Questions about President Obama’s executive orders on the incarceration and interrogation of detainees

The big news of this week: Obama’s first executive orders were not the reversal of the Mexico City Policy (as every major media source and not a few bloggers had predicted, and for which Obama waited until Friday) but the reversal of notable Bush administration’s policies on the incarceration and interrogation of detainees:

President Obama signed executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.The orders, which are the first steps in undoing detention policies of former President George W. Bush, rewrite American rules for the detention of terrorism suspects. They require an immediate review of the 245 detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.

And the orders bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

However, while some cheerleaders for Obama are already hailing an end to the gestapo-inspired “enhanced interrogration techniques”, a review of critical responses — from the political “right” AND “left” — suggests that the President’s gesture is more symbolic and an exercise in moral posturing. It appears that serious questions remain about what is actually accomplished by President Obama’s recent executive orders.

  • Josh Gerstein of Politico says that Obama’s pronouncements may sound “dramatic and unequivocal”; however, experts predict that American policy towards detainees could remain for months or even years pretty close to what it was as President Bush left office. He lists some of the delays, caveats and loopholes that could limit the impact of Obama’s orders. For instance, his orders on interrogation mandate the establishment of an interagency commission which will have six months to examine whether to create “additional or different guidance” for non-military agencies such as the CIA. Likewise,

    A section of Obama’s order on Guantanamo entitled “Humane Standards of Confinement” orders Secretary of Defense Robert Gates to spend the next thirty days reviewing the current conditions at the Caribbean prison to make sure they’re legal and follow the Geneva Convention. It seems doubtful that Gates, who has been atop the chain of command for Guantanamo for more than two years, will suddenly find conditions that were just fine on Monday of this week are now flagrant violations of the Geneva Convention.

  • The editors of the National Review also raise some serious objections, noting “reflect an emerging Obama style: What is said is more rhetorical than illuminating—and what is most important is left unsaid”:

    Take Guantanamo Bay, the oft-maligned subject of the first order. In announcing the closure of the prison there, the president forcefully asserted that he was following through on a campaign commitment. But the order only promises that the facility will be closed within a year—a nonbinding deadline Obama could extend simply by signing another order. That’s not exactly the immediate shuttering his antiwar base was clamoring for, and such delay would be intolerable if Obama really believed Gitmo were the travesty he has portrayed it as.Moreover, the physical facility itself is of only symbolic importance. The underlying question is what to do with the detainees held there. On that, the executive orders tell us precious little.

  • Likewise, Timothy Sandefur (Freespace) believes “What exactly [Obama’s Gitmo order] means really remains to be seen”:

    We obviously have to wait for further implementation of policies with regard to Guantanamo Bay, but it’s important to note just how limited this executive order really is. All that it promises to do is to close the particular facility at Guantanamo Bay. It does not in any way promise to end the policy of keeping detainees in prison camps for long periods of time without judicial review, habeas corpus, or opportunity to seek counsel. This Order sets up a two-step review process, by a committee entirely chosen by the President and subject only to his absolute authority, whose proceedings are not made public, at whose proceedings a detainee is not apparently entitled to counsel, and whose decisions appear to be subject to no appeal process whatsoever. Of course, the Order is quite explicit that it “does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.”

    The committee is free to decide whether it is possible to transfer or release the individual, and, if not, whether it is “feasible” to prosecute such persons. If not, then the committee is not compelled to release such persons, or even to disclose what is to be done with such persons—instead, the committee will “select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals.” Of course, what does “lawful means” actually refer to? The previous administration, of course, considered all of its means to be “lawful” also.

  • In How the Press, the Pentagon, and Even Human Rights Groups Sold Us an Army Field Manual that (Still) Sanctions Torture (Alternet, January 25, 2009), Jeffrey S. Kaye revisits an earlier controversy involving the actual content of the “new and improved” Army Field Manual itself (FM 2-22.3), and the existence of a certain “Appendix M” — reserved for use on “unlawful enemy combatants.” — and which

    includes instructions regarding solitary confinement, sleep deprivation, sensory deprivation, and, in combination with other procedures included in the Army Field Manual, amounted to a re-introduction of the psychological torture techniques practiced at Guantanamo, and taught by Survival, Evasion, Resistance, and Escape, or SERE psychologists and other personnel at the Cuban base and elsewhere.

    A link to the Army Field Manual FM 2-22.3, “Human Intelligence Collector Operations.”, referenced by Obama’s Executive Order “ensuring lawful interrogations” as the standard criteria to be adhered to, is actually available online for your perusal. Circa September 6, 2006, it replaces Field Manual 34-52.

  • In other news, the New York Times publishes the news that one such detainee — released in 2007 and presumed “rehabilitated” — has taken up his former career:

    The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.

    The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen.

    His status was announced in an Internet statement by the militant group and was confirmed by an American counterterrorism official.

5 Responses to Questions about President Obama’s executive orders on the incarceration and interrogation of detainees

  1. John Henry says:

    Thanks for the post and for gathering the relevant links. Obama is a very shrewd politician; his strategy of making marginal changes with maximum fanfare is perfect press management in the post-election afterglow. Time will tell how effective this is long-term. For all of his talk about our nation’s collective emergence into adulthood under his administration, he has yet to make any difficult decisions.

    But symbolism is important, and even the relatively minor symbolism of an announcement that Guantanamo will be closed…at some point….in the future…is a step forward.

  2. Kyle R. Cupp says:

    I agree with John Henry that the symbolism here is important, and I’m thankful for it. Symbols can actually accomplish a great deal. Of course, I’ll be miffed if President Obama stops at the level of the symbolic.

  3. Matt McDonald says:

    Kyle/John Henry,

    but he has expressly stopped at the level of symbolic. He still allows “enhanced interrogation” of unlawful combatants, and reserves also the right to go beyond even the US Army field manual in extraordinary circumstances, he has not suspended the extraordinary renditions, or the predator missile launches into Pakistani villages. There are no changes to the warrantless wiretapping of international calls to suspected terrorists either.

    The only thing that changes is that the rhetoric is suggesting a change, this is dishonest whether you agree with these policies, or not.

    ps. Obama may move the site of the these detainees in a year or so, but so what? He can not, and will not make them generally entitled to the rights of US citizens/residents.

  4. Kyle R. Cupp says:

    I suspect the opinions coming from The Obama Administration’s Office of Legal Counsel will differ from those crafted under the Bush Administration. We’ll see.

  5. Phillip says:

    If I recall, the 2006 Field Manual allows one technique, Fear Up/Fear down, that some may consider torture.

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