Convictions and dismissals

Today we learned that Italy has convicted 23 Americans (in absentia) in association with their role in rendering a Muslim cleric from the streets of Milan. This is a pyrrhic victory of sorts, since the fugitive Americans will not in all likelihood spend a minute in jail. This is in large measure due to the U.S. government's incessant political pressure, grounded on the belief that it can do whatever it wants in the name of combatting terrorism. This belief reared its ugly head yesterday when the Second Court of Appeals threw out a case brought on by another torture victim of American rendition policy, Maher Arar. His case is familiar to anyone who follows these things. A Canadian citizen, picked up at JFK on a tip from te Canadian government, and inexplicably (unjustifiably) rendered to Syria where he was summarily tortured for about a year. The trip to Syria is not inexplicable if one recognizes the America's unaccountable desire to do whatever is 'necessary' to gather intelligence information. As it turns out, as it often does in these types of cases, the initial tip was ungrounded, and Arar had nothing to do with anything.

Now, evidently, the majority believed that to do otherwise than to dismiss the case would be an egregious form of judicial activism, since Congress has not explicitly penned law prohibiting this particular activity. It's not clear to me on what grounds they say this, since there exists any number of statutes under which a prosecutor could bring the culprits to justice. After all, isn't conspiracy to torutre a crime, on the books. The majority must be asking for something  else, namely, the green light by the Exectuve to prosecute its own members. Needless to say, we're still waiting for that. But on the ever useful charge of judicial activism, we can submit, on the contrary, that it is the grossest form of judicial activism to give, as this dismissmal does, carte blanche to a government gone wild. No one but the American government feels the need to dispute the facts of the Arar case, his unquestioned innocence, not even the Canadian government, which has already admitted culpability and settled with Arar. Yet, we continue to our ostrich policies from the highest levels of government down to the citizen on the street who 'just wants the government to protect him'. Well, perhaps Arar believed the same thing, that is, until he lived through the hell that comes from allowing flawed people to possess unchecked and unaccountable power. Do we all have to live through the same before we recognize the flaw here? Is our imagination and historical sense that weak? 

Before we raise our hands in salute of the Italians over the Americans, we should note that, in the Italian judgment today, 3 Italians were acquitted on the grounds that their conviction would divulge state secrets. So, there we go again.  

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Obama and rendition

The LA Times kicked up a mini storm with the Sunday piece entitled, 'Obama preserves renditions…' According to the Times, Obama is set to continue Bush’s widely abhorred rendition program wherein foreign nationals are kidnapped and then taken to a torture-friendly country and subsequently tortured for information. As others have pointed out (here, for example), the Times piece fails to distinguish between extraordinary rendition and the type of rendition program the Obama executive order makes possible. This is no small difference, since the former is known to involve torture and other extralegal interrogation techniques while the latter, given the other executive orders Obama has penned, should not—at least for now. We need the qualification since Obama left open the possibility for using techniques that go beyond the Army Field Manual. This will depend upon the findings of the task force he called for to investigate the appropriateness of the manual’s methods. We eagerly await the results of this investigation.

The shortcomings of the Times piece needed to be pointed out, but we should be concerned that Obama's policies are getting a pass owing to the necessarily favorable comparisons to Bush's.

For example, we have this nugget quoted in the Times piece, “’Under limited circumstances, there is a legitimate place’ for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch.” Now, what is a director of Human Rights Watch doing trying to justify kidnapping? It boggles the mind that someone committed to human rights could say that it could be morally justified.

Can we think of a greater affront to liberty than government sanctioned kidnapping? The Times goes on to quote Malinowski as urging Obama to set up a system to ensure that rendered prisoners be shuffled off to a court of justice where they would receive a public hearing. To be sure, this proposal offers an outcome better than being kidnapped and tortured. But with regard to the right to liberty, it is no less of an offense.

Even Glenn Greenwald, who I admire for his characteristic moral clarity, instead of condemning the practice of rendition outright, waxes philosophical by offering a thought experiment designed to tax the minds of those who would condemn the practice.

I believe Bush did the nation at least one service by clarifying what we should be against. As Nietzsche said, “We all need our antipodes.” We shouldn’t now lose our moral compass just because someone we trust and admire is in charge of the country. Perhaps we should be even more vigilant.

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Facilitating extraordinary rendition

Last year, the ACLU filed a law suit against Jeppesen Dataplan charging that it facilitated an illegal activity, namely, our government's extraordinary rendition program.

Demonstrating the courage of its convictions, a Justice Department lawyer argued to a federal judge recently that pursuit of this lawsuit would risk divulging state secrets. In other words, although it is a conviction that rendition is justifiable, no justification of it can be publicized--even to the judiciary.

I want to leave aside the extraordinariness of this line of reasoning to ask a different question: to what extent should a company be legally culpable of intentionally facilitating immoral (and, we can add legally questionable) governmental activities, which facilitation is requested, perhaps even demanded, by the government itself? This case poses a greater problem than the one involving the question of immunity for the telecommunications industry now facing the Senate. It does so because facilitating torture (in this case, providing transportation to CIA 'black sites') is patently wrong, while facilitating spying is not (or not necessarily).

What do people think?

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