The Volokh Conspiracy

You're bringing a surprising additional axiom to Quiggin's argument: that vigilante justice is OK so long as they're our vigilantes. The innocents murdered by Al Qaeda were suspected of oppressing the Middle East. The suspected terrorists seized and tortured by our government should be presumed innocent. At least in the public press reports of these incidents, it appears that we are making an error akin to that of Al Qaeda: giving up on ordered, civilized ways of foiling our attackers and resorting to direct violence.

From reading comment 11 and Quiggin's reply in comment 13 of the post, it would seem that he means what you think he means.

Protecting the innocent by torturing the innocent? Sounds more like the practices of Soviet Russia or a tinhorn dictatorship than a democratic republic. Extraordinary renidition is a threat to our values and is aa violation of international law, our treaty obligations, and is one of the reasons so many members of this administration will have "Kissinger" problems travelling abroad once their time in Washington is done.

For those interested, the details are spelled out in TORTURE BY PROXY:INTERNATIONAL AND DOMESTIC LAW APPLICABLE TO “EXTRAORDINARY RENDITIONS” by the Committee on International Human Rights of the Association of the Bar of the City of New York and The Center for Human Rights and Global Justice, New York University School of Law.

- k

I would say your reading is correct, although I would disagree with your characterization of what the US has done. Aren't we supposed to be The Good Guys, who hold ourselves to a much higher standard than we do our enemies? Isn't that a big part of what has made America great? When did Due Process become a bad thing in the eyes of conservatives?

"Comparable," not equal. It looks like what he's literally saying is they're on the same order of magnitude. And it's a ... lamentable tendency among some very small minds (and one I wish you wouldn't share) to jump to the conclusion that critics of U.S. policy are somehow always saying that we're just as bad as they are. I can speak from experience, having made the terrible mistake of speculating about logistical military difficulties at a wedding in the South, and suddenly (literally the next moment) being accused of being a Howard Dean fan. (Jan and Dean, maybe.)

And I'll second the comments that if the U.S. is engaging in torture, directly or by proxy, that's a very bad thing. I think that notion stands alone, and needn't always be followed with pieties like, "But of course it's intended in the pursuit of good, and what they do is so much worse."

Further, I wonder about the implication in "efforts to save the lives of those innocent people" that motives are somehow of overwhelming importance (i.e., their importance is such as to overwhelm the practical effects). Not as a philosophical matter (tho' it's hardly irrelevant that a good portion of the world feels that the U.S.'s good intentions pose greater danger to them personally than do all the evil schemes of the world's villains), but just as the corrolary thought to my Holmesean bent that a proper lawyer ought to be concerned with consequences.

Just sayin'.

Quiggin clearly says the two are equally awful, but I take this to mean that they're morally as bad as each other, not that each is as much a threat to us as the other.

It would be worse if Quiggin really thought the U.S. government was as much a threat to the U.S. as al Qaeda, because that's completely indefensible, but I don't think that's what he's saying. He's just saying that they're morally equivalent.

I'd like to know how he got all this reliable information about all the things the government isn't releasing about all these goings-on, since you'd have to know a lot more than we know to make such a comparison. Maybe he can argue that there's reason to be extremely suspicious, but the claim he's making is much more than extreme suspicion. It's a claim to moral knowledge, which seems to me to require a lot more information than we have.

I think your finger slipped:

"efforts to save the lives of those (Western) innocent people by seizing and interrogating (and sending to Syria and Egypt to be tortured) suspected terrorists (several of whom turn out to be innocent)."

I don't think we're morally equivalent to Zarqawi, but come on. This post is actively misleading. For a group of alleged libertarians this blog is remarkably okay with state-sponsored torture.

I think you've gotten it wrong. They're not upset because we're interrogating suspected terrorists. If that's all that we did then it wouldn't require rendition. The issue is that we take people who might possibly be guilty, but we can't prove it, and then have them tortured.

Your basic misreading comes from when you make replace their use of the term "extraordinary rendition" with your "seizing and interrogating suspected terrorists." Like I said, these two are simply not the same. They never said that the interrogation of suspects after say, 9/11, was the moral equivalent to what al Qaeda does. Their only point is that we now tacitly endorse torture, and apparently mainly in the cases where we have the weakest evidence, since in the cases where we do have evidence they'd love to put on a big public trial.

It's the omission of the possibility that these "interrogations" include torture in not just a few cases but in every single case that I know of, and the possibility that innocent people may be "rendered." It looks like a complete whitewash to me. And you're actually still doing it.

If you would genuinely like to see more information about the practice, I have a 42-page paper on the subject I can send you--email me at the address given in this post.

There was a time when it wasn't clear what to do to these detainees other than "render" them. This was the situation in 1995 when Clinton started the modern rendition policy. I think it was a terrible failure of leadership on his part, even then, but that it is beside the point. Now there is no question that there are alternatives. There is Guantanamo. There is detention and interrogation in the country where the suspect resides. There are secret CIA facilities. There is material witness detention. There is the military tribunal system. There is detention on immigration charges--if someone is granted deferral of removal under the Convention Against Torture &they're a threat to the community they can certainly be detained. It's no good to say that the ACLU disapproves of all of the rest of these too--they may,though not in all cases but the ACLU is not making policy here, and all of those options currently exist whether the ACLU approves of them or not. All of those options are preferable to sending someone to near-certain torture in Syria or Egypt. This is especially true because information obtained under torture is at worst worthless and at best includes a lot of false information with the true information. Having Egypt and Syria torture for us makes this even more difficult: we don't know if they confessed to this after sleep deprivation, or they fingerprinted a "confession" fabricated by intelligence officials after days of electric shocks. We don't know if they'll tell us everything. We don't know that they'll stop even when it's completely obvious that the suspect is innocent. And certainly the ticking time bomb hypothetical, never very plausible to begin with, cannot possibly apply here.

And in fact, we DON'T "render" the most important suspects any longer. By all accounts they are sent to the CIA facilities abroad. We render people when it's convenient, more or less.

Under Clinton it was mainly high-level people who I am almost sure are guilty. That's no longer true. I don't know how typical the Maher Arar case is, but more or less the only evidence against him seems to have been two other "confessions" coerced under torture in Syria from Canadian citizzens. They've also now both been released and not charged--this doesn't make their innocence clear, obviously, but Canadian police have said it's more likely than not.

It would be nice if you bothered to do even minimal research about this subject before justifying it. But it's not surprising.

One more time -- looks like people are accusing you of endorsing torture after all, my bad. As much as Quiggin's comparison was stupid, it looks like you're characterizing extraordinary rendition as "efforts to save the lives of those innocent people by seizing and interrogating suspected terrorists." And it's a lot more than that, which you clearly appreciate. Just doesn't quite come across that way in your first two sentences.

(Quiggin's comparison is still dumb, though--not least because it gets us into a useless argument about moral equivalence, rather than examining the U.S. policy on its own terms. To me it's obvious that we're not as bad as bin Laden or Zarqawi; it's equally obvious that "not as bad as Al Qaeda" is not the standard we measure this country by.)

thanks.

I am probably a little tetchy about the subject from overexposure to it. I realize the details of the policy are not common knowledge. But they are all publicly available.

Atrocities of this type are almost inevitable when major powers go into the business of putting down insurgencies. For some of us, the best solution is to avoid these wars in the first place. For others, it is to indulge in comparisons about who is "more awful" or "less awful."

While such comparisons are not unimportant, they only impoverish the debate if they sidestep the broader institutional context including questions of whether it is proper for the U.S. to get into these situations (counterinsurgency, bringing "democracy" to benighted lands) in the first place.

Had one. Most of the posts on the Arar case at Obsidian Wings, which Quiggin links to, I wrote. I've done more research since then, however.

I thought a law degree would be more useful in the long run.

David--I think this is an excellent point about the Iraq war, but while there are other issues about the treatment of detainees in Iraq to put it mildly, rendition is not really related to the Iraq war. It predates it by close to a decade, and there are no cases that I know of where someone was taken from Iraq. The struggle against Al Qaeda is not something we have much choice about.

A year ago, almost to the day, I wrote about Crooked Timber: "For the past few years, I've been reading a number of blogs, and I've noticed that several bloggers write with a combination of immaturity and arrogance for which I've finally settled on the perfect word: callow. Callow bloggers can be as crude as Atrios, as facile as Matthew Yglesias, or as sophisticated as several members of the Crooked Timber group blog, but they are all smug and condescending when they attack their intellectual betters, and smugness and condescension are important elements of being callow" (http://www.dcwatch.com/themail/2004/04-03-31.htm).

Crooked Timber writers are engaged in a perpetual quest to prove their superiority -- another element of callowness. They do it most frequently by attempting to display superior knowledge. ("You, of course have not read the complete À la recherche du temps perdu. Ah, you have? But not in French, surely? Ah, you have? In the handwritten manuscript? No? Gotcha.") But when they're being lazy they do it simply by parading anti-Americanism as a badge of superiority. Whether the writers are English or Irish near-Europeans, or provincial colonial Australian and American far-from-Europeans, they demonstrate that they are better than their fellow nationals by identifying with the attitudes of the more sophisticated, more cultured, more civilized peoples of the continent.

For example, the cowboy Bush is so primitive that he thinks he can make a clear distinction between good and evil, whereas we of the Crooked Timber are sophisticated enough to recognize that being a terrorist and fighting against terrorism are morally equivalent. And that crude Orin Kerr may be so simple as to read John Quiggin's post as drawing that moral equivalence, but isn't Quiggin's posting written cleverly enough merely to imply that equivalence without ever actually stating or endorsing it? And isn't that the game?

Mr. Kerr, you speak of "the risks of taking no action at all." This is a straw man, as nobody is arguing that we should take no action at all.

For one, we have all the traditional tools available to law enforcement, such as legal techniques of interrogation that do not involve torture, and criminal prosecutions.

Advocates of torture often raise the "ticking-time-bomb" scenario, in which a failure to get quick answers from a suspect leads to a great loss of life. But there's a solution to this:

At common law, defendants could raise the defense of necessity, arguing that their actions were justified as a lesser evil. Unfortunately, the Supreme Court recently ruled in the Oakland Cannabis Buyers case that no such defense exists to federal criminal charges unless it appears in the statute. But Congress could put such a defense into the federal torture statutes, for starters.

That would not make torture legal. We could and should prosecute government officials for torture. But if they can convince a jury of their peers that they believed they were saving many lives, and the belief was objectively reasonable, then a jury could acquit them. (And if the defendant really did save many lives in doing so, what jury would convict them?)

That would be far better than giving government official free reign to torture, as we appear to be doing now.

I think the elephant and the scorpion analogy is on target. Quiggin is (I hope) not contending that on some absolute moral scale the US is comparable to Al Qaeda. Despite the enormous evil which is "extraordinary rendition," ramming a airliner into a skyscraper full of innocent civilians is quite clearly worse. However, the US government is so much *larger* than Al Qaeda that smaller wrongs can easily beget greater evils. Even counting the extreme leverage modern technology can grant to a dedicated following, Al Qaeda's ultimate power is pretty limited. The US Government, in contrast, is enormously powerful; this is an institution which quite literally has the power to bring about Armageddon. So in terms of the *threat* posed by these respective organizations, America is a reasonable, even clear, choice. It seems that, as putative libertarians, this should be obvious to you.

Most of my relevant comments have been made, but there is one aspect of the Australian response that has not been made. (Let me note that I am dealing with the Australian response and not the Crocked Timber commentary.) The Australians are aware that an Australian citizen was recently released without any charges after being kidnapped in Europe (likely by Americans), tortured, and turned over to the Americans. So that risk is quite apparent. The original polling question was one of risk, not morality, so I will limit my response to risks.

The unemphasized risk is one of proportionality of response. Is the US response proportional to the danger? Al Queda eliminated a military threat from the Port Authority and collocated CIA staff in the World Trade Center. Risking 50,000 bystanders to eliminate a couple hundred police who try to prevent smuggling and illegal immigration is not proportional. It shows the wildly disproportionate response typical of terrorists.

So how is the US response viewed for proportionality? Hundreds of innocent people are taken and tortured. (I limit it to hundreds of innocents by limiting it to those that are released as innocent by the US. The reality could be much higher.) A city of over 300,000 is leveled to eliminate a few thousand rebels. The litany can go on. Are these responses proportionate to the threat?

In contrast, Europe has dealt with terrorists from the IRA, Red Brigades, ETA, etc. They too have employed brutal police actions, but somehow have escaped leveling cities. They have employed security methods to find and capture their terrorists, but have avoided the absurdities of the US TSA and customs attitudes.

In the eyes of many (not all) Australians the US response is highly disproportionate to the danger. Now you add the elephant versus scorpion effect. Which is more worrisome, an elephant known for wild over reactions or a scorpion known for wild over reactions? Many people will consider the elephant more dangerous. They know how to protect themselves from the scorpion's excesses. They cannot protect themselves from the elephant's excesses.

Kieran Healy, in his 2:54 p.m. comment ot my 2:08 p.m. comment -- how self-referential blogs quickly become -- misreads me completely. Kieran seems to think that I am saying the members of the Crooked Timber troop are "self-hating," when the truth is exactly the opposite -- I believe they have an excessive amount of self-regard.

Kieran also pretends to believe that my parenthetical send-up of a Crooked Timber posting on Proust is meant as an actual quotation. To adopt a Crooked Timber tone: "That is a parody. Surely you have heard of parody?"

It was a mistake on my part to say "equally awful" since this gets us into pointless arguments about moral equivalence. But the practices are awful and contribute greatly to the fear of US foreign policy I referred to.

In many ways we may be a a bigger threat to liberty than al-Qaeda. Everyone is rightfully repulsed by al-Qaeda, with that said, al-Qaeda could never replace 200 years of liberty with a fear driven repressive regime that punishes dissent, permits Americans to be disappeared for weeks on end, to be held incommunicado, and to permit US taxpayer dollars to be used to torture those who would disagree with their government. The ultimate question is whether Americans have been rendered abroad, that has yet to be answered, although there are some limited press reports that YES they have. If true who is safe?

Al- Qaeda (aka human scum) can never conquers us and could never impose the deprivations of liberty we have seen recently. Only we can do it, and we have.

Liberty is at risk, and not by the hands of al-Qaeda.

- k

>>Kieran also pretends to believe that my parenthetical send-up of a Crooked Timber posting on Proust is meant as an actual quotation. To adopt a Crooked Timber tone: "That is a parody. Surely you have heard of parody?"

Parodies usually (a) are funny, and (b) parody something. Would you like to point us towards a post that even vaguely resembles your purported parody?

Read his post carefully -- he said presumptively innocent. See, in this country, we presume someone is innocent until proven guilty. Or at least, we used to. Apparently, it is now acceptable to presume someone is guilty and then torture them.

Yeah, well, what happens when you can’t convict them in a court of law—not because they aren’t guilty, but because if you introduce the evidence against the terrorist into open court you are going to kill the CIA case officer (of which we have very few) that infiltrated the terrorist cell, or otherwise compromise intelligence assets. Look, I will readily admit that renditions are not perfect. But, is there a better solution. What do we do in the above case? After the recent Supreme Court decisions we can’t hold these people as enemy combatants. I don’t think military tribunals are legal for them (though my reading on this was last done a couple of years ago). What is the government supposed to do, leave them be? Not have them interrogated? Last time, we did that with Moussaoui and it didn’t work.

There has to be a process set up for rendition where levels of guilt/innocence is evaluated before someone is sent packing. This policy will be tested in court, and the DOJ likely has set up procedural safeguards to prevent excesses. I think that is where the “presumptively” comes in. That being said, no system is perfect. However, an imperfect system is preferable to no system at all.

Second, it is entirely foreseeable and inevitable that a policy designed to seize large numbers of persons based on flimsy evidence will also sweep up innocent persons. So yes, we know that at least some (probably many) of the people we're detaining and sending off for "interrogation" are innocent.

As was said above, any system like this is going to wrongly implicate innocent people. People seem to have problems with the fact that the evidentiary standard for rendition is lower than that we accept for our domestic criminal courts (at the very least, the process is not public, though I would assume that the standard is not “beyond a reasonable doubt” in order for someone to suffer rendition). That being said, what is the policy trying to prevent? I would argue that the likely consequences of a murderer getting off are much less serious than those of allowing a terrorist to not suffer rendition. Thus, should the standard be lower? Yes, with safeguards (Congressional oversight?).

This, however, brings up what exactly rendition means. If we don’t have very good, hard evidence that the person suffering rendition is in fact a terrorist or terrorist supporter, then I have a problem with sending him/her to a jail where very bad things can happen.

By the way, I still resent the remark that the government is intentionally plotting to murder presumptively innocent people based on little or no evidence of wrongdoing. Again, where is the evidence for this other than bias against the US anti-terrorism efforts? I doubt very much that people are suffering rendition based on "little or no evidence of wrongdoing," especially the "no evidence of wrongdoing" part. There are anti-terrorism agents who spend every day trying to both protect the American people and not go too far overboard in the process. They take their job very seriously, and don't want to put innocent people through rendition (much like judges used to agonize over criminal sentencings in the pre-Guidelines days). Implying that they do this based on little or no evidence without information backing you up is wrong.

" ...if you introduce the evidence against the terrorist into open court you are going to kill the CIA case officer (of which we have very few) that infiltrated the terrorist cell, or otherwise compromise intelligence assets."

I don't buy it. Courts look at evidence from anonymous confidential informants all the time in looking at warrant affidavits. If there's any doubt about the authenticity of the statements or reliability of the informant, the court looks at the evidence in camera and rules on it accordingly. Why couldn't the same thing be done in these sorts of cases?

"What is the government supposed to do, leave them be? Not have them interrogated? Last time, we did that with Moussaoui and it didn’t work."

Last time I looked, the government is going to try Moussaoui in a criminal trial. If they lose, it's because they don't have the evidence, or they screwed up their own case by violating umpteen different laws in the course of it.

"an imperfect system is preferable to no system at all."

You still haven't explained why the usual system of criminal prosecution is the same as "no system at all".

"People seem to have problems with the fact that the evidentiary standard for rendition is lower than that we accept for our domestic criminal courts"

People also seem to have problems with the fact that this "fact", as you call it, is not backed up by any laws whatsoever, but is rather a system devised entirely by the executive branch in a unilateral assertion of power. What do you all have against the other two branches of government anyway? Whatever happened to checks and balances and separations of power? Does the Constitution mean anything at all anymore? Does it even enter into your argument at some point?

"There are anti-terrorism agents who spend every day trying to both protect the American people and not go too far overboard in the process."

But they've already demonstrated quite clearly that they are plenty capable of going too far. Witness Abu Ghraib. Witness the dozens of deaths occurring to persons in custody at Bagram Airbase. Witness cases like Maher Arar's. Do you not read the news?

I'm sorry, but any claim that the citizens of this country can simply put blind trust in this kind of "professionalism" was demonstrated to be utterly without merit a long time ago. And history has demonstrated time and again that when one element of a government acquires unchecked power, it tends towards the abuse of that power. That's why the Framers of our Constitution had the infinite wisdom to build checks and balances into all three branches of our government -- checks and balances that you now seem to want to ignore.

That's how the rule of law works in our system. The executive branch doesn't just get to run amuck, wartime or not. If you have a problem with this setup, amend the Constitution.

What has made the US efforts in the war on radical Islamic terrorism so enormously difficult - and has led to disturbing and unacceptable errors - is that the terrorists have violated all of the rules of conventional war. That the US has rounded up innocent people is largely, not exclusively admittedly, due to the fact that the terrorists do not use such things as identifiable uniforms or other signatures to distinguish them from the civilian populace. It seems to me that this half of the equation, as Orin Kerr notes, is being overlooked by those condemning - for the most part with some merit - US actions in this conflict.

Again, the US had made egregious and terrible decisions in the conduct of this war. But I believe - color me naive - most arise out sloppiness, fear or stupidity (factors that in the past, for example, led to the internment of more than 100,000 Japanese-Americans by FDR) engendered by the fact that the past rules of conduct do not apply here. This is an entirely different war that no modern nation has had to confront.

Let's be blunt here: if the US engaged in the types of tactics that the terrorists do - no uniforms or identifiable elements to distinguish them from non-combatants - and the enemy falsely arrested civilians or improperly treated those they arrested - it seems to me that at least some criticism would be directed at the US for engendering such responses. Am I wrong?

Yes, we should and must hold the US to a higher standard than the terrorists. But should we hold the terrorists to no standards at all? Are there actions at all responsible - in part - to some of these mistakes such as the US holding innocent Iraqs?

The equation being examined here seems incomplete to me.

I can't help but point out an absurdity that has occurred in two of these comments; they are just to annoying to pass by. The phrase "at least some aspects of US foreign policy are a threat comparable to that of Al Qaeda." is not less damning than to say that "the US is a threat comparable to Al Qaeda". It only needs for X to have one "aspect" that is as dangerous as Y to make X as dangerous as Y.

At least some aspects of tigers are as dangerous as bears. Oh, sure, tigers have the aspect of being pretty, and that aspect isn't as dangerous as a bear, but the teeth and claw aspects, now those are as dangerous as a bear. Consequently, the whole tiger --pretty stripes and all-- is as dangerous as a bear.