Thursday, February 5, 2009

Obama's Laws

Although Obama's executive orders pertaining to rendition may permit such renditions as would violate international law (in other words, renditions outside of extradition agreements - see Valtin's comment to this post), those orders are presently domestic law.

Therefore, they would be binding upon all renditions performed. So when Spencer Ackerman writes today, of the Panetta nomination:

"For instance, the orders demand the CIA shut down the so-called 'Black Sites,'
or secret prisons run by the agency or through its foreign-intelligence
partners. But they do allow for CIA to hold detainees on 'a short-term,
transitory basis' before transferring them to another government agency. But how
long should that period be? Hours? Days? Weeks? What procedures should be in
place to determine humane treatment of those detainees during a time when
they’re not likely to have access to human-rights monitors like the
International Committee of the Red Cross?"

It seems to me that Obama's executive order, Sec 4. part b, suggests that, if a detainee were to be rendered to another country's government, before passing to that country, their name would have to be released to the International Committee of the Red Cross - and the Red Cross would also be given access to the detainee:

"All departments and agencies of the Federal Government shall provide the
International Committee of the Red Cross with notification of, and timely access
to, any individual detained in any armed conflict in the custody or under the
effective control of an officer, employee, or other agent of the United States
Government or detained within a facility owned, operated, or controlled by a
department or agency of the United States Government, consistent with Department of Defense regulations and policies."

Hilzoy makes this very point: "His executive order also precludes any kind of secret detention of prisoners, and thus 'secret abductions and transfers of prisoners'...Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else." The executive order states that the International Committee of the Red Cross will have access to any individual detained - any and all. No more "Camp NAMA"s. The International Committee of the Red Cross will apparently have a record of our detainees that matches, in very important ways, our record. Accountability in real-time (hypothetically), at least when it comes to the subject of our detainees in our custody.

This is all well and good. But other measures could improve accountability considerably. I would think it none too difficult to deceive/mislead the International Comm. of the Red Cross. As an Illinois State Senator, Obama pushed for a law to videotape all police interrogations. He could presumably issue an executive order dictating the same in all of our detainee interrogations. All of them - interrogations in temporary holding cells, interrogations domestically.

But is a videotaped interrogation much consolation to someone who has been kidnapped? Let me go out on a limb here and say NO.

I plan to post on the legal issues regarding rendition later this week. Unfortunately I don't have the time to give to the problem that it deserves today. Apologies for the delay.

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