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Did Obama Really Create a Loophole for Rendition?

This story that ran Sunday in The Los Angeles Times, “Obama Preserves Rendition as Counter-Terrorism Tool”, has caused quite a stir. Swirling ’round the blogosphere, it’s got all sorts of people in a tizzy that President Obama isn’t really ending torture and the Bush administration policy of “extraordinary rendition” of suspected terrorists to torturing countries.

But civil rights lawyers who’ve read Obama’s orders think the concerns are overblown, and the plain language of the executive orders Obama issued in the first 48 hours of his presidency suggest just the opposite.

“The reality is we don’t know what he’s doing or what he plans to do in this area other than he set up a study team to make recommendations on whether and how a rendition program would continue,” Chris Anders, legislative counsel for the ACLU in Washington, told me earlier today.

“People are reading into the provision that it does not take away short-term detention authority from the CIA,” Anders said. “That could be meant to protect a variety of different things. Rendition would only be one of them. But if you look through the executive orders, there are a number of places where President Obama kind of kicked the can down the road in terms of making decisions or putting them off.”

It was, after all, only his second day in office when he issued those orders.

As I’ve reported before, Obama’s orders were important first steps and in some cases largely symbolic moves; most still require the new administration to take many more specific actions down the road — in terms of closing Guantanamo, prosecuting suspected terrorists, and concealing information about government operations that President Bush had deemed state secrets.

“It may very well be that the administration does not yet know enough about either what the CIA has done and can do, or what they want it to do and not to do,” Anders said. “They know they want to shut down the secret prison program, so they did that. But they may have been concerned that they didn’t know enough yet to deal with other kinds of detention the CIA has.”

That doesn’t mean the order leaves open the CIA’s ability to return to torturing people, or to so-called “extraordinary rendition” — the Bush administration’s way of outsourcing torture by sending suspects to other countries that would likely interrogate them under torture. In fact, Obama has specifically committed to abide by the United Nations Convention Against Torture, which specifically forbids extraordinary rendition.

Even Tom Malinowski, the Washington advocacy director for Human Rights Watch, has adopted a similar “wait and see” attitude, favoring to take the new president at his word.

“What I heard loud and clear from the president’s order was that they want to design a system that doesn’t result in people being sent to foreign dungeons to be tortured,” Malinowski told The Los Angeles Times.

As Scott Horton put it in his blog today, “The LA Times just got punked.” Horton attributes the rash of reporting that Obama plans to continue the Bush rendition policies — complete with prisoner abuse and torture — to leaks from disgruntled CIA officials and to the right-wing media. The Washington Times, for example, last week reported that Obama’s executive orders leave open the possibility for the CIA to keep operating its “black sites.”

“The provision illustrates that the president’s order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time,” wrote The Washington Times’ Eli Lake in his “exclusive” reading of the president’s orders.

My own view is that if you parse every sentence of every order and memorandum issued by the president, you’re going to pretty easily find something that he did not address. Whether you want to label that a deliberate and dangerous “loophole” — or merely a cautious approach that allows further study of a difficult problem — seems to depend on which side of the aisle you’re sitting on.

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