Outsourcing Torture

by Belle Waring on September 29, 2004

Erstwhile (and deeply missed) blogger Katherine has returned to Obsidian Wings with a very important post. Under cover of the “9/11 Recommendations Implementation Act of 2004”, House Republicans are attempting to pass a law which would legalize “extraordinary rendition” — the practice of deporting foriegn-born suspects to a country which practices torture, in order to get information our government feels it cannot extract legally. From a press release sent to Katherine by the staff of Rep. Edward Markey (a Massachusets democrat who has sought to ban such extraordinary rendition):

The provision would require the Secretary of Homeland Security to issue new regulations to exclude from the protection of the U.N. Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, any suspected terrorist – thereby allowing them to be deported or transferred to a country that may engage in torture. The provision would put the burden of proof on the person being deported or rendered to establish “by clear and convincing evidence that he or she would be tortured,” would bar the courts from having jurisdiction to review the Secretary’s regulations, and would free the Secretary to deport or remove terrorist suspects to any country in the world at will – even countries other than the person’s home country or the country in which they were born. The provision would also apply retroactively.

This provision was not part of the 9/11 Commission’s recommendations, and the Commission actually called upon the U.S. to “offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.”

It’s difficult for me to express what a terrible, immoral piece of legislation this is. This is a shameful and cowardly attempt to sneak language legalizing the outsourcing of torture into a bill claiming to implement the recommendations of the 9/11 commission. Katherine urges bloggers to link to this post, and US readers to contact their representatives and object to this harmful measure (Markey is sponsoring an amendment to remove this provision). If the blogosphere really has any ability to break stories, we should be spending our firepower here. I’m willing to bet this law won’t get passed if it is publicized before passage, but it might get through in some hasty, last-minute bill passing if it is overlooked. Don’t let it happen.



Darren Angers 09.29.04 at 9:14 am

What a great issue for the debates.

An administration that condones tortures is an administration that creates Abu Graib’s.

Kerry can and should get some good lines based on this.


bad Jim 09.29.04 at 10:17 am

Why should we outsource this, anyway? After forty-some years, we ought to be the experts, and it shouldn’t be that expensive.

Is this administration so hellbent on privatization that our government experts would yield such an advantage?

Or is it the point that we’re just as evil as anyone else?


Matt 09.29.04 at 1:49 pm

I’d have to see the full bill to know what, exactly, the changes are from our current obligations under the convention against torture, but even right now one must show “clear and convincing evidence” that one will be tortured if removed to one’s home country, and the burden of proof is on the one claiming the relief under CAT. It’s a very hard standard to meet, and CAT withholding of removal is rarely granted. It looks like some of the other changes are pretty bad here, but I’m reasonably sure the standard of proof and the burden of proof are not changing from what they’ve been for some time. I’d rather see different, easier to meet standards myself, but then, this is as much a part of our generally quite bad treatment of foreigners in the US anyway.


Alex R 09.29.04 at 3:35 pm

Matt —

See the comments on Katherine’s post, where Katherine adds:

It’s worse than I thought. Terrorism suspects seem to be excluded from the deportation provisions of the Convention Against Torture entirely, even if they could do the impossible and prove by clear and convincing evidence that they would face torture.

Everyone else who is challenging their deportation (the legal term is “removal”) to a country where they’re in danger of torture under the Convention Against Torture must prove that by “clear and convincing evidence.”

So what you say is correct, unless you are a “terrorism suspect” (definition not immediately clear to me), in which case the bill says forget the CAT…


Matt 09.29.04 at 3:41 pm

Thanks, Alex. You’re right, that’s even worse. CAT provides pretty minimal protection, and it’s pretty clear we’ve been violating it left and right for the last few years, but at least it was something. Please do send messages to your member of congress.


abb1 09.29.04 at 4:25 pm

Still, it’s probably, I am pretty sure, not as bad as what Saddam did to his people.

Always look on the bright side.


ChrisDA 09.29.04 at 5:14 pm

Oh abb1, I’m disappointed…it sounds like you haven’t come across the discreditations of Halabja and the ‘mass graves’, eg http://www.wanniski.com/showarticle.asp?articleid=2434 or http://www.rumormillnews.com/cgi-bin/forum.cgi?noframes;read=52600

Saddam appears, by CIA evidence, to have been no worse than your average LatAm dictator…but is it really ‘looking on the bright side’ to set the bar that low?


abb1 09.29.04 at 5:42 pm

but is it really ‘looking on the bright side’ to set the bar that low?

That’s exactly what it is. And here’s another good one.

And if we don’t compare favorably enough with Saddam, there are always the Nazis to measure up against.


bob mcmanus 09.29.04 at 6:03 pm

Ok, I will contact Martin Frost, tho I have few worries about how he will vote. I also have few illusions about my potential congressman, Pete Sessions, and any effect a letter would have on him.

I abandoned Obsidian Wings at the time of Abu Gharaib, I guess because my heart was too small to give the Republicans there a pass on it. I know we are supposed to say they can pull the lever marked ‘R’ and not be responsible for consequences and events determined by that action. And we are supposed to put that aside after hours. But I can’t, just can’t.

There has to be social consequences for electing and supporting monsters. Reagan didn’t torture people, nor did the people who voted for Reagan. Yet torture happened in Central America that was nobody’s fault. And here we are again.

Katherine is a far far better person than I, yet I think spreads her compassion too widely. I disapprove of the company she keeps, and sincerely believe that anyone congratulating Moe Lane on his upcoming nuptials is enabling torture.


Katherine 09.29.04 at 6:19 pm

Thanks for linking.

“but even right now one must show “clear and convincing evidence” that one will be tortured if removed to one’s home country, and the burden of proof is on the one claiming the relief under CAT.”

I thought the current standard was “more likely than not”, which courts interpreted as a preponderance of the evidence–50%+1 likelihood of torture.
“Clear and convincing evidence” is a higher bar. Courts won’t put in in % terms, but it’s more like 70-80%.

My immigration law class was a year ago and I could be mistaken. I will look it up and correct if I am wrong.


bob mcmanus 09.29.04 at 6:19 pm

Shorter version:When do the grown-up Republicans take back their Party? When the grown-up Democrats give them a need to do so.


Katherine 09.29.04 at 6:45 pm

It looks like my memory of what current law says was correct. Here’s an excerpt from a recent 9th Circuit case on the Convention Against Torture, Melencio Legui Lim v. INS:

“An alien is not entitled to mandatory withholding of deportation under [*938] § 243(h) of the Act unless there is a “clear probability” – i.e., unless “it is more likely than not” – that he will be subject to persecution. INS v. Stevic, 467 U.S. 407, 424, 430, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984); see also 8 U.S.C. § 1253(h)(1). This standard is less generous than asylum’s “well-founded fear” standard. See Vilorio-Lopez v. INS, 852 F.2d 1137, 1140 (9th Cir. 1988). We hold that, although Lim is eligible for asylum, that eligibility does not force the Attorney General to grant withholding of deportation. Because mitigating factors cited by the BIA provide substantial support for its conclusion that Lim’s risk of persecution is something less than fifty percent, the Attorney General’s discretion is not confined.”


eudoxis 09.29.04 at 6:51 pm

I hate to be so pessimistic, but the language in either bill will not change much. The practice of extradition (to a UN-acceptable country) and rendition (from there to a country that practices torture, say Egypt, Syria, Jordan, and our wonderful ally Turkey) has been in place for some time and even if stepped up in recent years, is a practice that will continue even if specifically outlawed here.

Note also that the language in HR10 is also present in immigration legislation.


bob mcmanus 09.29.04 at 8:44 pm


“Anyone who votes for people capable of supporting these policies has blood on their hands. Not to mention what they are doing to the image of the US as the ‘City on the Hill’, the beacon to mankind. Once we descend into the torture pit, we’re just arguing about circles in Hell.”


bob mcmanus 09.29.04 at 9:25 pm

Torture is a Partisan Issue…Kleiman

Do we have any reason to believe the second Bush administration will be more observant than the first? Some could blame this on the White House, and simply ask Republicans not to vote for Bush….but this is a Congressional Act, sponsored by the leadership and we have a right to presume this reflects the views of their consituency. Unless very loudly informed otherwise.


Big Ben 09.30.04 at 7:21 am

“anyone congratulating Moe Lane on his upcoming nuptials is enabling torture.”

By stating this you proved your previous sentence, “Katherine is a far far better person than I.”

Moe Lane is a decent human being who has made it clear that he doesn’t approve of torture, and to suggest that normal courtesy towards him is “enabling torture” shows that you’ve let partisan passions eclipse basic human decency.

This may be hard to believe, but a person can have different political views without being responsible for all the evil in the world.


bob mcmanus 09.30.04 at 9:39 am

“you’ve let partisan passions eclipse basic human decency.”

I do not think so. As I said, I hung at ObsWi for a year, and had many disagreements on a broad range of issues. And yes Moe is a good person, kind to me, as most people are decent people most of the time. But when Moe says, I believe sincerely, that Abu Ghairab and rendition and other human rights issues are terrible, but that he is voting for Bushco anyway, it becomes a compartmentalization I am no longer able to manage.

There are people who shun me for my radical pro-choice views. I do not consider my position a moral judgement, but a radical political action. A sacrifice, it is much more comfortable to compartmentalize. Ah well, I expect few to agree or approve of me, but I can only ask you read carefully the recent posts here on CT, and ask if changing the leadership of the Republican Party is the solution.

Henry said I “tilt at windmills”. I liked it. Deluded and impractical. But old and tired of outrage with its repetitive source.
Maybe Katherine’s comity will be more successful than my weak attempt at shaming. The recent record is not good, that bill is beyond belief. I wish her luck.


Big Ben 09.30.04 at 2:44 pm

Bob, I’ve been lurking here and at ObWi for quite a while, so I know you’re generally a decent person, and incidentally we agree on most political issues, including the importance of removing the Republicans from power for issues like this.

But do you think that it would be reasonable for someone to say that you no longer deserve basic courtesy because some of Kerry’s proposed policies will undoubtedly cause ill effects to some people?

Neither political party is perfect–many people see unforgivable things in the platforms of both parties–and reasonable people can come to different conclusions about which issues are most important to them without bearing full moral responsibility for every aspect of every policy of the party they support. Otherwise none of us could vote for either party with a clear conscience.


bob mcmanus 09.30.04 at 7:02 pm

“some of Kerry’s proposed policies will undoubtedly ”

Check out the sponsorship of the bill.

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