If the LA Times is right to claim that the Obama administration has left open the possibility of extraordinary renditions, that would be a huge problem. However, I don't think it is. Here it helps to have spent some time reading the actual orders. The order called "
Ensuring Lawful Interrogations" contains the following passage:
"Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340 2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109 366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties."
Part 1, Article 3 of the
Convention Against Torture states:
"1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."
Obama orders people to comply with the Convention Against Torture, and that Convention states that we cannot return people to states where there are substantial grounds to believe that they will be tortured. And nothing the Obama administration has done to date suggests to me that they would engage in the kinds of creative reading of legal documents that would allow them, say, to disregard Egypt's long record of torture in making this determination.
Moreover, Obama's Executive Order also establishes a commission one of whose goals is:
"to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control."
So in addition to announcing that the administration will obey the Convention Against Torture, the administration will also study not
whether to send detainees off to be tortured, but how to ensure that our policies are not intended to result in their torture, and
will not result in their torture. This seems to me like a very clear renunciation of the policy of sending people to third countries to be tortured. His executive order also precludes any kind of secret detention of prisoners, and thus "secret abductions and transfers of prisoners":
"All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies."
Note that this has no exceptions for short-term detainees whom we quickly hand off to someone else.
<...>
The author of the Times article, however, defines "rendition" as "secret abductions and transfers of prisoners to countries that cooperate with the United States." It's not clear whether he knows that rendition includes perfectly normal things like extradition. It's also not clear that he knows that extraordinary rendition includes not just cases in which we transfer a detainee to another country, but cases in which we capture someone abroad and take them to this country to be tried.
What is clear, however, is that Obama's executive order prohibits sending people off to other countries where there are substantial grounds to think that they will be tortured, and commits his administration not just to hoping that this will not happen, but to trying to figure out how to keep it from happening. I will continue to watch what the Obama administration does. If they backtrack on their commitment not to engage in extraordinary rendition, I will call them on it. But I don't think that this article provides evidence that they will.
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