No Comment — February 28, 2009, 6:21 pm

Lingering Questions About Renditions Plague the U.S.–U.K. Relationship

In the last week it has become increasingly clear that the British Government and British intelligence community were full-fledged participants with their American counterparts in the torture-by-proxy system that Bush crafted. A U.K. minister was already forced to acknowledge that denials made with respect to a notorious case were simply untruthful. And now this:

[Foreign Minister] David Miliband and [Home Secretary] Jacqui Smith have both refused to appear before Parliament’s human rights committee to answer questions about allegations of British collusion in the torture of British citizens and residents detained during counter-terrorism operations in Pakistan. In a move that dismayed members of the Joint Committee on Human Rights (JCHR), a joint letter from the foreign secretary and home secretary is also said to have failed to answer any of the eight questions that the committee asked about legal provisions offering MI5 officers immunity in the UK for crimes committed overseas. The JCHR is now asking Jonathan Evans, the director-general of MI5, to appear before it to be questioned about the agency’s policy and the conduct of his officers.

MPs and peers on the committee are also expected to demand again that Miliband and Smith answer their questions, while its chairman, Andrew Dismore, says the ministers’ refusal may trigger demands for an independent inquiry into the allegations. Dismore said it was “deeply disappointing” that neither minister had agreed to appear before the committee, but added: “This inquiry isn’t over yet.”

On Thursday the Washington Post offered some more insight into the case:

…the rendition involving two Pakistani men, who have been in custody at Bagram air base in Afghanistan since 2004, violated a U.S.-British memorandum of understanding specifying that “no person captured with assistance” from British forces “will be removed from the territory of Iraq without prior consultation.”

The Pentagon quickly took responsibility for the lapse. “There was a level of formal coordination that should have taken place with respect to a transfer of this nature,” spokesman Bryan Whitman said. “Unfortunately, that did not occur in this case. It was an error.”

This sounds like a brush-off. Is this the case that led to a special request for an opinion of counsel from the Department of Justice, and in turn produced the Jack Goldsmith memorandum of March 19, 2004—which aligns with the facts of the case as reported in the U.K. media? That seems possible, and if so, the facts and circumstances of the case would have been carefully scrutinized by the Justice Department before it rendered a formal legal opinion. And that means that the odds that this was a simple “error” were almost nil.

As it happens, this would also suggest yet another reason why the infamous Goldsmith renditions memo was incorrect. That memo was plainly crafted to authorize the transfer of these prisoners to a black site in Afghanistan, and it was solicited because those involved with the operation fully understood that the rendition would be illegal. Once more, an Office of Legal Counsel (OLC) memorandum was being sought to provide a “golden shield” to those scheming to commit a crime.

Throughout this period, the OLC had a bizarre special relationship with the Neoconservative clique inside the Office of the Secretary of Defense. Goldsmith was a prime link. A leading legal writer in the Neoconservative movement, Goldsmith served as a close advisor to William J. Haynes II, Rumsfeld’s lawyer (now a lawyer at Chevron). Goldsmith departed from that position to become head of the OLC. He was therefore well acquainted with the extraordinary renditions program. He authored a memo turning the law on its head and stating that the detainees could be removed from Iraq and held elsewhere “for a brief but not indefinite period.” Decoding this a bit, that meant that they could be taken to a CIA black site in Afghanistan where they would be tortured. And the “brief but not indefinite period”? It’s already run five years. Only a Bush lawyer would call that “brief.”

Some clarifications of what happened are in order, and not just at Westminster. Professor Goldsmith should give an accounting for his role, and he should acknowledge whether he was aware of the U.K.-U.S. memorandum before he authored his opinion giving a green light to the rendition.

The rendition of these prisoners was a grave breach of the Geneva Convention. Their treatment at the black site probably raises still graver questions. And now it appears that breach is on-going–and no effort has been undertaken to cure it. The Obama Administration needs to show that it is serious about upholding its obligations under international law.

Update Sunday, March 1, 2009, 6:35PM

I just reexamined Jack Goldsmith’s book The Terror Presidency (which should figure on any reader’s shelf of books on counterterrorism policy and is exceptionally well written) to pull out his defense of concerns raised about the March 19, 2004 memo. Here it is, from pp. 172-73:

In any event, I never finalized the draft, it never became operational, and it was never relied on to take anyone outside of Iraq. I do not know whether the request for legal advice about relocating Iraqi prisoners outside Iraq for questioning was associated with a broader rendition program. But I do know that the draft opinion could not have been relied upon to abuse anyone, not only because it was never finalized, but more importantly because it stated that the suspect’s Geneva Convention protections must travel with him outside Iraq.

The developments of the last week appear to me to provide ample basis to question these conclusions. First, Goldsmith says he “never finalized the draft.” But in fact the OLC later published, following repeated demands from Congress, a related memo, obviously resting on the analysis contained in the draft, but bearing an earlier date: March 18, 2004. That fact in itself suggests that OLC was at this time deeply engaged in study of legal issues surrounding the Geneva rights of detainees of various types and must have been giving someone advice on the subject.

Second, the claims that Goldsmith “did not know” this had to do with extraordinary renditions is extremely difficult to credit. If he made a rudimentary inquiry into the facts surrounding the query, as he certainly should have done in the course of rendering an opinion, he obviously would have learned these facts. Moreover, having come from the General Counsel’s office at the Department of Defense, it’s hard to imagine he wasn’t already acquainted with them. Recently disclosed pages from the Church report on “ghost detainees” showed that the Pentagon was heavily involved in the “ghost detainee” operation from the start.

Third, the claim that his advice could not have been relied upon to “take anyone out of Iraq” now sounds implausible. In fact we know just at this time the CIA was looking to take some people out of Iraq, and right about the time the memo issued, it did so.

Fourth, Goldsmith’s claim that the memo “could not have been relied upon to abuse anyone” has a familiar ring to it. This is the same argument regularly trotted out by John Yoo with respect to the abuses at Abu Ghraib. And yet the Pentagon’s internal reports found that Yoo’s memoranda had made the trip to Baghdad and were being used by Staff Judge Advocates there to craft new non-Geneva compliant rules of engagement. In this case, the Goldsmith memo would have been relied upon to move the detainees out of Iraq—in violation of the Geneva Conventions—and to a CIA black site. If we know anything about the operation of those black sites at this point, it is that Geneva Conventions standards were not being applied. It’s hard to imagine that Jack Goldsmith could have thought anything different.

And why was that “draft” March 19, 2004, memo circulated? Did Goldsmith use it to support advice delivered orally? Was the “draft” taken and used as definitive advice? We have plenty of questions at this point and answers from Goldsmith that don’t hold water. This affair calls for Congressional inquiry. It raises grave questions about the involvement of OLC in the extraordinary renditions program.

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