I think the Obama administration is not likely to cede that authority back to the Congress.
— Dick Cheney, Dec. 15, 2008
What the cynics fail to understand is that the ground has shifted beneath them.
— Barack Obama, Jan. 20, 2009
I was talking with a reporter friend last night about President Obama’s executive orders on detentions, interrogations and Guantanamo. We were simply amazed by how far Obama went in repudiating the Bush era — the CIA secret prisons: closed; extraordinary rendition: ended; Geneva Common Article 3: the "minimum baseline" for detainee treatment; Guantanamo: to be closed. If you’re Dick Cheney, and you view these orders alongside Obama’s executive order on governmental transparency, right now the country has just lost its mind.
But it needs to be remembered, as Daphne Eviatar suggested yesterday, that the orders aren’t the end of the issue. They put in place a process for repudiating the Bush administration’s apparatus of torture and detention. The journey, in other words, isn’t over. And there are several things to watch for as the process unfolds by which we can judge how thoroughly the new Obama administration legal and policy architecture lives up to the promise of the executive orders. Here are a few, as best as I can determine them.
(Warning: this post is LONG.)
What’s kept classified in the government-wide field manual on interrogation. This was an issue in yesterday’s confirmation hearing with ret. Adm. Dennis Blair, Obama’s nominee to become director of national intelligence. After affirming that he agrees with the executive order’s mandate on harmonizing all interrogations in line with the Geneva Conventions-compliant Army field manual, Blair said he’d support keeping some specifics about the implementation of the Geneva-compliant techniques classified, although he promised that that wouldn’t be a backdoor for the re-introduction of torture techniques. ("Not saying ‘Here’s the document, and then, just kidding, here’s the real stuff.")
But implementation is important stuff. At Emptywheel, bmaz has been sounding the alarm that not everything in the 2006 rewrite of the Army field manual on interrogations is complaint with Geneva — in particular, a ten-page appendix known as Appendix M appears to go beyond the Geneva-based restrictions of the original field manual. This is something to watch for in the review. If the review merely assumes that everything in the field manual is Geneva-compliant, it may end up reaffirming a codification of torture. And beyond that, guidelines for performing, say, the field manual technique of "Pride And Ego Down" (that link goes to a section of the old, pre-2006 rewrite field manual) need to ensure that things don’t get out of hand in the interrogation chamber.
What sort of human-rights promises from governments? Part of the task force’s mandate is to look at rendition. Rendition is the extra-judiciary transfer of a person in custody, different from post-conviction extradition, from one government to another. Under the Clinton and Bush administrations, that became expanded to a process known as extraordinary rendition, whereby transfer of detainees occurs to governments known to use torture. Typically, that process involves getting an assurance that there won’t be any torture, but in practice, it’s a cynical wink-and-nod maneuver to see no evil. The task force is mandated to review:
the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.
White House officials said yesterday that while the original sense of the term ‘rendition’ may continue, the second won’t. "There is not going to be rendition to any country that engages in torture," one official at a background briefing said.
But how will that be determined? Poland, we know now, hosted some of the CIA’s secret detention facilities. But the State Dept., even through that period, said that Poland didn’t engage in torture. One of the president’s most important counterterrorism advisers, John Brennan, has called rendition "absolutely vital." What will count as a determination that a country doesn’t torture and is eligible to receive prisoners?
How long can the CIA hold detainees? The order is clear that the CIA is out of the secret-prisons business. But it does say that the prohibitions "do not refer to facilities used only to hold people on a short-term, transitory basis." Often, the CIA will be in a position of receiving detainees from partner intelligence services — cough Pakistan cough — before either detaining them itself or transfering them to military custody. The exemption here is probably designed to cover that, recognizing the reality that there will be times that CIA will simply have to have custody of detainees.
But for how long? What’s "short-term"? A few days? A few hours? A few weeks? The order further says that all U.S. agents must give the Red Cross "notification of, and timely access to, any individual detained." But it’s hard to imagine a circumstance in which the CIA will give the Red Cross access to just-captured detainees. During at least some period of time, these captures will be so-called "ghost detainees," as a practical. The question is how long. Additionally — although, if interrogations are harmonized across the government in line with Geneva, this may not be such an issue — what will happen to those detainees taken for interrogation in "temporary" CIA custody when no one is looking?
So those are some initial concerns to watch for. But there’s something else to consider. Let’s assume there are some people in the Obama administration who want to, for whatever reason, roll back the promises made in the executive order. They’ve got a hard bureaucratic road to hoe. The White House counsel Greg Craig is pretty hawkish against torture. The heads of the Justice Dept.’s Office of Legal Counsel, Dawn Johnsen and Marty Lederman, are too. As is the new Pentagon general counsel, Jeh Charles Johnsen. Positive signs on ending torture have come from the Attorney General-designate, Eric Holder; the soon-to-be-heads of the intelligence community, Blair and Leon Panetta; and, of course, Barack Obama himself. That’s not to say bureaucratic obstacles can’t be overcome. But it is to say that this is quite some firewall.
So I’ll be watching this stuff with vigilance. (Hold me to that.) But the early indications are positive. Obama just might have meant what he said, to Cheney’s horror, in his inaugural.
Crossposted to The Streak.