What to Look For As the Obama Detention/Interrogation Review Process Proceeds

Friday, January 23, 2009 at 10:50 am

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 Barack 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 former Vice President Dick Cheney, and you view these orders alongside Obama’s executive order on governmental transparency, you think right now the country has just lost its mind.

But it needs to be remembered, as Daphne 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 questions, as best as I can determine them.

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 human-rights promises will the U.S. get from foreign 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, where we know detainees were tortured. 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 measure.  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 questions 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 Department’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, 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.

Follow Spencer Ackerman on Twitter



Comment posted January 23, 2009 @ 9:05 am

Oh for God's sake. It's like progressives are determined that Things Will Be Bad. Obama won, but he's not as liberal as he should be! Well, he's pretty liberal, but he's appointing moderates! Well, he's going farther than we expected in shutting the Bush stuff down, but he'll try to sneak something through! Eek! Aah!

Comment posted January 23, 2009 @ 10:08 am

So now that Obama's elected I should stop reading the newspaper, huh? I mean, paying attention is apparently really cynical, right?

Hp Pavilion dv6000
Pingback posted January 24, 2009 @ 11:58 am

[...] The Washington Independent » What To Look For As The Obama … [...]

Jeff Weinberger
Comment posted January 24, 2009 @ 7:42 pm

I agree that Obama's statement, and its decisive tone, was very encouraging. But while you suggest it includes “extraordinary rendition: ended,” I ask when did he say this. You may rightly infer this from his statement, but I agree with Vincent Warren, Exec. Director of the Center for Constitutional Rights who, interviewed Friday on Democracy Now! , stated with regard to rendition:

“It’s a tremendous problem, and I think it’s a glaring hole. I think that one way that the Obama administration could have dealt a more decisive blow to the illegal Bush policies and even the rendition policy, which originated under Bill Clinton, is to specifically reference this and to say that we are going to disavow this policy, and we’re going to make right the renditions that we’ve—that the government has done in the past, including to the Center for Constitutional Rights client, Maher Arar, who was kidnapped and sent to Syria, even though he was on his way to Canada. I think that the Obama administration, likely because of pressure from the CIA, in trying to get that team together, has waffled, and it’s not engaged this issue yet. I am concerned that the Obama administration would even consider continuing this as a policy to effectuate the so-called war on terror or whatever it is he’s going to call it.”

Direct reference was never made by Obama to extraordinary rendition nor to how we will deal with prisoners in the other prisons in the War against Terror prison complex, like Bagram Air Base in Afghanistan, which holds even more detainees than Guantanamo. These issues need to be addressed not by implication, but in a clear statement of policy which unambiguously condemns the former practice and calls for investigations into violations of rights as in the case of Maher Arar; and includes the entire prison complex, not just Guantanamo, in a discussion of how the new administration will move forward.

freedetainees.org » Obama: Regime Rotation
Pingback posted January 26, 2009 @ 3:05 pm

[...] intelligence practices, than to allow them to continue in secret without legal obstruction, by redefining their character (while retaining their [...]

Obama: Regime Rotation « In These New Times
Pingback posted January 27, 2009 @ 12:24 am

[...] intelligence practices, than to allow them to continue in secret without legal obstruction, by redefining their character (while retaining their [...]

Obama: Regime Rotation
Pingback posted February 1, 2009 @ 7:46 am

[...] intelligence practices, than to allow them to continue in secret without legal obstruction, by redefining their character (while retaining their [...]

timmy o tool
Comment posted February 17, 2009 @ 3:22 am

Bush took it to a new level but you people do understand Clinton started the ball rolling on rendition practice. Republicrats/Democans….different side of the same coin.

Like the bloods & crips but with suites on. Start voting for those non politician 3rd party candidates in the future if you want real change america.

timmy o tool
Comment posted February 17, 2009 @ 11:22 am

Bush took it to a new level but you people do understand Clinton started the ball rolling on rendition practice. Republicrats/Democans….different side of the same coin.

Like the bloods & crips but with suites on. Start voting for those non politician 3rd party candidates in the future if you want real change america.

Leon Panetta: What’s he thinking? « Later On
Pingback posted June 9, 2009 @ 1:53 pm

[...] The propaganda-fuel argument is at least straightforward. But — and I freely concede that this is speculative, occurring in the absence of information due to the statement’s classified nature — how can al-Qaeda detainees learn how to evade questioning from descriptions of techniques that the Obama administration has forsworn? This is the sort of move that suggests that remnants of the so-called “enhanced interrogation” program are going to live on, speeches in Cairo promising new beginnings notwithstanding. Another thing to watch closely as the administration’s interrogations and detentions review proceeds. [...]

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