Total Information Awareness

Today's New York Times has three stories of interest regarding the ongoing battle between the Bush administration and the judiciary to define the scope of the executive branch's powers to handle detentions and imprisonments of a wide range of suspects and combatants apprehended under the rubric of the war on terror. The first story involves the 35-year old Canadian citizen Maher Arar who was apprehended by American officials at JFK Airport in New York City, en route back to his home in Canada upon the conclusion of a family vacation to Tunisia. Arar was flown by American agents to Jordan and then driven to Syria where he was imprisoned and tortured for over a year after which he was released upon the conclusion, by Syrian authorities, that he had no connection to Al Qaeda. As chronicled in this two part series posted on Liberals Against Terrorism and Legal Fiction, Arar is something of the poster child for the practice known as "extraordinary rendition."

The Times story tells of new evidence in the Arar legal proceedings (he is suing the US government for its complicity in his torture and abduction):

Now federal aviation records examined by The New York Times appear to corroborate Mr. Arar's account of his flight, during which, he says, he sat chained on the leather seats of a luxury executive jet as his American guards watched movies and ignored his protests....

The discovery of the aircraft, in a database compiled from Federal Aviation Agency records, appears to corroborate part of the story Mr. Arar has told many times since his release in 2003. The records show that a Gulfstream III jet, tail number N829MG, followed a flight path matching the route he described. The flight, hopscotching from New Jersey to an airport near Washington to Maine to Rome and beyond, took place on Oct. 8, 2002, the day after Mr. Arar's deportation order was signed.

The US government issued its own party line defense:

In papers filed in a New York court replying to Mr. Arar's lawsuit, Justice Department lawyers say the case was not one of rendition but of deportation. They say Mr. Arar was deported to Syria based on secret information that he was a member of Al Qaeda, an accusation he denies.

Two things stand out to me in that denial. First of all, although I am no expert on the legal issues involved, I question the legal basis the US would have for "deporting" a Canadian citizen who is merely passing through US territory (to change planes in fact) while en route to Canada. I think this type of procedure goes above and beyond deportation in the traditional sense.

Second, if the US is admitting that it sent Arar to Syria, how can that square with Bush's claim that "torture is never acceptable, nor do we hand over people to countries that do torture." Syria is notorious for its cruel methods of torture, and is a regular on the State Department's list of countries that practice such tactics. In fact, the Bush administration is quick to hammer Syria on its many egregious human rights abuses, but then, oddly, is claiming that they received assurances from the Syrians that they would play nice with Mr. Arar. Not very convincing.

The next story covered by the Times shows the administration's ambidextrous capacity in the field of renditions and "deportations."

The case of Abdul Salam Ali al-Hila is an example of what human rights groups call "reverse renditions"....

While much attention has been paid lately to the practice of the United States sending many prisoners detained as possible terrorists to other countries, the Hila case is new evidence of the practice in reverse: foreign authorities picking up suspects in noncombat and nonbattlefield situations, perhaps at the behest of American authorities, and handing them over to United States custody. [emphasis added]

For the record, I don't think these practices are necessarily immoral or wrong in any substantive sense. After all, if the US is to effectively disrupt terrorist cells, we will rely on cooperative foreign governments to apprehend suspects and deliver them to our justice system - which I trust a heck of a lot more than Syria's or Egypt's. Thus, reverse rendition is better than regular rendition which involves us apprehending suspects and sending them to be tortured in foreign locales. Still, the acceptability of this practice requires that they actually enter our justice system. Nabbing foreign nationals and keeping them imprisoned indefinitely, excommunicado, and with no recourse to courts or access to an attorney is not in accord with American principles of justice, and for reasons outlined in my two part series linked to above, interferes with several judicial actions against known terrorists. For example, detainees apprehended and kept in such a way cannot testify in other legitimate proceedings, nor can they themselves be prosecuted in regular courts at some future point in time after their rights have been violated in such ways for any significant length of time.

In addition, it certainly raises questions about the supposed "illegal combatant" loophole to the Geneva Conventions' protections of POW's. Can this loophole be asserted in any context and venue when the candidates range from Taliban fighters picked up on battlefields in Afghanistan, Iraqi insurgents in Iraq, Canadian engineers in NYC, American citizens apprehended stateside, and Yemeni intelligence agents in Yemen. I recommend this Armchair Generalist post, and comments, for a discussion of some of the salient issues. This issue is part of the legal wranglings over Hila's detention.

Legal battles on several fronts have challenged whether the orders signed by President Bush after Sept. 11, 2001, provided the authority to detain people arrested and taken from any battleground. Lawyers for two of the Algerians have argued in federal court that the president's order does not provide any authority over them as they were not involved in any armed conflict against the United States. The Bush administration has argued that the nature of the campaign against terrorism is that it is fought throughout the world.

The third Times story deals with the intersection of rendition and the legal limbo of detainees at Guantanamo. The Times reports that a Federal District Court ruled in favor of 13 Yemeni detainees whose lawyers claimed that they were entitled to a 30-day notice from government officials prior to the deportation of the detainees. The government's position is that they could remove them to any location at any time without notice to any party involved. Interestingly, the judge in the case seems to have been influenced by the specter of torture through renditions.

In his ruling, Judge Kennedy suggested that the 30-day notice was justified because the Yemenis had grounds for fears voiced by their lawyers that the government might send them to other countries where they might be subjected to extreme interrogation methods and indefinitely detained.

David H. Remes, a lawyer here for the 13, said the ruling placed new limits on the government.

"On a practical level, this decision places a restraint on the government's rendition policy," he said, referring to the practice of transferring terror suspects from country to country without formal legal proceedings. "On a more political level, it's another rejection of the government's position that it is accountable to no one but itself and that the courts have no meaningful role to play here."

At a certain point, the Bush administration's fast and loose treatment of US laws and civil rights conventions might result in less than desirable outcomes from a strategic point of view, especially since the judiciary seems intent on maintaining the integrity of the Constitution. If the Bush administration does not attempt to implement some level of due process for suspects taken in the GWOT, we might be forced to release individuals who would be better kept behind bars. I fear that we are nearing the point of diminishing returns because of the over-application of unsavory methods that would be best reserved for extreme cases and exceptional circumstances.

(cross-posted at Liberals Against Terrorism)