Darren Hutchinson Calls Out Human Rights Watch on Flip-Flopping on Rendition

by Kenneth Anderson

My Washington College of Law colleague, Darren Hutchinson – a brilliant and distinguished scholar in constitutional law, jurisprudence, critical race theory and identity theory – takes on Human Rights Watch for the apparent shift in position on rendition it took under the Bush administration and long-time Washington advocacy director Tom Malinowski’s comments on rendition under the Obama administration, as reported in the Los Angeles Times.  (Update:  Darren responds to his critics.)  In addition to what I post below, the full blog post compares HRW’s earlier conclusions and recommendations on rendition with Malinowski’s comments.

I can stomach some political flip-flops. Politicians run with the popular opinion for the most part, but sometimes their positions legitimately change in the face of new factual information.

But I think it’s pretty deplorable to flip-flop on the issues of human rights and torture. Unfortunately, in an effort to defend the new administration in Washington, Human Rights Watch has apparently modified its position on the issue of rendition, which it previously viewed as inherently abusive and inhumane.

Today’s L.A. Times contains an article which reports that President Obama will continue the highly criticized program of “rendition.” Through the rendition program, the CIA transfers terrorism detainees to foreign countries (I wrote about the L.A. Times article and rendition generally in a blog post earlier today).

Let me add relevant sections from the LA Times article, taken from Jonathan Adler’s Volokh post:

“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.”

In addition to that “little-noticed provision” on transitory facilities, I will add once again my puzzlement at the words “in any armed conflict” in the Executive Order limiting the CIA to interrogation methods as found in the Army manual; why the limiting language; why not limit the CIA to the Army manual methods in all circumstances?  Despite asking friends and colleagues involved one way or another in these matters here in DC, no one seems to have an answer for me.

Don’t get me wrong, of course – for my part, I think the Obama administration is right to preserve these options, and I would like to see it preserve and expand others.  If it thinks the right way to go is a return to Clinton era rendition policies, fine by me – though I do not think there is as much daylight between Clinton era rendition policies and Bush era ones as some of the new administration’s supporters might want to suggest to give political cover.  But then, I’m not on the left on this issue, and so don’t think political cover is needed.  Darren is on the left, though, and that’s why I admire his willingness to challenge his own progressive side and allies over moral consistency.  It’s honest, and refuses to engage in what I’ve elsewhere called “serial absolutism” that simply dispenses with earlier, inconsistent positions by shoving them down the memory hole while announcing the new, current position with the same absolutism as every earlier one.  As Darren says, there are plenty of circumstances in which changing your mind is a fine thing to do – but do it honestly and say why.

http://opiniojuris.org/2009/02/02/darren-hutchinson-calls-out-human-rights-watch-on-flip-flopping-on-rendition/

9 Responses

  1. Good for Darren.  Keep’em honest!
    Best,
    Ben

  2. Ken

    Well Scott Horton is not puzzled — see:

    Harper’s —

    February 2, 2009
    RENDITIONS BUFFOONERY
    by Scott Horton

    http://harpers.org/archive/2009/02/hbc-90004326

    As for your “puzzlement” regarding the language “in any armed conflict”, I repeat: this is no mystery. Let me quote the mother of all Yoo memos:

    “In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President’s authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President’s determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.”

    John Yoo, THE PRESIDENT’S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM, DOJ Office of Legal Counsel (2001.09.25); available at:

    http://www.usdoj.gov/olc/warpowers925.htm

    That one paragraph is the legal foundation of ALL the Bush administration legal arguments concerning presidential powers, and I have a very simple and direct question for you, Julian Ku, and I guess maybe even Roger Alford regarding that claim:

    Do you agree with it or not?

    That’s something that puzzles me a lot.

    Charly

  3. This is a misrepresentation of the facts. Bush’s program centered around 1) the need to keep detainees from any judicial review and 2) to get other countries to torture these detainees, since within the US torture used to be illegal. Obama ended this part of the kidnapping and torture ring. You will find he no longer allows the indefinite “enhanced confinement” accompagnied by “enhanced interrogation” without judicial review. A better discussion of the inadequacy of US media on this subject can be found at Harper’s, where Scott Horton demolishers this “Karl Rovering” (neologism to mean: creating spin).

  4. Update:
    You might also want to read Glenn Greenwald for the same rebuttal of this inaccurate article.

  5. I am glad, as an American, that we are going back to the good ol’ times of breaking international law but not bragging about it.

  6. Oh my, aren’t we cynical NSD…

    Except for one thing: hypocrisy isn’t cynicism.

  7. No answer to my question Ken?

    How about you Julian?

  8. It’s not cynical.  All states break the law (note, I am not saying the law therefore does not exist or is not binding), but from a PR perspective, you should do what the Clinton administration did with their rendition program and keep it on the down low.
    I will give you an answer, BTW, to your question to the profs. …. here it comes …. “it depends”

  9. NSD,

    “It depends” you say.  On what exactly?

    What  Yoo says is: “Neither statute, however, can place any limits on the President’s determinations[.]” (emphasis added)

    Given the nature of the two statutes in question, it’s clear that should be read “NO statute”, as Yoo explicitly stated when he was asked about crushing a child’s testicles with a pair of pliers.

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