Does The Obama Executive Order Permit "Rendition?"

By Big Tent Democrat, Section War on Terror
Posted on Tue Feb 03, 2009 at 04:14:07 PM EST
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Via Instapundit, Professor Darrel Hutchinson argues there is room to worry about potential renditions under President Obama's executive orders on torture. I think there is always room to worry and be vigilant, but I do not see from the reading of the text of the executive order that the worry should come from the executive order itself.

First things first. It is important to remember that the Bush Administration declared (unlawfully I might add) that those persons President Bush declared unlawful combatants were NOT covered by the Geneva Conventions (of course, President Bush could not EXPRESSLY declare that the Convention on Torture did not apply to such persons, even though he de facto did so declare, committing a serious crime in the process.)The most important point to consider when reading President Obama's executive orders on this subject is his reversal of all such judgments by the Bush Administration. To wit, President Obama's executive order states:

Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2?22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

(Emphasis supplied.) President Obama with that one paragraph brought down the legal regime for torture constructed unlawfully, criminally and in violation of the laws of war, by the Bush Administration. Further, the new executive order states:

Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340-2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109?366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

(Emphasis supplied.) If you believe, as I do, that these laws and treaties prohibit extraordinary rendition (PDF), then it follows that President Obama has banned extraordinary renditions UNLESS he chooses to authorize violations of his own executive order.

Vigilance requires that President Obama be pressed to renounce any such possibility. But, in my view, vigilance does not require implausible contortions and parsings to make the executive order say what it does not say.

J. expressed her thoughts on this yesterday.

Speaking for me only

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Does The Obama Executive Order Permit "Rendition?" | 35 comments (35 topical)

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Hutchinson's article is ... (5.00 / 0) (#1)
by Robot Porter on Tue Feb 03, 2009 at 04:29:42 PM EST

really about liberal flip-flops on rendition.

It is the LA TIMES, which he links to, which suggests that Obama has preserved the rendition. Here's the money quote:

"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."

Hard to see the flip flop (none / 0) (#2)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:34:13 PM EST

rendition for torture purposes was always the issue.


So you also support ... (5.00 / 0) (#3)
by Robot Porter on Tue Feb 03, 2009 at 04:37:15 PM EST

"good old fashioned rendition"?


Define "old fashioned rendition" (none / 0) (#4)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:40:01 PM EST

Do you mean deportation to a country which assures that no torture will be used and that due process will be respected?

Guess what, happens every day on the US/Mexico border.


Of course (none / 0) (#5)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:41:12 PM EST

"extradition" is another form of "old fashioned rendition."


Here's Hutchinson's ... (5.00 / 0) (#7)
by Robot Porter on Tue Feb 03, 2009 at 04:49:02 PM EST

counter to that argument:

Hilzoy also argues that absent torture and indefinite detention, rendition includes practices like extradition. This patently false assertion has floated around the web. Unlike rendition, extradition contains the procedural protections 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 rendition (extraordinary or otherwise).

I do not accept that counter (none / 0) (#14)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:57:15 PM EST

Becuase extradition is the ideal, it does not mean it is not a form of rendition.

I described another one as well.

Here's the way to ask the question - what type of rendition is it that you and Prof. Hutchinson object to? What is it that you want prohibited?


Rendition is a process ... (5.00 / 1) (#29)
by Robot Porter on Tue Feb 03, 2009 at 06:00:53 PM EST

which invites abuse.

There are legal processes to achieve any legitimate use that rendition could possibly serve.

And equating rendition to extradition is like equating vigilantes to the police.


No (none / 0) (#30)
by squeaky on Tue Feb 03, 2009 at 06:07:08 PM EST

I think you are confusing rendition with extradoniry rendition.

If BTD is not clear enough for you perhaps digby might be easier for you to understand.


: I understand the ... (none / 0) (#31)
by Robot Porter on Tue Feb 03, 2009 at 06:14:50 PM EST

issue. I just disagree.

actually, according to Supreme Court (none / 0) (#15)
by Patriot Daily on Tue Feb 03, 2009 at 04:57:58 PM EST

good ole fashioned rendition is kidnapping to bring to US for trial. that is NOT what obama is planning. the EO allows kidnapping of terror suspects for long-term detention in CIA prisons. no torture, but no due process either.


Excuse me (none / 0) (#17)
by Big Tent Democrat on Tue Feb 03, 2009 at 05:00:01 PM EST

It does no such thing. Please explain to me how in heaven's name the EO allows kidnapping for detention in CIA prisons without due process?


if you can be kidnapped (none / 0) (#19)
by Patriot Daily on Tue Feb 03, 2009 at 05:03:32 PM EST

rather than arrested based on probable cause, then excuse me, but that violates our notions of due process. that is, the kidnapping functions instead of lawful arrest or lawful extradition.


Excuse me again (none / 0) (#22)
by Big Tent Democrat on Tue Feb 03, 2009 at 05:11:26 PM EST

Where n the order is kidnapping authorized, much less indefinite detention in a "CIA detention facility."

Do the Geneva Conventions permit that?


the eo says that the order to close CIA black site (none / 0) (#26)
by Patriot Daily on Tue Feb 03, 2009 at 05:32:58 PM EST

"do[es] not refer to facilities used only to hold people on a short-term, transitory basis." so, CIA sites can remain open to hold prisoners on short term temporary basis.

As for kidnapping, articles have reported quotes from diane feinstein, and obama advisors that some rendition will be needed to be kept.
http://www.timesonline.co.uk/tol/news/world/us_and_americas/article5636297.ece

no, the GC and other international law do NOT allow renditions. arrest is required, and then extradition or some agreement with country so don't invade their sovereinty.


: my comment upthread about long-term (none / 0) (#28)
by Patriot Daily on Tue Feb 03, 2009 at 05:42:04 PM EST

detention was typo. should read short-term.

Parsing and contortions (none / 0) (#13)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:55:24 PM EST

you need to have facilities for captured persons - this is about closing down detention facilities.

It says nothing. not a thing, about rendition.

I conveniently ignored nothing.


: Re-read Section 6 before (none / 0) (#32)
by Molly Bloom on Tue Feb 03, 2009 at 06:51:33 PM EST

talking about blind eyes. Even if, as you posutlate, that

g) The terms "detention facilities" and "detention facility" in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis
.
provides a loophole because short term and transitory are not defined, Section 6 is clear.

Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply...
What is unclear about that? whether a detainee is in short or long term detention, the prohibitions in the Torture Convention, the US War Crimes Act and the Federal torture statute apply to you, if you are a direct or indirect agent of the United States. Period. Full stop. There is no exception or distinction made in Section 6 regarding short term or transitory detention. The lack of definition to those terms in the order is meaningless. You have to read the order as a whole.

Prof. Scott Horton (none / 0) (#33)
by Peter G on Tue Feb 03, 2009 at 08:56:34 PM EST

who teaches international human rights law at Columbia, and has a brilliant mind and a sharp pen, discusses the difference between "rendition" -- preserved by Obama's orders -- and "extraordinary rendition" -- rejected by the new Administration -- at his blog, "No Comment." Horton agrees with Hilzoy and debunks the Instapundit and LA Times pieces.


no torture, but still rendition (5.00 / 1) (#6)
by Patriot Daily on Tue Feb 03, 2009 at 04:47:35 PM EST

Obama will not allow extraordinary rendition a la Bush, ie, kidnapping suspected terrorists for long-term detention in CIA black sites, torture, or the transfer to a proxy torture country.

HOWEVER, obama will allow kidnapping or rendition of suspected terrorists for temporary imprisonment at CIA sites with red cross access.

While rendition or kidnapping was upheld by US supreme court, what about the implications? Other countries could come here to kidnap Americans who are wanted, or kidnap Americans overseas when we travel.

I understand that the US would like to have the authority to kidnap suspected terrorists for that time when compliance with quaint due process rules like probable cause and arrest may not be practical, but i think it still sucks.

just my op.

You got links for this? (none / 0) (#11)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:54:17 PM EST

"HOWEVER, obama will allow kidnapping or rendition of suspected terrorists for temporary imprisonment at CIA sites with red cross access."

What is the basis of that statement? It does not come from the executive order.

"While rendition or kidnapping was upheld by US supreme court"

Not really. Cite the case you think said that.


sure, read the EO (none / 0) (#21)
by Patriot Daily on Tue Feb 03, 2009 at 05:10:20 PM EST

it says one exclusion is the temporary detention of suspected terrorists but also provides no torture and also provides red cross access.

as for supremes, we paid to have person in Mexico kidnapped, transferred to US and put on trial:

The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts. We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States.

United States v. Alvarez-Machain 504 U.S. 655 (1992).


I read the EO (none / 0) (#23)
by Big Tent Democrat on Tue Feb 03, 2009 at 05:13:24 PM EST

You rip the "temporary detention facilities" out of context.

In essence. it is the exception to the closing of all CIA detention facilities while transfer to another agency of the Us government is performed.

Look, it could be that Obama orders such things to happen. But if he does, it will be violative of the EO.


: read the article i linked in this thread (none / 0) (#27)
by Patriot Daily on Tue Feb 03, 2009 at 05:40:05 PM EST

diane feinstein and obama advisor are talking about rendition policies, saying some must be kept. i'm sure obama wants to do in the most lawful manner, thus no torture, temporary site.
But, in most cases, the US could arrest someone or seek extradition. there is no need for cia prisons in that case. transfers of persons in custody happen every day.
reading the EO in the context of what obama's advisors and feinstein say, as well as others, one could logically conclude what i have posted here.
my hope is that is not the case. It would violate international law even if supremes say abduction is ok way to "arrest" someone.

I don't have a problem (5.00 / 1) (#12)
by lilburro on Tue Feb 03, 2009 at 04:55:23 PM EST

with rendition to trial (unless the person is going on trial in Egypt, Syria, etc.). My question still is how do we make sure the secrecy needed for a rendition is not abused? Are we going to be given access to flight records and flight networks after the fact? Lists of the transported? Or will we just assume that the government is acting legally, and wait for somebody to cry foul? The latter would be fine if we prosecuted Bush - unfortunately, the executive branch is not necessarily subject to the Rule of Law, apparently.

Now we're talking (5.00 / 2) (#16)
by Big Tent Democrat on Tue Feb 03, 2009 at 04:58:18 PM EST

TRNASPARENCY is a great add on.

I would support that demand wholeheartedly.


: Obama pushed for a law (none / 0) (#35)
by lilburro on Wed Feb 04, 2009 at 08:13:39 AM EST

in Ill. videotaping all police interrogations. He should/could push for a similar law to go through Congress regarding our detainees.

The problem is that the wingnuts in the press (5.00 / 1) (#18)
by scribe on Tue Feb 03, 2009 at 05:02:31 PM EST

are taking the term "rendition" to mean only wrapping someone in diapers and duct tape and flying him to [insert torture dungeon country], then sitting by waiting for answers to the questions received there.

Inaccurate. There is a reason it was called "extraordinary rendition", as in "out of the ordinary". That reason was because "rendition" is a form of the word "render" and is used in the law to mean the process by which a person captured in one jurisdiction is sent to another jurisdiction, i.e., the jurisdiction out of which the reason for that person's capture exists.

Extradition is a form of rendition.

One renders the person being extradited to that foreign jurisdiction's authorities.

I believe, in reading through the executive order, I saw a part that indicated that when people are rendered to a foreign country, they must go through a regularly-constituted court, here and there. That would mean, therefore, that only "normal" or "ordinary" renditions, conducted pursuant to treaty and in accordance with established norms of international and domestic law, will be permitted.

In other words, you can still be extradited. But you will not be sent to a place that tortures, and Ghost Air is out of business.

Needless to say, the media are being deliberately stupid on this one and are obscuring the reality. In service of their Republican masters.

That's my reading of the order (5.00 / 1) (#20)
by Big Tent Democrat on Tue Feb 03, 2009 at 05:09:56 PM EST

I am willing to be persuaded I am wrong.

But I do hope that quotation of the order will come with that argument.


so (none / 0) (#25)
by lilburro on Tue Feb 03, 2009 at 05:31:58 PM EST

I've posted this article a number of times, but it has many examples of rendition: Richard Clarke - The Confusion Over Renditions.

So the legal basis, I assume, for renditions is this - "extraterritorial jurisdiction." Extradition is performing a rendition through well-known, accepted legal process.

These are the two examples in Clarke's piece that I assume would form the basis for Obama wanting to use rendition:

In these cases, the country in which the criminals were arrested waived their own extradition process and handed them over to US officials on the guarantee that they would be brought to the United States and afforded the same rights of the accused in the US justice system. The Supreme Court has even ruled that renditions occurring without the cooperation of the nation of arrest are legal if the accused is expeditiously brought into the US justice system.

I have no idea what court case he is citing here.

It seems like the ONLY purpose of an Obama rendition would be to bring wanted criminals to justice. IOW, Miranda Rights once you get on the plane. FBI interrogates. Etc.

It's kind of silly that this was all started by what is widely-acknowledged to be a pretty poorly written piece by Greg Miller at the LA Times. But now that it's out there Obama really should clear up what American policy will be, I think.


You are kinda confusing concepts (5.00 / 1) (#34)
by scribe on Tue Feb 03, 2009 at 09:50:17 PM EST

and procedures.

Go read my new diary, because the explanation is too darn long to put in a comment.


: great diary n/t (5.00 / 1) (#36)
by lilburro on Wed Feb 04, 2009 at 08:13:56 AM EST

The LA Times (none / 0) (#8)
by call me Ishmael on Tue Feb 03, 2009 at 04:49:22 PM EST

article is really a weak reed. Hilzoy, Greenwald, and others have long analyses available on the weakness of the reporting and its reliance on former intelligence officials who have their own interests in implying that the new administration is only going to continue the latter. For just a couple of these see:

sorry (none / 0) (#10)
by call me Ishmael on Tue Feb 03, 2009 at 04:52:19 PM EST

the urls didn't come through.

trying again:

http://www.salon.com/opinion/greenwald/2009/02/02/renditions/

http://www.washingtonmonthly.com/archives/individual/2009_02/016703.php

As far as I can tell, the Los Angeles (none / 0) (#37)
by oculus on Wed Feb 04, 2009 at 12:06:26 PM EST

has not corrected or retracted anything.