Fat Steve's Blatherings

Monday, December 05, 2005

A Response to Jerry Monaco

        In a previous post, I discussed a Washington Post story on secret CIA prisons, and the people being held there.  Reader Jerry Monaco had comments, and I had replies.  Now, there's another round of comments from Mr. Monaco, which I've decided to respond to in a separate post, for reasons of length.  I'll sum up his points by saying he thinks the U.S. government is violating the law with the CIA program, and wants those so held either tried in a U.S. court (civilian? military? that wasn't clear), or released.

        Excerpts from Mr. Monaco's comments are blockquoted.

        What we know about these prisoners is from the families and friends of people who have been disappeared and are assumed by best evidence to be inside secret prisons.

        So, various people may have disappeared, and maybe the U.S. is secretly holding them, and maybe it isn't.  Maybe the people are being held by other governments, maybe they ran away from their families, maybe they're not even real.  I feel embarrassed at having to point out that the friends and family of suspected terrorists may not be an accurate source of information on criminal suspects (something I have personal experience of).  I feel intensely embarrased to point out that real criminals have been known to deny their guilt.

        A number of human rights organizations have investigated the disappearances and have gathered names of prisoners that they believed are being held. There are several cases that I know of through communications with lawyers who have been hired by families of prisoners.

        I am also embarrassed to have to mention that many "human rights" organizations are political groups who have other agendas than human rights, or idiosyncratic definitions of human rights.  Amnesty International, for instance, started out to protect those who expressed political opinions disfavored by despotic governments, and evolved into an organization to keep convicted murderers from being executed.

        As for lawyers protesting their clients' innocence, is any comment necessary?

        The case that I can refer you to is the one that has been made public.

Wrongful Imprisonment: Anatomy of a CIA Mistake
German Citizen Released After Months in 'Rendition'
By Dana Priest
Washington Post Staff Writer

Sunday, December 4, 2005; A01


        There are at least 300 cases like this or at least the lawyers I know claim.  But how are we to know?  If they are guilty they should be prosecuted.  Or at least that is the old fashion conservative idea that comes from a belief in the rule of law.  On the other hand if they are simply prisoners of war then keeping them in secret prisons is a war crime.

        Well, it hasn't really been made public, but leaked.  Still, pass that by.  I happen to read about that article a few minutes before reading Mr. Monaco's letter, and I posted The CIA Gets It Right 98% of the Time.  (Assuming Priest's sources are correct, the Company has grabbed about three thousand suspected terrorists, and believes thirtysix or so were mistakes.  But for the purposes of this response, I'll accept three hundred errors, and say 90% correct).  I'd say that's pretty good work, but Mr. Monaco apparently disagrees.

        At this point I'll note that I asked Mr. Monaco previously for citations to the laws we are supposedly breaking, which he has yet to answer.  Since he raises the subject, I'll point out that any enemy fighter caught in war but not in uniform may be shot out of hand.  I'll take a guess and say that if the prisoners were shot, Mr. Monaco would not approve.

        But getting back to renditions, the Post article and Mr. Monaco's lawyer friends would indicate that the U.S. effort has been accurate 90% of the time, while the Post story is 98% devoted to the 10% failures.

        What prevents you or me from being kidnapped and being put into a secret prison except for respect of the niceties of the rule of law?

        Why, absolutely nothing, if you assume that the CIA is composed of complete idiots who grab people at random.  The fact that there isn't any evidence that would lead them to suspect us, if we assume the CIA is in touch with reality.  As they currently seem to be batting .900, I believe I'll sleep well.

        And nothing, including the niceties of the rule of law, prevents us from being arrested by genuine mistake.  And nothing but luck prevents people from being murdered when terrorists pull off a succesful operation.  About three thousand died of terrorism one day four years ago, and the CIA was told to step up its efforts to keep that from happening again.  The CIA did, and the terrorist attacks against us, outside Iraq and Afghanistan, have been notable by their absence.  I think any discussion of the tactics used in the War on Terrorism have to take that fact into account, and ask how we balance conflicting goals.  Mr. Monaco apparently doesn't.

        In fact there are no problems giving such people trials. Such trials take place all of the time. They have taken place in Germany, Spain, Ireland, Denmark, England and France. The fact is that the Bush administration does not want to be constrained by the rule of law because they believe that it will interfere with the strong point of U.S. posture which is the military. This is the basic belief stated over and over again of a section of the Bush administration.

        One of the other questions I asked Mr. Monaco is what laws the various people being held had broken, and where they should be prosecuted?  Below, he eventually answers that.  Below we will also see evidence that there are substantial problems with trials, especially when foreign governments are involved.

        In dealing with trials, I might point out that they frequently involve witnesses.  Since terrorists don't plot murder on street corners in loud voices, this means usually undercover agents, wiretaps, etc., to catch them.  That, in turn, means giving the remaining terrorists tips on how to avoid getting caught, leaves informants and their families vulnerable to being murdered, disrupt ongoing anti-terrorism activities, and is likely to take a very long time.  On that last, look at the way police spend years infiltrating criminal gangs, and let some crimes proceed with impunity in order to get evidence for trial.  In the case of terrorism, this would likely involve allowing murders to take place because there wasn't enough information yet to arrest and convict people.  When the terrorists were tried, the trial would tend to disrupt ongoing

        You might also read Laurie Myroie's The War Against America.  When the World Trade Center bombing of 1993 was first mooted, the FBI already had an informant in the group, as part of an intelligence operation.  When the Islamofascists decided to kill New Yorkers, it became a criminal investigation.  But the FBI's rules for investigating conspiracies to commit murder were different from their rules for intelligence operations, and the informant didn't want to follow the criminal investigation rules.  So the case was dropped, and six people died.

        Yes, U.S. criminal statutes say that those who plot to commit acts of violence against U.S. interests can be tried in U.S. criminal courts.  Many people have been extradited under these laws and such trials have taken place quite a few times over the last forty years.

        Still no citations to relevant statutes, but it is an answer of sorts.  Of course, the bit about extradition shows that it requires the cooperation of foreign governments.  Since murder is a capital offense, and since many foreign governments have decided that capital punishment is worse than murder, they refuse to extradite anyone subject to the death penalty to the United States.  This tends to put a crimp in the prosecution of terrorists as criminals.

        There is no "gap" in the law. Either these people are criminals and can be tried as such or they are prisoners of war and should be treated as such until the war is over then they should be released.  But that is the problem isn't it?  If we accept the perspective of the Bush Administration then the war will never be over.

        It's quite possible the War Against Terrorism will never be over.  If so, that will be the result of the operations of the terrorists, not of Bush.

        Still, we're getting down to brass tacks here.  If the people being held are prisoners of war, we can treat them according to the rules of war.  We have treaties saying that, if we are engaged in a war with country X, and if country X has signed the same treaties that we have signed, and if country X has followed the treaties, then there are certain things we aren't allowed to do to those fighting for Country X.  As al-Qaida and other terrorist organizations have never signed those treaties, the legal obligations of the U.S. in relation to terrorists is not clear.

        It is rather ironic that you refer to the Nuremberg trials because the basic rules I have laid out derive from the international norms that were ratified in treaties in order to allow for the Nuremberg trials. It is the Bush Administration that is now violating the laws that derive from those treaties.

        And again, no citations or specifics.  By the way, my memory of the Nuremburg trials is that the U.S. just went ahead and ignored all questions of what laws the defendants had violated that were in existance before 1945, and binding on Germans because of actions of the German government.  The U.S. instead decided that the genocide against the Jews was illegal, even if no German statute or German-ratified treaty made it illegal.

        In a second comment, Mr. Monaco continued.

        Just a postscript.

        We also know of many incidents of extraordinary rendition where the people were first tortured and then found to have been victims of mistaken identity. You can find some of these cases discussed in a New Yorker article

The secret history of America’s “extraordinary rendition” program.
Issue of 2005-02-14

        And there was indeed such an article, and you can find it on the web here.  It does have some actual information in it, including statements from the U.S. government that say the U.S. is acting in accordance with the law.  The claim that "many" innocent people were tortured did not seem well supported to me.

        It also says that one of the few critics of the rendition program who will allow his name to be used is Michael Scheuer, who worked counter-terrorism under Clinton.  Given the lack of success of the Clinton Administration in stopping terrorist attacks, criticism from Scheuer may not be entirely reliable.  Still, he does mention that rendition was started under Clinton, because, Scheuer says, prosecutions under U.S. criminal law were not possible, for example, because foreign governments might not be able to meet U.S. evidentiary standards, or refused to cooperate with public trials.  This would seem to undercut Mr. Monaco's points.

        What the article doesn't appear to contain is evidence that the U.S. ever asked any foreign government to torture anyone.  Instead, it appears that foreigners did it on their own initiative, for their own reasons.  The reason said foreign countries were able to do this is, DUH!, because we turned the prisoners over to them.  Now, we hold them in our own secret prisons, and the foreigners can't do that.  One would think that those opposed to torture would applaud this as a step forward — if, that is, you thought the critics were honest in the first place.

        The article also offered evidence that the greatest critics of the Administration's actions were those who opposed it politically.   A special highlight is a solemn warning that the terrorists might decline to follow Geneva Convention rules with captured U.S. soldiers if the U.S. didn't follow it with captured terrorists, and that unnamed other countries might prosecute W. for war crimes.  I regard such comments are too stupid to be bother with, and as vitiating the whole article.

        But I want to emphasize that this is a gentle version of these types of cases.  Amnesty International estimates that there are thousands of these cases of extraordinary rendition (kidnapping is what the non-Orwellian term would be).  And most of these cases are simply people targeted and kidnapped off of the streets in the country where they lived.

        I have no way to prove this but I think that a large amount of these kidnappings are result of snitches who have named names under torture.  This is true of the few cases that have come to light.  In other words the U.S. is torturing people (though the U.S. defines this torture as "Enhanced Interrogation Techniques" - another Orwellianism) and the names gathered through torture lead to other people who can be "arrested."  If you are at all familiar with similar situations in Brazil, Chile and Argentina in the 1970s then you will know that names given under torture are completely unreliable.

        A point of agreement between Mr. Monaco and myself.  People being tortured will usually reach a state where they will say anything to avoid more torture.  Their statements are worthless, unless they can be independently and objectively confirmed.  That, in itself, is enough reason to have a general rule against torture.

        None of what I say is under dispute.  The only question is to what extent is the U.S.G. is violating U.S. and international law through kidnapping and torturing people and holding them in secret prisons.

        As a matter of fact, the New Yorker article is full of people disputing Mr. Monaco's charges.  Since Mr. Monaco himself cited it as a source, I can only conclude that he somehow failed to realize this.

        Oh, by the way, the New Yorker article mentions reason to believe that at least some terrorist attacks against us were carried out as retaliation for the trials of alleged terrorists in U.S. courts.  The slow pace of U.S. legal proceedings gives lots of time to plan such retaliation.

        Is this really the kind of thing that we want our country to be doing?

        Well, I think the answer to that would depend on whom answers.  For myself, the answer is mostly Yes.  We seem to be getting much better results than with previous policies.  We should continue to refine our methods for greater accuracy.  Torture should not be used.  But we seem to be on the right track.  And while I would prefer terrorists be shot rather than held for the rest of their lives, I can live with that.

        I will some this up by saying that Mr. Monaco seems to be primarily worried about the actions of the U.S. government, and regards the War on Terrorism as something to talk about when we've made sure that the gummint won't turn the country into an imitation of Nazi Germany.  My priorities are different, and largely opposite.

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  • "So, various people may have disappeared, and maybe the U.S. is secretly holding them, and maybe it isn't. Maybe the people are being held by other governments, maybe they ran away from their families, maybe they're not even real."

    First, before we go on I must ask what standard of evidence we should use? The evidence is simply overwhelming that the U.S.G. is using what it calls "extraordinary rendition." The only question is how often is it being used and where. Rice doesn't even bother to deny it. She simply issues the same standard non-denial denials that are not worthy of a lawyer from Enron or Chuck Colson circa 1973. Can we agree that extraordinary rendition is taking place? If not should I bring forth more evidence? It is not easy to bring before you all of the evidence in a weblog comment but I can.

    The leaks on the secret prisons has come from the CIA. But some of the evidence been verified by of all people airplane trackers. Further the evidence presented by both Amnesty International and Human Rights Watch is overwhelming. I beg of you not to apply the same double standard in regard to evidence that seems to be endemic in society as a whole. Evidence that the governments of our enemies have done wrong is believed without a bit of skepticism. Evidence that our government has done wrong can never be proved. This is the double standard that I run up against over and over again.

    By the way why do you think people inside the CIA are leaking so much information about torture and secret prisons? Do you have an opinion. The information is reliable because it simply confirms what we know from other sources.

    Is it your opinion that "mistakes will be made" but we should trust Big Government and the CIA to kidnap people off of the street because they know best? Then why not institute the same programs in the United States? I simply don't understand.

    I am willing to argue over the politics of human rights groups. Human rights groups have their own interests and must always be interpreted through those interests. But so do states/governments. One fact of the world is that states/governments are institutions that must lie in order to maintain their policies, which is why we need human rights organizations. All that I am saying here is that I trust human rights organizations more than I trust State administrations or similar institutions.

    Yes, I am primarily worried about the actions of the U.S. government because the U.S.G. is partially my responsibility. What the Iran government does is not my direct responsibility. What the U.S. government does is my direct responsibility. That, I believe, is what it means to recognize oneself as a citizen.

    Do you think that secret prisons are justified simply by putting a label on them that they are part of a fight called "the war on terror"?

    Another question, which may sound like a non-sequitur, but are you familiar with what happened in Latin America from 1960 to 1990? I am just curious? Because in Argentina alone some thousands of people were murdered (with the help of the U.S. government by the way) and the justification was a "war on terrorists".

    These are just some basic questions that do not deal with the substance to your comments. I am just wondering what ground there is to your thinking. Forgive me for writing so quickly but I am in the middle of writing an essay on torture in the law in Florence and Venice in 1300 and I have to get back to it since it is due in a few days. By the way they were a little more honest about what they called torture back then perhaps because they were less embarrassed by it. What the CIA called "enhanced interrogation techniques" the Doge called torture... exact same "techniques" by the way.

    Forgive my very quick prose ...

    By Anonymous Jerry Monaco, at 12:46 PM  

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