The Volokh Conspiracy - Gitmo to Close; Rendition to Continue?

The LA Times has a story today noting a conspicuous absence among the Bush Administration counter-terror policies reversed or limited by the Obama Administration: Extraordinary Rendition.

"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."

UPDATE: Hilzoy thinks there is less to the story than meets the eye. A real possibility is that the Obama Administration probably recognizes the utility of rendition, and wants it available for extreme circumstances, but also wants it done more responsibly. This was the position advocated by Georgetown's Daniel Byman in an op-ed I blogged about some years back.

	[Jonathan Adler, February 1, 2009 at 11:39am] Trackbacks Gitmo to Close; Rendition to Continue? The LA Times has a story today noting a conspicuous absence among the Bush Administration counter-terror policies reversed or limited by the Obama Administration: Extraordinary Rendition. "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." UPDATE: Hilzoy thinks there is less to the story than meets the eye. A real possibility is that the Obama Administration probably recognizes the utility of rendition, and wants it available for extreme circumstances, but also wants it done more responsibly. This was the position advocated by Georgetown's Daniel Byman in an op-ed I blogged about some years back. Related Posts (on one page): Prudence on State Secrets Privilege: Luban: "You Cover It Up, You Own It ": The Obama Administration, Middle Ground, and the State Secrets Doctrine: DoJ Continues to Assert State Secrets Defense in Rendition Case: Panetta on Obama Rendition Policy: Gitmo to Close; Rendition to Continue?