Katherine has a significant post on the potential legalization of outsourcing torture. Opponents of the provision include the American Bar Association, the 9/11 Commission, the United States Conference of Catholic Bishops, Amnesty International, and Human Rights Watch. This isn’t over.
The office of Edward Markey has sent a letter to President Bush on the provisions of the bill in question. UPDATE: The whole letter is below the fold. Here it is in .pdf form.
October 1, 2004
The Honorable George W. Bush
President of the United States
1600 Pennsylvania Ave. NW
Washington D.C. 20500Dear Mr. President:
I am writing to you about the “9/11 Commission Recommendations Implementation Act of 2004,” H.R. 10. As you may know, the House Republican Leadership has inserted provisions into this bill which would facilitate the extradition or deportation of certain foreigners from the U.S. to countries where they may face torture.
The provisions I am referring to are contained in sections 3032 and 3033 of H.R. 10. These provisions would authorize the Secretary of Homeland Security to revise regulations prescribed pursuant to the obligations the U.S. assumed under the U.N. Convention Against Torture. Under the bill, the Secretary would be required to exclude certain aliens from the protection of section 241(b)(3)(B) of the Immigration and Nationality Act (U.S.C. 1231 (b)(3)(B)), including rendering aliens deemed ineligible for withholding or deferral of removal under the Convention Against Torture. The provision limits judicial review of the new regulations that would be required under the bill to facilitate the deportation of aliens to countries where they may be tortured, stating that “no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, except as part of review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252).”
Section 3032 also would change the burden of proof on the alien detainee seeking to challenge a proposed deportation in a manner, which appears to violate the U.N. Convention Against Torture and the Senate’s understanding when it ratified the treaty in 1994. That Senate understanding stated in part:
II. The Senate’s advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:
(2) That the United States understands the phrase, “ where there are substantial grounds for believing that he would be in danger of being subjected to torture,” as used in Article 3 of the Convention, to mean “it is more likely than not that he would be tortured.”
Existing INS regulations, following the Senate understanding and the requirements of the Convention against torture, follow a “more likely than not standard.” In stark contrast, section 3032 (3) states that: “the burden of proof is on the applicant…to establish by clear and convincing evidence that he or she would be tortured…” Human rights groups have publicly voiced their concerns that the “clear and compelling evidence” standard may be extremely difficult or even impossible for a detainee to satisfy.
The provisions further authorizes the Secretary of Homeland Security to remove an alien to “any country whose government will accept the alien into that country” (Section 3033). In essence the Secretary is given virtually unfettered power to send a detainee to any country, regardless if the detainee is not a citizen of that country and regardless if the country has a known record of torture. The U.S. already has sent detained foreigners to countries that – according the State Department’s Annual Human Rights Report – practice torture, including Syria and Egypt. The best known example of this occurred in September 2002 when Maher Arar, a Canadian citizen, was detained and later deported to Syria where he was imprisoned and tortured. Authorities never found any terrorist connections, and he has never been charged or convicted with any crime relating to any terrorist activity.
I have long been concerned about current rendition practices and earlier this year, I introduced H.R. 4674, a bill that would bar the U.S. from deporting, extraditing, or otherwise rendering persons to foreign nations known to engage in the practice of torture. My bill currently has 23 cosponsors and has been endorsed by Amnesty International, Human Rights Watch, and other human rights organizations. Next week I intend to offer an amendment to strike the outsourcing of torture provisions from the Republican 9/11 Commission bill and replace it with my bill.
Mr. President, on June 22, 2004, following the revelations of the abuses at the Abu Graib prison in Iraq, you made a strong statement condemning torture. At that time you stated:
“Let me make very clear the position of my government and our country. We do not condone torture. I have never ordered torture. I will never order torture. The values of this country are such that torture is not part of our soul and our being.”
Just yesterday a newspaper quoted a Justice Department spokesperson as saying that the Department supported these provisions. In light of your strong statement against torture and the Justice Department’s apparent endorsement of the provisions, I respectfully request your views on Sections 3032 and 3033 of H.R. 10. In light of the impending House floor vote on this bill on the week of October 4th, I request that you please let the Congress know now – before the vote — where you stand on this issue before we take up and approve a provision that would legitimize the outsourcing of torture to other countries. I would also respectfully request your reviews on my proposed legislation, H.R. 4674, which would restrict extraordinary rendition to countries that practice torture.
Thank you for your consideration of this request.
Sincerely,
Edward J. Markey
Member of Congress
{ 15 comments }
Giles 10.01.04 at 11:07 pm
“potential legalization of outsourcing torture”
Beautiful – you’ve managed to put outsourcing and torture into one phrase. Lou Dobbs loves ya .
George 10.01.04 at 11:47 pm
The Wall Street Journal suggests that this provision is meant as a “poison pill” for the intelligence reform bill.
Nathan 10.02.04 at 12:07 am
Kerry is the Candidate for You
John Kerry’s Position on Iraq
steve 10.02.04 at 12:08 am
Kerry is the Candidate for You
John Kerry’s Position on Iraq
bob mcmanus 10.02.04 at 12:15 am
“The Wall Street Journal suggests that this provision is meant as a “poison pill†for the intelligence reform bill.”
Yes, does anyone else have a good reason this is being pushed hard now? It really isn’t in itself going to cost a Senate or House election. And might be easier after the election.
So the answer is possibly the opposite of a poisoned pill, but a rider on a bill that a Democratic Senator cannot safely vote against.
Very much like the new work rules in the Homeland Security Bill, they either get what they want or they get a weapon.
But just out of House Committee? Which means it has not yet gotten to the Senate, let alone reconciliation?
jet 10.02.04 at 12:20 am
I don’t understand this absolutist stance against torture. The US policy for using WMD’s requires that WMD’s first be used against the US or its allies. It seems reasonable that the US could fairly apply this policy to using torture.
Don’t get me wrong, I don’t like torture anymore than the next guy. But those who think torture is never necessary probably think war never solved anything also.
But either way, we shouldn’t be outsorcing torture. That seems criminal to me.
bob mcmanus 10.02.04 at 12:32 am
“Newspapers have reported that the second highest ranking official in the Department of Justice signed the order deporting Maher Arar to Syria, and that the President has signed a secret “finding” authorizing extraordinary renditions.
But George W. Bush and his press secretary have never, ever been asked about what happened to Maher Arar. Nor have they ever been asked about their position on extraordinary rendition.”
Quoting from Katherine. My first thought that the important part of the bill, and the reason for the hard push on it (and sponsoring by Hastert and DeLay is meant umm, to add emphasis) is the retroactive provision.
This is quite encouraging to me, because it means they think they might lose to Kerry. And explains why now, because they need the election threat. They want this bad
Why? Well, Bush can pardon a whole bunch of people on the way out, as his father did, but they don’t want Bush to need to be the first President to blanket pardon himself
liberal japonicus 10.02.04 at 12:35 am
bob, I think that poison pill meme is floated by Repubs who disagree but want to try and spin it as a business as usual (considering the source) The other alternative is that when confronted with the opposition, this offers a convenient emerg exit. Both points are not mutually exclusive.
About the outsourcing torture meme, yes, it’s hilarious, but I wonder if we are going to get people saying no to outsourcing, yes to torture…
George 10.02.04 at 12:47 am
Bob: Journal doesn’t say, they just cite “some critics.” One possibility: House Reps alarmed at the current proposals for intelligence reform (ie, taking power from the Pentagon) while the WH is highly motivated to get any “reform” law signed before the election. Would actually let Bush gain back some moral ground on the torture issue if he vetoes it.. a “twofer” from their perspective.
Jet: I understand your thinking, but torture is and must remain outside the bounds of civilized behavior. If someone gets into a situation where he thinks an act of torture is justifiable “for the survival of civilization” or to save X lives or something, fine — such a situation (the classic “ticking bomb” scenario) is conceivable. But he must be prepared to justify his action on that basis, before a court of his peers, after the fact — and never on the basis that “it’s legal.”
bellatrys 10.02.04 at 12:04 pm
Jet, have you talked to (or listened to, better yet) Terry Karney? He’s a military investigator by career. He *knows* some of the people who are being court martialed now. He was in country in the war on Terra. If anyone should know, he would.
He’s been one of the fiercest denouncers of torture-as-tactic from the very beginning.
A couple of other people with knowledge of intel and interrogation that does NOT come from Tom Clancy or H’wood have also commented here.
Bottom line: the only thing torture works for is to terrorize the citizenry – this could be you. Or your wife/kid/dad.
And that only works for a while, and in moderation. Then you get Resistance, followed by reprisals – as we have seen in every war/occupation throughout history.
Trammell 10.03.04 at 3:55 pm
Why can’t we outsouce the president to Iraq, along with his entire criminal sdministration.
Trammell 10.03.04 at 3:56 pm
Why can’t we outsouce the president to Iraq, along with his entire criminal sdministration?
JamesW 10.04.04 at 3:51 pm
Source please for the Bush statement. There was a press conference by George Bush after the G8 Summit on June 10 2004: http://www.whitehouse.gov/news/releases/2004/06/20040610-36.html, where the reply is legal evasion. On June 22 there was a press briefing by Scott McClellan using the words cited : http://www.whitehouse.gov/news/releases/2004/06/20040622-3.html
But the Press Secretary is an ultimately deniable spokesman, not the President of the United States.
Mary Martini 10.05.04 at 12:36 am
This is all true and US and UK Gov knew these westerners were tortured in the first weeks of confinement, they were left over 2 years until Pres Bush ordered this deal, why then do hostages get beheaded now when deals are done, I know this is true because James Cottle was one of the westerners in the Riyadh jail he is the Father of my children and he is disabled for what our best friends the house of Saud did to him, yet governments continue to do deals and condone this torture that still goes on.
Yes you guessed the named torturers have been promoted..
Report by New york times
A document emerged that appears to confirm that the United States and Saudi Arabia had an agreement in place to swap prisoners at Guantanamo Bay for prisoners in Riyadh, in the summer of 2003.
“In a few days, the U.S. ambassador will return from leave,” wrote the Belgian ambassador to Saudi Arabia on July 12, 2003, in a cable to his home office in Brussels.
“I will ask him what the American reactions are to the Saudis’ non-fulfilment of their part of the agreement,” the ambassador wrote, adding in parentheses, “releasing the British prisoners in return for the release of five Saudi prisoners that were locked up at the Guantanamo base in Cuba.”
Salah al-Hejailan, the lead counsel on the case, said he was not aware of any quid pro quo deal with the United States to exchange prisoners at Guantanamo for his clients. But he said that in a brief to Saudi officials less than three weeks before his clients were released, he pointed out that if Saudi Arabia released the men, British officials might, in gratitude, intervene or mediate to help secure the release of Saudis being held captive at Guantanamo.
What Jack Straw said (BBC)
The foreign secretary has refused to comment on reports that the release of six Britons in Saudi Arabia was linked to a deal to release Saudis from Cuba.
The UK citizens were released last year after being convicted for terrorism offences in the Arab kingdom.
The Independent reports their release was linked to that of five Saudis held in Guantanamo Bay – two of whom had allegedly trained with al-Qaeda.
Jack Straw would only say he had worked hard for the release of UK citizens.
Lib Dem foreign affairs spokesman Sir Menzies Campbell said deals sometimes had to be done in a “murky world”.
“The foreign secretary’s reticence may be less due to fastidiousness, and more to do with avoiding embarrassment for the British government and its Saudi counterparts,” he added.
“The test of any such bargain has to be that the interests of UK citizens were paramount.”
Asked if any deals had been done with Saudi Arabia Mr Straw had replied: “I worked very hard for the release of the British detainees and we were all greatly relieved once they were released. As to the precise circumstances I am not going to comment further.”
The Independent quotes a senior British source as saying: “Of course there were government-to-government talks.
“We were all anxious to solve the problem but one should bear in mind that it was the Americans who held the aces with the Saudi detainees, the British government did not have that kind of leverage.
“So the term ‘negotiations’ should really be applied to the American-Saudi dialogue.”
Five British men, along with a British Canadian and a Belgian national were released last August after being granted clemency by Saudi’s King Fahd.
Times
The Saudi Government was desperate for the return of their five nationals, who belonged to powerful tribal families in the kingdom, while the Pentagon needed to have airbases there as part of its war plan against Saddam Hussein.
All three governments were trying hard at the timeto show some benefit from the Iraq invasion and this prisoner release was trumpeted as a diplomatic triumph between close allies.
The five Saudi detainees in Camp Delta were flown to Riyadh in May 2003, but the Saudis were now also demanding that Britain hand over a number of Saudi dissidents based in the UK.
The British Government will be embarrassed by this revelation as they have always denied taking part in any deal to free the seven:
Their families claim that, at a meeting with the Foreign and Commonwealth Office in February 2003, diplomats hinted “an arrangement” was close and pleaded with them to call off their public protests.
The deal, the paper said, was an initiative by Robert Jordan, the US ambassador to Saudi Arabia, to satisfy calls from two of the US’s strongest supporters of the Iraqi invasion.
The Times quoted an anonymous US official as saying: “There is a link. This was two courses that converged and had a mutual attractiveness.”
As part of the horsetrading, it was reported early last year that Riyadh was asking Tony Blair to help seek the return of Saudis held at Guantánamo.
Saudi Lawyer for the men Mr Hejailan said he had proposed that the Saudis release his clients in exchange for the release of Saudis held at Guantanamo
Mary Martini 10.07.04 at 10:59 pm
66 Days of Torture in Saudi Arabia
Slush funds Lies and Deals
Tortured for 66 days and nights sacrificed to global politics and oil interests, James Cottle a British citizen tortured abused and left to rot in a Saudi Arabian jail for 2 years 2 months.
they cannot cover this up either the allegations that BAE Systems, the UK’s global arms group, paid millions of pounds in bribes to secure the huge Al Yamamah defence contracts with Saudi Arabia in the 1990s, has resurfaced in a BBC2 documentary.
Living in UK James Cottle was tricked to go to Bahrain then kidnapped on the orders of the Saudi Ministry of Interior, this in itself was illegal and showing him on world TV confessing under duress to crimes he did not commit was also illegal, crimes that we know was the work of extremists.
As horrific details of the torture come to light the evidence that could have set them free was covered up by the Americans and the UK foreign office, a UN report condemned the human rights abuses committed through their arrest and detention, yet the British Government remained largely silent about their plight and urged the families to do the same this was done with lies of course.
The men withdrew their original confessions, but UK officials tried to persuade them to sign new ones in the hope the Saudis might release them. All but one refused.
I saw John Pilger in ‘Stealing a Nation’ documentary it shows how the Foreign office uses secrets and lies, John Pilger spoke to Bill Rammel who is no stranger to covering up and avoiding issues for his band of incompetents in the FCO, no surprise there then as to what went on with the British detainees in Saudi Arabia our UK Government knew they were the victims of hideous torture being brutally beaten, sleep deprivation, teeth smashed out and loss of a mans dignity, James Cottle certainly wanted to die but they didn’t want him to as 66 days and nights of brutal torture is worse, if they wanted to demoralise and disable a man for life it worked.
Dealings have been done there is proof, on May 14, 2003, the Pentagon quietly announced the release of five Saudi men from the camp for U.S. prisoners of war at Guantánamo Bay, Cuba. It was two days after suicide bombers had attacked a housing compound for foreigners in Riyadh, the capital of Saudi Arabia, killing 35 people, including eight Americans. In a brief e-mailed press release, the Pentagon stated that the “senior leadership of the Department of Defense” (that is, Secretary Donald Rumsfeld), “in consultation with other senior U.S. government officials” (that is, the White House), had decided the five Saudi men “no longer posed a threat to U.S. security.”
The Foreign office replied to this question of the exchange in a letter saying this..
The issue of press reports that the men detained in Saudi Arabia were freed as part of a ‘secret exchange deal for five prominant Saudi terrorists held at Guantanamo bay’
The British Government was relieved that the men detained in Saudi Arabia were returned to the UK. We worked very hard diplomaticlly with the Saudi’s to resolve this difficult situation.
The release of the Saudi detainees from Guantanamo was a matter between the US and Saudi
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