Monday, February 9, 2009

Devil in the details [updated]

From Democracy Now (h/t Invictus):

Scott Horton: "Of course, the proof is in the details. I mean, we’re going
to have to see how these rules actually are applied by the CIA, and we’re going
to have to look and see how the commitment not to render torture is applied. The
legal standard is that someone cannot be rendered if it is more likely than not
that the person would be tortured. We saw in the last administration all sorts
of evasions used to get around that. I think we see a break in these executive
orders, but we’re going to have to see, on the basis of individual cases, how
these orders are understood and implemented."

Panetta, Confirmation Hearing, Feb 5 2009:

"If we had the ticking bomb situation and I felt that whatever we were
using wasn't sufficient, I would not hesitate to go to the president and request
any additional authority that we would need."

There's your details - the loopholes were there for a reason. More details:

The Obama administration will not prosecute CIA officers who participated in
harsh interrogations that critics say crossed the line into torture, CIA
Director-nominee Leon Panetta said Friday.
Asked by The Associated Press if that was official policy, Panetta said, "That is the case."
It was the clearest statement yet on what Panetta and other Democratic officials had only strongly suggested: CIA officers who acted on legal orders from the Bush
administration would not be held responsible for those policies. On Thursday, he
told senators that the Obama administration had no intention of seeking
prosecutions for that reason.
Panetta, in an interview with the AP after a second day of confirmation hearings with the Senate Intelligence Committee, said that he arrived at that conclusion even before he began meeting with CIA officials.
"It was my opinion we just can't operate if people feel even if they are following the legal opinions of the Justice Department" they could be in danger of prosecution, he said.

So before Panetta met with CIA officials, or had read the memos and internal documents dealing with the work done by the CIA for the executive government...he says, investigation and prosecution is off the table. Details, details.

More details to consider:

"Panetta told the committee that the Obama administration will continue to hand
foreign detainees over to other countries for questioning, but only if it is
confident the prisoners will not be tortured in the process.
That has long been U.S. policy, but some former prisoners subjected to the process — known as 'extraordinary rendition' — during the Bush administration's anti-terror
war contend they were tortured. Proving that in court has proven difficult, as
evidence they are trying to use has been protected by the president's state
secret privilege.
'I will seek the same kind of assurances that they will not be treated inhumanely,' Panetta said during his second day before the Senate Intelligence Committee. 'I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries.'
Some critics worry that any gray area in delineating policy on renditions could allow for abuses."

How is what Panetta says here at all different for what we ripped John Brennan for saying?

From Glenn Greenwald:

"Then there is Brennan's December 5, 2005 appearance on The News Hour
with Jim Lehrer, in which he vehemently defended the Bush administration's use of rendition -- one of the key tools to subject detainees to torture:

'JOHN BRENNAN: I think over the past decade it has picked up some
speed because of the nature of the terrorist threat right now but essentially
it's a practice the United States and other countries have used to transport
suspected terrorists from a country, usually where they're captured to another
country, either their country of origin or a country where they can be
questioned, detained or brought to justice. . . .
MARGARET WARNER: So was Secretary Rice correct today when she called it a vital tool in combating terrorism?
JOHN BRENNAN: I think it's an absolutely vital tool. I have been intimately familiar now over the past decade with the cases of rendition that the U.S. Government has been involved in. And I can say without a doubt that it has been very successful as far as producing intelligence that has saved lives.
MARGARET WARNER: So is it -- are you saying both in two ways -- both
in getting terrorists off the streets and also in the interrogation?
JOHN BRENNAN: Yes. The rendition is the practice or the process of rendering somebody from one place to another place. It is moving them and the U.S. Government will frequently facilitate that movement from one country to another. . .
Also I think it's rather arrogant to think we're the only country that respects human
rights. I think that we have a lot of assurances from these countries that we
hand over terrorists to that they will, in fact, respect human rights.
And there are different ways to gain those assurances. But also let's say an
individual goes to Egypt because they're an Egyptian citizen and the Egyptians
then have a longer history in terms of dealing with them, and they have family
members and others that they can bring in, in fact, to be part of the whole
interrogation process.'

Even when CBS News -- for which Brennan was serving as an intelligence analyst -- was reporting on the dreadful case of Maher Arar, the Canadian citizen whom the
Bush administration abducted at JFK Airport and rendered to Sryia for 10 months
to be tortured only for it to then be revealed that he had no connection whatsoever to terrorism, Brennan was defending the rendition program:

'CBS NEWS: Despite Arar's experience, this former counterterrorism official says
"rendition" does have its place.
Mr. JOHN BRENNAN (CBS News Terrorism Analyst, Former Director, National Counterterrorism Center): I think it allows us to have the option to move a person who is involved in terrorism or terrorism-related activities to a country where they can be effectively questioned or prosecuted.'"

As Greenwald himself put it, the centerpiece of the anti-Brennan argument was "his emphatic advocacy for rendition and 'enhanced interrogation tactics.'"

At present, we have a CIA Director willing to seek "additional authority" in interrogations - despite the fact that the current Army Field Manual approves tactics that can amount to torture. Based on Obama's executive order Ensuring Lawful Interrogations, you might be able to argue, as based on this post, one thinks BTD might, that Appendix M is nothing to worry about - if Appendix M is only applicable to 'unlawful combatants,' as the Center for Constitutional Rights says, then Obama's prohibition against relying upon interpretations of the law "issued by the Department of Justice between September 11, 2001, and January 20, 2009" means 'unlawful combatant' is no longer a category for any detainee. Unless Obama's DoJ restores the category, Appendix M means nothing. [UPDATE: Even if Obama were to maintain the status of unlawful combatant for detainees, they would still under the Geneva Conventions be covered - they could not be subjected to physical or moral coercion, nor "tortured either psychologically or physiologically" - Jane Mayer "The Dark Side" p.83 ]

But why then does Panetta say he will without hesitation seek additional authority, if needed? He believes he will be rejected, but we learned today that the Obama Administration is invested in preserving at least some of Bush's legal labyrinths. In Daphne Eviatar's words, "the new administration today stood up in a federal appeals court and reiterated the Bush administrations’ arguments that victims of 'extraordinary rendition' and torture should not be allowed to bring their claims in federal court because doing so would reveal 'state secrets' and harm national security."

Where does it end? If the Obama administration wants to preserve massive amounts of executive power, we will not escape from the shadow of torture. Torture could be, torture could not be. It's the executive branch's call.

What does the Obama administration expect? That four years of a Democratic presidency will get us all "used to" not relying on torture? It'll just go away? If you don't punish the people that brought us here, illegally, how is it that it will go away?

If the Obama administration wants to cover its anti-torture bases, it has to do better. Since Obama issued his executive orders, things have all been downhill. Conditions worsening in Gitmo. State secrecy preserved. A once strongly anti-torture CIA nominee within steps of being confirmed, claiming in the same language used by past torturers by proxy that he will "gain assurances;" an almost newly minted CIA Director saying he will ask for additional authority if necessary.

If the plan is to render detainees to third countries, where they can be tried, the plan is not necessarily a good one - as former CIA Michael Scheuer says, “What was clever was that some of the senior people in Al Qaeda were Egyptian.” Egypt has an oustanding warrant for these people. What on God's earth are we going to do to get them not to torture? The US legal system allows for renditions into itself - and these renditions are already against international law. We can arrest via "extraterritorial jurisdiction."

The anti-torture left needs to call for immediate clarification into Obama's policy regarding torture. Bush bastardized our language. If you're not going to prosecute, at least let us know in clear words your intentions.

Or I guess we can keep getting surprised, as we were today with the Obama admin's support of state secrecy. But that won't do a damn thing.

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