Condi's Loopholes and Legal Agility

Every discerning ear knew something was amiss with Condoleeza Rice's carefully parsed words on the subject of torture and rendition on the eve of her trip to Europe. ABC News reports that current and former CIA officers speaking on the condition of confidentiality say the U.S. scrambled to get all the suspects off European soil before Secretary of State Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert.

Moreover, they specifically say two secret CIA prisons were operating in Eastern Europe, Poland and Romania to be exact, until last month when they were shut down after reports in the media of their existence.

Rice reaffirmed that the US did not use torture because she excludes six refined methods of interrogation that are not defined by the U.S. as torture. These techniques include sleep deprivation and a practice called "waterboarding" in which the subject feels they are being drowned.

More on Rice's loopholes:

Rendition Rice makes the first formal admission since September 11, 2001, that the US does practise “extraordinary rendition”: seizing suspects and taking them to other countries where they can be “questioned, held or brought to justice”. Destinations are said to include the US allies Egypt, Jordan, Morocco, Afghanistan and Uzbekistan.

Rice argues that it is a “vital tool” in fighting terrorism, and that Europeans benefit, too. But her assertion that the US has done this for decades, as have “other countries”, will not silence criticism.

The practice began in the mid-1990s under President Clinton, according to Michael Scheuer, a former CIA counter-terrorism analyst, who helped to set up rendition and who has written Imperial Hubris, an attack on President Bush’s War on Terror. He says that Egypt (repeatedly criticised by the State Department for its use of torture) was a favourite destination. Other CIA officials have said that Bush hugely increased the practice after September 11.

[None of this means that this is a legal and acceptable practice.]

Sovereignty Rice says that the US has respected the sovereignty of EU countries. That implies that it would have told them about CIA camps.

Poland and Romania, suggested in reports as possible locations, have denied knowledge. Britain has said: “We are not aware of the use of UK territory or airspace for the purpose of extraordinary rendition, nor have we received any requests”.

The EU Justice Commissioner has said secret prisons and detainee abuse would break European human rights law.

But Rice does not say that governments would have been told about the identity of suspects on board a flight over the country, or stopping there. This is an obvious loophole.

[A discussion is needed of what she means by "respecting sovereignty" and at what price.]

Torture, 1 The US says that it abides by the UN Convention Against Torture. But this may be ambiguous. US government lawyers have argued that the ban on “cruel, inhuman and degrading treatment” did not apply to interrogation of foreigners outside the US.

[It depends on what your definition of "is" is.]

Torture, 2 Rice says that the US does not “render” suspects to countries “for the purpose of interrogation using torture”, or where it believes they will be tortured. “Where appropriate”, it “seeks assurances” that they will not be tortured. But former officials say governments may give this “assurance” casually.

["We don't send'em overseas to torture them that is just a bonus like a Happy Meal toy.]

Beyond the law Rice says the US respects its own laws and its treaty obligations. But she also argues that “the captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice”. She maintains that they are often “effectively stateless, owing allegiance only to the extremist cause of international terrorism”.

[Sure we have laws against that, but conveniently you don't fit our definition of the law.]

Perpetual limbo? Rice says that “international law allows a state to detain enemy combatants for the duration of hostilities”. That will provide little comfort for detainees: in the War on Terror there is no clear end. The tactic also brings severe problems for the US. Detainees, once abused, cannot be brought to court, either for trial themselves or as witnesses.

[We can flaunt the law as long as we'd like then once out of office we'll be untouchable.]