Torture and culpability

As to this:

“Nor is there any remotely plausible alternative explanation that I’ve seen of why the US is shipping these prisoners to regimes known for torturing their prisoners rather than keeping them within its own system of prisons and shadow-prisons (where it could presumably interrogate them itself).”

We do that too, naturally, and some of our shadow prisons are staffed by foreign guards to limit liability–e.g. The Salt Pit, and there seems to be another operation we have going in Amman. I’m not sure there’s actually a bright line between the two categories.

I think basically, we use rendition when they aren’t important enough to bother interrogating ourselves, and they have citizenship in Syria, Uzbekistan, Egypt, etc.so it can be dressed up as a deportation or an extraition. Most of these regimes don’t allow you to renounce your citizenship if you were born there, so there are a fair number of dual citizens of Western countries.

Basically we do it if it seems convenient.

A historic analogy might help clarify matters.

Well, an apt historical analogy might help clarify matters. On the other hand, comparing the targets of the “extraordinary rendition” policy to civil rights workers in the American South in 1964, and the authorities who are carrying out that policy with Southern policemen in league with the Ku Klux Klan, is….well, let’s just say that describing this analogy accurately would probably be enough to get me banned from here for another week.

…it matters if I in fact do the act as opposed to allowing it to happen…

“Allowing” doesn’t seem the right word here. “Making it happen”?

katherine is right. This falls within the legal definition of aiding and abetting (ha!…legal, so quaint to these people). knowingly, the us government causes unlawful acts to transpire (causation is proved by the knowing transportation to tortuous countries)…if such subjects die, then the us government is guilty of at least second degree manslaughter. I remember when we used to put poepl in jail for that in this country. I love america, and I weep.

“comparing the targets of the “extraordinary rendition” policy to civil rights workers in the American South in 1964, and the authorities who are carrying out that policy with Southern policemen in league with the Ku Klux Klan, is….well, let’s just say that describing this analogy accurately would probably be enough to get me banned from here for another week.”

Ought it to be a defense to criminal charges that the victims were bad people?

And of course, the murderers of James Chaney, Andrew Goodman, and Michael Schwerner would have told you they were every bit as bad as today’s terrorist suspects. Given that some of the victms of our rendition policy seem to be complete innocents (Maher Arar), they might even be right.

I would imagine there are all kinds of ways to cover the proverbial butt in these matters. Somewhere in US classified documents of intelligence agencies would be notations made that intelligence agent X from such-and-such country had requested interrogation of suspect Y currently in US custody, or a transmitted document/warrant signed by somebody on an official looking document requesting interrogation
of such-and-such detainee. Amidst the myriad treaty agreements and layers of security convoluted by private contractors and further convoluted by ad hoc teams and committees and special assignments between different sovereign nations lies torture. It all starts with a secure message that goes out to the affect of, ” We have so-and-so from such-and-such place, do you a need to interrogate him?” Whoever that ‘message’ first goes out to replies that they do or that they know X wants to ‘talk to him’. It most likely comes back to the CIA or military intelligence that X is saying Y wants to talk to him, which is then duly recorded in some log/memo and off the detainee goes with his jacket of particulars.

enough to get me banned from here for another week

If only.

RSL, the silence in Congress isn’t that puzzling. The Republicans have put a lot of effort into scaring the public (and the people in the places least likely to be hit by terrorists are the most afraid).

Unfortunately anyone criticizing the policy will be denounced as a supporter of terrorists or at best a well-meaning fool who’s endangering American lives. September 11 changed everything, they say, and we can no longer be so fastidious about “innocent until proven guilty” and other civil rights.

I’m not so certain that torture is a winning national issue, and I’m sick about that. The US is not the same country it was before Bush.

It seems to be standard now in national-security type discussions for conservatives to argue that the US should be judged only by the professed intentions, and not by the entirely foreseeable consequences, of its actions. (Hence the deaths of innocent civilians in bombing raids, e.g., may be unfortunate, but are of no moral consequence. Hence the assumption that anyone subjected to torture or extraordinary rendition must be evil, because we would never intentionally do that to someone who wasn’t evil.)

As loopholes to the doctrine of “personal responsibility” go, it’s big enough to accommodate any number of trucks, planes, and armored vehicles.

What absolutely puzzles and frustruates me is why no one in Congress seems willing to stand up and make this into the national issue it should be.

Because no cute blondes have been victims of rendition (that we know of). Instead we have dark-skinned guys who don’t speak English the way “we” do. And in post-9/11 America, no one really gives a damn what happens to Arabs, etc.; at least, no one running the country. (See abb1’s link to Bob Herbert’s column, which jibes with what we’ve heard elsewhere.)

This Mississippian, btw, thinks the comparison to the 1964 murders is quite apt. (Tho it’s “Neshoba” County.)

Mr. Simon,

The differnce between extraordinary rendition and plain old extradition is that extraordinary rendition is being used as a method of gathering information through torture and the threat of torture. If other forms of extradition are being used for similar purposes they should be stopped as well. For that matter, many conditions in US prisons are pretty bad. The reason to “get worked up” about this issue is because it is a step away from human rights. In other words, we a living in a time when the threat of terrorism makes it very tempting to curb these kinds of rights. Without vigilance, this tendency will gradually erode basic protections.

Last I checked, most of those extradition treaties required there to be a public court hearing before the suspects were extradited, at which there could be at least be some attempt to find out why they were being extradited, and whether there was a good reason. Anyone so extradited is suspected of wrongdoing on good evidence rather than suspected by we know not who for reasons apparently too important to have to defend in public.

If Dan thinks there is no difference between standard extraditions and what the US is doing right now, he’s either evil or stupid or both.

Two thoughts, one narrow and one broad:

1) Perhaps I am missing an inside joke, Henry, but wasn’t Dan Simon trying to object to the unfairness of your comparison between the Bush Administration and the Southern police in cahoots with the Klan by using your technique against you? I thought the Neo-Nazi comparison was obviously in jest. But hey, I’m probably just missing an inside joke, so let me move on to a more substantive comment.

2) Henry, it seems to me that you are trying to make a mens rea argument — an argument about the Bush Administration’s state of mind as to what the other countries will do. My understanding is that the police in the Goodman muders had an intentional mens rea: they wanted the civil rights workers to die, and they worked with the Klan to pass off the workers so the Klan would kill them and the police couldn’t be directly tagged with the murder. Is your claim then that the Bush Administration wants to torture/kill the people who are being subject to extraordinary renditon, and that they are working with other countries to arrange the torture and killing of the people subject to extraordinary rendition so that the people will be tortured and killed without direct U.S. involvement? If your claim that the U.S. hopes to bring about the torturing and murdering?

Alternatively, is your claim that the U.S. has a lesser mens rea, such as mere knowledge, or willful blindness, or perhaps gross recklessness that the torture/murders might occur? If the latter, I think your comparison needs a bit of work. There are generally recognized moral dictinctions among these different mens reas, and I’m not sure it works to blend them together. This isn’t to defend the renditions practice; it’s only to question whether the comparison is apt.

“What absolutely puzzles and frustruates me is why no one in Congress seems willing to stand up and make this into the national issue it should be.”

Well, Edward Markey of Massachusetts has been trying his absolute hardest for years, & his efforts already helped get a provision that would’ve legalized rendition stripped out of the House version of the 9/11 Commission Act in conference committee. Earl Blumenauer of Oregon got very upset when one of the planes turned out to be registered to a dummy company in his state. In the Senate, Patrick Leahy is doing a lot, and Durbin, Dodd, Kennedy, & Feingold are also trying. Jay Rockefeller has been pushing for an intel committee investigation & is getting increasingly mutinous about Pat Roberts’ stonewalling.

I’m not saying more couldn’t be done; I wish something like this could actually make it onto the list of proposals the Democrats will force debate on pro-nuclear option, and the Senate bill ought to have way more cosponsors. But, there are Congresspeople working on this, with staff members working even harder. Don’t assume they’re not doing it just because the press doesn’t cover it. And definitely don’t criticize them until you write your reps & ask them to support the bills Markey & Leahy have introducted, #s HR 952 (the Torture Outsourcing Prevention Act) and S 654 (The 2005 Convention Against Torture Implementation Act).

“But, there are Congresspeople working on this, with staff members working even harder. Don’t assume they’re not doing it just because the press doesn’t cover it. And definitely don’t criticize them until you write your reps . . .”

Fair enough, Katherine. But I’ve spoken at length to my Congressman’s staff person responsible for this and eventually he just admitted there wasn’t much they could do to broaden support for these bills in the current Congress. My response is it’s time for some of these Congresspeople to change their strategy: Maybe they should hold a hunger strike on the steps of the Capitol to get the press and the people to wake up (I’m serious). Someone needs to start making a big stink. The legislative approach has gone (and is going) nowhere.

I’d also be particularly happy to get one or two of the Republicans involved . . . this really shouldn’t be a partisan issue for the Democrats. I really don’t believe that in their hearts people like Chuck Hagel and Dick Lugar, for instance, are all that comfortable with where we’re headed on issues of torture and detention, but they’re reluctant to break with their party.

Brian Weatherson offers the most apt conclusion to this question. Unless you have broken a law, you should not be subject to the whims of your government. And if you have broken a law, you should get your day in court.

I put off the discussion of criminal liability because the mens rea is tricky and the paper was already 86 pages and 25500 words long, & I didn’t want to phone it in.

If I had to pick a parallel in criminal law, I would say: the evidence clearly establishes at LEAST the same level of culpability as “depraved heart murder”–recklessness manifesting extreme indifference to human life.

That’s murder, not manslaughter, but it’s second degree murder. Since the def’n of torture involves specific intent, and since conspiracy or accomplice liability require the same degree of mens rea as the substantive law, it may not suffice.

But that’s only what I KNOW could be proved. Actual intent is quite plausible–I think it’s even likely. It would just be hard to nail it down.

Did they prove that the cops had professed an intention to kill the three civil rights workers, or was it more, “you had to know what was going to happen to them, you wouldn’t have done this if you didn’t want it to happen”? If the latter, I think it’s a pretty precise parallel.

Of course, we all know that DOJ won’t actually prosecute.

This is a terminology question.

What is the difference between extraditing someone to a country with brutal jails and a friendly intelligence service (e.g. Saudi Arabia) and rendition to Saudi Arabia? Is the legal procedure different? I am not an expert, but I thought that extradition (for a crime) did not require a US hearing; deportation (for US visa violations) does, but that is because it is US, not foreign, law at issue.

Worship of laws vs. a reverence for what laws are an attempt to protect.
It’s a conflict between people who believe the rules are bestowed from on high, and only put there to protect them; and people who believe laws are cobbled together out of the good intentions and whatever experiential knowledge of living their predecessors had to hand – there to preserve what’s potential in the here and now.
Apocalyptic religions do an end-run around the inherent self-sacrifice of laws so designed, by trying to close down the whole ball game.
In the short term rule-worshippers will find work-arounds for their self-interest and do all kinds of evil and, as has been more and more prevalent lately, they’ll smirk and gloat when accused – because the laws don’t cover what they’ve done.
No law – no crime. As though the spirit of the law didn’t exist, as though it wasn’t more important than the laws themselves.
Back-up strategies include solipsistic reflections of that spirit. This is why law-making is so arduous, and important. It’s the collective immune system. This is why laws are sacred to societies and the people who depend on social living to survive. Sacred because of what they protect, not what they are. Scamming that seeming paradox is what’s gone wrong here.
Extraordinary rendition is right up that alley; as is Nashoma County justice circa 1964.
The internal justification is we’re doing what needs doing – regardless of the letter or the spirit of the law.
This has a comforting corollary – that it doesn’t matter what you did, it only matters whether you can get busted for having done it.
Rule-worship creates and maintains this anti-life dynamic.
Laws are not there to show us the way – they’re there to keep us from heading in the wrong direction. Pretending otherwise is the wrong direction.

I think there is a second distinction and it is also fairly minimal, but I don’t think its completely empty. Part of the argument against the use of torture involves its morality, but part of it also addresses it utility in extracting information. That 2nd part includes reasoning such that there is a kind of slippery slope w/ torture where the people who administer the torture argue for the greater use of torture b/c they become more convinced that it works or b/c institutionally, it favors them to do so. I’m not sure how true this is, but I have definitely seen arguments along this line before. It is probably the case that most of this effect is removed when extradition is used instead.

Now, for a means only moralist, this is irrelevant. But if ends matter, this is at least something in favor of rendition.

as I said, depraved heart recklessness at a MINIMUM, not regular recklessness.

Prof. Kerr sounds like he might be endorsing the John Yoo theory of specific intent: I didn’t WANT to break his kneecap, I just wanted to make him talk, and I knew that breaking his kneecap would make it more likely…perhaps I misunderstand.

Katherine:
I think basically, we use rendition when they aren’t important enough to bother interrogating ourselves, and they have citizenship in Syria, Uzbekistan, Egypt, etc.so it can be dressed up as a deportation or an extraition.

I’m skeptical that all, or even any, of the persons rendered to Uzbekistan were really Uzbeks. The Times article posted by Henry earlier quotes the former British ambassador to Uzbekistan saying CIA flights to Tashkent in 2003 and early 2004 were frequent, about twice a week. It’s unlikely that those flights were related to the Afghan operation, which had winded down considerably by then.

Moreover, as the article mentions, the flight logs for one of the flights into Tashkent undertaken by the Gulfstream jet indicate that it originated from Baghdad. I suppose it’s safe to assume that there aren’t many Uzbeks involved in the Iraqi insurgency.

If you’re going to argue that Henry is engaged in invidious comparisons (this may not make sense if Dan Simon’s most recent post is deleted, as I think it should be), it might help to work out the analogy exactly.

Klan: Foreign governments that engage in torture
Mississippi police that abandoned civil rights workers to the Klan: US government that ships suspects to the governments that engage in torture.

Now, I don’t think the first comparison should be controversial at all. Those governments are very bad actors. And Rea, in 10, has taken care of any idea that the difference between the civil rights workers and the torture victims is relevant. So Henry’s comparison is eminently fair. And Dan was trolling.

“Nor is there any remotely plausible alternative explanation that I’ve seen of why the US is shipping these prisoners to regimes known for torturing their prisoners rather than keeping them within its own system of prisons and shadow-prisons (where it could presumably interrogate them itself).” — These guys love plausible deniability, no matter how strenuous it is.

I think Katerine means the “depraved heart homicide” as something of an analogy, though she can say that better than I. But, as Sabastian and others have pointed out, the US’s behavior here seems, at least best, perhaps only, explainable if they are sending suspectes to places like Uzbekistan _for the purpose_ of their being tortured there. This would seem to indicate intent that torture take place. It’s pretty hard to make sense of the behavior otherwise, I think. But, it’s also pretty clear that the practice is more than just reckless. It seems pretty clear that we at least don’t care if these people are tortured. We are delivering them to people that _we know_ torture people like this, and do nothing to stop it, the rediculous claims to get “assurances” aside. Surely that’s more than just an “unjustificable risk”.