Centerfield

Oooo, softballs...

Is anybody in this system being held for political reasons? By definition, all of 'em. But maybe not the way you mean. (This assumes the article is accurate.)

Do we hold prisoners in exchange from any nondemocracies? Not saying it couldn't happen, but why bother? The "nondemocracies" have their own prisons and secret services and interrogators, and no reason to physically "share" their prisoners. The point of rendition as reportedly practiced by the CIA is two-fold, to unofficially extradite dangerous and wanted suspects back to their country of origin for [a] goodwill from that country in unofficially extraditing their wanted criminals back to them, and [b] in the hopes that country can and will interrogate them for our benefit (presumably using methods we won't use, such as actual statutory torture).

There would be no point in sending us prisoners, other than to simply return a wanted criminal to jurisdiction. The "nondemocracies" can use methods we can't. So who would bother to send them to us? I'm sure our preferred method would be to have our intel officers present when the "nondemocracies" were doing their interrogations after the unofficial extradition. I believe that's the main point of rendition.

I speculated months ago that the broadening of the US statutory definition of "torture" to include things not defined as such under the ICAT standards, combined with the incorporation of the ICAT Article 3 prohibitions on extradition into US Code back in the '90s, might be a major sticking point with the McCain torture amendments. Here's another data point, but still one of unknown probability and reliability.

And it still leaves me with the absurd scenario of us potentially holding foreign terrorist prisoners whom we can't convict in a US court, that we know for certain are unrepentant terrorists who want to kill us and ours, and whom we would be unable to deport to their countries of origin where they're wanted criminally, due to the expansion of the statutory torture definition and that pesky Article 3. Leaving us with no choice (legally) but to either hold them quietly (and extrajudicially) forever, or release them into the United States with political asylum status!

That's before getting into the question of prisoners who are from countries that have no desire whatsoever to help us, and would likely give medals and support to nationals of theirs that we returned. Think Iran and Syria.

Amen!

Failure to renounce this and other heinous practices engaged in the name of protecting Americans from terrorists is an instant disqualifier for public office, IMNSHO.

Aggrandizing executive power on the pretext of a war on terror makes it harder for the world to tell the good guys from the bad guys.

I'm torn by this and this comment will reflect that. Frankly, I think the notion that we can live in a nice, tidy world where no one does bad things is naive in the extreme. This stuff has always gone on; the CIA used to hold suspected moles incommunicado for months while interrogating them. Can we really adopt an attitude that we are going to play by the Marquis of Queensbury rules all the time? I don't think so.

A lot of the people that bemoan this stuff don't have the responsibility if a terrorist attack happens. It's easy to say pious things such as, "this is unamerican, this isn't who we are, etc." But if you are the one who gets blamed if another plane crashes into a building, you might not be so virtuous. I certainly don't condone torture or inhumane treatment; on the other hand, it doesn't make sense to simply stick your head in the sand and pretend that this is a simple issue. It isn't. The US isn't a virgin and it's a rough world. The better thing, though, would be for our officials to stop pontificating about how we don't do bad things (ie, we don't torture). Like everyone else, we do what is necessary and saying otherwise just exposes your hypocrisy.

Having said that, the administration's attitude that we can do anything we want, with no accountability to anyone, and that if we say it isn't torture it isn't torture is, to me, dangerous. They are practicing a sort of Orwellian form of speech by saying we don't torture. Yes, Tully, I know it partly depends on how you define torture, but much of the administration's rationale depends on word play that it would not accept from, say, China. What really bothers me is not so much that the administration does some things that stretch the envelope, but that it thinks it has the right to stretch the envelope as much as it wants without anyone saying boo. And without really examining how much of what it does is necessary and effective. And, at the same time, it wants to be sanctimonious about our devotion to human rights.

It still brings us back to the definition of "torture," Marc. That's key to any objective analysis no matter how I approach it. Without base-lining and clear definition it's all just rhetoric, "full of sound and fury...."

We keep coming back to those legal gray areas, and how big or small or defined or undefined we need or want them to be.

Should Congress now investigate WaPo for outing sensitive information about covert CIA operation?

Remember that President Clinton in 2002 said, when referring to Osama being expelled from Sudan, "At the time, 1996, he had committed no crime against America so I did not bring him here because we had no basis on which to hold him, though we knew he wanted to commit crimes against America. So I pleaded with the Saudis to take him, 'cause they could have. But they thought it was a hot potato and they didn't and that's how he wound up in Afghanistan." (This is NOT a dig at President Clinton; I am quite certain that any pre-9/11 Republican president would have done the same thing at that time in those circumstances.)

The horror of the 9/11 attacks made us, as a country, do things which we would not have done otherwise. Some things were right, some wrong. Some started out right and then turned wrong along the way. Some, I am sure, seemed a great idea at the time but as the emotion of the destruction wears off we lose the stomach for them.

What would you have us do if, say, the NSA intercepts a cell phone call from an Al Qaeda operative giving orders to plant a bomb somewhere in America? We can't just arrest him and try him in a regular civilian court for any number of reasons. One, the order was probably given in code. Can we convict someone of saying "the lettuce turns brown on September 11"? Imagine a trial trying to explain the elaborate codes and communication systems used by the terrorists. Two, at any trial we'd have to play the recording of the terrorist that the NSA made. That would expose A LOT of our intelligence gathering techniques and sources, making it all the harder to catch the terrorists next time.

Not having a better idea what to do myself, I'm going to give the officials in the CIA and elsewhere the benefit of the doubt for now.

Pat, in your hypothetical, do you think it matters whether or not this operative is a US citizen or not?

Actually, I do trust the Democrats to use the system without taking advantage (but then, I start with the assumption that the system has pros that outweigh the cons, and that it is typically used in moderation anyway).

What I don't trust the Democrats to do is to forgo the political advantage of spinning this as a True Evil of the Buhs Administration, rather than having a sensible, well-reasoned, *moderate* discussion about it.

I'm open to the possibility that I could be wrong about the pros and cons and about the moderation of the administrators. I just don't think the Democrats are going to want to talk about it honestly.

Bush, as we know, doesn't want to talk about it at all. I suspect this has more to do with not trusting the opposition to take a tough-but-fair stance against it, and little or nothing at all to do with the conspiracy theorist's allegations of what's "really" going on...

"A lot of the people that bemoan this stuff don't have the responsibility if a terrorist attack happens. "

Wait... people get blamed for these things??? I mean, I know in other countries, say, Jordan, darn near an entire administration will resign after an attack.. but here???

If tomorrow, God[s] forbid, there were another attack on our soil, there would be no more blame or "accountability", -aside from name calling- as there was after Katrina, 9/11, the first tower bombings... etc, etc..

Lost in all this is our diminished standing in the world when it comes to talking about human rights. We can't really say much about Myanmar or China or Cuba when we're out renditioning prisoners for torture.

How do we get our good name back?

Everybody should be sure to read the WHOLE Washington Post article. Round about the last page, it makes it quite clear that this particular problem is largely one of CIA bureaucracy. A small, limited program (which probably had some merit originally) grew without much thought being given to it, because things were happening very quickly. And then it became a completely bureacratic, non-thinking entity with a life of its own. It won't end easily because who wants to take responsibility for releasing potential terrorists back into the wild, like the guys in the WaPo article who were released and then became suicide bombers. The article paints a picture that they became such because of "false imprisonment", but I'm quite sure there are other possibilities, too. I've heard reporters of released Al Qaeda bragging about succesfully lying to their interrogators and being released.

Brian, as a legal matter, I think it does matter whether the person is a U.S. citizen or not. As a policy matter, I'm more concerned with where they are arrested rather than their nominal citizenship. Arrested in the U.S. and a U.S. citizen, then you are a criminal and entitled to be treated as such, with all our due process protections. Arrested on the ground in Afghanistan or Iraq or wherever, and I'm not sure why you should receive all of those protections. And while, from a legal standpoint the "Baton Rouge Taliban", whose parents were living here when he was born but who grew up in Saudi Arabia, I don't see much reason to treat him any differently than other battlefield combatants in Afghanistan. He didn't want to live in the decadent West, so why should he be able to hide behind the rules of law he so emphatically rejected?

Marcus, I agree that our good name in the world is something we do and should value and should protect. But the renditioning issue is not easily reducible to sound bites. Suppose we apprehend an insurgent on the ground in Afghanistan. Turns out, he's a Saudia Arabian citizen/subject. We believe Saudi Arabia routinely tortures (real torture, not embarassing or humilating them) members of Al Qaeda for intelligence information. The circumstances of this capture don't allow us to definitively prove that the subject broke any U.S. laws. Do we: (a) drop him back at the bomb-making safe house where we found him, (b) lock him up in a secret CIA prison for an indefinite period of time, (c) return him to Saudi Arabia, or (d) grant him political asylum in the U.S. or another Western nation because he fears reprisals in his home country?

No, we let Afghanistan arrest him and hold him POW.
If there are charges pending in Saudi Arabia he can be extradited as per international treaty or something. They can then 'take care of him'. We need not soil our hands.

I'm sure that our "friends" in Saudi Arabia would be very willing to come up with a charge or two.

So if we let Afghanistan do the dirty work of actually transferring him to the Saudis, how is that not the evil "renditioning" of which you disapprove? If we use an intermediary between us and the final destination, that's ok?

Of course it is 'evil renditioning'. I didn't say I approve of it, I just provided one possible solution that exposes this country to less liability.

Ideally I think the Afghanis should take total responsibility and we should be out of the loop. The insurgent should be held as a POW until the hostiliities are over. The Afghanis may also consider it a crime and mete out whatever punishment it can as a sovereign nation.

Again we don't need to be in the loop. We shouldn't be control freaking.

Just handing him over to the Afghans would be just as much a violation of ICAT Article 3 as "renditioning" him directly to the Saudis (under the assumptions given). That's part of the problem. If we "tighten" the standards too much, then Pat's scenario of choices can rapidly be reduced to the legal options of: (a) drop him back at the bomb-making safe house where we found him, and (d) grant him political asylum in the U.S. or another Western nation because he fears reprisals in his home country. (Except that no other sane Western nation would want him, of course.) And if the nation we're in at the time is waiting to grab him for any reason when we release him under (a), even income tax evasion or jaywalking, we might not even be able to (legally) do (a). I've pointed this out before. It's a nasty little Catch-22 for the rulemakers.

Fall into that trap and many folks will line up to be captured and asylumed to America. Including real terrorists. Joy joy, instant visas, no waiting! Please don't throw me in the briar patch, Bre'r Yankee!

Once we capture them, we can't wiggle out by just handing them over to the home nation if we have any "reasonable suspicion" that said home nation will torture them or render them to someone who tortures, because we've already brought them into our custody and the ICAT Article 3 provisions apply. They were adopted into US Code back in the '90s. If the McCain Amendment goes through in whole, the standard for what torture consists of "drops", that ICAT Article 3 coverage expands under US Code, and it's even tougher to stay out of the "rendition" trap.

If it were simple and easy we'd have aready done it.

"Aggrandizing executive power on the pretext of a war on terror makes it harder for the world to tell the good guys from the bad guys.

Posted by baldandy at November 28, 2005 10:14 AM"

This practice started way before Bush came to office, it started in the mid 90's with the Clinton administration.

I don't know about the trap. Since Afghanistan is a sovereign nation with its own freely elected government and they are basically at war with the insurgents should they not get the prisoners?

Now let me interject with a bit of history. In WW2 we brought German POW's to the US, much to their delight as they got good food, good health care and no rubber hoses. Texas held 78,982 German POWs and the local term for these camps was "The Fritz Ritz". That treatment went a long way to creating a tremendous amount of good will towards the US and that served us quite well through the Cold War.

So maybe we keep them. Maybe we corrupt them with virgins, cars, xboxes (all within the strictest islamic precepts of course).

Anyway whatever we're doing now it's not doing anyone good at all. It's a policy that creates ill-will among those we want to keep as friends or at the very least, non-combatants. There needs to be a change and McCain's amendment is an excellent first start.

I think it is also important to remember the international laws which provide the context for renditions. The Geneva Conventions deal harshly with non-aligned combatants, i.e., combatants of no national army, with no uniforms, etc. The reason is that either side could use such combatants to incite the other side to take extremely harsh measures with the indigenous population. Belgians sniping at German troops in WWI "caused" the Germans to take civilian hostages and execute them in the ratio of 10 to 1.

The GC also assumes that taking a soldier out of the war has the same effect on the enemy's strength as killing him - so each side captures as many enemy combatants as possible, a treaty is negotitated and each side returns its captives. Very civilized.

But in this war, our enemy doesn't have a national sponsor (in the classic sense), and they don't have uniforms, and virtually all their actions are designed to incite us to extreme reactions to civilians.

The GC is clear on this - the captor has the right to summarily execute such a combatant. So all those combatants in Gtmo, and elsewhere, are already ahead of the game (Unless capture by the U.S. is a fate worse than death).

And clearly they can't be released, except under the control of an entity that guarantees they will not return to combat.

So - what to do? I don't know the answers, but personally, I'd rather have them sequestered away from the fight.

The GC is clear on this - the captor has the right to summarily execute such a combatant.

Yep. On the spot. Without trial or hearing.