Obama Repeals Bush Torture and Detention Doctrine
As I was browsing through recent Executive Orders, I came across a January 22nd gem named Ensuring Lawful Interrogations “13491″.Substantively, it appears that the BUSH DOCTRINE , authorized under the series of questionable memorandum, is dead. It goes rather far to encompass interrogation tactics all the way through the closings of secret CIA prisons.
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked.
All executive directives, orders…. issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order….
Section 1 – The breadth of this order is to annul any changes to the policies (mainly Army Field Manual) of interrogation or detention that occurred under the Bush administration. These changes took place largely after 9/11, in response to some insolvent definition of the ‘war on terror’.
Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.
(a) Common Article 3 Standards as a Minimum Baseline…
… 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…
This effectively brings us back to Geneva Convention(s) notion of the international law of basic human treatment. Pulling from Article 27 “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”
(b) Interrogation Techniques and Interrogation-Related Treatment.
Effective immediately, an individual in the custody or under the effective control of an agent of the United States Government, or detained… in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes….. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.
This is saying that we are allowed to question and act reasonably for the gathering of intelligence. As America’s case law suggests, a coercive confession is both against the laws of man and often littered with inaccuracies if not outright falsehoods.
(c) Interpretations of Common Article 3 and the Army Field Manual.
From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2–22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation— including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor document, Army Field Manual 34–52—issued by the Department of Justice between September 11, 2001, and January 20, 2009.
This wonderful addition effective throws out the baseless memo’s that came from the Office of Legal Counsel. By nature, a memo written with a predestined conclusion will not be persuaded by proper logic. These memo’s suffered greatly from great legal leaps, diversions from precedent, and were able to fundamentally change existing law. Here is an example.
JAN. 25,2002 Alberto R. Gonzales, the White House counsel, in a memorandum to President Bush, said that the Justice Department’s advice in the Jan. 9 memorandum was sound and that Mr. Bush should declare the Taliban and Al Qaeda outside the coverage of the Geneva Conventions. That would keep American officials from being exposed to the federal War Crimes Act, a 1996 law that carries the death penalty. NY TIMES
The shift was so vast that Colin Powel drafted his own memorandum sharply criticizing Gonzales.
JAN. 26,2002 In a memorandum to the White House, Secretary of State Colin L. Powell said the advantages of applying the Geneva Conventions far outweighed their rejection. He said that declaring the conventions inapplicable would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops.” He also said it would “undermine public support among critical allies.”NY TIMES
To reinforce - this was not just a single persons’ abuse adventure;
AUGUST A memorandum from Jay S. Bybee, with the Office of Legal Counsel in the Justice Department, provided a rationale for using torture to extract information from Qaeda operatives. It provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense. NY TIMES
Section 3(c) gets rid of the all these memo’s which conveniently redefine the law against torture into the justification for torture.
Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.
(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.
Section 4 (a) has puzzled me; its markedly different from all the others. I didn’t shorten this as I did others. A single sentence with comparatively little detail should basically close worldwide interrogation facilities.
All told, more than 9,000 people are held by U.S. authorities overseas, according to Pentagon figures and estimates by intelligence experts, the vast majority under military control. The detainees have no conventional legal rights: no access to a lawyer; no chance for an impartial hearing; and… no apparent guarantee of humane treatment accorded prisoners of war under the Geneva Conventions or civilians in U.S. jails. Washington Post
It is not a secret, I have a distaste for opaque government. Imprisoning nine thousand people without any guarantee of rights is putrid to notions of Justice, Fairness, and Freedom. In a separate article, the Washington Post also contends that the conviction rate of these “terrorists” is abysmal. Washington Post. Which brings to point, if we can’t prove in Military Courts these people are guilty- they probably are not guilty. It comes down the presentation of evidence:
Prosecutors can also present evidence that would never pass muster in civilian courts. Confessions made under physical or mental pressure could be admissible, despite Obama’s disavowal of torture and coercion. There’s no ban on evidence from illegal searches. And defendants may be convicted on the basis of hearsay – a second hand report of an out-of-court accusation by another person, perhaps a fellow suspect, whom the defense never gets to see or question. SF GATE
This medium was created because terrorists maybe very elusive and thus we extended the ability to prosecutors to provide ‘anything they got’ to convince a military panel. This is the most liberal method and frankly offends justice in civilian courts. If this low threshold is not satisfied, but imprisonment is maintained by mandate of secret government, then we have abandoned notions of fairness. I am shocked that with literally nothing being barred from a Military Tribunal people should waste away in prison as unlawful Hostages to this American war.
Nonetheless, this Executive Order has returned the doctrine to a period before America justified any act via a terror prevention campaign.
