Legal Commentary

Does The Obama Executive Order Permit "Rendition?"

By Big Tent Democrat

Via Instapundit, Professor Darrel Hutchinson argues there is room to worry about potential renditions under President Obama's executive orders on torture. I think there is always room to worry and be vigilant, but I do not see from the reading of the text of the executive order that the worry should come from the executive order itself.

First things first. It is important to remember that the Bush Administration declared (unlawfully I might add) that those persons President Bush declared unlawful combatants were NOT covered by the Geneva Conventions (of course, President Bush could not EXPRESSLY declare that the Convention on Torture did not apply to such persons, even though he de facto did so declare, committing a serious crime in the process.)The most important point to consider when reading President Obama's executive orders on this subject is his reversal of all such judgments by the Bush Administration. To wit, President Obama's executive order states:

Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2?22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

(Emphasis supplied.) President Obama with that one paragraph brought down the legal regime for torture constructed unlawfully, criminally and in violation of the laws of war, by the Bush Administration. Further, the new executive order states:

Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340-2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109?366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

(Emphasis supplied.) If you believe, as I do, that these laws and treaties prohibit extraordinary rendition (PDF), then it follows that President Obama has banned extraordinary renditions UNLESS he chooses to authorize violations of his own executive order.

Vigilance requires that President Obama be pressed to renounce any such possibility. But, in my view, vigilance does not require implausible contortions and parsings to make the executive order say what it does not say.

J. expressed her thoughts on this yesterday.

Speaking for me only

Full post as published by TalkLeft on February 03, 2009 (boomark / email).