War Powers, War Lies: Part 9: Away Games
War Powers, War Lies: A Series
Part 9: Away Games
Published in the Maryland Daily Record October 28, 2005
Good pitchers often make lousy batters, and it’s harder to win if you have to let your pitcher bat. That’s the appeal of designated hitters, superior batters who fill the pitchers’ slot in the lineup. National League teams still pitch their batters, however, with one exception. In interleague play, the home team’s league rules usually govern. So when a National League team visits an American League park, it catches a break. In the global war on terror or, as the Bush Administration likes to call it, the GWOT, the U.S. aspires to the situation of a National League team in interleague play — relaxed rules. This time we consider three aspects of the relaxed GWOT away game we are playing these days: foreign assassinations, extraordinary rendition, and prisoner export.
On U.S. soil, except in response to active armed attack, military occupation by an enemy, or emergent crime, the government is not supposed to take lives extrajudicially. The Fifth and Sixth Amendments forbid it. This has been clear since at least Ex Parte Milligan (1866). Nor are the various military units trained to “take out” specific individuals allowed to act against persons found on U.S. soil; this would ordinarily contravene the Posse Comitatus Act.
Away from home, however, there are few legal restraints. It is true that language in Executive Order 12333 (1981) forbids “assassination.” But that term, undefined in the Order itself, is generally defined under the current international law of war not to include the targeted killing of foreign combatants, including those in command positions, by stealth or ambush. (There is a “treachery” exception, forbidding killing of enemy commanders, including enemy political commanders, in violation of rules like truce and parley which are independently necessary for the implementation of other laws of warfare). There is ample authority under international and domestic law alike for killing the likes of Osama bin Laden and his associates, as well as for efforts to kill Muammar Khaddafi (which we tried in 1985). We may think of this kind of killing as assassination, but it passes muster under international law and hence under Executive Order 12333.
Certainly this Administration has taken to this option like no other, relying on Hellfire missile-equipped Predator drones and Special Forces to kill members of militant and insurgent groups in Yemen, Iraq, and elsewhere. OK, it’s legit. But the important thing to note, for present purposes, is that it only remains legit while we’re on a war footing. Oh, but wait – that does not mean declared war; it merely means an actual state of belligerency. And for the foreseeable future we’re always on a war footing with almost anyone we’d care to kill.
In other words, foreign assassination, by definition, is a war power. Which makes it awfully handy to have a perpetual war going. There is one minor catch; reportedly it is one that does not feel like a war power to the people who implement it, our nation’s professional soldiers. Seymour Hersh reports that soldiers tend to note the prevalence of untargeted victims who happen to be in the wrong place at the wrong time (e.g. in the car with an assassination target), and end up as collateral damage. Their killers wearing U.S. uniforms in turn end up feeling as if they are doing the work of either murderers or of policemen who are breaking the rules. And feelings don’t usually lie.
We are also using the secret policemen of the CIA to break some important rules abroad. There has been a lot of reporting recently about the CIA’s systematic involvement in “rendition,” the practice of abducting someone in one country and taking him somewhere else. It’s safe to say that it violates any country’s law to kidnap people off its streets without that country’s permission. But it’s not illegal most places, including the U.S., to hale the victims of illegal foreign kidnaping into court. This asymmetry was enshrined in U.S. law as early as 1886, in a case involving a U.S. citizen privately snatched from the streets of Peru to face charges in a stateside court. The Supreme Court held in Ker v. Illinois that this particular form of away game was acceptable. In that case and subsequent cases, it was held, oversimplifying only a little, that illegally kidnaping people abroad to face domestic prosecution would not invalidate court jurisdiction or give rise to any kind of civil recourse against the capturers. In other words, even if it violated Peru’s laws to seize Mr. Ker, there would be no undesired consequences here.
Until 9/11 U.S. actions recognized as rendition were undertaken only in aid of criminal prosecution. Even when we captured and brought Manuel Noriega to the U.S., it was to face trial. And we used rendition to bring people here, not to move them elsewhere. Of course U.S. law also recognized the immigration-related practices of deportation, now called removal, and also of preventing entry by intercepting undesired aliens in transit and sending them back whence they came, known as refouler. Exercising our powers of deportation and refouler typically did result in us moving persons to foreign lands, but typically in aid of no more pointed a goal than not having them here.
In recent years, though, the U.S. has made two abrupt and complete departures from former rendition policy. We started snatching people off the street in Country A and moving them to Country B, neither being U.S. soil, and did it as an instrument of pure military policy. In so doing, we emphatically eschewed anything smacking of either criminal justice or immigration enforcement.
Prof. John Yoo of Berkeley, a reliable defender of this Administration’s aggressive expansion of war powers, agreed in a July 2004 piece in the Notre Dame Law Review that this practice cannot be understood or reconciled with U.S. law except as the execution of Presidential war powers. And this is certain a new wrinkle. True, the U.S. has historically asserted, virtually without judicial challenge, the obvious power to move prisoners of war seized by our military or allied armies from Country A to Country B. Indeed, the 1929 Geneva Convention on prisoners of war distinguished “Capturing” from “Detaining” Powers, realizing that the two might not be the same.
But it is one thing for our armies to round up suspected members of the Taliban (an enemy militia) in Afghanistan and ship them to Guantanamo (technically foreign soil). It is another to do things like some recently reported renditions:
U.S. immigration officials seized Maher Arar, a Syrian-born Canadian engineer, during a layover at Kennedy Airport, handed him over to the CIA, put him in an executive jet, and fly him to Syria where he was beaten for a week with two-inch thick electrical cables, and might have languished there had the Canadian government not protested;
In 2001, Sweden turned over to American intelligence Ahmed Agiza and Muhammed al-Zery, asylum-seekers, put them on a Gulfstream, and delivered them into the hands of Egyptian intelligence, which tortured them with electrical shocks for two years. One was sentenced eventually to 20 years in an Egyptian prison.
CIA operatives grabbed Osama Moustafa Hassan Nasr on a Milan street, bundled him off to Aviano airbase, and sent him via Gulfstream to Egypt where he was tortured with electric shocks, and hung upside down and subjected to extreme temperatures and noise that damaged his hearing;
In the runup to the Iraq war, the CIA seized Ibn-Sheikh al-Libi, a high-ranking Al Qaeda figure, in Pakistan, put him on a plane to Egypt, where he was tortured and told his interrogators what they wanted to hear, that Saddam Hussein had offered to train two Al Qaeda operatives in the use of chemical or biological weapons. After that he was shipped on to Guantanamo, where he recanted this now clearly outlandish admission.
According to Newsweek in February, the CIA kidnaped Khaled el-Masri, a German citizen on holiday in Macedonia, placed him on a Boeing 737 owned by a CIA dummy corporation, took him to Afghanistan for five months of torture, and then dumped him back on the road to Macedonia. The person who dumped him reportedly laughed at him and told him not to complain, because no one would ever believe him. But public records about the jet’s peregrinations bear him out.
Jane Mayer reported in the New Yorker in February that the CIA seemed to be concealing the whereabouts of at least 100 detainees, which leads to a reasonable guess that many of them have been rendered in this fashion.
When prisoners are rendered in this fashion, it is not about getting rid of unwanted guests, it is about torture. Abu Ghraib and Guantanamo notwithstanding, there remain depths of torture we do not typically plumb. As explained last time, we cheerfully espouse “cruel, inhuman and degrading” treatment of detainees (or at least we did – the Administration backpedaled in a December 30, 2004 Office of Legal Counsel Memorandum), but there are some practices we officially eschew. For certain things too vile even for us, we have the Egyptian Mukharat, and the secret police of Morocco, Syria and Jordan. Also Uzbekistan, where the torture specialty is boiling body parts, according to Jane Mayer. Rendering people we have snatched into the hands of these forces for purposes of torture probably violates our obligations under various laws and treaties; it certainly obligates our obligations under the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, which provides in relevant part that U.S. policy is “not to effect the involuntary return of any person to a country win where there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.”
Word is that the U.S. does receive official assurances of no torture from the countries to which we export our kidnap victims. But they are worthless, pro forma, and not intended to bind or fool anyone.
Now a new form of rendition is coming to the fore, the predictable consequence of the haphazard accumulation of prisoners in our Gulag at Guantanamo, Abu Ghraib, and reportedly at secret locations in places like Thailand. The fates of these prisoners have diverged over the last four years. Some have been tortured and interrogated, some have been determined by military commission to have been enemy combatants (or perhaps not, although there are no reports yet of determinations that even one solitary detainee has been found never to have been a combatant), some have been convicted (or acquitted, though I cannot locate a one report of this either) of war crimes, some have most likely been ignored. Almost all, however, have become unwelcome guests and an embarrassment. Indeed, now that, thanks to the Supreme Court’s 2004 decisions, they have some access to the courts, it is entirely possible that there could be a meaningful irruption of their grievances in a federal court in one of the many lawsuits brought on their behalf.
And so the Government is moving to liquidate the embarrassment. Starting in March of this year, the Government let it be known that it was planning to ship hundreds of detainees to countries like Saudi Arabia, Afghanistan and Yemen. Afghans held in Afghanistan would be turned over to their government. This is something that could not have been accomplished if the prisoners had been kept on U.S. soil; they would have had certain rights under the removal procedures of U.S. immigration law.
There was a response to these announcements in the detainee lawsuits pending in the U.S. District Court for the District of Columbia. The prisoners began to resist being sent home before their due process claims could be adjudicated. There were decisions by various judges, mostly denying injunctions against repatriation. Apart from the perennial injunction issue, status quo preservation, these cases turned on what kind of treatment the prisoners could expect when they were returned. The 1998 law prohibiting return to torture was deemed by the courts to govern.
The judges were somewhat skeptical about reassurances of no torture, and so the Government was at some pains to convince them. The comments of Judge John Bates in a July 2005 opinion may stand for all. He noted “sworn and unrebutted declarations from high-level Department of Defense and Department of State officials explaining that the United States did not transfer any Guantánamo detainee to a foreign state without first obtaining assurances from the receiving state that it was ‘more likely than not’ that the detainee would be humanely treated upon transfer (the legal standard set out in the regulations implementing the Convention Against Torture).” This interesting choice of words suggests how gossamer-thin is the assurance we are receiving. The Judge continued: “The declarations further explained that the Department of Defense does not ask receiving governments to detain a Guantánamo detainee on behalf of the United States on foreign soil.” Note that the DOD is not saying the receiving governments positively will not detain the prisoners on their own behalf, nor even that the foreign governments have not promised such cooperation unbidden.
In any case, according to a DOD October 1, 2005 press release, DoD has outright released 178 Guantanamo prisoners, and has transferred 68 to other governments (Pakistan, Morocco, France, Russia, Saudi Arabia, Spain, Sweden, Kuwait, Australia, Great Britain and Belgium). But this leaves approximately 505 detainees remaining at Guantanamo. There is no word about detainees elsewhere.
Behind the vague press releases and statements to the courts, the fact is that we do not know what this massive rendition, already in progress, will amount to. Unlike the scandalous extraordinary renditions discussed above, this rendition may not be about torture. It could be about transferring these long-imprisoned Muslim men from one jailer to another, knowing that the second jailer will not be troubled, as the U.S. is, with the pesky writ of habeas corpus. Or it could just be about releasing wronged innocents in a way that embarrasses no one. We have no way of knowing now, and maybe will never know.
What we do know is that when you play in someone else’s ballpark, the rules can be a whole lot more fun. Heck, what rules?
 There is a significant backlash against the barrier posed by the Act. See T. Gizzo & T. Monoson, A Call to Arms: The Posse Comitatus Act and the Use of the Military in the Struggle Against International Terrorism, 15 Pace Int’L L. Rev. 149 (2003); G. Felicetti & J. Luce, The Posse Comitatus Act: Setting the Record Straight on 124 Years of Mischief and Misunderstanding Before Any More Damage Is Done, 175 Mil. L. Rev. 86 (2003).
 Transferring Terrorists: The Changing Laws of War: Do We Need a New Legal Regime after September 11? 79 Notre Dame Law Review 1183 (2004).
 The information in the following bullets points was largely new and shocking when I mentioned it in the column reproduced here. However, it is all part of public common knowledge now, and I have not tried to put in citations to my original sources at this late date (November 21, 2010).
 Hersh at 53-55.
 Found in the official annotations to 8 USC 1231.