Court Recognizes that Rendition Requires Keeping Secrets

Amazingly enough, the 9th Circuit Court of Appeals actually ruled in favor of state secrets and against a lawsuit brought by the ACLU on behalf of individuals who claim they were kidnapped and tortured. The ruling is a major blow to terrorist rights supporters and their efforts to cripple U.S. intelligence operations. They've vowed to take the case to the Supreme Court, where it will hopefully be dismissed for good.

Italy vs. the CIA

An Italian court has convicted 23 Americans of crimes involving a rendition case in 2003, where a radical Muslim cleric was kidnapped from Milan and rendered to Egypt. Fortunately, the U.S. citizens were all tried in absentia and are not in custody, so this is an empty verdict. But there is talk of requesting extradition. Here's my take on the case.

The U.S. government should only carry out renditions in allied states with the consent of the allied government. Was neutralizing one terrorist really worth jeopardizing relations with Italy? If it is truly necessary to violate the sovereignty of a friendly state like Italy, it should be done in a secret and deniable way. We should not be in a position of having to defend such actions in court. 

Having said that, the U.S. government has an obligation to protect its operatives from foreign retaliation. Under no circumstances should the U.S. agree to extradite any of these individuals, no matter what the Italian government or courts demand. If the Italian government goes so far as to actually request extradition, we should treat that as an unfriendly act, and respond accordingly. Italy is well aware that rendition operations were U.S. government missions, sanctioned at the highest levels. Italian anger should be focused where it belongs, at the U.S. government. Demanding an apology and assurances that the U.S. will not violate Italian sovereignty in the future would be a reasonable response. Prosecuting individual CIA agents as if they were common criminals, rather than agents of the U.S. government, is just not acceptable.

Another State Secrets Case

The 9th Circuit Court of Appeals has ruled against the Obama administration, and reinstated a lawsuit by five men who claim to have been subjected to "extraordinary rendition." The men are suing a subsidiary of Boeing,

accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.

Without knowing critical details of this case -- such as whether any or all of the five are actually terrorists -- it is difficult to reach any firm conclusions about the court's action. But I have three observations, based on what is in the article.

1. If we are going to use rendition, we need to be extremely selective about it, and do a far better job of keeping it secret in the first place. Any allegations of rendition should simply be denied and all evidence eliminated. No one we plan to ever set free should be considered for rendition at all.

2. If someone is seized by mistake, let alone tortured, they should be well-compensated. They should be given no cause to file a lawsuit.

3. This particular lawsuit appears to be directed at the wrong target. If a company was cooperating with the CIA, it was assisting the U.S. government and should not be liable. Making companies liable for cooperating with the government is idiotic, plain and simple. I don't care what ridiculous legal justification is used.

Assuming any of their allegations are even true, the key question remains: are the plaintiffs terrorists, or were they innocent victims mistakenly seized and mistreated? 

More on State Secrets

Here's a hypothetical example to illustrate why it's important that secrecy be preserved in cases involving rendition and the CIA in general. I can't use real examples, because, well, the details are secret. Let's say the CIA has a contact inside the government of Yemen. He's proven himself a reliable source over a couple years, and regularly feeds the CIA information. He tells the CIA about a senior official in an Islamic charity based in Yemen. Let's call him Al. Al helps coordinate donations for the charity and travels all over the Middle East and Europe. According to their contact, Al uses his work for the charity to funnel cash to terrorist organizations, and sometimes serves as a courier, delivering sensitive messages between groups.

The CIA considers their Yemen contact to be a reliable source of information, so they grab Al during one of his trips, and transfer him to an Egyptian prison where he is tortured and gives up all sorts of information, some good, and some bad. Overall the CIA is happy because they've neutralized a significant cog in the terrorist financing machine, and maybe gotten some useful intelligence as a bonus. After several years Al is eventually released.

After his release Al files suit in U.S. court, claiming that he was kidnapped and tortured. There's plenty of evidence that he was mistreated (scars, medical condition, whatever), but zero evidence that he was ever guilty of anything. The CIA acted based on information gained through a secret informant who is still in place. He certainly won't be testifying in court, and even revealing his existence could compromise him, and remove a valuable source of intelligence. Their goal was to neutralize Al as a financial conduit for terrorism, and to gain information. The CIA is convinced by what they found, by the interrogations, and by the information given by their source, that AL was who they thought he was. But none of that would appear in court. To the public, and the court system, Al would look like an innocent charity official who was kidnapped and tortured.

I would think it should seem obvious, but secret operations based on secret intelligence need to remain secret. What we see and hear from these terrorist suspects is only the one-sided public face of the situation. It is quite possible that there are numerous cases where the U.S. government acted correctly, but that they cannot reveal why in court, because it would compromise ongoing operations or intelligence sources, or that the evidence against the person is not the type that would be admissible. And again, in case anyone jumps to the wrong conclusions, I am making this argument only with regard to foreign nationals.

NYT Horrified that Secrets Could Remain Secret

There's a pretty funny editorial up in the New York Times, attacking Obama for maintaining the Bush administration's "state secrets argument" regarding allegations of torture by five individuals affected by rendition. The tone of righteous indignation that Obama would do such a thing is hilarious to behold. The op-ed looks like something a leftist blogger might have written. Like most on the left, the Times makes assertions as if they were indisputable fact. For example,

The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it.

Actually, to many people living in the real world, that argument is quite persuasive. Apparently it is persuasive even to the Obama administration, who, now that they are in power, have to deal with the reality that sometimes national security involves secrecy. And amazingly enough, protecting the U.S. is more important than the purely theoretical rights of a few alien terrorist suspects who claim they were tortured. Even the Obama administration seems to understand that, unlike the New York Times. The Times says

the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

Why not? Embarrassing charges that can damage the U.S. and possibly affect current operations are exactly the kind of things that should be covered up by invoking state secrets. In addition, the Obama administration has already decided to continue the rendition program. Why risk compromising it by having damaging secrets come out in court?

If the New York Times editorial board is screaming, and all the so-called civil libertarian protectors of foreign terrorist "rights" are upset, you know the Obama administration did something right for a change. In my opinion, the secret operations of the CIA do not belong in the court system. If innocent people were tortured, or even just detained unjustly, quiet restitution should be made, and worked out in conjunction with the home countries of the victims. They aren't U.S. citizens; they were seized in wartime; and they are not entitled to rights in court. I have yet to hear a decent argument as to why the U.S. should expose its secret operations in civilian court, just to satisfy some alien terror suspects. The job of the U.S. government is to protect the U.S. and its citizens first. And if that causes difficulties for foreign nationals, their governments can take it up with ours, and a settlement can be worked out.