Raman, the Director of the Institute for Topical Studies in Chennai, India, blames President Obama for North Korea's recent missile testing. In an article published in Forbes, Raman makes the following observation:

The defiant action of North Korea in testing a long-range missile with military applications last month, and its latest act of defiance in reportedly carrying out an underground nuclear test on May 25, can be attributed--at least partly, if not fully--to its conviction that it will have nothing to fear from the Obama administration for its acts of defiance.

Although Raman concedes that North Korea conducted its first underground nuclear test in 2006, he nevertheless argues that:

After Obama assumed office in January, whatever hesitation that existed in North Korea's policy-making circles regarding the likely response of U.S. administration has disappeared, and its leadership now feels it can defy the U.S. and the international community with impunity.

Raman also complains that Obama, like President Carter, could create an image of the United States as "soft and confused" on foreign policy. Raman, however, fails to disclose the fact that North Korea's "missile program" began and grew substantially during the 1980s and 1990s, while presumably "tough and coherent" Republicans and a Democrat occupied the White House.

North Korea began flaunting its missile power long before Obama's presidency. In 2002, President Bush made his infamous speech that placed North Korea, along with Iran and Iraq, on a list of nations constituting an "axis of evil." The next year, North Korea became the first country ever to withdraw from the Nuclear Nonproliferation Treaty. North Korea previously announced its intent to withdraw from the pact during the Clinton administration, but shifted course following international diplomacy and pressure from nations, including the United States.

In 2006, four years after Bush's axis of evil declaration and after years of "strong" warfare in Afghanistan and Iraq, North Korea tested a nuclear missile, provoking international outrage. That same year, Iran defied international pressure and stated that it would resume its uranium enrichment program and that it would discontinue voluntary measures that gave international inspectors access to its nuclear facilities.

Now, in 2009, North Korea has conducted additional missile testing. According to Raman this likely would not have happened if Obama were not soft on foreign policy and national security. Raman's argument, however, seems very "weak" on history and strong on partisanship.

Politics and Critical Thinking Blog Cuts Through Partisanship on Obama's Infamous "Bow"

Critical Thinker, author of the blog "Politics and Critical Thinking" has some sober words for fellow conservatives (which mirror my words to fellow liberals), who have conveniently forgotten that Bush danced around with King Abdullah, as they condemn Obama's "bow":

If the Right is ever going to engage the Leftists and be victorious, they must not engage in hypocrisy. It's far better to be wrong than a hypocrite.

I agree that hypocrisy is a worse kind of evil. Unfortunately, hypocrisy is also one of the few qualities that our elected officials passionately embrace regardless of ideology. Visit Politics and Critical Thinking for footage of Bush's two-step.

George Will Favors A More Activist Court: Argues That Bailout Law Violates Constitution

George Will has published an essay which argues that the Emergency Economic Stabilization Act of 2008 (or "EESA"), known affectionately as the "bailout" legislation, is unconstitutional. Will contends that the EESA violates the "nondelegation doctrine." This doctrine, rooted in the separation of powers, prohibits Congress from delegating its legislative authority. The Supreme Court, however, has applied this doctrine with a tremendous degree of flexibility.

Supreme Court precedent allows Congress to legislate in broad terms and delegate to the Executive Branch the authority to promulgate specific rules and policies that effectuate or give substance to the legislation. The Court only requires that Congress provide meaningful guidelines for the exercise of executive discretion. Chief Justice Taft's opinion in the 1928 case J.W. Hampton v. United States contains the most definitive language on this subject:

If Congress shall lay down by legislative act an intelligible principle to which the person or body [authorized to exercise discretion] is directed to conform, such legislative action is not a forbidden delegation of legislative power.

Will argues that the EESA "flunks" the intelligible principle test:

By enacting [the EESA], Congress did not in any meaningful sense make a law. Rather, it made executive branch officials into legislators. Congress said to the executive branch, in effect: "Here is $700 billion. You say you will use some of it to buy up banks' 'troubled assets.' But if you prefer to do anything else with the money -- even, say, subsidize automobile companies -- well, whatever."

Will analogizes the EESA to the hypothetical and dramatically vague "Goodness and Niceness Act," which Professor Gary Lawson describes in an essay that criticizes the granting of broad discretion to the Executive Branch by Congress. Lawson's hypothetical statute bans "all transactions involving interstate or foreign commerce that do not promote goodness and niceness," and it authorizes the President to "define [its] content . . . by promulgating regulations to promote goodness and niceness in all matters involving commerce and . . . specify[ing] penalties for violations of those regulations."

Will Overstates the Ambiguity of the EESA
The EESA undoubtedly gives the President and the Secretary of Treasury wide discretion (I have previously written an essay on the subject). Will, however, overstates the statute's ambiguity. The statute places parameters around the use of bailout funds by defining "troubled assets":

TROUBLED ASSETS.—The term ‘‘troubled assets’’ means—
(A) residential or commercial mortgages and any securities, obligations, or other instruments that are based on or related to such mortgages, that in each case was originated or issued on or before March 14, 2008, the purchase of which the Secretary [of Treasury] determines promotes financial market stability; and

(B) any other financial instrument that the Secretary, after consultation with the Chairman of the Board of Governors of the Federal Reserve System, determines the purchase of which is necessary to promote financial market stability, but only upon transmittal of such determination, in writing, to the appropriate committees of Congress.

Although the statute permits the purchase of "other financial instruments" that promote "financial market stability" but never defines the phrase "financial market stability," this does not mean that the law lacks an intelligible principle. The phrase is sufficiently specific and commonly used to qualify as an intelligible principle under Supreme Court's precedent.

Will Advocates A More Activist Judicial Role In This Area
If the Supreme Court applied the nondelegation doctrine in a more activist fashion, then Will's essay would present a more plausible constitutional argument. The Supreme Court, however, has applied the nondelegation doctrine with a high degree of flexibility.

Will correctly observes that "[s]ince the New Deal era, few laws have been invalidated on the ground that they improperly delegated legislative powers." Will fails to mention, however, that prior to 1935, the Court had never invalidated a law on the ground that it impermissibly delegated legislative authority. For almost the entirety of its existence, the Supreme Court has declined to use the nondelegation doctrine to constrain Congress.

In the 1989 case Mistretta v. United States, the Court upheld over a nondelegation challenge the creation of the Federal Sentencing Commission, which Congress authorized to promulgate sentencing guidelines for federal crimes. The 8-1 ruling, which united Justices as diverse as Rehnquist and Brennan, documents the Court's historically flexible approach to nondelegation questions:

[O]ur jurisprudence has been driven by a practical understanding that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.

"The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function." Accordingly, this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."

Despite the Supreme Court's longstanding flexibility on this issue, Will believes that courts should declare the EESA unconstitutional. This act alone would compel a more activist stance by the judiciary.

Invalidating the legislation, however, would also require courts to defy the will of two presidents, two sessions of Congress, and the Secretaries of Treasury of two administrations -- who have supported the legislation. Democracy does not preclude judicial invalidation of laws that elected officials favor. Will's argument, however, is inconsistent with traditional conservative appeals to judicial deference.

Change = Same?

Today, the Department of Justice announced that it would no longer rely upon a individual's "enemy combatant" status in order to justify indefinite detention by the President. Instead it will advance arguments rooted in the international "law of war" and the Authorization for Use of Military Force passed by Congress.

Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.

The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.

The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.

The SCOTUS blog has the details:

Here is how [the Bush] Administration defined ["enemy combatant"]: "At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces."

Here is the definition of detention authority, without the label "enemy combatant," that the Obama Administration outlined Friday: "The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the united States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."

SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:

First, the new version requires proof of “substantial” support of Taliban or
Al-Qaeda forces, while the former version required proof of “direct” support of such forces.

Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:

[A]dopted almost the same standard the Bush administration used to detain people
without charge – with one change, the addition of the word “substantially”
before the word “supported.” This is really a case of old wine in new bottles.

This sounds like the "extraordinary rendition"/"rendition" debate.

PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.

Obama, Bush, Science and Politics

Robert P. George and Eric Cohen have an interesting take on Obama's reversal of Bush's stem cell policy. George and Cohen argue that Obama's announcement that he is "taking politics out of science" is misleading because:

[T]he Obama policy is itself blatantly political. It is red meat to his Bush-hating base, yet pays no more than lip service to recent scientific breakthroughs that make possible the production of cells that are biologically equivalent to embryonic stem cells without the need to create or kill human embryos.

That politicians engage in politics -- even as they claim to decry politics -- should not come as a shock to most people. So, I agree that Obama's reversal of Bush's policy and the language he used to describe the decision were both political.

But one could say the same thing of Bush's position. While Obama undoubtedly responded to members of his liberal base, Bush catered to members of his conservative base who oppose abortion. For better or worse, the stem-cell controversy implicates the same political conflict as the abortion debate. All sides on these issues can disclaim politics and rest their views on science or ethics. But when presidents make policy or respond to vocal and organized constituents, these matters inevitably become part of political discourse and conflict.

George and Cohen, however, portray Bush's policy as a politically neutral effort to balance science and ethics:

Mr. Obama's executive order overturned an attempt by President George W. Bush in 2001 to do justice to both the promise of stem-cell science and the demands of ethics. The Bush policy was to allow the government to fund research on existing embryonic stem-cell lines, where the embryos in question had already been destroyed. But it would not fund, or in any way incentivize, the ongoing destruction of human embryos.

Bush's policy can be understood as balancing science and ethics -- but it also responded to the demands and ideology of his constituents. This description applies to Obama's approach as well.

Remember the Drama Over Those Missing White House Emails?

On another blog, someone questioned my liberal credentials because I methodically point out the blatant inconsistencies in the LOUDNESS of liberal criticism of Bush's policies compared with liberal silence or defensiveness when Obama replicates these same practices. But with new material emerging on a daily basis, I find it hard to let go of this role.

Bush's lack of transparency made him less than human to many liberals. [Editor's Note: For the literalists, that was sarcasm.] One issue that provoked liberal outcry during his administration centered around the loss of millions of White House emails. Although the Bush administration reported that it recovered and made public many of the emails, two advocacy groups that have sued the government say that the White House has not done enough. Recently, however, the Department of Justice decided to maintain Bush's position that the court should dismiss the lawsuits.

The Department of Justice wants to win cases. It represents the government. It is not "evil" for lawyers to argue for the dismissal of lawsuits against their clients. Lawyers have a natural and fixed desire -- and an ethical obligation -- to provide zealous advocacy for their clients. Accordingly, I do not disagree with the DOJ taking a firm stand defending the White House against the email litigation.

Nevertheless, if McCain had continued along this path, we would have heard numerous cries that he was "more of the same." Now, we only hear scattered criticism. What justifies the divergent reactions?

Two Important Terrorism Updates...But You've Heard Them Before

FIRST
Today, the Obama administration decided to maintain the Bush adminstration's legal position, which asserts that individuals detained at the Bagram Air Force Base near Kabul, Afghanistan do not have a right to seek judicial review of their detention. The Department of Justice argues that, unlike Guantanamo Bay, the base is located in the "theater of war" and this makes judicial review impracticable." Also, the government argues that the Bagram detainees are not entitled to habeas corpus because they are subject to the Military Commissions Act of 2006 -- a statute that Obama denounced.

This military base is not subject to Obama's executive orders which require the review and subsequent closure of Guantanamo Bay. Also, the facility is not a longterm CIA prison which the executive orders also require the government to shutter. Presumably, the government can indefinitely detain individuals at Bagram -- rather than Guantanamo Bay -- without judicial review. Solicitor General Elena Kagan and Attorney General Eric Holder essentially validated this position when they endorsed indefinite detention of terrorism suspects during their confirmation hearings.

SECOND
Obama's executive orders create a task force to study Guantanamo Bay and then subsequently to close it. Today, the Pentagon, responding to a request by President Obama, released an 85-page report which concludes that the maligned facility complies with the Geneva Convention. During the Bush administration, many individuals in the human rights community passionately disputed this position.

While the study finds that the facility complies with international law, it concludes that some of the more dangerous individuals should now receive play time:

The report recommended some changes, including an increase in group recreation for some of the camp's more dangerous or less compliant prisoners, according to a government official familiar with the study. The report also suggested allowing those prisoners to gather in groups of three or more, said the official, who spoke on condition of anonymity because the report has not officially been released.

FINAL WORD
I have written many articles which track the similarities between Bush's and Obama's anti-terrorism policies. For the record, I do not necessarily disagree with some of these practices. For example, I have argued that the government should probably receive wide latitude to invoke the state secrets privilege and that courts should defer to the government's conclusion that a potential item of evidence qualifies for the privilege.

Also, asserting executive authority to do a particular act, does not mandate the use of such power. So, even if the government believes it can detain terrorism suspects indefinitely, this does not mean that it will.

My purpose for engaging this subject arises from my belief that the Left must hold consistent positions and that it must rethink the uncritical approach it took with respect to Obama during the Democratic primaries and the general-election campaign. If McCain (or probably even Clinton) had won the election and began validating Bush's policies, my fellow liberals would condemn him as Bush III.

In order for our arguments to have legitimacy, we must remain consistent or explain why we shift. If progressives now believe that they overreached in condemning Bush, they should make this clear. If progressives simply wanted to drum Republicans out of power, they have made a mockery of the very values they claim to embrace. Criticism and consistency, rather than partisan defense of "our" candidate, can permit greater accountability. Silence and acquiescence do not. I hope I am not the lone progressive who sees this. Ok - that was a melodramatic ending. And for the record, outside of Ron Paul, I have not seen many conservatives criticize other conservatives for not taking Bush to task on his extravagant fiscal policies.

Ahem

Well, at least they are catching up. Now Charlie Savage, a mainstream card-carrying journalist, has reported that Obama has claimed authority to engage in some of the most disparaged practices of the Bush administration -- such as using rendition and invoking a broad "state secrets" privilege. A few bloggers and journalists picked up on this a while ago. But this is still an interesting development. I am particularly interested in how progressives will respond.

So Exactly When Does "Change" Begin, Take 45345234524523452452: Elena Kagan Says Government Can Indefinitely Detain Terrorism Suspects

Let me say upfront: I am a cynic. Accordingly, I never took the "change" mantra too seriously. But I certainly thought that after eight years of frenetic liberal criticism of the Bush administration, Obama would indeed offer some important differences. But even that tiny hope has been dashed. After the recent announcements that Obama would continue the practice of rendition and that the CIA would seek approval for "harsher" interrogations "if necessary," the small space I reserve in my heart for idealism and for surprisingly good decisions (or at least decisions that fulfill promises) by politicians has diminished substantially. But after today's news, the space has completely vanished.

What happened today? Elena Kagan, Dean of Harvard Law School and nominee for Solicitor General, announced that she believes that the government has the authority to detain indefinitely terrorism suspects because the country is "at war" with Al Qaeda. Because I am busy finishing edits on a law review article, can someone please explain to me how this differs from Bush's position, which liberals condemned, bashed and burned in effigy?

Related Readings on Dissenting Justice:

Rendition, Secrecy and Torture: Inseparable?

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

Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

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

Formalism is the big trump card for liberals who strain to reconcile their opposition to Bush's "rendition"/"extraordinary rendition" program with their support of the reported continuation of certain aspects of this practice by Obama. As a constitutional law professor, I believe that language is highly relevant. But liberals who opposed Bush's policy of forcibly transferring individuals to another country were not engaging in constitutional interpretation. Instead, they were focusing on the specific content of his policies -- as they should have.

In prior posts (see here and here), I provided quotations from position papers of human rights groups that detailed specific practices of the Bush administration's rendition policies they believed were either illegal or undesirable. In some of the position papers, the organizations used the labels "rendition" and "extraordinary rendition" interchangeably -- which alone undermines the liberal defense that seeks to parse these two terms.

Four pervasive themes appear in the liberal critiques of Bush's "rendition" program. Liberals argued that the program was improper because: 1. Rendered individuals were transferred without the ability to contest the transfer before a judge; 2. Rendered individuals could not consult an attorney prior to transfer (or even after transfer); 3. Rendered individuals were often rendered for the purpose of torture - or this was the inevitable consequence of their transfer; and 4. Rendered individuals were often "disappeared" and confined in secret CIA prisons.

Although human rights groups condemned all four sets of practices, the inclusion of elements 3 and 4 presumably distinguishes Bush's program from past practices (although some data suggest that some rendered persons in the Clinton administration faced torture). And this fact alone has created something akin to a liberal loophole. Defenders of Obama's rendition program (assuming the factual accuracy of the L.A. Times article) contend that elements 1 and 2 represent old-fashioned and acceptable "rendition," while 3 and 4 are elements of Bush's evil "extraordinary rendition." If Obama simply removes 3 and 4 (which he promises to do), then all is good for the defenders of rendition.

But this forms the basis of the charge of hypocrisy. Human rights groups detailed in numerous policy statements the specific aspects of Bush's program with which they disagreed. These practices certainly included rendition to torture and indefinite detention, but they also involved the lack of judicial oversight and denial of access to counsel. If liberals now believe that some activists overreached by criticizing the lack of judicial oversight or legal representation in their arguments condemning Bush, then they should express this point. It is absolutely disingenuous to argue instead that human rights groups only disagreed with rendition to torture and indefinite detention, when the organizations' own words demonstrate that they made a fuller set of arguments.

Furthermore, describing Bush's plan as "extraordinary" does very little to defend "rendition" in the Obama administration. Labels do not give rise to human rights violations. Specific practices do. And in terms of concrete policies, many human rights groups condemned the four sets of practices (see above) that this essay identifies. Obama's planned cessation of two of these practices does not respond to the full set of concerns that human rights groups expressed. If my fellow liberals defend his program, despite its replication of some of the very practices that human rights groups condemned during the Bush administration, then they are being hypocritical. If they now believe that the procedural protections are unnecessary, they should say so.

Finally, many bloggers, especially Hilzoy, have been extremely committed to elevating "form" over "substance." Hilzoy and others have attempted to legitimize the CIA's old-fashioned "rendition" program by using generic web-based definitions of rendition, which link the practice to established and widely accepted concepts like deportation and extradition. On a generalized level, these practices are indeed connected; they all involve the removal of a person from one nation to another against the person's will.

But general dictionary meanings (even from legal dictionaries!) do not provide a basis for criticizing or validating a specific set of governmental behaviors. In practice, the CIA's rendition program does not contain the procedural protections that make extradition and deportation accepted practices. Therefore, regardless of the abstract connection between rendition and extradition, in reality the CIA's rendition program is light years from extradition in terms of the level of due process provided to individuals subject to removal and transfer.

Under extradition, for example, individuals can typically seek judicial review of the determination to send them to another territory for prosecution or imprisonment. And persons can only be extradited for concrete purposes: to stand trial or to serve a sentence. Other common provisions allow countries that do not apply the death penalty to refuse extradition of an individual who would potentially face the death penalty in the receiving country.

Many human rights groups demanded that Bush extend similar protections to individuals subject to rendition. Although the Obama administration has not indicated that it will give rendered individuals these procedural rights, liberals still try to validate his program as something fundamentally different than Bush's.

Labels, however, cannot mask specifics. If Obama enforces policies that deny a rendered individual's access to courts or attorneys prior to or after the transfer, then he will fall short of the demands made by many human rights groups during the Bush administration. Although the CIA may no longer render to torture or confine individuals indefinitely, it might continue to snatch individuals without judicial oversight or attorney representation. Prior to the Obama administration, many liberals condemned torture-free CIA kidnappings. Today, however, they defend this practice. Why?

[Editor's Note: I modified an earlier blog post to distinguish dictionary labels from specific policy; one blogger took that as a sinister maneuver. It was not. I stand by both versions of the post. The blogger's post never responds to the specific content of the critiques of human rights groups; instead, the person focuses on labels.]

Update: A version of this article now appears in the New York Times. Blogger Hilzoy has responded to my criticism of her and other liberal bloggers who defend Obama's use of rendition. Here is my response (which I have forwarded to the New York Times):

Blogger Hilzoy has responded to my criticism with the following observation: "I. . .find the idea that I relied on ‘generic web-based definitions’ of rendition odd: I cited cases, statutes, etc." But Hilzoy relied upon a Wikipedia definition of rendition in order to advance the following claim: Rendition is just moving people from one jurisdiction (in the cases at hand, one country) to another; includes [sic] all sorts of perfectly normal things, like extradition, which are not problematic legally.” I understood Hilzoy’s argument as an attempt to justify (or simply describe) the CIA’s practice of rendition by linking it to established legal concepts such as extradition. Hilzoy explained that she was not discussing the CIA program but simply the abstract meaning of rendition, and I accepted her statement some time ago.

As I explained on my blog, however, rendition as an abstract or generic concept might include concepts like extradition, but the specific CIA program -– whether described as “extraordinary rendition” or simply as “rendition” -- differs substantially from extradition because it lacks procedural due process. Unlike extradition in its typical form, the CIA’s policy does not include judicial or administrative oversight, and captured individuals do not have a right to counsel. Another common procedural safeguard associated with extradition allows countries to refuse to transfer an individual if he or she would face the death penalty in the receiving country for a crime that does not qualify as a capital offense in the transferring country.

Ironically, Hilzoy strives to distinguish Bush’s program from Obama’s on the ground that rendition in the new administration will lack the torture and indefinite detention elements. Leon Panetta, however, has said that he will use diplomacy to minimize the risk of torture, but that the CIA could seek the use of harsher interrogation methods “if necessary.” And both Elena Kagan and Eric Holder take the position that the administration can indefinitely detain torture suspects so long as the country is “at war” with Al Qaeda.

These positions substantially replicate Bush’s policies. Bush denied intentionally sending individuals to torture and stated that his use of diplomacy could prevent it. He also stated that the war against terrorism justified indefinite detention of terrorism suspects. Many human rights groups contend that diplomatic assurances are ineffective against torture, and they have passionately condemned indefinite detention. Although Obama has made some formal changes, his rendition policies still look a lot closer to Bush’s practices than Hilzoy and other liberals seem willing to
admit.

Related Readings from Dissenting Justice:

Will Defenders of the "Kinder, Gentler" Rendition" Beat Up the United Nations?

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

Other Articles Recent Articles:

The "Yes We Can" Movement Gets Sudden Reality Check!

Hold Them Accountable Part II: If Conservatives Caused the Economic Crisis, They Had a Lot of Help from Democrats!

Hold Them Accountable Too: Many Democrats Supported Policies of the "Worst President" (Part I)

READING THE FINE PRINT: BAILOUT IS STILL A DEAL PRIMARILY FOR BANKERS

I read through the bill and intended to write a full analysis. Fortunately, ABC News has captured some of the same concerns I had: Does the Bailout Ignore Homeowners, Execs?



Although Pelosi, Reed and other members of Congress announced with much fanfare that the legislation would include "relief" for homeowners and cap corporate salaries, the proposed legislation only moderately delivers those promises. For example, the limit on executive salary only applies if the government purchases $300 million or more in assets from the company. Although the bill would prohibit "golden parachutes," it would exempt existing employment agreements from this provision. The proposed legislation would only impose additional tax burdens on companies that pay extremely high salaries; it would not explicitly limit those salaries.



As for homeowners struggling to pay their mortgages, the proposed legislation would only help those persons whose mortgages the government purchases. Also, the legislation only requires the Secretary of the Treasury to write a plan to "mitigate" foreclosures and to help funnel distressed borrowers through existing assistance programs. The bill does not provide any money at all for foreclosure prevention.



I heard Dennis Kucinich rail against the bill today on C-Span. It was a great speech. Also, true conservatives in the House (i.e., those who hate "big government") seem bothered as well. But the Senate seems bent on getting the bill passed. After all, it probably will help the economy somewhat, but most importantly, two members of the Senate are running for president. Their colleagues do not want voters to view their respective parties as responsible for blocking a bill designed to save banks (or was it "the" economy?). Tune in for more updates.