Rendition, Secrecy and Torture: Inseparable?

A week ago, L.A. Times journalist Greg Miller published an article which reported that the Obama administration would continue Bush’s rendition program. Rendition describes the CIA's transfer of individuals to other countries for interrogation, prosecution or detention. During the Bush administration, many human rights groups and activists condemned rendition on four discrete grounds: 1. Rendered individuals lacked access to courts; 2. Rendered individuals lacked access to lawyers; 3. The government used rendition to “outsource” torture; and 4. The government rendered individuals to prolonged detention in CIA prisons.

Miller acknowledged in his article that Obama has ordered interrogators to comply with laws prohibiting torture and commanded the CIA to close its prisons. Nevertheless, the article stated that Obama would continue and perhaps expand the use of rendition.

Miller’s article generated a very vocal pushback from many liberals. The standard argument in Obama’s defense contends that Miller grossly distorted the nature of Obama’s rendition program by linking it to Bush. Unlike Obama, Bush practiced “extraordinary rendition,” not “rendition,” because he sent people to torture and indefinite detention. Liberal defenders of Obama’s rendition program dismissed the article as the product of a “punked” journalist, and many of them deemed critics of Obama’s continuation of rendition as either right-wing conservatives looking to bash the president or well intentioned liberals confused over the meaning of rendition.

Liberal Defenders of Rendition Condemn Obama's Assertion of the State Secrets Privilege
The last few days, however, have produced a lot of clarity on this subject, and many individuals who originally defended Obama's use of rendition now express outrage. Their anger arises primarily from Obama’s recent decision to assert the “state secrets privilege” in a rendition-related lawsuit.

Civil liberties groups criticized Bush for broadly invoking the privilege in order to resist disclosing information related to rendition. Many courts have recognized the privilege and dismissed lawsuits filed by individuals who claim the government rendered them to torture and other abuses. Human rights groups believed that Obama would completely abandon this practice. They were wrong.

The ACLU described the Obama administration's recent assertion of the privilege as offering “more of the same.” The ACLU represents the plaintiff in that particular case. Nevertheless, several liberal bloggers who initially defended Obama's rendition policies now express deep disappointment over his assertion of the state secrets privilege.

Glenn Greenwald
Salon blogger Glenn Greenwald (one of my favorite commentators) blasted Miller’s analysis as “wildly exaggerated and plainly inaccurate.” Yesterday, however, Greenwald argued that by invoking the state secrets privilege, Obama “resoundingly and disgracefully” failed his “first test on civil liberties and accountability.”

Andrew Sullivan
Pro-Obama blogger Andrew Sullivan predictably defended the president after the publication of Miller’s article. Sullivan argued that Miller “got rolled by the usual suspects” and that Obama’s new policies make “the detention and rendition of terror suspects much less worrying.”

Now that the Obama administration has invoked the state secrets privilege, Sullivan suddenly appears “worried.” Sullivan says that the decision “is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

Hilzoy
Popular liberal blogger Hilzoy also criticized Miller’s article (which sparked an exchange between the two of us) for not properly distinguishing Obama's policies from Bush. Hilzoy argued that: “It's important . . . to note that extraordinary rendition is not the same as rendition proper. Rendition is just moving people from one jurisdiction . . . to another; includes [sic] all sorts of perfectly normal things, like extradition, which are not problematic legally.”

Obama’s assertion of the state secrets privilege, however, troubles Hilzoy. She offers the following critical analysis of Obama’s legal arguments: “Like every other Bush administration court filing I have read, it is striking not just for the breadth of the powers it claims for the government, but for the complete absence of any concern for justice.”

Supporting Rendition Contradicts Liberal Concerns Over Secrecy and Civil Liberties – To Some Extent
Although some liberals support rendition (minus the intentional or effective rendering of individuals to torture or prolonged detention) their position is potentially unstable because rendition conflicts with their expressed concern over governmental secrecy, their desire for transparency, and their defense of civil liberty. Consequently, I predict that the Obama administration will continue to disappoint liberals who desire absolute transparency and a strong commitment to civil liberties under all circumstances -- but who, nonetheless, support rendition (as distinct from "extraordinary rendition"). Here’s why.

First, for the last eight years, human rights activists have argued that diplomatic assurances are ineffective against torture. But during his confirmation hearings, CIA director Panetta said that the Obama administration would in fact call upon the State Department to make sure that the CIA does not render individuals to torture. If rendered individuals face torture during the Obama administration, then liberals will have to question why they supported the practice in the first place -- especially in light of human rights literature which states unequivocally that diplomacy cannot prevent torture.

Second, Panetta also stated during his confirmation hearings that he would seek permission to use harsher interrogation methods “if necessary.” This position sounds exactly like Bush’s promotion of “enhanced interrogation” practices, which previously angered liberals. Moreover, some human rights organizations argue that the Army Field Manual -- which Obama has ordered interrogators to follow -- permits torture under certain circumstances.

Because rendition lacks judicial or administrative oversight, CIA agents will have greater opportunities to utilize harsh or tortuous interrogation methods -- or to outsource the practice to other nations. Thus, liberal support for rendition does not help to safeguard the bodily integrity of terrorism suspects.

Finally, while some liberal bloggers try to link “rendition proper” with accepted practices such as extradition, the CIA’s policy of abducting individuals (regardless of whether the government renders them to torture or prolonged detention) differs dramatically from extradition because it lacks judicial or administrative oversight and because individuals do not have a right to counsel. The lack of judicial review and legal representation allows violations of anti-torture laws to go undetected or unpunished – which is exactly why Obama’s (and Bush's) assertion of the state secrets doctrine bothers many liberals. Some amount of secrecy, however, comes with this messy territory. Public and open "abductions," to which due process attaches, do not resemble true abductions; instead they look much more like ordinary arrests (which could lead to extradition).

Thinking Out Loud: My Unsettled Position on the State Secrets Privilege
If rendition is legal and acceptable (which some liberals contend), then I would argue that the government can legitimately shield a lot of the details from public disclosure. Many bloggers argue, however, that the government has used the privilege to protect from disclosure actions that cannot qualify as relevant to national security or which constitute or reveal deprivations of human rights. But privileges often operate prophylactically by shielding certain categories of information from discovery -- even if disclosing such materials would reveal wrongdoing or if disclosure would not frustrate the very purpose underlying recognition of the privilege (in this case, to safeguard intelligence and to protect national security). Courts apply privileges broadly because the risk of disclosure could “chill” otherwise legitimate communications or actions; also, courts could erroneously require disclosure of damaging material unrelated to the litigation.

In this setting, however, courts have applied the privilege quite broadly, and this has inevitably resulted in the dismissal of litigation. Some critics argue that those courts should have examined every item of potential evidence and determined on an item-specific basis whether to apply the privilege. But if these same courts had actually followed this more transparent approach -- yet deferred to the government's determination that disclosure of an individual item of evidence would implicate national security -- the courts would likely have reached the same conclusion and dismissed the litigation.

Unlike many of my colleagues, I have not taken a firm position on the state secrets privilege. Nevertheless, I believe that Obama has a strong argument (as did Bush) that the nature of rendition requires vigorous protection of the privilege. Supporters of rendition (including many liberals) argue that it promotes national security. If this is true, then the government should probably have a great deal of control – if not absolute control -- over the details of the program.

If rendition does not advance national security (or if does so infrequently), then liberals should rethink their support of the practice. Perhaps they should advocate alternative procedures for transferring suspects -- like extradition -- that are more open and transparent. By endorsing rendition, liberals are crediting, to some extent, the government’s assertion of privilege and secrecy, which in turn facilitates the human rights abuses that liberals passionately condemn.

Related Readings on Dissenting Justice:

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

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)

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

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

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

After an L.A. Times article reported that Obama will continue the renditions policy, many liberals have come forward to defend the new boss. The typical liberal defense argues that rendition is not wrong in and of itself, but that removal of persons for the purpose of torturing or indefinitely detaining them violates human rights norms. Because Obama has banned the use of torture (which pre-existing statutes and treaties already prohibited) and ordered the CIA to close its longterm detention centers, many liberals dismiss the L.A. Times article as misleading.

After reviewing much of the pro-rendition liberal pushback, I have collected my thoughts and written a response. Here's a summary: the liberal defense is strained, dishonest, surprisingly nuanced, and contrary to true progressive politics because it elevates "party" over principle.

Liberals Opposed Rendition Regardless of Whether It Led to Torture
During the Bush administration liberals argued that rendition - whether for the purpose of torture or otherwise - violated human rights and constitutional norms. Many activists demanded that the U.S. abandon the rendition program altogether or that other countries refrain from helping enforce it (e.g., by allowing CIA flights over their airspace). They also demanded that the U.S. not transfer individuals to countries where they would likely experience torture or transfer anyone without judicial approval.

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

European states should introduce measures that include: only transferring individuals to the custody of another state, or facilitating such a transfer, if the transfer is carried out under judicial supervision; and ensuring that no one is forcibly returned to any place where they may be at risk of serious human rights violations.

The report also defines rendition as a transfer that lacks judicial oversight, not one that necessarily results in torture:

Amnesty International uses the term “rendition” to describe the international transfer of individuals from the custody of one state to another by means that bypass judicial and administrative due process. Renditions violate international law by failing to respect requirements of due process, and frequently involve multiple human rights violations, including unlawful and arbitrary detention; torture or other ill-treatment; and enforced disappearance.

And in a 2006 report, Amnesty International condemned rendition generally -- regardless of whether it facilitates torture -- because it takes place without prior judicial validation:

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

The report makes several recommendations, including the following:

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

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

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

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

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

Ensure that detainees who are not nationals of the detaining country have access to diplomatic or other representatives of their country of nationality or former habitual residence.

Amnesty International does not limit its opposition to rendition to torture, but to any transfer that lacks judicial oversight and other common procedural safeguards. Although these procedures could help to prevent or to uncover torture, they are important rights on their own.

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

[E]xtraordinary rendition is an extra-judicial practice which contravenes established international human rights standards. . .whereby an individual suspected of involvement in terrorism is illegally abducted, arrested and/or transferred into the custody of US officials and/or transported to another country for interrogation which, in the majority of cases, involves incommunicado detention and torture . . . .

Likewise, in a 2006 article published in the Harvard Human Rights Journal, Professor David Weissbrodt of the University of Minnesota Law School and Amy Bergquist (then a law student) condemn the practice of extraordinary rendition on several grounds, including that the practice lacks judicial involvement and rendered individuals do not have right to counsel:

Extraordinary rendition implicitly violates Article 14 [of the Universal Declaration of Human Rights] because . . . in the first instance, [detainees] are not allowed to come before courts and tribunals. . . .[T]he most relevant and fundamental [interest] is the right to be informed promptly of the charge against the individual. It is unclear whether authorities actually charge individuals subject to extraordinary rendition with crimes, and, if so, whether authorities provide them with the other procedural guarantees established in Article 14. At the very least, those guarantees are not present prior to their transfer, and detainees are frequently denied access to counsel. . . .

Finally, Human Rights Watch demanded a complete cessation of all renditions during the Bush administration and urged other countries to withdraw support for the program (see this blog entry).

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

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

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

Glenn Greenwald, one of my favorite bloggers, similarly distorts the scope of liberal opposition to rendition:

[T]he objections to the Bush "extraordinary rendition" program were that "rendered" individuals were abducted and then either (a) sent to countries where they would likely be tortured and/or (b) disappeared into secret U.S. camps ("black sites") or sent to Guantanamo and accorded no legal process of any kind. There is absolutely nothing to suggest that Obama will continue any of that. . . .

And over on Washington Monthly, Hilzoy contends that because Obama has ordered interrogators to comply with laws that prohibit torture and has ordered the CIA to close its prisons, rendition in the Obama administration will not violate the law or present the same problems that angered liberals during the Bush administration.

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

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

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

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

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

Related Readings on Dissenting Justice:

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

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

"Extraordinary Rendition" Remains Under Obama Administration