Secret prisons

I’m having real trouble understanding the current flap over allegations that
the CIA is running secret overseas prisons for terrorists and enemy combatants.
I would prefer not to believe this is just another outbreak of reflexive
anti-Americanism, but I don’t see any principled case against what is
being alleged. Can anyone explain it to me?

Now, mind you, if there were any reason at all to believe American
citizens were being shipped off to these hypothetical gulags I would
be screaming bloody murder. I believe even American citizens taken
under arms as enemy combatants are entitled to the protections
guaranteed by the Constitution. Violating the rights of non-combatant
Americans in this way would be even worse — grounds for
impeachment of every official in the chain of command, up to and
including the President.

But the U.S. government has no constitutional, legal, or moral
obligation to treat foreign terrorists or foreign enemy combatants as
though they were American citizens. The laws of the host country
might apply, but even that much is not clear if the locations are on
U.S. military bases (often, by treaty or agreement, these are
administered under U.S. military law).

I do think we have a moral obligation to treat such prisoners
humanely. But the outrage being ginned up isn’t over any alleged
inhumanity, it’s against the U.S. having such facilities at all. And
I don’t get that. Back during the Cold War, not even the Left bleated
over Communist-bloc agents being immured in similar conditions; what
makes jihadi and Baathist terrorists any more deserving of anyone’s
tender-mindedness?

To be clear, I recognize the obvious political and moral dangers of
having such a system; they have to be traded off against the lives
that are saved by the intelligence it collects and by keeping hardened
terrists out of play. But it seems to me that’s a debate that should
be confined to American domestic politics, and conducted with
circumspection even there lest it provide political cover for our
enemies.

Instead, we have European politicians mouthing off about denying
the U.S. overflight rights and demanding more public disclosure. That
is out of line; whether those prisons exist and what goes on there is
to be decided by (a) Americans, (b) the host countries, and (c)
nobody else. This is an elementary application of the same
rules of sovereignity that Europeans treat with such fastidious
tenderness when an anti-American dictator is the beneficiary.

As I said, I’d like to believe this flap isn’t just the routine
and unjustified U.S.-bashing I’ve come to expect. But I’m not
optimistic.

65 thoughts on “Secret prisons

  1. Eric,

    So it’s morally OK as long as they are not USAnian?

    There are two objections to sidestepping due process in these cases: principle and pragmatism. As a matter of principle, these prisoners are *suspected* terrorists/enemy combatants until they have been tried in a court of law, As a matter of pragmatism, information obtained under duress is typically of little value. Also, I believe the British government tried internment of IRA suspects, and it did more harm than good by swelling the ranks of the “enemy”.

    It really shouldn’t be necessary to lecture an American on the value of legal checks and balances in government, given that this has always been the most admirable aspect of USAnian culture. But then you don’t believe in government, so perhaps it’s not surprising.

    John
    (an Englishman in Ireland)

  2. Actually, there is fragile balance to be maintained, I think.

    If America is out to protect democracy, humanism and liberty all over the world, and it needs some terrorist to be handled a rough and definitely inhumane way, I am in for the ride, as I accept the world can’t be perfect, and we always need some trade-offs between theoretical humanity and making things work. I can accept that. It’s like a surgeon: sometimes you have to cut, and cut without hesitation.

    On the other hand, if this behaviour evolves into a blind protection of national interests, without caring for the rights of everybody else, it would be plainly wrong. There are some higher values of national interests and the laws of host countries: those values that the rest of us hopes America is protecting all over the world.

    It’s just a balance. I’d again suggest the example of the surgeon. Cut without hesitation, if you have to, but don’t cut if you don’t have to. Cut only if it serves the interests of the patient. The patient, in this case, is the world. It is a fragile balance, it is not easy to say what is right or wrong. To me, the only good way to it is simply to be flexible enough to be able to refactor the strategy whenever it tilts the balance either to the idiot-pacifist or the national-fascist way. Just keep the balance.

  3. Somehow, I believe the rhetoric is “why would the CIA be keeping the prisons secret? Does it have something to hide? Perhaps it’s torturing people there.”

    The answer is “The CIA *always* has something to hide, but that doesn’t mean it’s torturing people. It means that we’re talking about a spy ring that tries to find things out without telling the enemy just what it knows or just what it’s doing.”

  4. >So it’s morally OK as long as they are not USAnian?

    I’m not sure what the referent of “it” is here. But both the concerns you raise are properly within the scope of U.S. domestic politics, and not really anyone else’s business.

  5. It’s not as simple as you make out, and the outrage is precisely about the alleged inhumane treatment, and international law. There are a number of points, but I don’t see the ‘routine and unjustified U.S.-bashing’:

    1. It isn’t at all clear exactly where these secret prisons are, nor whether they’re on US bases or not. If not, there is international law for the host country to consider regarding what occurs there. (There is an additional point to this below). Regardless, it essentially seems a tactic designed to detain people outside of the usual US legal system (and thus deprive them of those rights and / or others, and put them at risk of torture), which doesn’t sit well with the EU, nor human rights. If they don’t want to do anything outside of US law, why put them in such a place?

    2. It isn’t clear who’s running them (from a legal point of view, not a practical one). This is important to the US as it allows the administration to sidestep around certain legalities, namely torture – it can be claimed that the US doesn’t torture (in a similar way the UK government doesn’t torture, but it will accept information obtained under torture from other countries, i.e. they get someone else to do it for them and can then claim innocence); I’ll gloss over the administration’s re-definition of ‘torture’ at this point, so it now only includes things they don’t do… It’s also important if EU countries were involved in running them (international law, possibly domestic as well, again).

    3. The previous point also matters to European countries as, if they are party to this (e.g. providing transport, facilitating connections, security, etc.), they may have broken international law by enabling the transport of someone to where they’d likely be tortured (or possibly there are other laws that could be invoked, I don’t know enough to say). This is in fact illegal under US law as well, but is argued around by claiming that they can’t be sure they’ll be tortured and thus it’s ok; in the UK, they use the “assurances” of the country they’re transporting to (e.g. Egypt, Syria), although it isn’t clear how much weight this holds legally.

    4. These prisons appear to be a legal black hole; there appears no requirement for charges, due process, recourse to lawyers, etc. They seem designed to put people beyond the reach of the law, and so it seems natural to assume that this is so things can be done that would otherwise not be permitted under the law. That pesky international law again.

    5. It may well be that EU intelligence agencies knew about, or cooperated with, the prisons; international law, human rights again.

    6. It has been alleged that the CIA kidnapped foreign nationals (EU citizens) and held them within these secret prisons. International law, human rights, diplomatic incident, etc. One incredible story of this type is Khaled Masri, a German citizen, abducted in Macedonia, taken to a secret prison in Afghanistan (nominally run by Afghans, actually run by the US), held for five months then released without any explanation and returned to an unknown country that he later found out to be Albania. The only readily apparent motivation for his seizure was that he had the same name as a leading Al-Qaeda member. I know, I know, War on Terror, US needs to defend itself, etc. but if it was some foreign state doing this, with the FSB or DGS kidnapping US citizens, I’m sure you’d be rightly upset. Not to mention concerned about the state of their intel.

  6. Since 1945 the world community has repudiated the notion that human-rights violations within a country are nobody else’s business. This principle has not always been applied, but very few countries are so lawless as not to give it at least lip service.

    In addition, I have not forgotten your response when I asked you three years ago about the Padilla case, where we had an American citizen held rightless on American soil: “Well, there’s only one, right?”

    It only takes one.

  7. If the process is as legally correct as ESR implies, then why go to the trouble of transferring the detenues to third countries, why not ‘interrogate’ them on US territory? And I am completely unable to understand the grounds for a distinction between American enemy combatants and others. If it is alright to torture an Islamofascist jihadist, why should it matter if the said Islamofascist jihadist turns out to be an American.

  8. But the U.S. government has no constitutional, legal, or moral obligation to treat foreign terrorists or foreign enemy combatants as though they were American citizens.

    Then why not use existing American prisons? Do you really think US law would allow it? Because otherwise, it seems like the CIA decided to use other nations in order to bypass US laws protecting alleged criminals. We do this in other contexts as well. By a startling coincidence, this may all have resulted in abuse of innocent people. That tends to happen when governments operate in the dark.

  9. European thought on the war seems to stem from altruism – ie that the US has the obligation to spill the blood of its soldiers to make life better for the Iraqis. This fits in well with European brainwashing and the myriad of collectivist, mysticist, irrational ideologies that have infested my continent for centuries. It’s what the Randians call “waging a war of love”, rather than waging a war for the protection of the rights of your citizens.

    Any thoughts on this?

  10. Since 1945 the world community has repudiated the notion that human-rights violations within a country are nobody else’s business.

    The world community may have done this, but the US has pretty much placed itself above the rest of the world community in a few significant ways. There’s an idea that there has to be an “arsenal of democracy” which is needed to defend “freedom” (flexibly defined), and that on account of the stern demands circumstances have placed upon it, the normal rules cannot be expected to apply, hence secret prisons abroad, opposition to an international criminal court, etc.

    I think our host is deluding himself when he says treating American citizens like this should be cause for impeachment but doing it to anyone else is just peachy. I reckon the American government will eventually find it much more convenient to have a single standard for everybody, rather than deciding to behave as if no American would *ever* cross over to the dark side. That sounds like it would be a bit negligent to me.

  11. Do we really want to become the barbarians or do we stand on principle and uphold to our values.

    Another aspect no one has mentioned is that our Senate has ratified 4 treaties which ban torture. According to Article 6, Clause 2 of the Constitution, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;”

    Clearly the Constitution places ratified treaties on same level as the Constitution itself. Now you can say that you don’t agree and that’s fine but if you expect the parts you do agree with to be upheld (i.e. the right to bear arms, freedom of the press etc..) you must uphold it all. Of course you could make the arguement that the Constitution has been violated more than a child molester in prison and you would be correct. But it’s no justification.

  12. If you posit that its OK to attempt to kill the enemy, it seems like imprisoning him in a secret prison follows as an OK as well. I mean, it’s a hell of a lot better than being dead.

    E.G., Ahmed opens fire on a school. GI Joe shoots at him in an attempt to kill him. That’s cool, right?

    Now consider: Ahmed opens fire on a school. GI Joe tackles him and delivers a People’s Elbow right to the clavicle. Once satisfied that hadjie can smell what is cookin’, he hauls him off to a secret prison.

    Think about this — if it is, in fact, OK to friggin’ end this shmucks life by blowing his heart out the back of his spine, how on Earth is furtive imprisonment any worse?

  13. Clearly the Constitution places ratified treaties on same level as the Constitution itself.

    Nope. They rank equal with any Act of Congress.

  14. Eric, I don’t think it makes any difference whether they’re USAn citizens. One of the German saboteurs in Quirin was a USAn citizen; he still didn’t have access to civilian courts or Habeas Corpus.

  15. I reject applying the criminal model (that is, requiring a trial before a “suspect” can be found guilty) to enemy combatants. Military prisoners do not in general do not have civil rights.
    Thus, a Taleban, Al-Qaeda, or Baathist fighter taken under arms in a war zone has no civil rights. Conventions requiring humane treatment (such as the Geneva convention) may apply.

    The Khaled Masri case is fundamentally different. I agree that the CIA has acted wrongly if these facts are confirmed. Masri was not an enemy combatant taken under arms in a war zone.

  16. What John, the Enlishman in Ireland said.

    What bummint run amok does best is make new enemies daily
    until there are hoards of lean and hungry barbarians at the gate.

  17. “bummint run amok” OK. If this is the level of analysis being applied that concludes we have to treat all un-uniformed guerrillas as anything but bandits and pirates, subject to court-martial and instant execution, US citizens or not, I don’t think we have anything to fear from such arguments.

  18. I’m curious: you would have no problem with American soldiers being treated the way those people taken by the CIA are?

  19. Pete, it’s a lot like “it’s OK to shoot somebody to death, but if you kill him with your bare hands you must be a wild animal.”

  20. >I’m curious: you would have no problem with American soldiers being treated the way >those people taken by the CIA are?

    Um…since when were the locations of POW camps advertised? I’m not clear that the behavior of civilized adversaries towards U.S. troops has ever been substantially different from what the CIA is being accused of.

    If you’re assuming that hypothetical CIA detainees are being tortured, that’s another matter. But that would be an assumption, not an established fact.

  21. I think, Eric, that if you were analyze this subject using anarcho-capitalist theory, you would have better internal consistency.
    -russ

  22. Sorry, but I’m going to have to disagree here. As soon as “enemy combatant” was redefined so loosely that it could be legally applied to an American citizen captured unarmed in Chicago, all deference to government policy about the treatment of “enemy combatants” went out the window forever. Our government sacrificed its last remaining legitimate claim to authority for secrecy in that moment.

    Perhaps the overseas facilities really are only housing persons who actually are not Americans and actually were captured under arms in combat situations. But we have no way of knowing that for sure, and the present administration has already demonstrated its utter disregard for those crucial distinctions, so even if we disregard the centuries of _general_ evidence that any powers granted to government will eventually be abused, we must still conclude, in the case of the present government of the United States, that these specific powers will be abused in the future, if in fact they aren’t already.

    Is it the business of third-party governments, who are neither hosting nor operating the facilities? No, of course not. But that does not mean that it isn’t a problem.

  23. Anyone remember Johnny Spann?

    Combatants that find themselves imprisoned outside of their home country or even in a secluded/undisclosed area of their own country would be less likely to revolt, IMO. Also, there would be less likelihood of an external attack to try and free the prisoners or punish those who guard the prisoners.

  24. How is objecting to arbitrary arrest without charge, deportation and imprisonment without trial, and torture “reflexive anti-Americanism”? I would have thought that if the US constitution were taken seriously, it would be considered anti-American to fail to object to such things. But then I come from a country that’s never had a Bill of Rights, so perhaps there’s something I’m missing.

    All I can say is I’m glad I have an obviously Anglo name (http://news.independent.co.uk/europe/article331616.ece), and I’m seriously considering losing the beard and carrying a briefcase instead of a backpack (http://gizmonaut.net/bits/suspect.html).

    Here are some bumper stickers for you, Eric:

    - “The US Government doesn’t torture prisoners, people do.”
    - “If torture is criminalised, only criminals will commit torture.”
    - “This government respects human rights three days a week. Guess which three.”
    - “America: Love it or your family will never see you again.”

  25. Matt, you know, governments fuck up — that’s why we strive to minimize them and/or do away with them. But keep in mind that the perfect is the enemy of the good, utopia is not an option, etc etc.

    “Secret prisons” in specific, or due-process bypasses in general, are a great boon to operational efficiency, which translates into a real tactical advantage — you can really chew through a population when you can process them like meat. We don’t want to give our government this advantage over ourselves because, well, we’re the good guys, and we don’t want to be treated like meat. But when it comes to the folks blowing the innocent up in the name of Allah, there is quite simply *nothing* wrong with it *if* you posit that we ought to eliminate them anyway.

    I’m basically saying what I said before.

    You have to ask yourself, “Should the terrorists be eliminated?” And let’s be quite specific about “eliminated” — we’re talking about rendering each and every member operationally ineffective. This means some combination of the following: killing all members, imprisoning all members, dissolving the organization, preventing reorganization. Given the nature of the enemy, death has been the order of the day.

    Let me reiterate: we are facing an enemy who wants to inflict murder on a mass scale, and will fight to the death to do as much. Therefore, we have to kill damn near every member of the opposition.

    That is what you have to agree to if you agree that al Qaeda should be eliminated — you have to agree to killing all of them, if it comes to that (and it has been coming close to that). If you assent to this sentiment, then your enemy is nothing more than meat to be butchered. It is the nature of our civiliziation to proceed in a relatively humane fashion, but given our objective, it is only to suit our own taste (and to not induce reverse peristalsis en masse among the Europeans) that we restrain ourselves.

    Secret prisons are a non-issue in this war — we intend to kill all of our enemies if need be, and therefore, he simply has no rights to speak of.

    OTOH, if you disagree that the terrorists should be exterminated, then you posit that they ought to have at least the right to their life in at least some circumstances. Therefore, you might also conclude that they have a right to due process and such. But this represents a fundamental disagreement between us that is not likely to be resolved. It’s not worth beating that dead horse here.

    So let’s pretend that you do agree that the terrorists should be exterminated, and that you accept the corrolary that they are then animals to be slaughtered at our choosing, and that any choice to the contrary is merely to please ourselves. You can certainly make a reasonable case that granting the government this power poses a greater threat to us than its worth. I won’t deny that such is theoretically possible, but in practice, that doesn’t seem to be the case — a violation or two is simply to be expected, just as casualties of war due to friendly fire are. Even when we follow due process, mistakes happen, and the guilty walk or the innocent hang. If we held every institution of our government to a standard of perfection, then we simply would not have any government. Regardless of whether or not that would be a good thing (I’m inclined to think it would be a plus), that’s not happening any time soon.

    To sum up: there is no case to be made for the human rights of our enemy, because he has none. There is a case to be made that this power will be abused by our government — but then, all power will be abused by our government (and it is). That is not a useful rubric by which we should decide what powers to grant, sad to say. I don’t see any significant amount of evidence that this power is hurting us more than it helps us (far from it), and if you wonder how it could possibly help us, well, go watch “Man on Fire.” Pay close attention to the scene involving a car, a knife, a car lighter, a crooked cop, said cop’s fingers, and a man on a mission.

  26. Matt wrote:

    As soon as “enemy combatant” was redefined so loosely that it could be legally applied to an American citizen captured unarmed in Chicago, all deference to government policy about the treatment of “enemy combatants” went out the window forever.

    Er, that would be 1942. Herbert Haupt, USA citizen, captured in Chicago, sentenced to death by a military tribunal. The Supreme Court said that, as an enemy combatant, he had no right of access to the civilian court system, or to the writ of Habeas Corpus, and it didn’t make the slightest difference what citizenship he held, or where he was captured.

  27. As for whether we want the enemy to treat USAn soldiers like this, the point is that the enemy doesn’t adhere to the Geneva Conventions or any other laws of war anyway. The whole point of the Conventions and similar agreements is that we treat their people well and they do the same for ours. The converse must also hold – if we want them to stop mistreating our people, we must make sure they know that the consequence is that their people will be mistreated too. Otherwise, why should they change their behaviour? If they start treating our people well, then we can do the same for their people.

  28. “I think, Eric, that if you were analyze this subject using anarcho-capitalist theory, you would have better internal consistency.”

    Difficult proposal I fear. Nice idea though!

  29. I agree with ESR that most of the kerfuffle is faux moralizing for the purpose of attacking the US (and anyone who cooperates with the US). (More precisely, any nation which cooperates with the US directly instead of showing proper vassalage to Old Europe. France’s intelligence and security services work freely with the US against jihadis; but Poland must be put in its place.) The struggle against Islamofascism is awkward, because it does not fit in any traditional category – it is both a military and law-enforcement process.

    A traditional soldier forfeits certain ‘civil rights’: while ‘under arms’ he may be killed at will; if captured he may be imprisoned without trial, and held indefinitely (till the war is over, and sometimes well after).

    OTOH, he is immune if he surrenders, and may not be punished for acts of war, even though such acts would be capital crimes for a civilian. This benefit may even be extended to rebels acting without the sanction of any recognized government, such as “Confederate” soldiers in the American Civil War, or American Indians. (After the Sioux Uprising of 1862, President Lincoln pardoned 265 of the 303 Indians captured: all those not guilty of rape or murder of civilians, even if they had killed soldiers.)

    However, to receive this benefit, the soldier must follow certain rules: wear a uniform, don’t hide among or attack civilians. When his government surrenders, he surrenders. The uniform is perhaps the most important – it identifies the soldier, removing all doubt as to his status. (That’s why no trial is required.) The jihadis wear no uniform. This deprives them of all customary protection, but it also creates doubt.

    A guerrilla such as a jihadi thus is both more and less protected than a soldier. He has no right to commit acts of war, nor to safety by surrender. OTOH, a suspected guerrilla could be a civilian, and as such does have rights. Kipling’s Private Mulvaney once said

    ‘Tis only a _dah_ an’ a Snider [rifle] that makes a dacoit. Widout thim, he’s a paceful
    cultivator, an’ felony for to shoot.

    The necessity of determining, or even proving, the status of a suspected guerrilla makes the situation de facto a crime/police operation. Yet the number of and danger from guerrillas can easily overwhelm police facilities.

    In the present crisis, the U.S. government has to act, and the absence of clear and workable rules to follow, it’s inevitable that some will cry ‘foul’. Given the hostile prejudices of so much of the news media, the propaganda efforts of the enemy, and the harassment from political opponents, secrecy is required.

  30. Wouldn’t surprise me if there were secret prisons. Americans perhaps more than any other group have mastered the art of incarceration and clandestine incarceration, especially to keep those undesirables in line.

    The view of the War on Terra as a kind of extended Jim Crow may be the best insight into politics and history that I’ve received in years. There’s a brutality at the heart and soul of American “consciousness” — and appealing to that brutality yields substantial political results.

  31. The NGOs and EU dilettantes wish to descend on every US detention facility like a plague of locusts to impose restrictions and inefficiencies to sooth their fluttery hearts. Is it any wonder that the US wants to avoid that like the plague? So they play a shell game.

    Personally, I don’t think that there are any secret CIA facilities in E. Europe. I think that Khalid Sheikh Muhammed was rendered to Poland or Romania and held in their own facilities under their more than adequate anti-terrorism laws. As an allied government, and the one that brought the main course to the party, the US has free access to these prisoners and there is probably an agreement that the government holding these international criminals will render them right back if political circumstances force them to do so. Do you want to hazard a guess how long you can be held in Romania or Poland without charges or a trial? If it’s anything like France or Spain, it can be years.

    The CIA, US State Dept. Polish foreign ministry, Romanian foreign ministry, and the President of the US can all say, truthfully, that there are no secret CIA prisons in E. Europe in this scenario while the bad guys are interrogated forcefully, possibly more forcefully than US law would permit.

    It’s a very likely part of any such deal that the US agrees to play pinata in order to protect the more fragile governments and economies of its allies. So there we are giving false signals out that we’re the people that should be protested against and the interrogation work goes on.

    As to our obligations to treat the terrorists, we have a general obligation under the customary laws of war to treat civilians as immune to combat. We also have an obligation to treat harshly combatants who ignore those immunities in order to force them to “fight fair” as it were and leave the civilians out of it by not killing them on purpose, not hiding amongst them, not using them as cover and firing behind a screen of noncombatants, etc.

    Al Queda habitually violates these rules as does the rest of the anti-Iraqi forces. We are obliged by treaty obligation to treat them poorly enough that they stop doing that. So far we have not been harsh enough to make our enemies honor the customary laws of war even in at their most basic level.

    I think that allowing scary tales to float out of “secret prisons” is a legitimate punishment tactic for persistent and widespread war crimes as policy behavior on the other side. We could legitimately do a great deal worse. To fulfill our obligations to induce Al Queda and Co. to follow the customary laws of war, we actually should.

  32. ESR,

    There are several reasons why secret prissons in Europe would be problematic. A very concise and clear statement of why was made by Karl-Friedrisch Lenz, a German blogger and lawyer:
    “Unsurprisingly, there was not much support for the idea that torture and disappearing policies that are illegal when perpetrated in the U.S. become magically
    okay the moment they are relocated to Europe instead.”

    The EU is obliged to follow a series of treaties, amongst them the ECHR, European Convention on Human Rights, and there are serious consequences for countries that cooperate in activities that affect the fundamental rights of people, such as torture. The military base argument is not necessarily valid for several reasons, often although administration is by the US, legal title is held by the hosting country, for example, and thus the country in question has nominal sovereignty on it.

    That said, the argument that “they’re enemy combatants so it’s AOK” is a bit, you will forgive me, reminiscent of the arguments for ordeals: if something happens to them it’s because they’re witches and they brought it upon themselves. I don’t agree with your position that all is fair against enemy combatants, but let us say I do. What mechanisms of oversight are there to ensure that it is only in fact enemy combatants that are being detained in a secret prison, which is by its very nature inaccessible to judicial scrutiny? What mechanisms are there to ensure that due process of law and proper standards of evidence are followed with the imprisoned people before they have been proven to be enemy combatants, and therefore “un-persons”?

    An EU country cannot, by treaty, cooperate in torture, not even in the torture of enemy combatants against the US. Needless to say this creates potential legal problems: if the prisons are secret, how can it be ascertained whether torture is being commited?

    It is surprising that someone with a libertarian anti-government bent like you is willing to accept unchecked unmonitored powers for the government. I understand that terrorism is a serious issue, but I don’t see how a government is more likely to act honestly under the veil of secrecy whether this veil obtains from anti-terrorist strife or anti-socialist, for example.

  33. >What mechanisms of oversight are there to ensure that it is only in fact enemy >combatants that are being detained in a secret prison?

    That would be a fair question, but it’s not the line the Europeans are taking.

  34. What is the line us Europeans are taking? Because I don’t claim to have been original in posing that question. The citizens, politicians and journalists in Europe are worried about the following issues:
    0. Is torture being commited under European sovereignty (technically under sovereignty of EU member states)?
    1. Are EU member states or EU candidates such as Romania knowingly cooperating in the withdrawal of rights enshrined by ECHR? If so, there are EU sanctions that are to be applied. Note this would include due process of law.
    2. Are EU member states knowingly permiting transit or otherwise cooperating with the US’s withdrawal of fundamental rights as defined in ECHR?
    3. Can secret prisons exist in ECHR-signatories’ sovereignty, or does secrecy necessarily impede judicial oversight as required by ECHR?
    4. Has the activity of the US or those who cooperate with the US been limited to non-EU citizens? (Obviously, EU countries have certain responsibilities about the treatment of EU citizens in their territory, as you might imagine.)
    5. Is the activity of those prisons permisible under national, EU and international (often binding on EU members by treaty) law?

    Also, remember that when a country like the US claims that what it does within its territory or within its military bases under its administrative power is a matter pertaining exclusively to internal politics, not to be under any restriction of international law, customary laws and uses of war, etc, it makes it more difficult for the international community (the US included) to put pressure on regimes which allegedly do not respect the human rights of their own citizens, such as Iran, Cuba, China, Pakistan, Turkey, etc. (I say allegedly because I do not personally consider to have evidence for those abuses, although I think it likely that such abuses are taking place.)

  35. I think David pretty much nailed it…

    Another issue that arose in Portugal was whether the CIA was secretly using Portuguese airports and airspace for this purpose, secretly meaning without notifying Portuguese authorities. I believe this was also an issue in other EU states.
    This would present, I think, two distinct problems:

    1) Following from above issues regarding the ECHR, I believe that EU member states would likely be required to enforce the treaty, including in cases where other nations, like the US, would require use of EU member states’ facilities or national space (airspace, maritime space, etc)

    2) It would be a case of the US conducting intelligence ops. on a foreign, allied territory, without the host nation’s knowlege or consent, which could be a serious diplomatic incident, not to mention a total disregard for the due processes of diplomatic relations

    I mean, we may be allies, we even have troops in Afghanistan and Iraq, but we have the right to know what you’re doing on OUR backyard. It’s still OUR territory, governed by OUR laws, and as such, we still have a vote regarding what you can or can’t do on OUR sovereign space.

    Finally, I think these actions (i.e: torture, denial of rights, etc), kills a lot of the “moral high-ground” that democratic nations have over the Islamofacists. Our societies are built on certain values that are, by definition, fundamental. Like human rights, civil rights and the primacy of laws, laws of war, international laws and treaties.
    This kind of action stampedes over these fundamental values, and could make us more similar to our enemies that we’d like to admit.

    Sure, eliminating terrorism is not negociable. Kill them IF we have to, capture them if we can, but eliminate them. If they’re captured as combatants, the Geneva convention applies, and certain rights that come with it. If captured as criminals, other laws apply, and the rights that come with those. Despicable or barbaric as they may be, they are still humans and respecting fundamental rights and national and international laws and treaties is not negociable, for it’s what makes US better than THEM, civilized instead of barbaric.

  36. Well, I’m a caucasean European guy, and by the way the things are going, I would be afraid of being an Arab, because I think it would make a suspect of me. See the case of the German fellow arrested by the CIA and set free with no formal accusation after being tortured(he says).

    Here in Portugal, our constitution states that we are innocent till proved otherwise. ESR says that terrorists should not be tretaded that way but, how do you know they are terrorists until you clearly prove that(in a trial, of course)?

    I’m with the European Union, defending the respect for the international laws. If the USA only respects that laws when convenient, I must say the USA administration does not qualify for hacker, I should let them the advice I saw in the ‘Pragmatic Programmer’ book: ‘Don’t live with broken windows’.

    Also I learned with ESR the power of the bazaar: people all over the world freely sharing knowlege and helping each other without regards over their country of origin. I don’t believe in a world with Americans + the others.

  37. Everything isn’t quite what it seems. So European nations would be right to eschew torture and right to expect that the US would do so, too. But, for example, “[Lord] Steyn claimes (sic) that the “true” definition of “torture” includes “coercive questioning” and that the official US definition is “extremely narrow” (Spectator).

    http://www.spectator.co.uk/blog/index.thtml#232

    IOW, a biased judiciary in the UK, detached from the political process, antagonistic to the British government, and not democratically accountable, can hold the US guilty before we start by applying whatever definitions it chooses – or needs for the purpose. The end result is that any evidence against an Islamic terrorist that the US has can be ruled inadmissable. Consequently, the safety of the public is compromised, but the judiciary either doesn’t realize that or doesn’t care.

    At bottom the point is the same one that esr has made before:

    “the culturally dominant intelligentsia do not appreciate the extent to which they are the useful idiots of those who wish to destroy Anglo-American liberal democracy.”

  38. Everything isn’t quite what it seems. So European nations would be right to eschew torture and right to expect that the US would do so, too. But, for example, “[Lord] Steyn claimes (sic) that the “true” definition of “torture” includes “coercive questioning” and that the official US definition is “extremely narrow” (Spectator).

    http://www.spectator.co.uk/blog/index.thtml#232

    IOW, a biased judiciary in the UK, detached from the political process, antagonistic to the British government, and not democratically accountable, can hold the US guilty before we start by applying whatever definitions it chooses – or needs for the purpose. The end result is that any evidence against an Islamic terrorist that the US has can be ruled inadmissable. Consequently, the safety of the public is compromised, but the judiciary either doesn’t realize that or doesn’t care.

    At bottom the point is the same one that esr has made before:

    “the culturally dominant intelligentsia do not appreciate the extent to which they are the useful idiots of those who wish to destroy Anglo-American liberal democracy.”

  39. Carefully re-ead, “Just desserts” If you’re half as intellegent as I think you are, you’ll understand why secret prisions and torture are verboten. phil

  40. And he is pro-war… But very strongly anti-torture.

    “I refer Levin to the Schmidt Report, the Taguba Report, the Jones-Fay Report, the Schlesinger Report, the mounds of evidence collected by the International Red Cross, the hundreds of carefully checked newspaper reports documenting torture, abuse, murder, rape, and beatings in every single theater of this war by every branch of the armed services against defenseless military detainees. I refer him to the testimony of West Point graduate Ian Fishback and countless others. I refer him to the many memos constructed by the Bush administration defining and redefining “torture” to the point of meaninglessness. May I offer him a cup of coffee and a warm welcome to reality as well? ”

    “A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor.”

  41. Well, the judiciary is separate from the political process, as you say, and this is not a bug, but a feature. Separation of powers rings any bell?

    It’s a curious paradox how the commie intellectuals would destroy liberal democracy, considering how the current governments are managing well enough without them, attacking the separation of powers, the inviolability of fundamental rights of persons, the rule of law, the binding force of treaties and international conventions, &c. The judiciary in the UK is attempting to hold to its own standards of evidence. If a policeman in Britain uses certain methods to obtain information, that information cannot be considered in a court of law. Why should other State actors be free from this constraints? You might think that all these safeguards are just formalist useless things we must live behind in a dangerous world, but that would, necessarily, also mean leaving behind much of what liberal democracy has come to signify.

  42. That would be a fair question, but it’s not the line the Europeans are taking.

    Is that all you have to say to Americans who ask the same questions?

  43. Is that all you have to say to Americans who ask the same questions?

    Quisling! Fifth Columnist! Bush-hater! Benedict Arnold!

    Sorry, I was channelling Ann Coulter there for a minute.

    Good cartoon here.

  44. I’m a german citizen. And now I’m imagining the following.

    It’s quite late in the day and I return from the local pub. A black truck stops in front of me. And I’m snatched right off the street. Somebody drugs me, puts diapers on me, blindfolds me, cuffs me, and I awake in some prison cell in Syria, Afghanistan or elsewhere. The first thing I’m told is that I have no rights anymore. It all sounds like a cliche Hollywood movie probably would picture things. But it appears to be the norm of practice in the CIA today.

    Now if I’m lucky I’ll be set free somewhere in the outer rim of the galaxy someday I guess. Or I just might never be freed at all.

    In my prison cell I’ll probably think: It’s not over yet – don’t worry. Germany – my country – will do everything they can to retrieve and protect its citizen. Anywhere in the world.

    But apparently, it isn’t when you’re illegally abducted by the CIA. I just mention illegal here, because you might think there are reasons that could make something like this legal. Or laws. No, there are none. If they know anything useful at all, they might not even risk being critic about it not to anger some US politicians. Because just like you, the first thing they’ll scream is “anti americanism”.

    Eric, I’ve always enjoyed most of your comments but this ambigousity or double moral standard does not suit you.

    Now – I’m sitting in that cell and I cannot possibly know that the german minister of the interior has just given the ambassador from the US some the promise to keep his lips tightly sealed about me disappearing. Possibly forever.

    The ministor of the interior is under oath of office, I’d think. He has sworn to uphold the law and protect every german citizen in the world. No way I’ll ever believe in my situation that he’ll sit on his chair in silence, while I’m – you might as well admit it’s what’s happening – being tortured.

    Everything that can be made public – should be. That is the very least I should expect to happen. My human rights – I keep them whereever I go. One of the most important principles of any Government in the world is to protect its own citizens. My country *has* to help me. The law demands it.

    If the state does not keep its protective functions all intact, something is wrong. If the promise of a senile minister is worth more than anyones human dignity and rights, then the Parlament has to step in and enforce the rules the state was built on.

    If Rice now claims that all torture is forbidden, the prisons might as well be boarded up and closed. Because there will be nothing to hide any longer. This isn’t happening.

    Both our countries political parties are guilty. Germany is at fault for not keeping its own integrity intact. With Merkel at the helm the country will have a hard time standing up to illegal CIA activities like that. The US party is guilty of abductions, torture and likely some more. We need more real professionals at work, obviously. In both out countries, and the CIA. People who do the right thing the right way.

  45. Look, if you wanted to make me disappear, you could — it’s just a matter of how much effort you’re willing to expend. A solved homicide rate above 30% is considered amazing in the LE community. Making small quantites of people disappear just isn’t hard, not for an individual, and especially not for a government. The PATRIOT act, DMCA, or Abu Grahib isn’t going to suddenly give Uncle Sam this power — the Secret Service has had it for years. It’s called “getting away with it.”

    If you’re not comfortable with this, learn how to defend yourself, and avoid making enemies.

    So the question is not whether or not that ever happens, but how often. Humor me. Compile a factual list of grievances to civilian non-coms. Jeff, your link to a year old report on Abu Grahib is cute, and not much else. Show me the German civilian who was just plucked up out of nowhere and stuck in a Secret Prison (TM) by Uncle Sam, without due process or nothin’.

    I could tell you some things the French government has done to its civilians that should make your skin crawl. If you think the PATRIOT act is evil, you should see what France rammed through its legislature post 9/11.

    Get. The. Facts.

  46. > But the outrage being ginned up isn’t over any alleged inhumanity, it’s against the U.S. having such facilities at all. And I don’t get that.

    Those facilities were set up _to be out of USA_, so several US laws don’t apply! I don’t get it how anyone can defend any country letting it happen that their secret service sets up facilites outside their country to circumvent their country’s laws.

  47. Pete Bessman:

    There is no “We suffer more than you” in the face of torture. To say that what is happening in France is “more evil” would only have somebody from another country come here to post “What happens in my country is even worse”.

    There hardly can be anything worse than torture done to you. Especially if your captors intent to get you through as much of it as possible. And this happens in a lot of places in the world right now. Eric’s blog entry happens to be about the CIA abductions and torture – but that doesn’t mean we can’t bring up what else is happening.

    But if you play the CIA abductions down, or mock somebody for posting photographs of what may very likely be part of what’s going on there every day, you mock yourself.

  48. Hmmm.

    There are two objections to sidestepping due process in these cases: principle and pragmatism. As a matter of principle, these prisoners are *suspected* terrorists/enemy combatants until they have been tried in a court of law, As a matter of pragmatism, information obtained under duress is typically of little value. Also, I believe the British government tried internment of IRA suspects, and it did more harm than good by swelling the ranks of the “enemy”.

    It really shouldn’t be necessary to lecture an American on the value of legal checks and balances in government, given that this has always been the most admirable aspect of USAnian culture. But then you don’t believe in government, so perhaps it’s not surprising.

    Utter and completely false.

    1. A court of law has nothing to do with making determinations of whether or not an individual is an “enemy combatant” or a “terrorist”. Being a terrorist isn’t illegal. Committing a terroristic act can be illegal. In neither case is a court involved.

    2. Information obtained under duress is often extremely useful, as long as there is sufficient corroboration to ensure it’s accuracy.

    3. It is utterly false to equate American rendition with the British procedures. It’s even more incredibly false to draw an equivalence between the two.

    4. Again neither enemy combatants nor terrorists are due legal protections. Unless you’re of a mind to force American soldiers, in the midst of combat with RPG wielding thugs, to employ Miranda warnings and forensic science. Even the concept of applying law enforcement mechanisms to warfare is utter rubbish.

  49. Hmmm.

    Frankly what I find curious is the viewpoint that being morally correct is more valuable than survival. IMHO I’ve always thought the point of fighting a war is to win it, and the point of winning it is to survive. As for the moral issues schtick, it would be a lot more impressive if it weren’t for the fact that European nations have never themselves ascribed to such notions.

    The litany of horrors, atrocities and political expediency conducted by Europeans is rather lengthy list so the old adage about glass houses and stones should probably apply.

    Personally I’m rather certain that European nations are doing the same thing now as America has, it’s just that European control over the media is much stronger than here in America so it’s less likely to be public knowledge. *shrug* but hey, whatever makes you happy. If complaining about America makes you happy then go for it. I figure that’s probably the entire reason for the Kyoto Treaty as an example.

  50. Ed, here you go stomping your feet on the ground, “But your country is evil too! Why always blame us?”.

    Because we just learned what the CIA was doing, that’s why. The media is more or less in control everywhere in all the same ways. No, I’m positive that Germany isn’t flying planes across the USA just to land, pluck people from the streets and then just vanish.

    If that would ever happen, US citizen will be right to demand their people right back – and the US government would of course demand it’s citizens are to be brought back immediately or else. I wish Germany had the strength to demand just that. Because they damn right have to. But that would be anti americanism at it’s best in the eyes of some people here I guess.

    And now engulfed in the agony of having probably lost people we should really care about as they are under German jurisdiction, german citizens get frustrated about their own government being unable to protect it’s citizens or even open it’s ugly mouth and demand the prisoners be brought back here right this instand. This is not happening, so it’s only natural that their voices get louder and fill with anger, but it’s for the most part self-critism about the German government being stupid. Everyone knows who is to blame for the original sin of capturing people, and if you tell the protesters to take their so called “anti americanism” elsewhere, you don’t understand the situation they are in. Believe me, you would be angry too. I would go as far to say that I’d believe that quite a chunk of the US population would want to go to war right then and there if that ever happens the other way around. It’s a one-way morale standard, quite sickening to me.

    Really, about this anti-americanism crap – don’t even go there.

  51. Hmmm. I really must remind you of the second paragraph of our Declaration of Independence:

    >We hold these truths to be self-evident, that all men are created equal, that they are endowed by their
    >Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of
    >Happiness.

    Please note that it says “all men…” (and, by common modern understanding, “all people…”). It does not say “all citizens of the USA…”.

    Secret prisons would make the founding fathers roll over in their graves. (Hmmm, that reminds me about an idea to reduce global warming….)

  52. esr: ‘I’m not clear that the behavior of civilized adversaries towards U.S. troops has ever been substantially different from what the CIA is being accused of.’

    Are you the one that once writen: `the Right has failed us by pushing ‘anti-terrorist’ measures which bid fair to be both ineffective and prejudicial to the central liberties of a free society; and in some cases by rhetorically descending to almost the same level of bigotry as our enemies’ ?

    Also, I know I’m about to repeat the remark other people already said, but I still don’t catch how a libertarian can approve an institutionalised distinction between an american citizen and a foreign citizen when detained by the american authorities. I disagree often with `classical’ libertarians, but rarely on the subject of equity before law.

  53. Eric, I peronsally believe, and think that the law says, that the actions of our (US) agents should always be bounded by the Constitution. And our Constitution does *not* offer protections to US Citizens! It offers protections (from the actions of our Government) to every human being: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” It doesn’t say “no citizen”, it says “no person”, and this choice is found throughout the Constitution. So no, our jackbooted thugs don’t get to do to Achmed what they aren’t allowed to do to Eric.

  54. Frankly what I find curious is the viewpoint that being morally correct is more valuable than survival.

    Well, in the usual spirit of totally ludicrous extreme examples:

    You are in a room with your Enemy, who wants to kill you. He has a Ray Gun, and all he has to do is shoot you once with it and you are irrevocably dead. You have a Big Red Button; if you push it, not only your enemy but everyone else on the planet Earth will drop irrevocably dead.

    Do you push it or not?

    IMHO I’ve always thought the point of fighting a war is to win it, and the point of winning it is to survive.

    Very few wars, if any, are genuinely fought for survival. “Many nations have talked of fighting to the last man, but none have ever done it; and there has never even been a question of fighting to the last woman and child.” Wars are fought over such things as women, territory, and prestige.

  55. Really, the idea that this war is being fought for “survival” is totally ludicrous. How many Americans have died in terrorist attacks in the past decade? It must be a statistically insignificant number of deaths compared to the total number of American deaths in that period. Yes, there’s always the chance that some terrorist group or other could carry out a devastating biological/nuclear attack. But this possibility is /never/ going to go away, however many wars you have. And the evidence that the present war has reduced this risk is, to say the least, unconvincing.

    Since I feel like winding up a few libetarians, here’s a proposal for those who are interested primarily in the survival or American citizens, and who are less interested in “moral correctness”. Make seatbelts compulsorary. Any moral objection you have to such an abuse of government power must be overridden by concern for the survival of your countrymen.

  56. In the long run, this war may well be a matter of survival. But there are strategic features of this war that we cannot afford to ignore. And one of them is that we can’t win by intimidating or killing every person who opposes us in the Middle East. There are a lot of them, and many of them don’t scare easily.

    If we make them bear the kind of hate for us that outlasts generations, we will never be rid of the danger.

    I draw a distinction between American citizens and foreigners in American capitivity, but I will not go so far as to say that we are within our rights to treat foreigners however we wish. Nor will I say that we have to treat everyone we designate an ‘enemy combatant’ as ‘meat to be butchered’ to win this war. We didn’t have to butcher every German and Japanese soldier to win World War Two. The US didn’t have to kill every Confederate soldier, or even every Confederate general, to win the Civil War.

    And so I am reluctant to let my government get practice in the art of secret detainment, torture, and evasion of legal watchdogs. Because I know such practice can be applied to _me_.

  57. “We didn’t have to butcher every German and Japanese soldier to win World War Two.”

    Your right … we just dropped Atom bombs on a few city’s, then asked if they wanted some more :)

    Speaking of bombs … what is the deal where the USA actively works at building more powerful weapons … including Bush’s dream of “hand-held nuclear devices, for soldiers to take out in the field”. Yet no other country can even have a nuclear program? … (like IRAN, N Korea …etc) at least no other country that the USA thinks they can beat-up anyway.

    Of all the Nations that have Nuclear capability, the USA is the only one to EVER use it for an act of war … they should be the one’s to give up their Nuclear program. I would like to see the nations around the world demand the USA to give them up … or face the consequences. The USA couldn’t beat up everyone at once.

  58. What our government does with terrorist actors – let them do what they have to do to protect us from these evil individuals that have no business remaining alive and living among us. As far as I am concerned no more American lives need to be taken by these evil people. I hope they all die of a horrible and painful death. EVERYONE ONE OF THEM………TERRORIST ACTORS ARE NOT HUMAN, THEY ARE THE DEVILS SPUNS AND AS THAT GOES THEY NEED TO GO TO HELL. if the CIA which they are not mind you placing these animals in secret prisons, I say. TURN ON SPARKY and end their lives. These monsters deserve the pain 10 time over the pain the innocent people felt on Sept 11. You are an idot and if you would have lost your child or mother in the world trade center – or you witnessed your dad jumping for his life on fire – you would probably change your stupid mind. Idiot………… I only hope and pray you never have to endure what thousands of American had to endure that horrible day. You probably are one of them an evil discusting bastard that has no morals and probably never had a mother. Ass

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