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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.

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Panetta on Obama Rendition Policy:

The AP reports:

The United States will continue to hand foreign detainees over to other countries for questioning, but only with assurances they will not be tortured, Leon Panetta told a Senate committee considering his confirmation as CIA director.

That has long been U.S. policy, but some former prisoners subjected to the process — known as extraordinary rendition_ during the Bush administration's anti-terror war say they were tortured.

"I will seek the same kind of assurances that they will not be treated inhumanely," Panetta said Friday in his second day before the Senate Intelligence Committee. "I intend to use the State Department to be sure those assurances are implemented and stood by, by those countries." . . .

Panetta said the Obama administration will no longer move detainees to secret CIA prisons for interrogation, because the so-called "black sites" have been ordered closed. But it will move prisoners to other countries for prosecution, he said.

UPDATE: More at Dissenting Justice.

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DoJ Continues to Assert State Secrets Defense in Rendition Case:

ABC News is reporting:

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

The case involves five men who claim to have been victims of extraordinary rendition — including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.

More from Marc Ambinder here.

UPDATE: The NYT reports on today's oral argument before the U.S. Court of Appeals for the Ninth Circuit:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

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The Obama Administration, Middle Ground, and the State Secrets Doctrine: Jonathan links below to the news coverage of the Ninth Circuit oral argument at which Doug Letter, an attorney for DOJ, announced that the Obama Administration had elected not to change its position on the state secrets doctrine in Mohamed et al v Jeppesen Dataplan, Inc., an "extraordinary rendition" case.

  It's always hard to know what's going on in a new Administration. But my initial reaction is that I'm not particularly surprised. Here's my thinking. Much of the leadership of the Obama Justice Department served as officials in the Clinton Justice Department. But the Clinton Justice Department wasn't necessarily modest when it came to claims of executive privilege. If you'll let me paint with an extremely broad brush, the Clinton DOJ mostly took a case-by-case, middle ground approach to these sorts of issues. My impression is that from the perspective of former Clinton officials — the officials back in power — what made the Bush approach so objectionable was that it its positions were extreme. Instead of trying to strike a balance, invoking these doctrines in some cases and not others, the Addington/Yoo/Cheney approach was to invoke them in every case. From this perspective, the goal, as reflected in DOJ's announcement today that it will review every state secrets case, should be a return to a case-by-case evaluation of when the state secrets doctrine is appropriate.

  If the Mohamed litigation had arisen in the Clinton years, I would have expected the Clinton DOJ to assert the state secrets privilege. Even if you condemn what happened in extremely strong terms, the resulting litigation seeks to expose the details of a top secret program involving cooperation with foreign governments that are crucial allies in fighting terrorism. If the secrets get exposed in this litigation, it seems quite plausible that cooperation in the future for other critical programs will be much more difficult. If you're in a position of representing the executive branch, that's a very weighty concern even if you condemn what happened under the previous administration.

  I should add that this isn't necessarily a defense of the Obama Administration. Some readers take the principled view that the state secrets privilege either shouldn't exist or should be dramaticaly limited. If you take that view, then the Obama Administration's position remains deeply troubling. My point is only that I think the folks running DOJ are cut from a more institutional cloth: To borrow from Bill Clinton in another setting, they likely see themselves trying, for better or worse, to take the state secrets doctrine and "mend it, not end it." That's my guess, at least.
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Luban: "You Cover It Up, You Own It ":

David Luban has an interesting commentary on the Obama Administration's decision to continue the assertion of state secrets privilege in Mohamed et al v Jeppesen Dataplan, Inc.. A taste:

The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.

This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?

The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. . . .

. . . Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.

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Prudence on State Secrets Privilege:

Marc Ambinder has an interesting post in which unnamed Obama Administration officials and national security law experts explain the Administration's continued reliance on the state secrets privilege in the Mohamed v. Jeppesen Dataplan case.

Officials decided that it would be imprudent to reverse course so abruptly because they realized they didn't yet have a full picture of the intelligence methods and secrets that underlay the privilege's assertions, because the privilege might correctly protect a state secret, and because the domino effect of retracting it could harm legitimate cases, both civil and criminal, that are already in progress.

"If you decide today precipitously to waive this privilege, you can't get it back, an administration official said. "If you decide to assert it, you can always retract it in the future." . . .

The officials who spoke would not discuss the particulars of the case. They did agree to discuss the various cross-pressures that the administration finds itself facing.

One is that many Obama administration legal experts believe that the privilege was recklessly abused during the past six years in particular, and that its application became political or punitive. To that end, Holder directed his staff to review all current assertions of privilege -- a review that won't be completed for several more weeks. . . .

The state secrets privilege has been bureaucratically calcified to an extent that worries many experts, with the Department of Justice making the decision about what's harmful more and more often, and the CIA and other intelligence agencies having less of a say. There is evidence that the privilege has always been used in this way, but that the Bush Administration's invocations were subject to more (legitimate) watchdogging from the press and outside interests. Some Obama administration officials believe that the privilege's assertion is legitimate, but that the Supreme Court, in the case which gave rise to the privilege, was much too deferential to the government.

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