London Judge: Assange Can Be Extradited to Sweden

A London judge has held that WikiLeaks founder Julian Assange can be extradited to Sweden. Assange faces various charges for sex-related crimes in Sweden.

Assange's lawyer plans to appeal the ruling. His lawyer also contends that Sweden might turn Assange over to the United States. This is a bizarre argument, because Sweden would have to apply the same standards for extradition as England. Thus, whether Assange is in Sweden or England, the US would have to show just cause before he could face extradition to the US.

No Prosecution of the "Bush Six" in Spain

Despite earlier reports, it now appears unlikely that the "Bush Six" will face prosecution in Spain for allegedly violating international human rights law. In March, a human rights attorney requested that Spanish Judge Baltasar Garzon consider filing charges against officials from the Bush administration who authorized the use of torture against terrorism detainees. Judge Garzon requested advice from Attorney General Candido Conde-Pumpido. Today, Conde-Pumpido stated that any prosecution of the individuals should take place in the United States:

"If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States . . . ."

Copnde-Pumpido also disputed whether the individuals violated international law by providing a legal justification for torture, rather than actually committing torture:

"If one is dealing with a crime of mistreatment of prisoners of war, the complaint should go against those who physically carried it out. . . ."

Many Liberals Want Prosecutions, Obama and Panetta Do Not
Many liberals have called upon the Obama administration to pursue criminal charges against Bush-era officials who authorized torture. Both President Obama and CIA Director Leon Panetta, however, have firmly stated their opposition these demands.

Because the Obama administration has already stated its opposition to torture prosecutions, the Spanish criminal investigation is largely symbolic. The prospect of criminal charges against Bush-era officials, nevertheless, caused jubilation among many liberals.

Spain Has Very Few Options for Transferring the Bush Six Out of the United States
Because the Obama administration opposes prosecution of the Bush Six, the United States probably would not grant any requests for extradition from Spain. Although Spain could pursue extradition in another jurisdiction if the Bush Six traveled outside of the United States, it remains unclear whether another country would grant extradition requests over the objection of the Obama administration.

Ironically, Spain could presumably use rendition and abduct the Bush Six to "justice." This option, however, is purely theoretical -- i.e., it would never happen -- despite the fact that conservatives and apparently many liberals do not disagree with government-sponsored international kidnappings.

Obama Administration in Contact With Spain Over the Investigation
Earlier this week, human rights lawyer Scott Horton published an article in the Daily Beast which states that indictments of the Bush Six are forthcoming. If Horton had accurate information when he wrote his article, Conde-Pumpido apprently stepped in and altered the course of events. Although the court could still issue indictments, this path seems unlikely given Conde-Pumpido's statements.

Horton's article also states that the Obama administration has remained in close contact with Spanish officials regarding the criminal investigation. It is unclear, however, whether the United States pressed Spain not to issue indictments or to pursue prosecutions.

The so-called Bush Six includes: former Attorney General Alberto Gonzales; former Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney's Chief of Staff, David Addington; former Department of Justice attorneys John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes.

Consider This: The Politics
In the absence of overwhelming domestic public support for the prosecution of senior governmental officials in a foreign court, it seems highly unlikely that President Obama (or any other president) would consent to extradition. If substantial public support for prosecution existed, then the prosecutions would take place domestically.

President Obama has probably decided that prosecuting the Bush Six or transferring the group to another country for trial would be too polarizing and politically damaging and that a substantial part of the public would not favor such a course of conduct. Also, it is possible that President Obama does not want to establish a precedent that his sucessor could use against him and members of his staff in a display of brutal partisan politics. In sum, Obama is doing what is politically safe. What president would not?

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

[Check out this "just added" essay: Updates: Obama a Moderate? Former GITMO Detainee Now Taliban Military Leader, Georgia Busts Assisted-Suicide Ring. . . ]

A United Nations human rights official unambiguously stated that "change" in the United States will not alter the organization's scrutiny of U.S. antiterrrorism practices. The statement came as UN investigators announced the start of a probe into CIA rendition flights and secret detention.

UN Official Promises Not To Let New Administration "Off the Hook"
Martin Scheinin, Special Rapporteur on the Promotion and Protection of Human Rights While Countering Terrorism, made the following statement concerning human rights enforcement in the Obama administration: "We will not let the United States off the hook simply because of the change in administration . . . . It is certainly too early to say that rendition will have stopped. . . ."

With respect to President Obama's executive orders closing CIA prisons and mandating that interrogators comply with antitorture laws, Scheinin was guardedly optimistic: "We can at least hope this is a real change that will put an end to the most horrendous forms of extraordinary renditions. . . ."

Obama and Rendition
The subject of rendition led to international condemnation of the Bush administration. This topic, however, also led to debate concerning the Obama administration after the L.A. Times published a story which reported that Obama would continue the practice of rendition -- despite having ordered the end of torture and the closure of CIA prisons.

Many liberals rushed to defend the government through formalistic arguments, which parsed Obama's "rendition" and Bush's "extraordinary rendition." Although the two concepts are in fact distinct, in this particular setting, the differences are more illusory than real.

Critics argued that Bush used extraordinary rendition to abduct individuals and send them to indefinite detention and to torture in other nations. Because Obama's executive orders eliminate these procedures, many liberals portrayed the L.A. Times article as a piece of alarmist sophistry.

Liberal defenders of rendition, however, failed to present a comprehensive picture of the human rights community's critiques of the Bush administration. Certainly, the torture and prolonged detention elements of rendition occupied center stage, but many liberals also contested the lack of judicial or administrative review of the CIA's decision to transfer (really "to abduct") individuals and the lack of access to counsel.

Rendition Versus Extradition
Some liberals seemingly tried to sanitize or at least to diminish the problems associated with "rendition" by linking it to accepted forms of inter-jurisdictional transfers like "extradition." While both of these concepts admittedly involve the involuntary movement of people across state or national boundaries, any effort -- intentional or otherwise -- to equate the CIA's rendition program with ordinary extradition is misguided.

Scheinin's statements on the subject confirm that material differences exist between rendition (extraordinary or otherwise) and extradition. According to Reuters, Scheninin:

Hope[s] the Obama administration's policy would at least mean suspects abducted by U.S. agents are tried in America. But he stressed that instead of nabbing suspects abroad and then trying them on one's home soil, international law says countries should seek extraditions through legal channels.

While many individuals have dismissed the due process concerns raised by rendition (whether or not it results in torture or longterm detention), Sheinin's comments (at least as summarized by Reuters) demonstrate that there are international law issues that arise from the CIA abductions - at least when they take place in countries that have an extradition agreement with the United States. Other civil liberties advocates have also criticized using rendition as a substitute for the formalized extradition process (see Marjorie Cohn and Michael Rattner comments).

I am trying to locate Sheinin's exact quotation. If I find it, I will post it. But Sheinin has made statements preferring extradition to rendition in the past. In a 2007 report on rendition, for example, he concluded that: "[T]he removal of a person outside the legally prescribed procedures of extradition or deportation amounts to an unlawful detention in violation of Article 9 (1) of the International Covenant on Civil and Political Rights." Here is a link to the International Covenant on Civil and Political Rights.

The 2007 report also expresses grave concern with rendition for the purpose of interrogation or detention (which increases the likelihood of torture); it expresses less concern with "rendition to justice" (i.e., to transfer an individual to stand trial for an alleged crime). During his confirmation hearings, however, Leon Panetta indicated that the U.S. could continue rendition for interrogation and prosecution.

Related Readings on Dissenting Justice:

Obama's "Interesting" Comments About Rendition

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

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

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