Obama’s Torture Loopholes
by Prof. James Hill
Global
Research, January 26, 2009
http://www.globalresearch.ca/index.php?context=va&aid=12041
On January 22, 2009, President Obama signed a number of
executive orders purporting to end the Bush administration’s
abusive practices in dealing with treatment of terrorism
suspects. Before Americans get too elated,
however, they should look carefully at the inhumane interrogation
practices these orders may still permit.
When first announced, the
new president’s executive orders seemed cause for celebration,
prompting the American Civil Liberties Union to feature a link on
its website encouraging visitors to email the president and “Send
Him Thanks!”
The ACLU summarized the
new orders:
President Obama . .
. ordered the closure of the prison camp at Guantánamo Bay within a
year and the halting of its military commissions; the end of the
use of torture; the shuttering of secret prisons around the world;
and a review of the detention of the only U.S. resident being held
indefinitely as a so-called “enemy combatant” on American soil. The
detainee, Ali al-Marri, is the American Civil Liberties Union’s
client in a case pending before the Supreme Court.
Like many reacting
to the president’s orders, ACLU Executive Director Anthony Romero
expressed unbridled enthusiasm:
These executive
orders represent a giant step forward. Putting an end to
Guantanamo, torture and secret prisons is a civil liberties
trifecta, and President Obama should be highly commended for this
bold and decisive action so early in his administration on an issue
so critical to restoring an America we can be proud of
again.[1]
Torture by US officials
has long been illegal, but the president’s executive order entitled
“Ensuring Lawful Interrogations” seems to clarify, to some extent,
what activities are proscribed. Disappointingly,
though, this order contains loopholes big enough to drive a FEMA
camp train through them.
Loophole 1:
Torture is prohibited only of persons detained in an “armed
conflict.”
The executive order
applies only to “armed conflicts,” not counterterrorism
operations.
The order states in
part:
Consistent with the
requirements of the Federal torture statute, . . . the Detainee
Treatment Act of 2005, . . . the [United Nations] Convention
Against Torture, [the Geneva Conventions] Common Article 3, and
other laws regulating the treatment and interrogation of
individuals detained in any armed conflict, such persons
shall in all circumstances be treated humanely and shall not be
subjected to violence to life and person (including murder of all
kinds, mutilation, cruel treatment, and torture), nor to outrages
upon personal dignity (including humiliating and degrading
treatment), whenever such individuals are in the custody or under
the effective control of an officer, employee, or other agent of
the United States Government or detained within a facility owned,
operated, or controlled by a department or agency of the United
States [emphasis added].
This sounds salutary:
America should not torture people detained in armed
conflicts. But are such conflicts the only
situations in which the US military, federal agencies, and private
security companies can detain people today in the name of the war
on terror?
Hardly.
Many US and foreign citizens have been detained in
counterterrorism operations, which another of Obama’s
January 22 executive orders carefully differentiates from armed
conflicts.
In that other executive
order, entitled “Review of Detention Policy Options,” a special
task force is commissioned to review procedures for detention
suspects. This order clearly distinguishes
between “armed conflicts” and “counterterrorism operations”:
The mission of the
Special Task Force shall be to conduct a comprehensive review of
the lawful options available to the Federal Government with respect
to the apprehension, detention, trial, transfer, release, or other
disposition of individuals captured or apprehended in connection
with armed conflicts and counterterrorism operations, and
to identify such options as are consistent with the national
security and foreign policy interests of the United States and the
interests of justice.
As the president has made
this distinction, so should we.
To date, counterterrorism
operations have resulted in hundreds of arrests of persons in
America and abroad, having nothing whatever to do with any armed
conflict. Does President Obama wish limits on
what is done to these people when detained and
interrogated? His executive order on torture is
silent on the issue.
Moreover, we know that
many Guantanamo detainees from Pakistan and Afghanistan were sold
to US officials by bounty hunters paid up to $25,000 per detainee,
regardless of innocence.[2]
Are these persons to be considered “individuals detained in [an]
armed conflict”? Or must they be arrested while
fighting on the battlefield to fit this
qualification? Put differently, are blameless,
uneducated goat herders who were sold into detention by warlords
and mercenaries exempted from the president’s clarified prohibition
of torture, simply because they never stepped foot on a
battlefield?
Another concern is the US
military’s deployment in American cities, which began on October 1,
2008, according to the Army Times.[3]
Perhaps this deployment is in preparation for social unrest in the
event of an economic collapse. If martial law
were declared in America , how would citizens be
treated? What if they were detained in FEMA
detention facilities? Could they be tortured
under the umbrella of “counterterrorism operations” because that is
different from “armed conflict”?
To Americans wishing to
remain free of torture, a far greater threat than detention during
armed conflict is that resulting from what the federal government
labels as counterterrorism operations, conducted both on US soil
and overseas. Unfortunately, President Obama has
not yet clearly addressed torture in this category.
Loophole 2: Only
the CIA must close detention centers.
President Obama has
ordered the CIA to close detention centers, except those “used only
to hold people on a short-term, transitory basis,” which can stay
open indefinitely. Exactly how long a duration
is “short-term” and “transitory” is unclear.
The executive order
states:
The CIA shall close
as expeditiously as possible any detention facilities that it
currently operates and shall not operate any such detention
facility in the future.
This sounds wonderful, but
what about other federal agencies? Can the FBI,
National Security Agency, Department of Homeland Security, and
Defense Intelligence Agency maintain detention facilities where
torture may occur? Can private military
contractors like Blackwater do so? Under one
interpretation of Obama’s executive order on torture, those
facilities may still operate and even expand, provided the CIA
doesn’t control them. Is it cynical to suspect
this could be window dressing?
Loophole 3:
Officials may still hide some detainees and abusive practices from
the Red Cross.
On the Red Cross’s
monitoring of detainees, the executive order reads:
All departments and
agencies of the Federal Government shall provide the International
Committee of the Red Cross with notification of, and timely access
to, any individual detained in any armed conflict in the
custody or under the effective control of an officer, employee, or
other agent of the United States Government or detained within a
facility owned, operated, or controlled by a department or agency
of the United States Government, consistent with Department of
Defense regulations and policies.
Here again, if a detainee
is not one captured on the battlefield by US soldiers in an armed
conflict, Obama’s order provides no guidance as to his
fate. Government and private thugs may evidently
still brutalize detainees obtained in counterterrorism operations
and hide them from the Red Cross, unless and until the president
issues a further executive order, or Congress passes a law, closing
this loophole.
Loophole 4: Abuses
not labeled “torture” may continue.
Obama’s executive order on
torture does not label any particular practice “torture,” but
instead requires that future interrogation practices conform to
those outlined in the Army Field Manual. This may be in deference
to Bush administration officials who authorized procedures like
waterboarding while simultaneously declaring, “ America does not
torture.” Debate in some circles will doubtless
continue, therefore, over whether waterboarding; deprivation of
food, water, and sleep; humiliation; and infliction of severe
bodily pain and injury indeed constitute
torture.
The executive order
imparts the following limitations:
Effective
immediately, an individual in the custody or under the effective
control of an officer, employee, or other agent of the United
States Government, or detained within a facility owned, operated,
or controlled by a department or agency of the United States,
in any armed conflict, shall not be subjected to any
interrogation technique or approach, or any treatment related to
interrogation, that is not authorized by and listed in Army Field
Manual 2-22.3 (Manual). Interrogation techniques, approaches, and
treatments described in the Manual shall be implemented strictly in
accord with the principles, processes, conditions, and limitations
the Manual prescribes [emphasis added].
By this language,
waterboarding and other harsh interrogation procedures are
prohibited by implication because they are not authorized by the
Army Field Manual. But like other parts of
Obama’s order, this prohibition apparently applies only to persons
detained in an armed conflict. As discussed
above, we are left to wonder whether detainees grabbed in
counterterrorism operations can continue being tortured.
Conclusion
The loopholes in President
Obama’s executive order on torture may permit cruel abuses of
prisoners to continue, using a legal parlor
trick. Labeling detainees the product of
counterterrorism operations rather than of armed conflict, or
holding detainees in detention facilities operated by entities
other than the CIA, may allow government agents and private
contractors conforming to the letter of the president’s order to
continue practices most would consider torture.
The president should close these loopholes or explain to Americans
why he won’t.
James
Hill is a partner in the law firm of McDermott Will &
Emery, and a clinical assistant professor of radiology at the
University of Southern California School of
Medicine. The views expressed are solely his
own.
[1]
ACLU Press Release:
President Obama Orders Guantánamo Closed And End To Torture;
at
http://www.aclu.org/safefree/detention/38455prs20090122.html?s_src=RSS
[2]
See: Andy
Worthington:
The Guantanamo Files: The Stories of the 759 Detainees in America
's Illegal Prison. Pluto Press, 2007; and: Jeffery Rosen: Voices of
Victims (a review of My Guantanamo Diary: The Detainees and the
Stories They Told Me, by Mahvish Rukhsana Khan).
The New York Times, August 10, 2008, at http://www.nytimes.com/2008/08/10/books/review/Rosen-t.html?fta=y
[3]
Gina Cavallaro: Brigade homeland tours start Oct. 1. Army
Times, September 30, 2008, at
http//www.armytimes.com/news/2008/09/army_homeland_090708w