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].
