A Failure to Differentiate: Obama's Policy on Extraordinary Rendition versus the Other Kind (Scott Horton Explains)

by Damozel | I won't lie to you.  When I read Horton's piece in Harper's I was, as the poet says, much abashed---at least initially.

In a breathless piece of reporting in the Sunday Los Angeles Times, we are told that Barack Obama “left intact” a “controversial counter-terrorism tool” called renditions. Moreover, the Times states, quoting unnamed “current and former U.S. intelligence figures,” Obama may actually be planning to expand the program. The report notes the existence of a European Parliament report condemning the practice, but states “the Obama Administration appears to have determined that the rendition program was one component of the Bush Administration’s war on terrorism that it could not afford to discard.”

The Los Angeles Times just got punked.

Its description of the European Parliament’s report is not accurate. (Point of disclosure: I served as an expert witness in hearings leading to the report.) But that’s the least of its problems. It 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. (Harper's; emphasis added)

Horton explained:

The extraordinary renditions program involved the operation of long-term detention facilities either by the CIA or by a cooperating host government together with the CIA, in which prisoners were held outside of the criminal justice system and otherwise unaccountable under law for extended periods of time. A central feature of this program was rendition to torture, namely that the prisoner was turned over to cooperating foreign governments with the full understanding that those governments would apply techniques that even the Bush Administration considers to be torture. This practice is a felony under current U.S. law, but was made a centerpiece of Bush counterterrorism policy.(Harper's)

Horton describes the "good" kind as follows:

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. Moreover, Obama committed to shut down the extraordinary renditions program, and continuously made clear that this did not apply to the renditions program. (Harper's)

I have a problem with "the earlier renditions program" that I'll come back to.  First, though, I'm going to concede that I was confused by the haziness of the Miller piece, understanding it to say that Obama was reviewing extraordinary renditions policies.

Greenwald, who found Miller's piece "wildly exaggerated,." points out the toxic effects of the reporter's failure to distinguish clearly between one kind of rendition and that other--- --- to the great, if misguided, delight of conservatives and cynics everywhere.

[T]here are numerous factions with a very compelling interest in claiming that the Obama administration is preserving and continuing the most extreme Bush "counter-terrorism" policies, regardless of whether or not it's true:

(1) Bush followers eager to claim that their leader has been vindicated because Obama is replicating his policies;

(2) People who have long argued that there is no difference between the parties, that "the system" is irrevocably corrupted, and that Obama will change nothing, who are eager to claim that their "no-difference" worldview has already been vindicated by the 11-day old administration ("See!  After 11 days, it's proven that Obama is no different than Bush, just as we've been saying");

(3) Members of the intelligence community who do not want any new limits imposed on their activities and thus, hiding behind anonymity, use these leaks to pressure Obama not to impose them ("intelligence officials say that Obama is just pretending to change these policies in order to fool/placate the Left, but he knows and believes we urgently need these powers to keep the U.S. safe and he will therefore keep them in place"); and,

(4) Establishment media figures, eager to depict Obama as supportive of, rather than hostile to, prevailing policies, because they spent the last eight years supporting and enabling those policies as integral servants of the political establishment and do not want Obama's election to be perceived as a repudiation of that establishment and its various behaviors....

....The point here is that there are all sorts of groups eager to claim that Obama has already decided to embrace Bush policies before there is any actual evidence that he has done so, or -- as here -- even when there is evidence that he hasn't.  For that reason, these reports about what Obama "intends" to do ought to be taken with a huge dose of skepticism, especially where, as here, it is fed to uninformed, gullible reporters by anonymous intelligence operatives.  (Salon) 

"Uninformed and gullible."  Funny he should say that. The Murdoch Times, not surprisingly has eagerly leapt upon the Miller piece, then uses its findings to disillusion British and European liberals about Obama. . So yeah, the failure of the Miller piece to make clear the crucial distinction between one kind of rendition and the other is proving toxic. Yglesias says:

We’ll know soon enough how deeply committed Barack Obama is to ending the torture regime, and if the executive orders themselves are any indication, these sorts of opportunistic gotchas will begin to look extremely silly.

They already do.  I mean, it's one thing for a simple blogger like me to get extraordinary renditions confused with the approved-by-the-Reagan-administration-and-subsequent-administrations-kind, but quite another for The LA Times and The Times of London not to do their homework.  

Whatever:  I'm not going to beat myself up about having been misled by The L.A. Times, though I'm grateful to Horton for clarifying.  Because as Greenwald says:

[N]one of this is to say that Obama won't continue many of the worst Bush policies.  He very well might (even in the case of rendition) and, in other cases, he probably will.  Vigilance in this regard is absolutely required.

Which is exactly why I'm not going to beat myself up about having overreacted  (Salon) .

And besides..the much greater wrongness of extraordinary renditions doesn't mean that the other sort of (except in the most relative sense) benign.

Avedon Carol remarks:

The Los Angeles Times got it completely wrong about extraordinary renditions, apparently because they don't know the difference between (a) kidnapping people in order to bring them to trial in the civilian legal system and (b) kidnapping people and taking them to other countries to be tortured. Neither program should pass the smell test, it's true, but the act is that the first is something that started in the Reagan era, while the second is the one that George Walker Bush's administration started and Obama has committed to shut down. (emphasis added)

I can see why Obama isn't prepared to turn back the clock on the Reagan era policy, but that doesn't mean I think that "kidnapping people in order to bring them to trial in the legal system" is all right, anymore than Avedon Carol does:  that program doesn't pass the smell test either, and I would like to see it stopped. 

As The Heretik said, if foreign governments regularly snatched American citizens to render them up to a foreign criminal justice system we might have a rather different attitude.

Digby says:

Unfortunately, because of that article, it still remains important for Obama to make clear that he is not going to be sending prisoners to countries like Syria or Egypt, which one could loosely describe as having a "criminal justice system." Closing down the black sites is important. But there can't be any more Maher Arar's either and because of the example of the Bush administration, these things have to be explicit....

And asks:

It occurs to me that this more benign definition of rendition as transferring someone to another criminal justice system, used to be called extradition. Can someone explain the difference to me?

Two words:  "due process." 

But of course ---yes, I do know this --- extradition laws don't always lead to extradition.  Greenwald challenges those who, like me, think rendition of both kinds are wrong, end of, to consider a case in which we track down Osama bin Laden to some hideout in Pakistan, which then blocks our extradition efforts:

What, if anything, is the U.S. (under current facts) permitted to do about Osama bin Laden, who -- we're assuming for purposes of these discussions -- clearly perpetrated the 9/11 attacks and is in the process of plotting new attacks?  As far as I can tell, the options would be: (a) drop a bomb on him and kill him with no due process; (b) enter Pakistan, apprehend him, and bring him to the U.S. for a trial (i.e., rendition); or (c) do nothing, and just leave him be.  

Those who are arguing that rendition is illegitimate in all cases (rather than in the torture-enabling and disappearance-causing forms used by Bush) have the obligation to answer that question specifically (and the same question would pertain to a common criminal -- say, a mass murderer -- who flees the U.S. to a country which refuses to comply with its extradition obligations to send the accused murderer to the U.S. for trial). 

I don't have a problem meeting the obligation he says I've incurred:  rendition is illegitimate in all cases and to say otherwise presents a risk to the rights and security of American citizens.  Because, as Greenwald subsequently concedes:

Those who contend that the U.S. would have the right to "render" Osama bin Laden from Pakistan in my example should address whether Afghanistan (or Iraq, or any other country whose citizens were tortured by the U.S.) would have the same right with regard to George Bush (Salon).

Which:  exactly.

More at Memeorandum.

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