New York attorney specializing in international law and human rights. He is also a legal affairs contributor to Harper’s magazine, where he writes the blog "No Comment."
President of the New York-based Center for Constitutional Rights.
When President Obama signed executive orders to end torture and shut down Guantanamo, did he leave open the controversial rendition policy of kidnapping foreigners abroad? We host a debate between human rights attorneys Michael Ratner and Scott Horton. [includes rush transcript]
AMY GOODMAN: New questions are being raised about the Obama administration’s commitment to fully reverse Bush administration policies relating to the so-called war on terror. Two weeks ago, President Obama signed executive orders to end torture and extraordinary rendition and shut down Guantanamo.
On Wednesday, a British High Court ruled that evidence of British resident Binyam Mohamed’s extraordinary rendition and torture at Guantanamo had to remain secret, because the Bush administration had threatened it would stop intelligence sharing with Britain if the evidence was disclosed. The court opinion adds that the position of the United States "remains the same, even after the making of the Executive Orders by President Obama on 22 January 2009."
The Los Angeles Times also reported Sunday that the Obama administration has decided not to end the controversial policy of rendition, which gives the CIA authority to abduct anyone throughout the world and secretly transfer them to another country.
The report has sparked a number of debates. Scott Horton, the legal affairs contributor to Harper’s magazine, wrote in his Harper’s blog, “No Comment,” that the Los Angeles Times "just got punked." He points to the difference between the renditions program in place since the George H.W. Bush administration and the extraordinary renditions program introduced after September 11, 2001 and shut down by Obama’s executive order.
Today, we host a debate on rendition and the future of counterterrorism efforts under President Obama. Scott Horton joins us here in the firehouse studio, and we’re also joined here by Michael Ratner, president of the Center for Constitutional Rights.
I want to start off by just understanding what it is that President Obama signed. Michael Ratner, let’s start with you. What are these executive orders? What have they ended? What have they kept in place?
MICHAEL RATNER: Well, if we go through, there’s three or four that are important. One is the Guantanamo order, which is to end Guantanamo, close Guantanamo in a year. We have some issues with that, because there’s what I call the two- or three-basket theory. The two baskets, which the Center believes in, should be either people prosecuted or repatriated and given asylum. The order, unfortunately, gives some wiggle room for holding people without either of those two baskets. We have a problem with that at the Center. We don’t believe there’s a preventive detention scheme ought to come out of that.
A second order, of course, concerns interrogation techniques, and Obama does, in that order, say that the torture convention, the Geneva Conventions, their humane treatment ought to apply to any detainee held in the United States. Again, there’s, in my view, some wiggle room in that order. One piece of wiggle room is that it gives — there is a study commission set up so the CIA can use additional techniques. A second piece of wiggle room is that it does say it’s supposed to close all secret sites expeditiously; the CIA should close them all. What does “expeditiously” mean? And it also allows people to be held for short-term transitory purposes by the CIA. We think that’s a very, very large hole.
And then, on the issue that you raised the debate on — but, of course, all these issues are issues that Scott and I discuss — the issue of rendition, the orders, in my view, still allow rendition. People would argue that it doesn’t allow what’s called “extraordinary rendition,” which is the sending of people to another country for torture. It stops that, but it still allows rendition, which I think is pretty clear it does. We are opposed to that.
AMY GOODMAN: “Rendition,” meaning what?
MICHAEL RATNER: Meaning, in the term I’m using it, is taking someone from somewhere, another country, and transferring them to another country, where they can either be, for all I know, be put in secret detention or stand trial, or one or the other. It really means, to me, going into a country, violating the sovereignty of that country, oftentimes having to use force and violence to get that person, putting that person into some way of getting them out — and we’ve had experience with that in a Mexican case, Alvarez-Machain. They put a guy in a coffin to get him out of Mexico into the United States. So that’s rendition. Even if it’s for purposes of standing trial in the United States or in another country, it’s still an extraordinary violation of the law to do it, even if you don’t torture that person in the other country.
AMY GOODMAN: Scott Horton?
SCOTT HORTON: Well, you know, I think Michael is correct in that these orders that were issued in the first couple of days of the administration leave a lot of questions unresolved. You know, what was the purpose of these orders? They were designed to implement a list of specific campaign promises that Barack Obama made. You heard some of them in the clip. I mean, it was the promise to end torture. So they were designed to address the interrogations program that Bush put into place, the extraordinary renditions program and the use of military commissions.
Now, not every aspect of those pledges is going to be implemented through an executive order. So, to see whether he’s coming good on his promises, we’re going to have to follow what happens with these orders, how they’re implemented and how they’re worked out down the line. We’re also going to have to see what these study groups conclude. So there’s a lot more to be seen. But I think if we just pull back and look at the renditions versus extraordinary renditions —-
AMY GOODMAN: The “extraordinary” means of torture at the end of it? Is that the idea? One is, the CIA can move a person from one country to another, kidnap that person -— I don’t think, even on their end, they’re disputing that it’s kidnapping, but they say they have a reason to do it — from one country to another, that’s rendition? Extraordinary is knowing at the other end the country will torture them?
SCOTT HORTON: There are two elements that distinguish the old renditions program from the extraordinary renditions program. One is the CIA basically becoming a jailer, running long-term detention facilities, which was not the case previously. And the other is the involvement of torture, I mean, highly coercive tactics being used by the CIA itself, plus torture by proxy, the CIA cooperating with other nations — Morocco, like in the Binyam Mohamed case; Tunisia; Egypt; and other countries in Southeast Asia, for instance, where there is a special relationship developed where the persons are turned over to those governments with the full understanding and expectation that they will be tortured.
Now, as I read the executive orders, they clearly put an end to this extraordinary renditions program, because they order the shutdown of the long-term detention facilities, and they include an unequivocal commitment to stop the torture practices. The CIA are required to abide by the same standards that are used by the Department of Defense.
Of course, the proof is in the details. I mean, we’re going to have to see how these rules actually are applied by the CIA, and we’re going to have to look and see how the commitment not to render torture is applied. The legal standard is that someone cannot be rendered if it is more likely than not that the person would be tortured. We saw in the last administration all sorts of evasions used to get around that. I think we see a break in these executive orders, but we’re going to have to see, on the basis of individual cases, how these orders are understood and implemented.
AMY GOODMAN: But if you send them to another country, how do you control how they’re treated?
SCOTT HORTON: Well, there are things you can do, in fact. I mean, there are prior cases, where — I mean, first of all, I think you’d have to look at the country in question and the country’s practices. And there are certainly — there are certain countries to which we should not be rendering individuals at all, where there’s any question about it. There are other countries where there is more of a borderline, and in those countries it may be possible to work out an agreement with them to extract a clear pledge that there will be no torture and to follow up with monitoring. But, you know, that’s not going to be the case with countries like the ones I just mentioned, like Egypt and Morocco.
MICHAEL RATNER: Let me say that, you know, there’s a few issues —-
AMY GOODMAN: Michael Ratner?
MICHAEL RATNER: I think what’s really crucial here is that, yes, there’s executive orders and, yes, there’s a lot of wiggle room, but I think the role of citizens, of all of us as human rights people, particularly, is to focus on the wiggle room and make sure that that wiggle room is not used to violate fundamental rights.
So when Scott talks about closing all the secret sites, I don’t think it’s sufficient to say, “Close all the secret sites, but let the CIA continue to hold people for short-term transitory purposes,” because I don’t know what that means. Does it mean a week? Does it mean a month? Does it mean two months? Does it mean six months? I don’t know. And so, that’s a big problem.
Secondly, when you ban the CIA from using torture, then -— and we’ve spoken on it here once before on your program; it’s been addressed — this Annex M to the Army Field Manual. The Army Field Manual is what controls interrogations of the military, and it has now been applied to the CIA. There’s an annex in it that a number of human rights people, including myself, are very concerned by that allows isolation for periods of thirty days, that can be extended more, and allows sleep deprivation, where you can only give the person four hours of sleep. That kind of stuff could, under certain circumstances — certainly could constitute easily inhumane treatment and possibly torture. Now, there’s an argument that Obama may have banned that in some way in the executive order, but there’s also what he should have done, and what should be done is that should be gotten rid of it. Annex M should be taken out of the Army Field Manual.
AMY GOODMAN: When was it added?
MICHAEL RATNER: It was added in nineteen — it was added two years ago —-
SCOTT HORTON: 2006.
MICHAEL RATNER: Yeah, 2006, two years ago, by the Bush administration as a way of saying, “Well, we can treat enemy combatants differently than prisoners of war.” It ought to be gotten rid of. You ought to close the CIA’s [inaudible] hole. You ought to get rid of Annex M.
And then, I think the issues you’re raising about rendition versus extraordinary rendition -— you know, I think it has to end. Rendition has to end. Rendition is a violation of sovereignty. It’s a kidnapping. It’s force and violence. And let’s put it in another situation. Let’s say we were planning at some point to attack Iran. Could Iran have come in here and kidnapped the people planning the attack on Iran? Could we tomorrow go down to Cuba and kidnap Assata Shakur, who is — you know, escaped a murder charge out of New Jersey? Could we do that? Could Cuba come here tomorrow and take Posada out of Florida, the man who blew up the airliner, killing seventy-six people? Once you open the door to rendition, you’re opening the door, essentially, to all lawless world. I don’t accept that.
AMY GOODMAN: Scott Horton, why not end rendition?
SCOTT HORTON: Well, I think there has been an historical rule for rendition. My own view is that it’s acceptable only in really extraordinary cases. I mean, we look at the case involving Eichmann right after the end of World War II, who was seized when he was in Argentina and brought back to be tried. That’s an example of a rendition which I think can be justified.
But I think these cases really are quite rare. I mean, Michael is correct to point to the fact that many governments are going to view snatching a person and carrying him away as a kidnapping. That’s a criminal act. And the government should really refrain from that. We see already in Italy, we see twenty-six Americans — CIA agents, diplomats, a military attaché —- being tried for kidnapping and conspiracy there because of their implementation of the extraordinary renditions program. And it’s -—
AMY GOODMAN: Meaning they took a sheikh off the streets of Milan, they kidnapped him and took him away. They flew him where? To Egypt?
MICHAEL RATNER: Yes.
SCOTT HORTON: Well, first he was taken —-
AMY GOODMAN: Where he was tortured.
SCOTT HORTON: —- to Majorca, but ultimately he wound up in Egypt, that’s correct, yeah.
AMY GOODMAN: And they’re being tried in absentia.
SCOTT HORTON: They’re being tried in — I mean, it looks pretty clearly they’ll be convicted. I mean, it’s a major embarrassment for the United States.
AMY GOODMAN: What about the issue of Adolf Eichmann being taken off the streets of Argentina?
MICHAEL RATNER: My view is, you know, it’s —-
AMY GOODMAN: Michael?
MICHAEL RATNER: I don’t think you can justify rendition of any sort, whether it’s Eichmann or anybody else, because it opens a door, a slippery slope to renditions all over the world. And it opens them not for Cuba; it opens them for big power countries or for countries that are protected by big power countries. If Cuba came in here and snatched Posada, that would be, I mean, probably the end of Cuba. It wouldn’t be the end of the United States if they went in and snatched Vesco when he was alive in Cuba or Assata Shakur. It would be outrageous. It would be illegal. But it wouldn’t be the end. So the problem with opening a hole for rendition is you’re once again opening a hole that big countries will use, or countries that are protected by big countries.
AMY GOODMAN: We’re going to go to break and come back. Our guests are Michael Ratner, president of the Center for Constitutional Rights, and Scott Horton, New York attorney specializing in international law and human rights, writes a blog at Harper’s called “No Comment.” This is Democracy Now! Back in a minute.
AMY GOODMAN: Coming up, we’re going to talk to the University of Utah student who bought up land to stop it from being drilled on. Now, the Interior Secretary is doing just that, stopping the drilling of land in Utah. We’ll speak with Tim DeChristopher, the student.
But first, we continue with Scott Horton, a legal affairs contributor to Harper’s magazine, does a blog there called “No Comment,” and Michael Ratner, president of the Center for Constitutional Rights.
I wanted to ask you about this British High Court ruling on Wednesday that evidence of British resident Binyam Mohamed’s extraordinary rendition and torture at Guantanamo had to remain secret, because the Bush administration had threatened it would stop intelligence sharing with Britain if the evidence was disclosed. And interestingly, the court opinion adds that the position of the United States, quote, “remains the same, even after the making of the Executive Orders by President Obama on [22 January] 2009.” Scott Horton?
SCOTT HORTON: Well, it appears that this message was communicated by John Bellinger, who was Condoleezza Rice’s legal adviser. And, of course, he’s not yet been replaced. His successor has not been named. So we have a transition underway, but it’s not complete.
But I think it will be a big question for the Obama administration how to deal with this. The correct response of the Obama administration should be to release all the information that’s being sought about the mistreatment of Binyam Mohamed, so that that’s in the public sector and these concerns that the cooperating foreign intelligence service is disclosing information that’s given aren’t raised anymore.
MICHAEL RATNER: You know, we can -—
AMY GOODMAN: Michael Ratner?
MICHAEL RATNER: Scott and I have debated this and talked about it. We can parse these executive orders in many different ways. But the Mohamed —-
AMY GOODMAN: But isn’t, in fact, that the way they’re written?
MICHAEL RATNER: Right, right.
AMY GOODMAN: That’s -— they’re supposed to —-
MICHAEL RATNER: There should be many more blocks in those orders and many more clear statements, in my view, that don’t give you that wiggle room. But I think one thing that would go a long way toward saying, yes, we’re really ending torture, yes, we’re really ending not just renditions, but extraordinary renditions -— I mean, not just extraordinary renditions, but renditions — but even Scott’s narrower point on extraordinary renditions and not using torture or even secret sites, is for this administration, in the Mohamed case, in the Center’s case, Maher Arar, which was the extraordinary rendition to Syria for torture, and the —-
AMY GOODMAN: That was a Canadian citizen taken off -— out of JFK Airport. He was going through JFK back home to Canada and sent to Syria, where he was tortured.
MICHAEL RATNER: The El-Masri case, where he was taken out of Germany, eventually, and taken to Afghanistan. What should happen in all those cases that are pending — the Jeppesen case, which concerns the CIA air flights in a suit against them —- this administration has to now come forward and say, “Let’s settle these cases.” Maher Arar is completely innocent. The Canadians found him completely innocent. They settled with him. This administration took -—
AMY GOODMAN: Canadian government awarded him $10 million, and Prime Minister Harper, an ally of Bush, castigated the Bush administration for saying he is still on the — what, on the watch list to get on the planes.
MICHAEL RATNER: Right, still can’t get into the United States. So, let’s put some actions behind the words. Let’s start settling these cases. Let’s not say — assert state secrets in all of these cases. Let’s not say that the people who did this have immunity in the civil suits, whether it’s Rumsfeld and others. We have a series of Guantanamo cases against Rumsfeld. Immunity oughtn’t be raised in those cases. These cases, they ought to start doing that, and that will put some teeth in it, and that will show people, you do this, you’ll be sued, and we at the United States will not accept this.
AMY GOODMAN: How would you get Adolf Eichmann, if you couldn’t rip him out of Argentina to try him?
MICHAEL RATNER: The answer is, you would try everything you can, from diplomatic to every other way that you could get him. But in the end, as I said, I think the horror of violating a sovereign border, kidnapping someone, putting them in very bad physical conditions to get them out, whatever we think of Eichmann, which is obviously terrible, opens up a door, whether it’s, as Scott and I were discussing off break, Russians going after people who they don’t like in Chechnya. Whether it’s in Vienna or some other country, it opens a door to illegality that I think is just too great, no matter how nasty you think that person is.
AMY GOODMAN: I want to go to another debate that you’ve been having. You just had a debate on this at New York University. Scott, you wrote the cover story of Harper’s called "Justice After Bush," and this involves whether Bush administration should be tried, something clearly Obama is shying away from, saying move forward, don’t look back. Make your case, Scott Horton.
SCOTT HORTON: Well, I think the parameters of this debate have changed quite a bit, and I think Eric Holder recognizes that. You know, since I wrote my article, we saw both Bush and Cheney go on television and acknowledge point blank their involvement in decisions to torture, and they put forward — both of them put forward a reliance on counsel defense. “We talked to the lawyers, and the lawyers told us it was OK.”
And then we saw Susan J. Crawford, who was the senior most Bush administration official responsible for dealing with the Guantanamo tribunals, state that she, reviewing the case of al-Kahtani, concluded that he had in fact been tortured, and she laid out, in an interview with Bob Woodward, in some detail her conclusion. Now, what’s significant about that is that the entire program for interrogating al-Kahtani went to the National Security Council, was reviewed and was approved, including the approval of Cheney and Bush. So they’re both linked to a case that their own principal agent considers to have been torture.
This creates something that just can’t be swept under the carpet in the criminal justice system. In fact, under the Convention Against Torture, Articles 4 and 5, the US now has a clear obligation to commence a criminal investigation into what happened and act on it. And the Obama administration hasn’t yet done that. I think it’s going to have to look reality in the face, and it’s going to have to reach some hard decisions.
AMY GOODMAN: Michael Ratner?
MICHAEL RATNER: Yeah, I think Scott’s last point is very crucial here. You now have Cheney admitting that he was one of the architects of waterboarding, Holder saying it’s a violation of the torture statute — of the anti-torture statute, and the torture convention saying there’s an absolute obligation to begin a criminal investigation. As we sit here, the Obama administration is in violation of the Convention Against Torture if it doesn’t commence an investigation of Cheney, of Rumsfeld and the others. So that’s point one.
To me, the best argument, the best argument as to why you need criminal prosecutions, is the picture you showed on this show of Obama signing the executive orders prohibiting torture, because I look at that picture, and I love that picture, but I think of the next president who comes along who’s going to sign executive orders going the other way. Our fundamental rights, the right against torture — to be free from torture, should not be dependant on the length of the President’s arm. The only real deterrent is prosecution.
And I have to say that it has not made me pleased that over this period of the last few months a number of groups are saying, “Well, for political efficacy, we can’t get prosecutions. Let’s go for something else, truth commissions or whatever.” What we need now is a really strong statement from people like Scott and others that say, “We need to open criminal investigations.”
AMY GOODMAN: Truth and reconciliation commissions, that is what you called for. Are you changing your view now?
SCOTT HORTON: No, I don’t think it’s a question of either/or. I think that both of these things are necessary, in fact. And the simple fact is that a prosecutor assembling a case to go after Bush administration officials is not focused on informing the public about what happened, and that’s an essential function here. We need to have it. We need to know the truth about the last seven years, exactly what was done and on whose authority. And I think a blue-ribbon panel is the best way to go about that. But I think, in fact, in the end of the day, when all those facts come out, that’s only going to reinforce the prosecutor’s hand by building public support for prosecutions.
AMY GOODMAN: Kucinich, who has called certainly for impeachment — and there is also this issue even of impeachment afterwards, that it has some relevance — is calling for a truth and reconciliation commission.
MICHAEL RATNER: I don’t — first of all, truth and reconciliation, we ought to get rid of that term. We ought to call it a commission of inquiry or something like that. This is not Latin America. This is not South Africa. We have a democracy. We can go forward with something that’s much more robust than that. But I do think you can do them together, but you have to have a real commitment, a real commitment to prosecution. You can have “Let’s get the facts out on the record,” but you —-
AMY GOODMAN: So, what would it look like? What would the prosecution look like? You clearly have Obama wanting -— saying he wants to move forward. There are all these issues. He wants bipartisanship. He’s always pushing for that. How do you move forward with a prosecution? Who does it?
MICHAEL RATNER: You know, as much as I welcome, obviously — and my office does, who represents Guantanamo detainees — the efforts of the Obama administration to change a lot of the stuff that we’ve been litigating, I do find it difficult to hear him say we have to look forward and not backward, because, to me, prosecutions look forward. They tell you why we are not going to have torture in the future. And so, they are actually looking forward. So I find that to be an odd statement.
But how would they look like? Scott and I have discussed this. We think a special prosecutor has to be appointed, who can begin to open investigations, criminal investigations of what I would call the torture team, broadly, but it’s really members of the War Counsel, who were the lawyers who actually fabricated or made these memos, fit them around a policy so torture could be carried out. And it’s members of the Principals Committee; it’s Cheney, it’s Bush, it’s Rumsfeld, it’s Tenet. Those are the key people you’d focus on. Scott may have some additions. But you could do it with a special prosecutor here.
AMY GOODMAN: Truth commission, the problem with it is if people just see it as gathering information — why not do it simultaneously? But part of it often, in getting at the truth, is granting immunity for people to tell the truth about what they did, so at least there is a history that is written. How do you get away from that? Or how do you do that and prosecute at the same time, Scott Horton?
SCOTT HORTON: That’s going to be one of the complications here. I mean, I think we saw that with Iran-Contra, for instance, when we had congressional probes going on, and we had immunity deals worked out. And that was — ultimately provided the basis for overturning some of the convictions that were obtained. It’s a complication, but it doesn’t mean you can’t do both on parallel tracks. You just have to be very cautious about how you proceed.
MICHAEL RATNER: And the other question that occurs with any kind of criminal — I mean, commission of inquiry, is, let’s take a look at the CIA. The CIA was running the secret sites where waterboarding took place and where, if you read Jane Mayer’s book, a vast amount of torture, enhanced interrogation techniques. Even the Senate committee under Levin and McCain, the Armed Services Committee, when they came out with their recent executive summary placing a lot of this at the feet of Rumsfeld, they could not get information from the CIA. One of our — one of my concerns, certainly, with a commission of inquiry would be the CIA will just clam up like that. And yet, you gave George Tenet the Medal of Freedom for running these —-
AMY GOODMAN: I didn’t.
MICHAEL RATNER: Not you, Amy. Don’t worry, I wouldn’t accuse you of that. But you and the royal we, the President, whatever, gave it to him. And how are we going to get at that at a commission of inquiry? You’re going to have trouble with it. A prosecution is much more likely. And I do agree, the problems of running them simultaneously are the issues that Scott addresses. I don’t think it’s easy to solve. We obviously prefer a special prosecutor immediately, quickly, to look into this. I think it’s -— as I said, it’s a legal obligation now, that the longer it continues will be the longer this administration is in violation of the Convention Against Torture.
AMY GOODMAN: We’ve just got thirty seconds. I want to ask you about the Uyghurs, the ethnic Muslims from western China, seventeen of them still held at Guantanamo, others forcibly sent to Albania. The US government says they are innocent. They have exonerated them. China is threatening. The Chinese government said on Thursday no country — other countries should not accept them, reiterated their long demand they be returned to China, where they would clearly be persecuted. What do you want to happen to them?
MICHAEL RATNER: Well, the court — I’m not their lawyer. The Center is broadly the Guantanamo lawyers. The lawyer is Sabin Willett and a few other people out of Boston.
AMY GOODMAN: Who we just had on the other day.
MICHAEL RATNER: Right. And there’s a court order from the district court that asked them to be brought into the United States. There was Uyghur families in Washington, D.C., who were willing to take them. That’s on appeal now. My hopes is, although I don’t want to speak for Sabin, is that that — the stay on bringing them in gets lifted, and they can be brought into the United States and given asylum in the United States. It may be they want to go to Canada or a different place. That would be —-
AMY GOODMAN: They have applied, some of them, for asylum.
MICHAEL RATNER: Right. So they may -— and that is what should happen. Obviously, this administration is not going to send them back to China. I think that’s a given. Even the last administration didn’t send them back to China. So I don’t think that’s going to happen.
AMY GOODMAN: The question is why they’re still in prison.
MICHAEL RATNER: They shouldn’t be there. And every — and when you look at —- when we look at a year to close down Guantanamo and people still sitting there who are, according to the old administration, no longer enemy combatants but essentially innocent of anything, they should be released forthwith. There’s no way it should -—
AMY GOODMAN: They’ve been held for almost eight years.
MICHAEL RATNER: Yeah. They should be released forthwith. There’s no question.
AMY GOODMAN: Michael Ratner, thanks very much for being with us, president of the Center for Constitutional Rights. And Scott Horton, New York attorney, writes a legal affairs column at Harper’s magazine, and his blog is called “No Comment.”