"Extraordinary rendition"

Jane Mayer's Annals of Justice report, in the Feb. 14 issue of The New Yorker, doesn't really bring out a lot of new news, but it is stunning having all of the news items I've caught glimpses of over the past year brought together in a single article.

"Rendering" -- the practice of sending alleged bad guys to another country, usually Egypt -- is not new, the Clinton administration engaged in this tactic in the 1990s. But during the Clinton administration, the alleged terrorists rendered to Egypt had already been tried and convicted in abstentia by Egyptian courts. Not exactly up to our standards of justice (at least in those days), but it followed a process.

No longer. Since September 11, as Dick Cheney so famously put it, the US government has had to "work through, sort of, the dark side."

“A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in. And so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.”

Instead of using this tactic to get known terrorists out of the way, in a manner in which US intelligence can maintain secrecy, it is now being used, basically, to "disappear" people whose names are similar to those on terrorist watch lists. In large part, this has become an almost necessity, due to the large number of "enemy combatants" we are detaining around the world, none of whom the Bush admin. is eager to bring to either a civilian trial or even a military tribunal especially in light of their sorry success rate in those proceedings.

The Bush Administration’s departure from international norms has been justified in intellectual terms by élite lawyers like Gonzales, who is a graduate of Harvard Law School. Gonzales, the new Attorney General, argued during his confirmation proceedings that the U.N. Convention Against Torture’s ban on “cruel, inhuman, and degrading treatment” of terrorist suspects does not apply to American interrogations of foreigners overseas. Perhaps surprisingly, the fiercest internal resistance to this thinking has come from people who have been directly involved in interrogation, including veteran F.B.I. and C.I.A. agents. Their concerns are as much practical as ideological. Years of experience in interrogation have led them to doubt the effectiveness of physical coercion as a means of extracting reliable information. They also warn that the Bush Administration, having taken so many prisoners outside the realm of the law, may not be able to bring them back in. By holding detainees indefinitely, without counsel, without charges of wrongdoing, and under circumstances that could, in legal parlance, “shock the conscience” of a court, the Administration has jeopardized its chances of convicting hundreds of suspected terrorists, or even of using them as witnesses in almost any court in the world.

“It’s a big problem,” Jamie Gorelick, a former deputy attorney general and a member of the 9/11 Commission, says. “In criminal justice, you either prosecute the suspects or let them go. But if you’ve treated them in ways that won’t allow you to prosecute them you’re in this no man’s land. What do you do with these people?”

The story is deeply disturbing. What is being done in our name is wrong. It is wrong because torture is not known to be very effective. And I agree with Kevin Drum that, even if it was effective, it is still wrong because the writers of our Constitution would have been angry that we're engaging in it. It is wrong because we should maintain moral superiority over those who kill women and children in the name of religion. And it is wrong because a large percentage of people in this country probably agree with the tactic and are inured to it. As Mayer writes:

Coleman is a political nonpartisan with a law-and-order mentality. His eldest son is a former Army Ranger who served in Afghanistan. Yet Coleman was troubled by the Bush Administration’s New Paradigm. Torture, he said, “has become bureaucratized.” Bad as the policy of rendition was before September 11th, Coleman said, “afterward, it really went out of control.” He explained, “Now, instead of just sending people to third countries, we’re holding them ourselves. We’re taking people, and keeping them in our own custody in third countries. That’s an enormous problem.” Egypt, he pointed out, at least had an established legal system, however harsh. “There was a process there,” Coleman said. “But what’s our process? We have no method over there other than our laws—and we’ve decided to ignore them. What are we now, the Huns? If you don’t talk to us, we’ll kill you?”

[...]

Coleman was angry that lawyers in Washington were redefining the parameters of counter-terrorism interrogations. “Have any of these guys ever tried to talk to someone who’s been deprived of his clothes?” he asked. “He’s going to be ashamed, and humiliated, and cold. He’ll tell you anything you want to hear to get his clothes back. There’s no value in it.” Coleman said that he had learned to treat even the most despicable suspects as if there were “a personal relationship, even if you can’t stand them.” He said that many of the suspects he had interrogated expected to be tortured, and were stunned to learn that they had rights under the American system. Due process made detainees more compliant, not less, Coleman said. He had also found that a defendant’s right to legal counsel was beneficial not only to suspects but also to law-enforcement officers. Defense lawyers frequently persuaded detainees to coöperate with prosecutors, in exchange for plea agreements. “The lawyers show these guys there’s a way out,” Coleman said. “It’s human nature. People don’t coöperate with you unless they have some reason to.” He added, “Brutalization doesn’t work. We know that. Besides, you lose your soul.”

But what really struck me, in reading Mayer's article, are the unbelievably weak arguments made by administration lawyers -- grads of Harvard and Yale -- including one who now teaches at Berkeley.

In a recent phone interview, Yoo was soft-spoken and resolute. “Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?” he said. “What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws of war.” Yoo cited precedents for his position. “The Lincoln assassins were treated this way, too,” he said. “They were tried in a military court, and executed.” The point, he said, was that the Geneva Conventions’“simple binary classification of civilian or soldier isn’t accurate.”

"Pirates"?!

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush’s victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was “proof that the debate is over.” He said, “The issue is dying out. The public has had its referendum.” [emphasis added]

Torture is "core of the Commander-in-Chief function?" I somehow doubt Adams, Madison, Jefferson, Hamilton, etc., would have thought that. I repeat, the guy is a professor at Berkeley.

But I guess he's got a point about the referendum part. Pardon me while I look for something to get sick in.