Torture and culpability

by Henry on May 1, 2005

There seems to be some discomfort among a couple of commenters (and perhaps in the blogosphere more generally) with the argument that the US is itself culpable for torture when it hands prisoners over to a regime that the US State Department and the UN describe as a “systematic” torturer. A historic analogy might help clarify matters. On June 21, 1964, three civil rights workers, James Chaney, Andrew Goodman, and Michael Schwerner were arrested by the police in Nashoba County, Mississippi. They were then released by the police at night, on the side of a rural road, where they were picked up by the Ku Klux Klan and then murdered. Now, there’s no evidence that the police told the Klan to beat these young men to death. But they certainly had good reason to expect that something horrible was going to happen to the civil rights workers. Unless you are prepared to maintain that the police weren’t culpable for the deaths of Chaney, Goodman and Schwerner, it’s hard to argue that the US isn’t culpable for handing prisoners over to regimes where they have good reason to believe that these prisoners will then be tortured (especially if, as seems to be the case, the US then expects and receives information from these prisoners’ interrogations).

There is one difference, but it turns on an empty legalism. The US apparently seeks assurances from the regimes to which it sends prisoners that they will not torture them. To return to the historical analogy – if the police had gone to the Klan before releasing the young men, and asked the Klan for an assurance that they would not be murdered, would this get the police off the hook? Hardly; any assurances that were granted would have been incredible. Just as they are in the case of extraordinary renditions – there is overwhelming evidence from the testimony of Maher Arar and elsewhere that these prisoners are indeed tortured. As, indeed, the US fully expects they will be. One of the interrogation techniques used at Guantanamo and elsewhere was to threaten prisoners that they would be rendered to their home governments if they didn’t cooperate; evidence that the US fully understands that these prisoners will be tortured if they are shipped abroad. 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).

{ 53 comments }

1

Katherine 05.02.05 at 12:17 am

I’m just now finishing up an 85 paper on the subject, in which I tried to compile the publicly available information into one coherent story. I also did a legal analysis of whether the assurances are sufficient to meet our obligations under the convention against torture. They do not. Henry is quite correct. The assurances are transparently, blatantly, obviously useless.

I didn’t have space to look into the possibility of criminal prosecution, but you could make a pretty good case that people are guilty of conspiracy to torture or accomplice liability to torture; these are both offenses in the U.S. code. Proving specific intent beyond a reasonable doubt wouldn’t be easy but might be doable. The main thing is–how many people here think the Gonzales DOJ is going to decide to prosecute?

Even after a change in administrations, I don’t see it happening for various reasons–we’d have to reveal stuff about CIA agents and about our relationship with foreign intelligence services that we want to keep secret for legitimate as well as illegitimate reasons.

2

Katherine 05.02.05 at 12:28 am

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.

3

Isaac 05.02.05 at 1:30 am

But that’s a crude utilitarian argument that it doesn’t make a moral difference whether I do something or I let something happen. Sure, the end result is the same but some, like Bernard Williams, would maintain that it matters if I in fact do the act as opposed to allowing it to happen because of the moral importance of personhood. Does this extend to government? I’m not sure, but I’d need to be convinced that it does not hold.

This isn’t a defense in any way, but it’s uncomfortable to judge them equally troubling: it has to matter if the government is doing it itself (or maybe not: not like Bush would have been doing the torturing himself in any case). You could argue that while the torture would happen anyway, it matters that the U.S. doesn’t have extensive enough torture facilities to do all the torturing at home. Or…

4

Dan Simon 05.02.05 at 2:11 am

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.

5

washerdreyer 05.02.05 at 2:17 am

You really think the relevant part of the analogy is the good intentions of the civil rights workers and the bad intentions of the Ku Klux Klann? The point is that turning members of group X over to group Y in order to facilitate the treatment you know X will recieve at the hands of Y makes one responsible for that treatment.

6

R.Mutt 05.02.05 at 2:46 am

…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”?

7

Katherine 05.02.05 at 3:16 am

“aiding and abetting”.

8

justin 05.02.05 at 4:13 am

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.

9

abb1 05.02.05 at 5:13 am

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.

In the today’s NYT: From ‘Gook’ to ‘Raghead’ By BOB HERBERT

10

rea 05.02.05 at 8:12 am

“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.

11

RSL 05.02.05 at 8:13 am

The legal and ethical arguments against extraordinary rendition, indefinite detentions without charge, etc., are all very clear. 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.

12

goesh 05.02.05 at 8:16 am

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.

13

P ONeill 05.02.05 at 8:33 am

The same logic extends the culpability for the US policy to a lot of countries. To get a detainee from point A to point B will typically involve transit through the airport or airspace of country C. Now of course country C can claim that they don’t really know who’s on such-and-such a plane, but for the Republic of Ireland, for instance, this nod-and-wink approach is untenable since the strange comings-and-goings of certain planes at Shannon are well documented. But lots of countries are tacitly colluding with these rendition flights, so there should be scope for political pressure on these countries as well.

14

Uncle Kvetch 05.02.05 at 8:40 am

enough to get me banned from here for another week

If only.

15

Matt 05.02.05 at 9:06 am

Isaac,

Henry’s argument would be the “crudely utilitarian” one you think it is _only_ if it were plausible that the US government honestly and justifiably believed that Uzbekistan, Syria, etc. were not going to torture the people we turn over. At any time in the process it was hardly credible that we believed this, given the well-established facts about these countries (established by our own government!). Even if we were stupid enough to believe it at one point, the point beyond which it would be believable has long since gone. Futhermore, there seems to be pretty significant evidence that the renditions were done _in order to bring about_ the torture that has happened. Given this, it’s hardly plausible at this point to claim that this is a “crudely utilitarian” argument that ignores that the US government is just “letting” this happen.

16

KCinDC 05.02.05 at 9:16 am

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.

17

Rob 05.02.05 at 10:06 am

You want an apt analogy? It would be like taking prisoners, pushing them off a clift and then saying gravity is what is responsible for killing them. “How were we to know what gravity was going to do with them?”

18

Hogan 05.02.05 at 11:10 am

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.

19

Dan Simon 05.02.05 at 11:12 am

You really think the relevant part of the analogy is the good intentions of the civil rights workers and the bad intentions of the Ku Klux Klann?

Well, like Henry, neo-Nazis also routinely cherry-pick their historical analogies to defend the wartime Nazi regime in Germany and its campaigns of war and extermination. And like Henry, they use these inapt historical analogies for their emotional effect, trying to distract attention from the weakness of their factual arguments. Not that the intentions of these awful people is at all the relevant part of my analogy between Henry and neo-Nazis, of course…..

Look, there’s a glaringly obvious analogy for “extraordinary rendition”: extradition. The US has extradition treaties with a huge variety of countries, including many whose judicial and correctional systems are, to say the least, of questionable integrity. Even the UK has extradition treaties with Cuba and Saudi Arabia. It’s a fair bet that the number of cases of mistreatment of those extradited from the US–even considering only entirely innocent people–makes the whole row over “extraordinary rendition” look piddling by comparison.

The difference, of course, is that there are no political points to be scored by working oneself into a lather of self-righteousness over the ugly-but-necessary business of extraditing (mostly) monstrous criminals to face their (usually) deserved fates. Suspected Islamist terrorists, however, are apparently a different story.

20

Anderson 05.02.05 at 11:27 am

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.)

21

Matt 05.02.05 at 11:29 am

Dan,
There is a serious difference about extradition treaties and “extraordinary rendition”. An extradition treaty just means that we have an agreement w/ a country to send illegal immigrants, violators of immigration laws, etc. back to a particular country, and they argee to take them. In most cases that’s fine, even to a country that’s not great. If a typical Uzbek comes to the US, overstays his visa, and gets deported, there is no problem with this. The problem is that extraordinary rendition is a way to try to get around the convention against torture, which requires us to not send someone to a country were we believe that they will be tortured. This is part of US law, and we are clearly violating it. Nothing in an extradition treaty over-rides this. Most of the cases where someone invokes the convention against torture involve countries that we have extradition treaties with, so I don’t see that your comparison makes any sense or difference. So, it seems pretty clear to me that you don’t know what you’re talking about. Given that, maybe you should not talk.

22

catfish 05.02.05 at 11:33 am

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.

23

RSL 05.02.05 at 11:34 am

kcindc

I know it’s a huge poliltical risk, but is it really possible that there’s absolutely no one in Congress who’s still got some principle and courage and is willing to stand up for something so important . . . even if it does jeopardize a career? Someone who could finally ask the “Have you no shame . . .” question that killed McCarthyism? Someone who puts country over politics? Someone who is willing to be a leader and take the risk necessary to achieve true greatness? Or are these guys really all that comfortable being mediocre?

24

Brian Weatherson 05.02.05 at 11:41 am

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.

25

Sebastian holsclaw 05.02.05 at 12:26 pm

I don’t agree that extradition and rendition are very close. No matter how much we nudge, nudge or wink, wink, rendition is about sending people off to be tortured for our benefit. That is why we are absolutely culpable when someone is tortured under rendition circumstances. Extradition isn’t about information or interrogation, it is about giving someone over to the country most interested in their crime.

I agree that the assurances are an empty formality. Rendition is about torture. If it weren’t, we would just keep the people here and interrogate them here. There is very little reason to send them out. If it was purely a matter of language, we could hire someone from Syria as a contractor and still have more control of the information than just shipping a prisoner off to Syria.

26

Henry 05.02.05 at 12:31 pm

Dan – you’re a troll. And you’re henceforth barred from commenting on my posts – comparing me to a neo-Nazi is, as you are quite well aware, far outside the boundaries of discussion on this blog. Any further comments that you make will be deleted as soon as I see them.

27

Detlef 05.02.05 at 1:52 pm

Dan also doesn´t seem to understand how at least some people are “choosen” for kidnapping or rendition.

For example having an almost similar name.
Like “Khaled el-Masri” and “Khalid al-Masri”.
http://www.dw-world.de/dw/article/0,1564,1459629,00.html

As Brian said, the difference between extradition and rendition is a public court hearing before extradition. While rendition is secret.

I don´t know but people like Dan seem to be so afraid (and wimpy) of everything that they just shrug when innocent people get kidnapped and tortured. Anything is right as long as it makes them feel a little bit safer. Even actions that in reality accomplish nothing.

28

Orin Kerr 05.02.05 at 2:00 pm

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.

29

abb1 05.02.05 at 2:03 pm

Yeah, I also hope that barring was a joke. What’s wrong with a little polemics?

30

Katherine 05.02.05 at 2:06 pm

“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).

31

KCinDC 05.02.05 at 2:20 pm

Barring Dan (and calling him a troll) does seem over the top. The neo-Nazi comment was obviously an analogy to Henry’s analogy. I assume there’s history involved, but I think Henry is overreacting.

32

RSL 05.02.05 at 2:26 pm

“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.

33

Sebastian Holsclaw 05.02.05 at 2:37 pm

“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?”

Orin, isn’t it pretty clear that rendition is about intending people get tortured? These people are being sent out of the US justice system for interrogation. That is dangerous for security purposes (since possibly the receiving government could end up implicated and would certainly never bother telling us). It can’t be purely a language issue, because we could subcontract people and fly them to the US with far more informational control than is available if we send the prisoner out to Syria or Egypt. What is the purpose of rendition if not to evade US law regarding torture (or perhaps to evade US law on other issues)? The ‘even so-and-so’ argument is overdone, but even I, I staunch Bush supporter in general and committed conservative can’t see the point of rendition except for a side route to intentionally torturing people. All the other reasons could be fulfilled at least as well, and often better, by keeping control of the prisoners ourselves.

34

jet 05.02.05 at 2:44 pm

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.

35

Anderson 05.02.05 at 3:10 pm

even I, a staunch Bush supporter in general and committed conservative can’t see the point of rendition except for a side route to intentionally torturing people. All the other reasons could be fulfilled at least as well, and often better, by keeping control of the prisoners ourselves.

Remember that one proffered defense of renditions was to *save money* on incarcerating these prisoners. If that’s the kind of “reason” they’ve come up with, then it sure sounds like the real reasons must be pretty scary.

36

Katherine 05.02.05 at 3:14 pm

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.

37

Henry 05.02.05 at 3:28 pm

There’s some prior history to Dan Simon’s banning that commenters may not be aware of. Over a series of recent posts, he’s started making increasingly unpleasant accusations that I’m deliberately dishonest in my writing. Obviously, I deny this – and while I’m not especially worried about what he says on his own blog, I do object him using my discussion section to slander me. If nothing else, it makes for less interesting argument. I previously barred him from commenting him for a week to see if it would discourage him from making claims about my purported ulterior motives in posting, and start engaging in argument. Unfortunately, this hasn’t worked. I took his most recent comment as I believe it was intended to be taken; as a claim that I was indeed equivalent to a neo-Nazi. He’d been cautioned previously for making claims about my secret intentions in posting – I read his comment as a way of trying to claim that my intentions were indeed similar to those of neo-Nazis while maintaining a minimal amount of deniability that would perhaps prevent me from barring him again. I’m not especially interested in playing a cat-and-mouse game in which he tries to test my limits, and so am barring him permanently. NB that this isn’t in any sense binding on my CT colleagues – we don’t engage in collective bans except under extreme circumstances.

Orin – I am indeed claiming that the administration has, at least some of the time, an intentional mens rea in sending these individuals to regimes where they are likely to be tortured; it wants to get information from them. I simply don’t see any other possible explanation that fits the facts, insofar as we know them. Take, for example, Jack Cloonan’s account of the rendition of Ibn al-Sheikh al-Libi to Egypt. Do you have an alternative explanation? Although do we “know” that the police knew what was going to happen to the civil rights workers? (they surely knew that something bad was going to happen to the three; they may not have known that it was going to be murder).

38

SamChevre 05.02.05 at 3:30 pm

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.

39

RSL 05.02.05 at 4:28 pm

“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. “

Andersen, you’ve got it right, of course. But an even darker reason (no pun intended), I think, is just that a heck of a lot of Americans think torturing people and punishing or killing them without trial really is a good idea. It’s all part of that judeo-christian, compassionate conservative, limited government, err on the side of life mentality.

Has anyone read the Constitution lately?

40

B. Kallikak Moran 05.02.05 at 4:36 pm

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.

41

Orin Kerr 05.02.05 at 4:51 pm

Henry,

You write: “I am indeed claiming that the administration has, at least some of the time, an intentional mens rea in sending these individuals to regimes where they are likely to be tortured; it wants to get information from them.”

Not to be a stickler about mens rea — hey, wait, I teach criminal law, so I guess I can be a stickler about it — you seem to be describing something more like recklessness than intent. That is, you don’t think that the Bush Administration’s goal is for the people to be tortured, right? As I read your response, you think that the Bush Administration’s goal is to get information from the indivduals, and you think that the Bush Administration is aware of a substantial and unjustifiable risk that the individuals will be tortured by the foreign governments in an effort to get that information from them.

42

mpowell 05.02.05 at 4:55 pm

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.

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Henry 05.02.05 at 5:16 pm

Hi Orin

I’ll bow to your superior knowledge of criminal law, but I do think that there is a higher level of intentionality there than you are suggesting. In the Ibn al-Sheikh al-Libi story, as Cloonan tells it, it would seem that Cloonan and the FBI believed that they could get information out of al-Libi by less confrontational means of interrogation within the US. The CIA disagreed, arguing that “tougher interrogation” was needed, and rendered him to the Egyptian security services. That seems to me to be quite strong evidence that the CIA believed that it would be possible for the Egyptian police to do things which US authorities could not themselves do in order to make al-Libi talk. Given the notorious reputation of the Egyptian security services, I think that any explanation of the CIA’s motives which didn’t include some intent that al-Libi be tortured in order to get that information, would be hard to swallow.

Also, as I think Katherine is suggesting, would the analogy of the police/Ku Klux Klan qualify under your stronger definition? That is, as noted, we don’t have any evidence that the police actually _knew_ what would happen to the civil rights workers – they certainly knew that horrible things were likely to happen to them, but they may not have known the workers were going to be murdered.

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Katherine 05.02.05 at 5:21 pm

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.

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Sebastian holsclaw 05.02.05 at 5:22 pm

“That is, you don’t think that the Bush Administration’s goal is for the people to be tortured, right? As I read your response, you think that the Bush Administration’s goal is to get information from the indivduals, and you think that the Bush Administration is aware of a substantial and unjustifiable risk that the individuals will be tortured by the foreign governments in an effort to get that information from them.”

But you should explore this line a bit further. What information gathering technique is furthered by sending people to Syria? What is available in Syria that cannot be done here?

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rajH 05.02.05 at 5:49 pm

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.

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David All 05.02.05 at 6:30 pm

For a good news story about Guantanamo, go to http://www.cbsnews.com/stories/2005/04/28/60minutes/main691602shtml or http://www.cbsnews.com and click on “Torture, Cover-Up at Gitmo?”

The piece is both interesting and disturbing. If what is says about the Gitmo prisoners are true, most are much more like that Afghan poet who was detained on an informer’s report then the terrorists we have been told were being held there.

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Matt Weiner 05.02.05 at 6:42 pm

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.

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Bernard Yomtov 05.02.05 at 7:01 pm

As I read your response, you think that the Bush Administration’s goal is to get information from the indivduals, and you think that the Bush Administration is aware of a substantial and unjustifiable risk that the individuals will be tortured by the foreign governments in an effort to get that information from them.

How is this is different from sending them to be tortured? Sebastian is exactly right. Why send them to Syria or wherever unless methods of obtaining information are available there that are unavailable in the US? That suggests that torture is more of a certainty than a “substantial risk.”

And by the way, what is this legalistic nonsense about assurances? As a matter of common sense, not to say logic, aren’t such assurances necessarily meaningless, unless you think torturers would never lie about their intentions

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LamontCranston 05.02.05 at 7:05 pm

“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.

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Orin Kerr 05.02.05 at 8:21 pm

Katherine,

Yes, I think you do misunderstand. I’m just trying to understand Henry’s claim by placing it into the traditional framework of criminal law. No need to pull out the John Yoo card.

I don’t quite understand your argument that this is akin to depraved heart homicide, though. That standard is generally used when the defendant technically may not have known the victim would die, but the defendant was so evil he just didn’t care. To the defendant, the victim’s life had no value, no meaning, and was not a relevant factor in his decisionmaking. I haven’t followed this issue closely, but I’m not aware of any evidence that U.S. policy views death as simply irrelevant. The accusations are that the U.S. is knowingly taking steps that create an unjustificable risk of death, which would seem to be (at least in modern criminal law terms) a reckless mens rea.

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Matt 05.02.05 at 9:00 pm

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”.

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Katherine 05.02.05 at 9:29 pm

I was referring specifically to the idea that if your motivation is obtaining intelligence rather than torture per se, you’re automatically in the clear. There is no case where you couldn’t argue that.

In this case the depraved indifference would be to the possibility of torture, not to death itself, but that is exactly what I am arguing, based on really, really, really extensively examining the public information about this….I think I actually sent you a draft of my paper at one point, though that was when it was 50-odd pages instead of over 80.

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