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Thursday, January 22, 2009

Fill In The Gray Areas And We've Got Something

by dday

Obama is following through on his promises. He is closing the Guantanamo prison and restricting the interrogation tactics used by the CIA. Before we get to the details, on the top line this is great news.

President Barack Obama is ready to issue orders on Thursday to close Guantanamo prison and overhaul the treatment of terrorism suspects, in a swift move to restore a U.S. image hurt by charges of torture.

A draft executive order obtained by Reuters on Wednesday sets a one-year deadline to close the controversial U.S. military prison at Guantanamo Bay, Cuba, where foreign terrorism suspects have been detained for years without trial.

Obama, who was sworn in as president on Tuesday, is expected to issue the order on Guantanamo on Thursday. He will also ban abusive interrogations and order a review of detention policies for captured militants, said congressional aides and a White House official [...]

"It's exactly the kind of bold action that is necessary," said Elisa Massimino, executive director of the Human Rights First advocacy group. "Both the speed and the content will send a clear message to our own people and the rest of the world that what he said ... he meant." [...]

Another presidential order would ban CIA use of "enhanced" interrogation methods by making all U.S. agencies abide by the Army Field Manual, which bans techniques such as waterboarding, a form of simulated drowning the CIA says was used on three terrorism suspects.

Outgoing CIA chief Michael Hayden has defended the harsh techniques and called the Army manual too restrictive but says the agency would abide by limitations. The CIA declined comment on the reports.

Obama is also expected to order a review of all U.S. detention policies.

Obama is really setting a bad precedent of keeping campaign promises and abiding by the rule of law. It's like the oath of office reboot, setting the horrible precedent of acknowledging mistakes and seeking to rectify them. Who does this guy think he is?

Aides sent around the draft order on Guantanamo today, and I think my favorite part is "the individuals currently detained at Guantánamo have the constitutional privilege of
the writ of habeas corpus." 1300 years of Western law restored in one sentence.

The rest of the details look fairly good. They'll essentially either try or release detainees, although there's this gray area of "other disposition" which needs to be clarified. With people like Marty Lederman now telling the President what he can and cannot do, I'm hopeful that this won't turn into a loophole. But it won't be for lack of trying by those who want to demagogue the issue.

GRAHAM: I do believe we can close Gitmo, but what to do with them? Repatriate some back to other countries makes sense, if you can do it safely. Some of them will be tried for war crimes. And a third group will be held indefinitely because the sensitive nature of the evidence may not subject them to the normal criminal process, but if you let them go, we’ll be letting go someone who wants to go back to the fight. … So we’ve got three lanes we’ve got to deal with: Repatriation, trials, and indefinite detention.

Indefinite detention is inconsistent with the Constitution and international law, as well as the stated rights granted under habeas corpus. And it cannot be allowed as a "third way" here. I think that civil liberties groups understand this and will be vigilant in ensuring that detainees be only tried or released. I can warm to the idea that this process will take up to a year (especially given the state of the evidence, which is haphazard at best according to prosecutors), but there have to be bright lines. Here's Anthony Romero, putting it much more diplomatically than I would.

"This is the first ray of sunlight in what has been eight long years of darkness, of trampling on America's treasured values of justice and due process. The order is remarkable in its timing and its clear intent to close down Guantánamo and unequivocally halt the Bush administration's shameful military commissions. While the order leaves some question as to how some detainees will be released or prosecuted, we trust that's not President Obama's intent and hope that any ambiguity is due to the fact that this order was done on day one in record time. We are confident that President Obama understands that indefinite detention without trial must end once and for all and that detainees should be either prosecuted in a federal court or, if there is no evidence against them, released or transferred to countries where they will not be tortured. Our centuries-old justice system is well-equipped to handle these cases, and it's a great relief to finally have a president who is committed to upholding American values and the rule of law. Although we have a long road ahead to get to an America we can be proud of again, change has begun."

I'm confident that the ACLU will keep pushing for justice. And while they're at it, they ought to trust but verify on torture. The most recent report before today's news that Obama would bring the CIA under the Army Field Manual included a "loophole" that would allow torture in extreme cases.

However, Obama's changes may not be absolute. His advisers are considering adding a classified loophole to the rules that could allow the CIA to use some interrogation methods not specifically authorized by the Pentagon, the officials said. They said the intent is not to use that as an opening for possible use of waterboarding, an interrogation technique that simulates drowning.

That's completely unacceptable and would be counter-productive. In addition, even if the entire government is brought under the Army Field Manual, we're STILL not done. As bmaz notes, even techniques allowable under the AFM can be combined in a fashion to effectively torture.

This is where Susan Crawford's stark admission comes into play. As Crawford admits, most all of the techniques used on al-Qahtani were actually permissible, but the layering of techniques compounded them into unmistakable torture.

Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani's health led to her conclusion. "The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge" to call it torture, she said.

Crawford has exposed to bright sunlight the lie that is Barack Obama's, and other politicians', simple minded reliance on the Army Field Manual as cover for their torture reform credentials. Interrogators can stay completely within the Army manual and still be engaging in clear, unequivocal torture under national and international norms, laws and conventions.

It could be that this is the "loophole" sought by Obama advisers, to allow the combination of certain techniques. Appendix M of the Army Field Manual may allow this latitude. That would need to be excised so that there is no ambiguity about the complete end to the torture regime.

Overall, we have an excellent set of proposals here, but the gray areas need to be filled in with the ideals of justice. President Obama said that the rule of law "will be a touchstone of my Administration". He has every opportunity to prove it.

...more hints that extra-legal interrogation processes may be allowed. Don't defend it, don't mend it, just end it, Mr. President. Most Americans support you banning torture.