No Prosecution of the Bush Six in the United States

Earlier today, Dissenting Justice published: "No Prosecution of the "Bush Six" in Spain." The article discusses a rumored decision by the Attorney General of Spain to decline pursuing prosecuting Bush administration officials who authorized the torture of terrorism suspects. If Spain decides to prosecute the officials, the decision largely have symbolic meaning because the Obama administration has already taken a position disfavoring prosecution of Bush-era officials who either authorized or committed torture.

Today, the Obama administration released the controversial "torture memos" -- or legal documents prepared by Department of Justice attorneys that justify the use of torture by United States interrogators. This issue created domestic and international outrage during the Bush administration, and it caused many self-identified progressives in the Democratic Party to align with Obama over Hillary Clinton during the primaries.

Obama, progressives argued, would dramatically improve the image of the United States in the "world community" because he would implement their understanding of civil liberty, which includes vigorous opposition to governmental secrecy, the abolition of torture, extension of habeas rights to all terrorism detainees, an absolute prohibition of indefinite detention, and opposition to rendition. Obama, however, has failed to meet the expectations of civil libertarians on most of these issues.

Today, President Obama made new statements regarding the potential prosecution of Bush-era officials, which will likely generate additional criticism among progressives. President Obama's comments reiterate his stance disfavoring the prosecution of Bush administration officials. An Associated Press article analyzes Obama's new statements opposing prosecution. Here is a clip from that article:

President Barack Obama absolved CIA officers from prosecution for harsh, painful interrogation of terror suspects Thursday, even as his administration released Bush-era memos graphically detailing — and authorizing — such grim tactics as slamming detainees against walls, waterboarding them and keeping them naked and cold for long periods.

Human rights groups and many Obama officials have condemned such methods as torture. Bush officials have vigorously disagreed.

In releasing the documents, the most comprehensive accounting yet of interrogation methods that were among the Bush administrations most closely guarded secrets, Obama said he wanted to move beyond "a dark and painful chapter in our history. . . ."

Although civil liberties advocates believe President Obama should not have absolved Bush administration officials, the President argues that:

"Nothing will be gained by spending our time and energy laying blame for the past."

Attorney General Eric Holder made similar comments:

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department. . . ."

Holder also said that the government would provide legal counsel for Bush-era officials who face legal proceedings (either before a court or Congress) related to the issue of torture. Holder also stated that the government would pay for any monetary judgments against these officials.

Cynical Conclusion
With all of these dramatic "changes" going on in the nation, I have decided to re-post a "blast from the past": Progressives Awaken from Obama-Vegetative State.

Obama's "Interesting" Comments About Rendition

President Obama recently completed a 35-minute interview with the New York Times. During the interview, Obama addressed several domestic and foreign policy issues. A very wasteful moment occurred when the interviewer asked Obama if he was a "socialist"? When he said "no," the desperate interviewer asked: "Is there anything wrong with saying yes?"

Beyond this frivolous inquiry, however, the interview covered important terrain. Nevertheless, individuals who carefully scrutinize political news will not find a lot of new information in the discussion, but it is still worth reading.

Obama on Rendition
During Obama's interview with the New York Times, the following exchange concerning rendition occurred:

Q. Leon Panetta has said that we’re going to continue renditions, provided we’re not sending people to countries that torture. Why continue them at all?

A. Well, I think that you’re giving a slightly more definitive response than Director Panetta provided, but what I’ll say is this: We are now conducting a review of the rendition policy, there could be situations, and I emphasize – could be – because we haven’t made a determination yet, where let’s say we have a well-known Al Qaeda operative, that doesn’t surface very often, appears in a third country, with whom we don’t have an extradition relationship, or would not be willing to prosecute him, but we think is a very dangerous person. I think we will have to think about how do we deal with that scenario in a way that comports with international law and abides by my very clear edict that we don’t torture, and that we ultimately provide anybody that we’re detaining an opportunity through habeas corpus to answer to charges.

How all that sorts itself out is extremely complicated because it’s not just domestic law its also international law, our relationship with various other entities. And so, again, it will take this year to be able to get all of these procedures in place and on the right footing.

Analysis

I. Obama chided the interviewer for overstating Panetta's position.

Although this is a fair criticism, Panetta strongly indicated during his confirmation hearings that rendition would continue. He said that the government "may very well" transfer individuals to other countries for the purpose of interrogation and that "hopefully" rendition for legal process abroad would also continue. Many press accounts of Panetta's confirmation hearings (see here for example) construed his remarks as indicating that the United States would continue rendition, but that the government would seek diplomatic assurances against torture.

II. Obama would consider rendition of Al Qaeda suspects, so long as international law and his anti-torture rules are followed.

A CIA-sponsored abduction without the consent of the foreign country in which it occurs violates that country's sovereignty. If that country has an extradition treaty with the United States, an unauthorized rendition would invade that country's sovereignty and it could potentially violate the terms of the extradition agreement.

III. Obama states that the U.S. should "ultimately provide" habeas corpus relief to "anybody we are detaining."

This statement conflicts with the Department of Justice position on this issue. DOJ has adhered to the Bush administration's conclusion that detainees at Bagram Air Force Base in Afghanistan do not qualify for habeas corpus relief. Accordingly, the United States is already detaining individuals without affording them access to United States courts. If the CIA abducts terrorism suspects and ultimately transfers them to Bagram, these individuals would not qualify for access to the federal courts under DOJ's analysis.

Furthermore, if the government renders Al Qaeda suspects to officials in other countries, these individuals would not have a right to challenge their detention in United States courts because the transfer would place them beyond the custody and jurisdiction of the United States. Also, the United States could not prevent torture of individuals once they are transferred.

Finally, Attorney General Eric Holder and Solicitor General nominee Elena Kagan have both argued that the government could indefinitely detain suspected members of Al Qaeda as "enemy combatants" because the country is at war with the terrorist organization. This reasoning, together with the government's legal argument concerning Bagram detainees, would support the indefinite detention of and denial of habeas corpus to Al Qaeda suspects who are captured through rendition and subsequently held by the United States at Bagram, as opposed to a CIA black site.

Final Thoughts
The Obama administration has indicated that rendition will continue and that it, like Bush, will not utilize rendition to torture. Obama's executive orders close CIA black sites, but they do not close other United States-run facilities, such as Bagram, which can (and already) house terrorism suspects. Because the administration has claimed legal authority to deny habeas corpus relief to Bagram detainees and to detain indefinitely Al Qaeda suspects, Bagram could become the functional equivalent of Guantanamo Bay.

Rendition raises very strong issues concerning a country's sovereignty and an individual's right to a fair process and freedom from torture. For this reason, some human rights activists believe that the CIA must abandon the practice altogether. Many liberals strained to parse the differences between "good" rendition and "bad" extraordinary rendition once it became clear that Obama would continue the practice. Some liberal commentators who initially defended Obama's rendition plans, however, have begun to question the practice (see, e.g., statement of Glenn Greenwald).

Marjorie Cohn, a law professor and human rights advocate, complicates liberal efforts to distinguish the two types of rendition in her persuasive essay which concludes that: "There a slippery slope between ordinary rendition and extraordinary rendition." President Obama's recent comments regarding rendition are very careful, ambiguous and tentative. Rendition, however, raises serious questions that the government and the public must continue to scrutinize and debate.

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

Panetta: Rendition Will Continue, Would Ask Obama to Authorize Harsher Interrogation Methods "If Necessary"

Earlier this week, an L.A. Times article, which reported that Obama would continue the highly criticized policy of "rendition," sparked a fever-pitched pushback from many liberals. Although the article clearly stated that Obama had issued executive orders prohibiting the use of torture and ordering the closure of CIA prisons, many partisan liberals screamed foul play, arguing that the author of the article failed to distinguish "rendition" from "extraordinary rendition" (which many liberals claim separates Bush from, well, civilized society). Under extraordinary rendition, the critics argue, Bush transferred individuals to other countries for the purpose of torture and for prolonged detention. Because Obama has ordered the end of torture and the closure of CIA prisons, many liberals dismissed the article as the work of a misguided or even "punked" journalist.

Rendition: Apparent Shift in Positions
My review of previous positions of several liberal organizations regarding rendition shows that many of them disagreed with more than just the torture and prolonged detention aspects of Bush's rendition program. Instead, they believed that rendering individuals without judicial oversight or legal representation violates due process norms secured by international and domestic law. Some also argued that diplomatic assurances could not prevent torture.

During the Bush administration Human Rights Watch argued against using diplomacy to prevent torture against rendered individuals and called for the complete cessation of rendition. The L.A. times article, however, quotes a spokesperson for Human Rights Watch who says that rendition can work so long as individuals receive access to courts after a transfer occurs.

Panetta Backtracks
Yesterday, Leon Panetta, Obama's nominee to head the CIA, echoed the allegations of many members of the human rights community when he said that Bush outsourced torture through the rendition program. Today, however, Panetta has retreated from this position and says that "On that particular quote, that people were transferred for purposes of torture, that was not the policy of the United States. . . ."

Panetta also says that rendition will continue under the Obama administration but that he will try to guarantee through the State Department that rendered individuals are not tortured by officials in other countries. During the Bush administration, however, many leading human rights organizations rejected the argument that diplomatic assurances could effectively protect rendered individuals from torture.

Although the following position does not backtrack from previous statements, it is worth noting that Panetta has also indicated that the Obama administration will not prosecute Bush administration officials who utilized torture, despite the demands of many liberals. Panetta explained that the officials operated under assurances from the Justice Department that they were acting within the law (although it is doubtful that the these assurances could immunize them from violations of human rights). Many liberal activists, however, condemned DOJ officials for defending torture. In particular, they have even called for the prosecution of John Yoo, a lawyer in the DOJ (now back at UC Berkeley), who wrote the infamous "torture memo." Panetta, however, remains open to "limited" prosecution of officials who defied the law in the absence of "cover" from the Justice Department.

Will Seek Greater Leeway During Interrogations If Necessary
Panetta also stated during the hearing that he would ask President Obama to authorize CIA agents to utilize harsher interrogation methods than the Army Field Manual permits if necessary. Human rights activists and other liberals have insisted that governmental interrogators adhere to the manual, and Obama has issued an executive order that mandates such compliance. The executive order, however, leaves open room for the CIA to play by separate rules, "if warranted," which Panetta's words echo. The Center for Constitutional Rights calls this provision the "torture loophole" or "escape hatch." Apparently, 2006 amendments to the Army Field Manual also permit some forms of torture; Obama's executive orders do not remedy this situation.

Despite the outcry among liberals concerning torture, it appears that the Obama administration wants to retain flexibility to utilize more aggressive interrogation methods:

Panetta said he would if necessary ask Obama to allow harsher interrogations than those covered by the Army Field Manual, which the president last month set as the government standard. The manual bans techniques such as waterboarding.

"I would not hesitate," to seek broader interrogation authority, Panetta said, adding "I think that this president would do nothing that would violate the laws that are in place."

He promised to tell Congress if Obama were to authorize a departure from standards the president imposed last month.

Summarizing the Situation
Since the L.A. Times first broke the story that rendition would continue during the Obama administration, I have had time to collect a lot of information about prior liberal criticism surrounding the practice. Panetta's testimony provides some insight as to how the Obama administration will approach the subject. So let's examine the present and past situations with these developments in mind.

Under the Bush administration, many human rights and civil liberties activists criticized "rendition" (or "extraordinary rendition" -- the name does not matter) on four grounds: 1. rendered individuals did not have access to judicial review prior to or even after transfer; 2. rendered individuals did not have access to counsel; 3. the government rendered individuals to torture -- or it could not, otherwise, secure their safety post-transfer; 4. rendered individuals were sent to prolonged detention in CIA prisons. The Bush administration, however, denied that it rendered individuals for the purpose of torture. Panetta has agreed that this was not official policy.

The Obama administration has banned the usage of torture (which was already banned) and has ordered the CIA to close its longterm prisons. But Panetta says -- and Obama's executive orders anticipate -- that he will seek more leeway for the CIA to utilize different methods when questioning individuals if necessary. Panetta also says that the Obama administration would utilize diplomatic channels to make sure that rendered individuals are not tortured.

The primary differences between Bush and Obama's "rendition" at this point include the closure of longterm detention facilities and the restatement of the ban on torture (which the loophole mitigates). It is unclear whether or when the CIA will utilize judicial review and provide counsel to rendered individuals. It is unlikely that the program will seek judicial review prior to any transfer, because that would make it look a lot like ordinary extradition -- which really does not require justification. The lack of procedural protections makes the CIA's rendition program dramatically different from extradition.

Other Recent Post:

Pot Users Lose High After Obama Administration Continues Medical Pot Raids

Related Readings on Dissenting Justice:

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

Sources:

Panetta Open to Tougher Methods in Some C.I.A. Interrogation

Panetta Takes Back Remarks on Detainee Rendition

Obama CIA Pick Backtracks on "Torture" Charge

Obama CIA Pick May Back "Limited" Abuse Prosecution