Pruning Shears

No Associated Press content was harmed in the writing of this post

Extraordinary rendition was not a creation of the Bush administration; like many of the very bad things it did, it took previous examples at any scale - even very isolated or almost unique ones - as justification for full scale implementations.  This is true of rendition; when Jane Mayer stopped by FDL for its Book Salon series I asked about its prior use.   Later on (in response to another question) she allowed “it was a sham process pre-9/11, but it became not even that, afterwards.”  It looks now like rendition not only won’t be restored to those “better” levels, but might (via) in fact increase:

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.

<snip>

“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.”

Obviously.  Within certain parameters, of course.  It’s not like we couldn’t create some new “tools” that might not kick up a storm in Europe.

Barack Obama is not a constitutional law scholar any more, he’s president.  It shows.  Hope is not Kool Aid.

UPDATE: Scott Horton says the article

misses the difference between the renditions program, which has been around since the Bush 41 Administration at least (and arguably in some form even in the Reagan Administration) and the extraordinary renditions program which was introduced by Bush 43 and clearly shut down under an executive order issued by President Obama in his first week.

<snip>

The earlier renditions program regularly involved snatching and removing targets for purposes of bringing them to justice by delivering them to a criminal justice system. It did not involve the operation of long-term detention facilities and it did not involve torture. There are legal and policy issues with the renditions program, but they are not in the same league as those surrounding extraordinary rendition….In the course of the last week we’ve seen a steady stream of efforts designed to show that Obama is continuing the counterterrorism programs that he previously labeled as abusive and promised to shut down. These stories are regularly sourced to unnamed current or former CIA officials[.]

My concern is with the comments from an unnamed administration official, not the intelligence community.  And the comments that the program is “controversial in some circles and kicked up a big storm in Europe” suggests that what the administration envisions may still be very objectionable.  I don’t like the “some circles” and “in Europe” language either; to me it implies they think opposition to the extraordinary rendition program is limited to a small group of civil liberties zealots when it is a fundamental human rights issue.

Guantánamo is a total mess (though it didn’t necessarily have to be, with the caveat that articles like this may consist largely of rationalization, butt covering and retroactive fantasizing).  Instead of case files “they found that information on individual prisoners is ‘scattered throughout the executive branch,’ a senior administration official said.”  It wasn’t set up to be a legal system, but an indefinite detention facility.  Of course, the total inadequacy of the facility for due process is not stopping intrepid military judge James Pohl from plowing blindly ahead.  This is also a good time to give a big one finger salute to the 109th Congress for passing the Military Commissions Act.  Because of it the proceedings there are largely self-contained, and not subject to any manner of influence or review.  The 111th Congress could presumably change that state of affairs quickly if it wanted to, but it will probably decide to just let a sleeping dog lie.

Authoritarianism is a mindset.  Get people to agree to totalitarian methods “over there” and you prepare the ground to get them to accept it over here (via).  Remember, if you aren’t doing anything wrong you don’t have anything to worry about.

“If you don’t pay your best people, you will destroy your franchise.” - John Thain.  Memo to John:  Your best people destroyed your franchise.  You have no idea how much I want to go on an unhinged rant over this.  (Deep breaths, count to 10….)

I have never met Josh Gerstein but I know he is a horrible human being, because only a horrible human being would include the following quotes in a single article:

• “subject Padilla to aggressive interrogation techniques”
• “raise the question of how aggressively the Obama administration intends to defend alleged legal excesses of the Bush administration in the war on terror”
• “the Bush war-on-terror team inspires particular antipathy in the liberal legal set”

From the same article:

“When they go back to the privacy of their offices, they may wish that someone would draw and quarter John Yoo, but they have to wave the flag,” said a former federal terrorism prosecutor, Andrew McCarthy. “What they have to do is appear as if they are defending all the prerogatives of government that people want them to defend. … That’s the job of the Justice Department.”

A former lawyer in Bush’s White House, Brad Berenson, said he expects the new Obama officials not only to defend against the suits but to win them. “There are just all kinds of doctrines that protect government officials, even when they’re wrong,” he said. “The dirty little secret here is that the United States government has enduring institutional interests that carry over from administration to administration and almost always dictate the position the government takes.”

“Enduring institutional interests” is a useful phrase.

John Yoo is not horrible, he is evil.  Plenty of folks took a turn whacking his execrable Op-Ed in the Wall Street Journal, but my favorite was from Larisa Alexandrovna.  (Can we retire the “Berkley is a wild-eyed liberal bastion” stereotype now?)

In case you didn’t know, Larisa is a terrific investigative journalist for Raw Story.  In the wake of the ongoing radio silence about Russell Tice’s explosive revelations it is increasingly safe to say that only those organizations with a demonstrated willingness to challenge authority are to be trusted.  The fact that virtually all major outlets have ignored a scandal of epic proportions - the wholesale bugging of entire news organizations - tells you why it is not only nice, but important to get your news from alternatives.  And it also tells you one of the big reasons why confidence in them has eroded.

UNPACKING JANE:  Since I started with rendition, I’ll end there.  From page 108:

Renditions were not invented for the war on terror.  The U.S. government had carried out renditions since at least the Reagan era.  But they were originally used on an extremely limited basis and for a different purpose.  After September 11, the program expanded beyond recognition, becoming what John Radsan, a lawyer in the CIA’s Office of General Counsel during the first years of the Bush Administration, later admitted to be “a nightmare.”

What began as a program aimed at a small, discrete set of suspects - people against whom there were outstanding foreign arrest warrants - came to include the wide and ill-defined population that the administration termed “illegal enemy combatants.”  Many of them had never been publicly charged with any crime.  Before September 11, the program was aimed at rendering criminal suspects to justice, but afterward it was used to render suspects outside the reach of law.  Instead of holding suspects accountable for previously committed crimes, it was used to gather evidence of future crimes not yet committed - for which there was not sufficient evidence to prove guilt under the ordinary rule of law, which all over the civilized world requires transparency, fairness, and independent review.  Rendition thus became an enforcement mechanism for the Bush Administration’s preemptive criminal model, disrupting and punishing suspects before they were provably guilty.

People against whom there are outstanding foreign arrest warrants can be handled by extradition.  Whatever benefits rendition might have offered as an alternative are clearly not legally, morally or ethically sustainable long term.  Men being men, abuse like the Bush administration engaged in is nearly inevitable, and sooner rather than later.