Wednesday, February 4, 2009

Obama Preserves Controversial Bush Program "Rendition", A Counter-Terrorism Tool for CIA; Another Loophole In His Controversial Executive Order

Another mixed signal from the Obama Administration.

We reported last month on Obama's executive orders banning "torture" and how they threaten the safety and security of America.

Mr. Obama is setting a dangerous tone with respect to terrorists. By treating them as standard Prisoners of War, protected by The Army Field Manual, his naivete on foreign policy and homeland security are frightening. The manual explicitly prohibits threats, coercion, physical abuse and waterboarding.

The LA Times reported Sunday on the "rendition" program:

Reporting from Washington -- The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.

The European Parliament condemned renditions as "an illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a Boeing Co. subsidiary accused of working with the agency on dozens of rendition flights.

But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.

The decision underscores the fact that the battle with Al Qaeda and other terrorist groups is far from over and that even if the United States is shutting down the prisons, it is not done taking prisoners.

"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning.

"The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."

One provision in one of Obama’s orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis.

"Despite concern about rendition, Obama's prohibition of many other counter-terrorism tools could prompt intelligence officers to resort more frequently to the "transitory" technique.

The decision to preserve the program did not draw major protests, even among human rights groups. Leaders of such organizations attribute that to a sense that nations need certain tools to combat terrorism.

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.

"What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."

Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court.

"Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said.CIA veterans involved in renditions characterized the program as important but of limited intelligence-gathering use. It is used mainly for terrorism suspects not considered valuable enough for the CIA to keep, they said.

"The reason we did interrogations [ourselves] is because renditions for the most part weren't very productive," said a former senior CIA official who spoke on condition of anonymity because of the sensitive nature of the subject.

The most valuable intelligence on Al Qaeda came from prisoners who were in CIA custody and questioned by agency experts, the official said. Once prisoners were turned over to Egypt, Jordan or elsewhere, the agency had limited influence over how much intelligence was shared, how prisoners were treated and whether they were later released.

"In some ways, [rendition] is the worst option," the former official said. "If they are in U.S. hands, you have a lot of checks and balances, medics and lawyers. Once you turn them over to another service, you lose control."

In his executive order on lawful interrogations, Obama created a task force to reexamine renditions to make sure that they "do not result in the transfer of individuals to other nations to face torture," or otherwise circumvent human rights laws and treaties.

The CIA has long maintained that it does not turn prisoners over to other countries without first obtaining assurances that the detainees will not be mistreated.

CNN's John King interviewed Sen. Dianne Feinstein on Sunday.

Transcript from Media Matters:

From the February 1 edition of CNN's State of the Union with John King:
  • KING: I don't mean to be rude, but I want to get you before we run out of time. I want to get your thoughts on this front page LA Times story -- this is your committee, the Intelligence Committee -- "CIA retains power to abduct." We know that Barack Obama has said no more torture, that he will close Guantánamo Bay prison detainee, but in this article, in the LA Times, says he has signed executive orders to continue the controversial CIA practice of rendition -- essentially scooping up suspected terrorists around the world, sometimes taking them to secret prisons. What can you tell us about this?
  • SEN. DIANNE FEINSTEIN (D-CA): I don't believe that's true. What he said is that there can be temporary housing. There has to be temporary housing. You pick somebody up, you have to know what they have done. You have to have some time to talk to them.
  • KING: The renditions, the renditions -- the CIA, under an Obama administration, retain the right for rendition, to scoop up suspected terrorists around the world.
  • FEINSTEIN: Not in that sense that you mean rendition, which is sending them also to another country or to a black site. What they're talking about is temporary holding. The fine points of it have to be fleshed out and will be fleshed out. I've met with Greg Craig about the executive order on two occasions now. The Intelligence Committee will be providing oversight over it. And, as you know, I have a bill to close Guantánamo, to end contractors doing interrogations, to have one standard across -- which is the Army Field Manual -- the executive order coalesces with this bill. And we need time to really address the fine points of the executive order and see if it's sufficient or if we need to codify some of this.


More From ConservativeXpress...

Executive Order 13440 was signed by President Bush July 20th, 2007. It stated that that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war.

The Third Geneva Convention provides protection for prisoners of war assuming they meet the following criteria 4.1.2 Members of other militias and members of other volunteer corps, including those of organized resistance movements, provided that they fulfill all of the following conditions that of being commanded by a person responsible for his subordinates; that of having a fixed distinctive sign recognizable at a distance (there are limited exceptions to this among countries who observe the 1977 Protocol I); that of carrying arms openly; that of conducting their operations in accordance with the laws and customs of war.

It is our belief that President Bush was correct. Members of terrorist organizations DO NOT meet the above criteria and therefore President Obama is incorrect in his belief that the Geneva Conventions and The Army Field Manual apply to enemy combatants. Further, terrorists are not covered by The Fourth Geneva Convention which applies to treatment of civilians.

Essentially, no court, domestic or international has yet to provide a final ruling defining any "intermediary" between a formal army, militia or organized force (which GCIII protects) and non-combatant civilians (protected by GCIV).

Article 51.3 of the Commentary states this: IV Geneva Convention also covers this interpretation: "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.". In the words of the International Committee of the Red Cross. or ICRC "If civilians directly engage in hostilities, they are considered "unlawful" or "unprivileged" combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action. Both lawful and unlawful combatants may be interned in wartime, may be interrogated and may be prosecuted for war crimes.

So it appears there is a distinct lack of a true definition of how a terrorist, or "enemy combatant" in the international community. If anything, IV Geneva Convention affirms interrogation tactics used on the Guantanamo detainees.


Others on The Left were quick to make distinctions between Obama's "torture" and Bush's "torture". Here and here.

Depends on your definition of what "is" means, right?

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