Tuesday, December 06, 2005

Rice Offers Legal Defense of Rendition

As I mentioned earlier, U.S. Secretary of State Condi Rice is currently in Europe trying to build transatlantic ties, while at the same time fending off complaints about the CIA's activities in Europe. One of her statements defending the legality of "extraordinary renditions" is a useful pushback against the growing chorus of criticism against the CIA. She points out (and I think she's right) that renditions themselves are not a violation of international law. She also states, unequivocally, that the U.S. is not using renditions to countries where detainees are tortured.

Here is the key unequivocal part of her statement (emphasis added):

In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.

Moreover, in accordance with the policy of this administration:
-- The United States has respected -- and will continue to respect -- the sovereignty of other countries.
-- The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.
-- The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured.
-- The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.

Of course, many folks may not believe her. (UPDATE:The relentless Marty Lederman, for instance, offers reasons to doubt her meaning here). But it means something when the U.S. Secretary of State goes on the record like this. It means that if there is bad stuff going on in the rendition process, and it becomes public, she and the administration will be in a bad position. But it also means that if this statement is accurate, then there is a huge uproar about renditions that is essentially about nothing.


Blogger Non liquet said...

There are several questions that remain, however.

(1) What definition of torture is the Secretary of State using when she makes that statement? Is it John Yoo's definition or some other.

(2) Does the United States permit renditions to countries which will use cruel, inhuman, or degrading treatment upon detainees?

(3) What are the "assurances" that the United States seeks when handing over a detainee to a foreign government? Is it simply a signature on a form or do we actually supervise, monitor, and penalize countries who mistreat detainees we give them.

I don't think her statements are all that unequivocal.

12/06/2005 5:43 PM  
Blogger Non liquet said...

That's what I get for posting without fully reading her statements first.

"It is also U.S. policy that authorized interrogation will be consistent with U.S. obligations under the Convention Against Torture, which prohibit cruel, inhuman, or degrading treatment."

That to me is very important.

12/06/2005 5:53 PM  
Blogger anonymous said...

"It is also U.S. policy that authorized interrogation will be consistent with U.S. obligations under the Convention Against Torture, which prohibit cruel, inhuman, or degrading treatment."

This entire issue is bordering on the ridiculous. I certianly hope we're using "degrading treatment" against terrorists when we capture them. The endless handwringing is beyond belief. If the "human rights" crowd directed 1% of the efforts they do against the U.S. against the terrorists and barbarian dictators around the world maybe they'd be taken seriously.

12/06/2005 7:17 PM  
Blogger Katherine said...

Those assurances are worthless, and the info proving her statement false is already public. I know because I wrote my 3L paper on this. Check your email for more info on this than you could possibly want....

12/07/2005 1:27 AM  
Blogger randomopinion said...

Unequivocal? Jeez Prof. Ku, we're talking about the same person who *unequivocally* said, on the record, that Saddam had WMD and collaborated with Bin Laden. The same person who, asked about the real question posed by Jack Straw (i.e., secret prisons in EU soil?), answered this (from the same source you cite, the Department of State website):

"However, she did not discuss news reports that the CIA runs secret U.S. detention centers in certain East European countries.

'We cannot discuss information that would compromise the success of intelligence, law enforcement, and military operations,' she said.

The United States has been asked formally by the European Union, the Council of Europe and several individual countries about news reports about such secret facilities.

'So what I will say to my European colleagues is that … we're operating under our laws, we're operating under our international obligations, we're respecting the sovereignty of the countries with which we are cooperating, and that's all I can say,' Rice told reporters en route to Berlin, the first stop on her European trip."

Are you sure you don't want to edit your post and replace 'unequivocal statement' with 'stonewall'. Seriously now, everyone is entitled to a personal opinion on how to deal with one's enemies (including advocacy of pre-enlightment techniques, as the anonymous poster above does). But when such individual is a college professor, even if its at the blog level, he should be much more careful with his choice of words when commenting on very serious allegations of very serious international law infringements.

12/07/2005 7:05 AM  
Blogger Diogenes said...

My question is this: Does Julian desperately want to believe or is he participating in the charade himself? Condi's statements were described by the editors of the Washington Post as "legalistic jujitsu" and morally ambiguous at best - that's about right. But perhaps Maureen Dowd's comment this morning - "piffle" - is even more to the point. Condi's statements can't be squared with what we know about the renditions point. Just start with "torture." Surely she is using a definition that is closer to something from the pen of John Milosevic-is-a-whimp Yoo than what any serious international law scholar would accept. The specific here is waterboarding. Goss accepts that it's on the CIA list, and ABC reports yesterday, citing CIA sources, 11 individuals on whom it has been used. But waterboarding is torture, plain and simple. Indeed, while the boys at OLC missed it, there are two cases that so determined in handling out criminal sanctions to service personnel who used it (not to speak of the volumes of DOS country reports that have said this, quite correctly, or the various international materials). Scheuer has publicly addressed the "diplomatic assurances" point repeatedly, making clear what a total farce that was and is - and the list of participating countries in this program makes abundantly clear that torture figures prominently in the selection - namely, countries are preferred partners because they use torture. Explain otherwise the rendering to Syria of a Canadian computer programer, now acknowledged. And "respect for sovereignty?" Well, Condi makes menacing suggestions that the Europeans knew all along, and they may be so. Perhaps they trusted us to keep our assurances. Was it consistent with Spain's sovereignty to hold a German citizen there after the CIA kidnapped him in Macedonia? That's now been established in the Spanish investigation. And the Spanish interior minister stated that he had obtained assurances that Spanish territory and airspace would not be used for the extraordinary renditions program. Similarly, did the kidnapping in Milan and the deception practiced on Italian investigators constitute respect for their sovereignty? Julian's comments reflect cheerleading, not critical analysis. Every team is entitled to its cheerleaders, of course, but they shouldn't disguise their uniforms.
But putting this in perspective: Condi has an opportunity now to turn a new leaf and to preserve the positive relationship we have with Europeans in the area of intelligence gathering. That's what our national interest dictates. Instead, she shows herself fully captive to the misinformed judgments of the first Bush 43 term, and she proceeds with threats and intimidation which do not reflect the most effective diplomacy (assuredly not when dealing with our closest allies).

12/07/2005 8:01 AM  
Blogger F said...

I remain utterly unconvinced. Her stress on the word torture appears to exclude considerations of inhuman and degrading treatment and punishment also prohibited by international law. in addition she does not clarify what legal definition of torture she is using: the UN's definition, the ECHR definition, Yoo's definition???

I lack any feeling of being reassured.

12/07/2005 8:27 AM  
Blogger Diogenes said...

From tomorrow's New York Times: "It's clear that the text of the speech was drafted by lawyers with the intention of misleading an audience," Andrew Tyrie, a Conservative member of Parliament, said in an interview.
It's clear, isn't it, that Condi has failed to convince just about anyone.

12/07/2005 9:35 AM  
Blogger Christopher Le Mon said...

Secretary Rice's carefully chosen words are not accurately reflected in Julian Ku's original post, where he said that

She also states, unequivocally, that the U.S. is not using renditions to countries where detainees are tortured.

In parsing Secretary Rice's words, look closely at the specific intent or express knowledge that would be required for her statements to be false, and you'll see the role played by lawyers in the drafting of her speech.

The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.

This careful statement is thus true so long as the purpose of an extraordinary rendition was just to interrogate a detainee, with the knowledge that he might be tortured, or was even likely to be tortured. So long as the purpose of the rendition wasn't that he be rendered for "interrogration using torture," Rice is being truthful. Deceptive, obviously, but truthful.

Similarly, the Secretary's other statements (all the ones that end in "where he or she will be tortured") are only false if the United States is certain that the individual being rendered is certain to be tortured. Again, this isn't the meaning being attributed to her by favorable commentators.

It's dishonest and misleading to read broad policy pronouncements into such narrowly-crafted legalistic sentences.

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