No Comment — February 2, 2009, 11:56 pm

More on the Renditions Hoopla

Tonight on Rachel Maddow, on MSNBC, I discussed the whisper campaign to mischaracterize President Obama’s decision to stand down the Bush 43 extraordinary renditions program, while leaving open the possibility of renditions as practiced in the Bush 41 and Clinton presidencies.

I cited the Eichmann case as the prototype of an appropriate rendition. Renditions may well be criminal under the law of the state in which the person was captured, though some states permit a defense against a kidnapping charge for persons seizing someone to be brought to justice (such as bounty hunters). However, they would not generally be illegal under U.S. law, and there is settled precedent on this point. This helps explain why Obama will not rule out renditions altogether, though contrary to the view expressed in the Los Angeles Times article, I doubt his administration will turn to this device as frequently as his predecessor has. When deciding to use rendition, the government has to measure a number of considerations, including whether the person apprehended really presents a threat to the safety and security of the country sufficient to warrant the damage to diplomatic relations that may well result from the rendition. Extraordinary renditions are something entirely apart. They are a criminal act of a very high order both under U.S. law and international law, and no circumstances could justify them.

There have been a flurry of posts on this subject in the blogosphere. The best are by Hilzoy at the Washington Monthly, Glenn Greenwald at Salon, and Andrew Sullivan at The Atlantic. The most confused appear at Hot Air and Instapundit, neither of which displays an inkling of the distinction between “extraordinary renditions” and “renditions.”

Two other posts help unpack the issue. Richard Clarke addresses the confusion over renditions in an explanatory piece in the Boston Globe. He patiently walks the reader through the prior use of renditions, reviews how Bush 43 modified the program by enlisting the CIA to run long-term detention facilities and put torture at its core. Not surprisingly, Clarke has a very precise understanding of what Obama changed and what he left intact.

House Judiciary Chair John Conyers also discusses renditions in the course of a piece at the Huffington Post, talking about the need for accountability. Conyers mentions a little reported fact: the CIA’s inspector general undertook a probe into the extraordinary renditions program. His probe was shut down by Vice President Cheney, and we still don’t know what he found or recommended, other than that CIA Director Hayden was mortified by it. All the indicators are that the CIA’s inspector general found that the extraordinary renditions program was unlawful and he demanded accounting for it. If that was his conclusion, then he took a view shared by virtually the entire legal profession in the United States. Obviously it is time to shed some sanitizing sunlight on what was done. Freeing up the inspector general to finish his review and render a final report would be an obvious next step. Indeed, concern about just such a probe may be driving some of the CIA sources to instigate the current whisper campaign.

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