Abu Omar kidnapping case to proceed (in Italy)

Italian prosecutor Armando Spataro is going on with his case under legal circumstances quite different from those in America (well, currently). Spataro is seeking to prosecute 26 Americans and 7 Italians for the kidnapping of Abu Omar, who was flown from Italy to Egypt to be tortured. Amazingly, even though wiretap transcripts of the Italian intelligence agency involved is now excluded as a violation of state secrets, the case will still go on! How can this be?

According to Spataro in an interview set up by Jeff Stein he has "plenty of other evidence to fall back on":

"According to some early news accounts Wednesday, the court's decision was
a 'potentially fatal blow' to the prosecution.

But Spataro, who has also successfully prosecuted some of Italy's top terrorism cases, has plenty of other evidence to fall back on.

After Omar was reported missing, for example, Spataro's investigators
talked to a woman who said she saw men snatch Omar off a Milan street and take
him away in a van.

Using cell phone records, investigators eventually linked the kidnapping to
25 CIA agents and a U.S. Air Force officer at Aviano Air Base, where Omar was
allegedly taken and flown out of the country, according to an official who
identified the plane.

They also raided the home of the CIA's top official in Milan, Robert Seldon
Lady, where they captured computer disks with surveillance photos of
Omar and other evidence related to the case.

Spataro will also be able to call on Italian police who were involved with, or learned of, the 'extraordinary rendition' plan."

Wait a second...are you telling me that this evidence is admissible? That what is public can be brought into the courtroom? It doesn't sound like this will destroy the Italian state either...

It's no surprise that it was the AP that provided the account describing the exclusion of some of the wiretap transcripts as a "potentially fatal blow." After all, in our country, cases involving torture, rendition, or wiretapping are kicked aside for the flimsiest of reasons by the government. Imagine the variety of the bundle of evidence in Mohamed et al v. Jeppesen. And truly, there is so much that is public - flight records, quotes from Boeing employees, etc.

The Italian government is not seeking to throw out Abu Omar's whole case based on "national security." Nor are they apparently daunted by whatever threats the United States might be making to make this go away (as the UK has been). Even the Americans' attorney suggests that despite the excluded evidence, the case against the Americans may continue.

Hopefully, as this case goes on, it will prove doubly embarrassing for the US, triply even. First for the exposure it will give to our shameful rendition to torture program and its ineffectiveness. Secondly because it will show up exactly how cowardly our government is for seeking to dismiss cases involving similar facts outright. As Stephen Grey writes in "Ghost Plane," "If Watergate was about 'follow the money,' the story of renditions was about 'follow the planes'." Except...we are apparently barred from doing that, and worse, the victims of these flights, would be by the request of the government barred from doing that.

Thirdly, it should be embarrassing because those at the very top responsible for authorizing the torture are still getting off scot-free - while the operatives who carried out the nitty-gritty of the rendition of Abu Omar are being put in front of an Italian court. The geniuses that decided torture was the way to go refuse to take responsibility for their actions - and we still refuse the responsibility to hold them accountable. First Abu Omar was a victim of these policies - and now the CIA operatives (such as Bob Lady) are. Bushco seemingly never is. Abu Omar and Bob Lady have both been deeply affected by this case. Neither of them thought it was a particularly good idea to carry out this rendition. Others did. So it goes. But for them to claim they take responsibility is a crock - and that we do not take steps to hold them accountable is also a crock.

Anti-Rendition Activism in North Carolina

from WRAL/AP:

"Activists want anti-rendition pledge from airport

RALEIGH, N.C. — Stop Torture Now is bringing a retired military officer to help convince the Johnston County Board of Commissioners to sign an anti-rendition pledge.

The group says Aero Contractors, which is based at the county's airport, flies detainees to secret prisons and interrogations. Floyd McGurk, who served two tours in Vietnam, will speak at Monday's commissioner meeting about how torture endangers American troops.

Four of McGurk's family members are currently serving in Iraq.

The group's proposed pledge would ban Aero from public facilities at the airport and
refer allegations of its involvement in kidnapping and torture to law
enforcement agencies."

Interesting pushback against the idea that has emerged in the brains of our businesses - "we can do whatever we want as long as the government tell us to." Telco amnesty, invoking the state secrets privilege in Mohamed et. al. v Jeppesen...good on Stop Torture Now for reminding businesses that they follow the same laws as the rest of us.

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.” Ok...so 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.

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.

The Media and Obama Renditions

The media has been all over the place when it comes to news that Obama will use renditions as part of his counterterrorism strategy. There isn't necessarily anything wrong with that - as Richard Clarke points out, renditions can be legal, they can be effective, and they can result in justice being served. This is an ideal rendition scenario. I am anxious to see what safeguards will be put in place to guarantee that renditions performed by the American government are legal, effective, and done within the scope of human rights. Having our Congressional Intelligence Committees perform oversight is not exactly what I want - after the Bush era, who can trust them to really be watchdogs? Renditions are used because secrecy is necessary - otherwise extradition would do the trick and there wouldn't be anything to hide. But there needs to be a way to make sure the entire process is not secret. I also would like to see that our CIA operatives are trustworthy in preserving the human rights of the detainee - it shouldn't be a problem, but if it is, Obama needs to enforce the rules by coming down hard on such people.

However, the above universe of questions has pretty much escaped the media. The LA Times piece by Greg Miller inspired a number of misleading titles and reports. A quick Google News search for "Obama rendition" over the past month gives us such titles as "Obama 'breaks promise', gives blessing to rendition," "Renditions still allowed under new Obama directive," "Obama is right to stick with rendition," and Media Matters dissects here a John King segment.

Rendition is pretty confusing, and making it clear that Obama's program is different from Bush's should be a priority of SOMEONE on his team. I don't see how it does Obama any good to have the world think he is the same as Bush on this key issue.

For example, Ed Morrissey is ridiculously misinformed and assumes Obama's program is the same as Bush's. Due to Obama's executive orders mandating strict anti-torture standards and "lawful" options (Scott Horton points out that rendition to torture is considered a felony under US law) , it is not and cannot be. And I don't know where he gets the idea that "The CIA by law cannot bring the suspects back to the US." That we can get detainees back to the US is pretty much the point of a limited renditions program, as Clarke demonstrates. Morrissey does have a point about renditions though - "Most of these terror suspects grabbed by the CIA come from countries like Pakistan, Saudi Arabia, Egypt, Jordan, and other emirates where the Geneva Convention only provides a veneer of respectability and not legal constraints of any kind." It's difficult to imagine a scenario in which Obama could get legitimate assurances from these particular countries.

Rendition is a confusing business. Hilzoy does a nice briefer here. I will try to be more specific personally when describing renditions. Scott Horton has another great post here. This is a great opportunity for blogger pushback against the media. And maybe if we keep the focus on Bush rendition ugliness, we'll inspire more interest in an investigation of renditions conducted during his presidency.

Trusting the People In Power

Greg Miller at the LA Times gives us a somewhat disturbing story today. To quote:

"Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

...

'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.'

One provision in one of Obama’s orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret
prison sites 'do not refer to facilities used only to hold people on a short-term, transitory basis.'

...

The decision to preserve the program did not draw major protests, even
among human rights groups. Leaders of such organizations attribute that to a
sense that nations need certain tools to combat terrorism.

'Under limited circumstances, there is a legitimate place' for renditions,
said Tom Malinowski, the Washington advocacy director for Human Rights Watch.
'What I heard loud and clear from the president's order was that they want to
design a system that doesn't result in people being sent to foreign dungeons to
be tortured -- but that designing that system is going to take some time.'

Malinowski said he had urged the Obama administration to stipulate that
prisoners could be transferred only to countries where they would be guaranteed
a public hearing in an official court. 'Producing a prisoner before a real court
is a key safeguard against torture, abuse and disappearance,' Malinowski
said."

The problem with renditions goes beyond whether or not the prisoner is directly shipped off to a country that will torture him/her. It's a problem that has to do with accountability as well. If the abductions are secret, how will we know those abducted get their day in court? Obama preserving rendition also makes it more difficult to pinpoint the errors of the Bush-era CIA. Unless Team Obama is willing to go very public with their hair-splitting, Hayden & Tenet just got a lot of cover. Miller's article is pretty flattering to, and uncritical of, Hayden. For example:

The CIA has long maintained that it does not turn prisoners over to other
countries without first obtaining assurances that the detainees will not be
mistreated.

In a 2007 speech, https:// www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreign-relations.html "> www.cia.gov/news-information/speeches-testimony/2007/general-haydens-remarks-at-the-council-on-foreign-relations.html the agency had to make a determination in every case "that it is less, rather than more, likely that the individual will be tortured." He added that the CIA
sought "true assurances" and that "we're not looking to shave this 49-51."

Even so, the rendition program became a target of fierce criticism during
the Bush administration as a series of cases surfaced.

That is a completely ridiculous assertion that has been disputed by many. Hell, the whole premise of Reuel Marc Gerecht's op-ed of Dec 2008 is that we know which countries torture, and we might just want to keep our options open regarding them. And later from Miller:

"But U.S. intelligence officials contend that the EU report greatly
exaggerated the scale of the program and that most of the flights documented by
the Europeans involved moving supplies and CIA personnel, not prisoners.

Instead, recent comments by Hayden suggest that the program has been used
to move no more than a handful of prisoners in recent years and that the total
is in the 'midrange two figures' since the Sept. 11 attacks."

Well, Peter Bergen and Katherine Tiedemann found evidence of "117 renditions that have occurred since September 11, 2001." They continue "When we excluded renditions to Afghanistan, CIA secret prisons (or "black sites"), Guantanamo, or American custody, we found 53 cases of extraordinary rendition. All individuals for whom the rendition destination is known were sent to countries that have been criticized by the State Department’s annual Country Reports on Human Rights Practices, which document 'torture or other cruel, inhuman or degrading treatment or punishment.'" But, eh, how can a non-CIA driven storyline possibly be true?

Another issue with renditions is that they aren't good for much of anything - Miller's intelligence source admits they are in some ways the "worst option." Again, the Abu Omar rendition is a great example of the stupidity of renditions. I'll refer again to Matthew Cole's excellent piece, Blowback:

But today, as they spoke over coffee, there was something Lady couldn’t
tell Megale: A team of CIA officers were tracking Omar as he walked from his
home to noon prayers, intending to abduct him, put him on a plane, and send him
to Egypt for “questioning,” and that the only reason Lady had scheduled today’s
meeting in the first place was to keep an eye on Megale, in case something went
wrong.

In fairness, it was a plan Lady never believed in. He thought the intelligence being gathered would, in a few months, be enough to ensure Omar’s arrest and conviction; why put a promising joint investigation (not to mention Lady’s relationship with Megale) at risk by doing something as provocative as kidnapping a man off the street in a major Italian city? Progress was being made; Lady was preaching patience.

So rendition was a stupid alternative - it disrupted the progress being made between two cooperating intelligence services. And why did this rendition happen? Again from Matthew Cole:

"Of course, this operation was one that he—and CIA leadership—had been pushing
for all along, to 'show the wimps in the NSC and the House Intelligence
Committee that the agency didn’t need help from foreign governments,' said
the former official."

Greeeat. I am glad the United States intelligence agencies will still hold a place for that kind of mentality.

If you don't have the evidence to try a terrorism suspect, what good is done by whisking them away to another country, to "stand trial"? Or, of course, that may not be the point.

A question

Is this report to be believed?

"The Guantanamo Bay prison camp was ordered closed by the US president, in
addition a review of the detainees' trials was ordered, along with the
closure of CIA secret prisons and an end to harsh interrogations.
But the orders appear to leave loopholes that could allow some controversial US
practices to continue.
Extraordinary renditions, where 'terror' suspects are apprehended and transferred from countries by US intelligence services or their allies, without going through any
legal process, could still be carried out.
A senior Obama administration official has said the policy of extraordinary rendition would continue while a task force headed by the US attorney general investigates the issue.
The task force will report back to Obama in six months.
The official also said the US would not render anyone to a country that tortures and will gain assurances from the countries that they do send people to that the suspects won’t be tortured."

This is the only place I've read that. I will update later if I find corroboration.

Amped Up American Exceptionalism

Hi everyone. I have been out of town for a few days. I still have to catch up on my reading. But I caught this AP article from Big Tent Democrat over at TalkLeft:

WASHINGTON (AP) — President-elect Barack Obama is preparing to prohibit the use of waterboarding and other harsh interrogation techniques by ordering the CIA to follow military rules for questioning prisoners, according to two U.S. officials
familiar with drafts of the plans. Still under debate is whether to allow exceptions in extraordinary cases.
The proposal Obama is considering would require all CIA interrogators to follow conduct outlined in the U.S. Army Field Manual, the officials said. The plans would also have the effect of shutting down secret "black site" prisons around the world where the CIA has questioned terror suspects — with all future interrogations taking place inside American military facilities.
However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

A loophole? No, no no. More:

The CIA also banned waterboarding in 2006 but otherwise has been secretive about
how it conducts interrogations. In the past, its methods are believed to have
included sleep deprivation and disorientation, stress positions and exposing
prisoners to uncomfortable cold or heat for long periods. It's also believed
that some prisoners have been forced to sit in cramped spaces with bugs, snakes,
rats or other vermin as a scare tactic.

And this is completely illogical:

For Obama, who repeatedly insisted during the 2008 presidential campaign and the
transition period that "America doesn't torture," a classified loophole would
allow him to follow through on his promise to end harsh interrogations while
retaining a full range of presidential options in conducting the war against
terrorism.
The proposed loophole, which could come in the form of a classified annex to the manual, is designed to satisfy intelligence experts who fear that an outright ban of so-called enhanced interrogation techniques would limit the government in obtaining threat information that could save American lives. It would also preserve Obama's flexibility to authorize any interrogation tactics he might deem necessary for national security.

The conflict appears to be between Eric Holder and the John Brennans on Obama's team. Both are powerful:

Senate Democrats aren't likely to support a classified annex. Holder on Thursday
said the interrogation methods outlined in the Army manual would be just as
effective as those used by the CIA.
"I'm not convinced at all that if we restrict ourselves to the Army field manual that we will be in any way less effective in the interrogation of people who have sworn to do us harm," Holder said.

BTD makes a good point, borrowing from Glenn Greenwald: war crimes via loopholes are still...war crimes.

But I also find it interesting that the CIA wants to apply public pressure to so many aspects of Obama's policy, yet take none of the blame for the creation of that policy. John Brennan goes on TV and defends rendition - but he reassures the Obama team that he had nothing to do with "enhanced interrogation" policy construction, and they nod their heads in agreement. The CIA doesn't want to be investigated - they were just following orders (which as BTD says, does not excuse war crimes as per Article 2 - "3. An order from a superior officer or a public authority may not be invoked as a justification of torture. . . ."). They nonetheless openly condone and put pressure on the Obama administration to continue torture and rendition. From the AP article:

Speaking with reporters Thursday, outgoing CIA Director Michael Hayden said
harsh interrogation tactics have been needed to get information from the most
hardened terror suspects. He and some other U.S. intelligence
officials oppose limiting the CIA to the Army manual, which was written
specifically for military interrogations and may not be effective on the most
dangerous detainees.

"It is an honest discussion to talk about what techniques we should use,
but to assume automatically that the Army Field Manual would suit the needs of
the republic in all circumstances is a shot in the dark," Hayden said.
[emphasis mine]

Are we really supposed to believe that the U.S. intelligence community bears no culpability for the torture regime? Everytime Hayden, Brennan, and others open their mouth to cheerlead for the Bush administration's policies, they put the lie to that theory and suggest that things may've been more complicated than they seem.

Mark Lowenthal's B.S. is a little tired. And apparently Obama's hedging on This Week was intentional. If Obama somehow continues any aspect of the Bush torture regime, I would be hardpressed to see how pressure from the intelligence community was not largely to blame.

Listening to Cofer Black

Cofer Black, Men's Journal Interview Oct 2008:

After 9/11 the CIA was given unprecedented freedom to fight a clandestine war in Afghanistan. Was it enough?
"The contrast between my job at CTC before 9/11 and after was dramatic. Before, it was encumberment and bureaucracy; after, with the support of the president, we had the resources we needed to do the job, and we got the approvals we needed. We had plans, we had experience, we were highly motivated, and, frankly, we had been chained to the ground like a junkyard dog. Now the chain was cut."

Why wasn’t the CIA more accommodating with the Northern Alliance in their fight against the Taliban? Was it out of deference to Pakistan’s hegemony?
"The CIA executes. It can propose options, but other people make decisions. This has to do with the national command authority and the National Security Council. We were great proponents of advancing that relationship with the Northern Alliance..

So you think the renditions and interrogations of Al Qaeda suspects have been successful?
"I like to think we are brainy enough to know that if something isn’t working we stop it and try something else. We didn’t have the luxury of being inefficient. It is standard procedure in a combat zone to interrogate prisoners of war. I think at last count the CIA is accused of waterboarding three guys. The waterboarding was done legally, with the Department of Justice signing off on it. I’m an operations guy, and I’m not a big fan of interrogations, but you know, life’s tough and there are no easy answers. The American people have to decide if they want interrogations done or not. If not, the repercussions will have to be on someone else’s conscience."

Let’s talk in more general terms about how you do your work. What does the CIA do right?
"Intelligence involves the collection of information and analysis. Both functions are vital. Our newspapers are full of 'CIA did this…' and 'CIA did that.…' In reality the CIA executes instructions to collect, and on comparatively rare occasions takes 'covert action' at the direction of the National Security Council and the president. “Covert action” activities most often seem a stopgap, last-resort effort to right a difficult or even failed U.S. government policy. The odds against the operator in such situations are often stark, but in a surprisingly large number of occasions, CIA achieves the goals set for them — although success does not make much of a stir, whereas failure gets the full attention of the media as well as congressional and Senate oversight committees. Over a 28-year career at CIA, I was never invited to testify before a congressional committee regarding a 'success.'" [emphasis supplied]

Cofer Black, Frontline "Bush's War" March 7 2006:

Were you able to speak truth to power in the Oval Office? Were they listening to you?
"I was a public servant; you join the Central Intelligence Agency to serve in a special capacity." When asked, I have told every superior exactly what I think. I execute the legal orders given to me. If I don't agree with them, I go back, and I say, "Sir, I believe I have the sufficient authority, and it's legally acceptable under authorities." After that, you have to soldier on or quit; you have a choice. It's pretty straightforward.
And Tenet, could he do it?
"... I think you should ask Director Tenet. Everyone has their own view. Mine is very simplistic and very old school. My own personal view is that we're here to serve the American people, to protect. ..." [emphasis supplied]

Now Cofer Black is someone whose aggressiveness post-9/11 requires a serious critical look by Congress. His answers over these two interviews suggest totally different things about management culpability and leadership roles. The CIA proposes options, he claims - it is up to others to make decisions.


Let's take a look again at the Chicago Tribune article that makes up the core of my criticism of Stephen Kappes:

Under guidelines established after Sept. 11, each proposed rendition must be
approved at several levels within the CIA, but not by the White House itself.
The veteran senior CIA official said one of those who signed off on the Abu Omar
abduction was Stephen Kappes, at the time the agency's associate deputy director
for operations and currently its No. 2 official.

So the Bush administration set up a policy in which only CIA signatures were on the war crime paperwork? Well, what kind of idiot at the CIA agreed to that? This contradicts Cofer Black's sense of what the CIA does and how it interacts with the Executive Branch (btw, I do know that Tenet and others kept Rice and others on their end aware of the various renditions that went on).

Not investigating the CIA would be a disaster. If Congress punts on this, I would expect the Intelligence Committees to call the whole thing off and dissolve themselves. The concept of oversight was created for moments like this.

Rendition En Vogue

In Obama's intelligence ranks, he is set to have at least two major supporters of rendition - Stephen Kappes and John Brennan. This is worrying because it suggests there will not be a fundamental policy change. If we don't renounce all the "dark side" tactics, it's hard to see what we will gain in "soft power."

Now we have Greg Miller at the LA Times presenting us with some Very Serious People who think rendition is a reasonable way to go:

"Obama appeared to leave little wiggle room in his remarks Friday. The
president-elect pledged that his administration would 'adhere to our values as
vigilantly as we protect our safety, with no exceptions.'

But Obama specifically mentioned only the CIA's interrogation program,
without addressing other pieces of the U.S. intelligence arsenal that may be
more difficult to set aside.

Richard Clarke, a former senior U.S. counter-terrorism official who advised
the Obama team and was considered for the CIA job, said he did not expect Obama
to be any less aggressive in pursuing Al Qaeda.

'Obama consistently talks about using all the weapons in our tool kit to
deal with Afghanistan, to deal with terrorism," Clarke said. "And that does mean
all.'

Even so, Clarke said that he believed the new administration would go far
beyond tightening CIA interrogation policy and would make sweeping changes to
other clandestine programs.

Asked about the CIA's secret prisons, Clarke said: 'I assume they will be
closed. Maybe not on Day One.'

The secret prison program was developed in the aftermath of Sept. 11, and
at one point included a constellation of undisclosed facilities stretching from
Eastern Europe to Thailand.

Under mounting pressure from U.S. courts and other countries, the Bush
administration emptied the prisons in 2006, transferring 14 detainees --
including self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed -- from CIA custody to the military-run camp at Guantanamo Bay.

But the administration kept at least a kernel of the program intact, and
the agency is believed to still operate a secret facility near Kabul,
Afghanistan. If those prisons are closed in addition to Guantanamo Bay, experts
said, the United States would face a dilemma concerning detainees it does not
want to release.

'Preventive detention is a tricky issue,' said Daniel Byman, a terrorism
expert at Georgetown University and former analyst at the CIA. 'It's a sweeping
tool and dangerous in the wrong hands. But do you want to be the one who made
the decision to let the jihadist go, and he kills someone?'

The Obama team could decide to keep the CIA facilities under a modified
framework and, for the first time, allow them to be visited by monitors from the
Red Cross. But some experts believe that it is more likely that the U.S. will
shut down the CIA prisons and rely more heavily on 'extraordinary renditions,'
the practice of turning captives over to the custody of other countries.

The CIA began carrying out renditions under President Clinton, but the
practice became a source of controversy during the Bush administration, largely
because of cases like that of Khaled Masri, a German citizen arrested by the CIA
and detained in secret in Afghanistan for months in an embarrassing case of
mistaken identity. Masri, like many such detainees, said he was beaten and
tortured.

Critics accused the CIA of using renditions to deliver suspects to nations
known to engage in torture. But if the United States is no longer willing to
hold suspects itself, Obama may have little choice.

'I think it's reasonable to expect [that Obama] would be much more careful
about turning prisoners over,' said another former U.S. intelligence official
who has advised the Obama team. 'But I would not expect there would be a policy
against ever doing renditions.'

John Brennan, a former high-ranking CIA official selected by Obama to serve
as his counter-terrorism advisor, could hold wide influence over many of these
matters.

And who is going to help us do this? Quite a few European countries (with varying degrees of complicity in rendition) have diligently investigated renditions that occurred on their soil. They are not thrilled with their involvement. The cat is out of the bag - it is difficult to understand how they would - or why they would - assist us in our disappearances. One of the reasons rendition policy doesn't work on a practical or a legal level.

Der Spiegel interviews ex-CIA Tyler Drumheller:

SPIEGEL: How important is Europe to the CIA?

Drumheller: The only way we will ever be able to protect ourselves
properly is if we can get a handle on the threat in Europe, since that is the
continent where fanatics can best learn their most crucial lesson: How to
disappear in a Western crowd. Europe has become the first line of defense for
the United States. It has become a training ground for terrorists, especially
since the war in Iraq has heralded an underground railroad for militants to go
and fight there. It is being used for young fanatics in Europe to be smuggled
into Iraq to fight Americans and, assuming they survive, to return home, where
they present a more potent threat than they did before they left. Since the odds
against penetrating the top of al-Qaida are phenomenally high, we must pursue
the foot soldiers.

SPIEGEL: But given the uproar in Germany and all over Europe, it looks
highly unlikely that they will cooperate fully with the CIA.

Drumheller: The guys who attacked the World Trade Center didn't fly
from Kabul to New York. They came from Hamburg. So the value in befriending the
local intelligence services in Europe instead of alienating them is clear: We
need to ensure that they are telling us everything they know.

and from earlier in the interview:

SPIEGEL: The renditions program saw the kidnapping of suspected Islamist
extremists to third countries. Were you involved in the program?

Drumheller: I would be lying if I said no. I have very complicated
feelings about the whole issue. I do see the purpose of renditions, if they are
carried out properly. Guys sitting around talking about carrying out attacks as
they smoke their pipes in the comfort of a European capital tend to get put off
the idea if they learn that a like-minded individual has been plucked out of
safety and sent elsewhere to pay for his crimes.

SPIEGEL: We disagree. At the very least, you need to be certain that
the targets of those renditions aren't innocent people.

Rendition is the wrong policy for so many reasons, and it would be a tragic mistake for Obama to retain it.

Reminder - an appearance by Samantha Power on BBC's Newsnight March 3 2008 (h/t Chatham House):

JEREMY PAXMAN: "Measures like extraordinary rendition, he [Obama] wouldn't allow that, would he?"
SAMANTHA POWER: "Banned."



Update: There is also this.

From Newsday - Obama: "I was clear throughout this campaign and was clear throughout this transition that under my administration the United States does not torture. We will abide by the Geneva Conventions. We will uphold our highest ideals," he said. "We must adhere to our values as diligently as we protect our safety with no exceptions."

From Sangitha McKenzie Millar:

"Extraordinary rendition violates both international and U.S. domestic law.
In terms of international law, a 2006 study analyzing extraordinary rendition from a human rights perspective concluded that the practice 'violates numerous international human rights standards, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention and Protocol Relating to the Status of Refugees, the Convention against Torture, the Vienna Convention on Consular Relations, and the Geneva Conventions.'

The Universal Declaration of Human Rights guarantees the 'right to life, liberty, and
security of the person,' and some argue that extraordinary rendition violates the treaty because the abduction itself involves a deprivation of liberty and security. Furthermore, the Declaration guarantees that 'Everyone has the right to recognition everywhere as a person before the law,' but extraordinary rendition denies individuals access to judicial procedures and legal recognition. Extraordinary
rendition also violates the Geneva Conventions of 1949 in that Article 49 prohibits forcible transportations and deportations 'regardless of their motive.'”

Press Obama to keep his promises.