President Bush signed an executive order Friday clearing the way for the Central Intelligence Agency to resume the use of “enhanced interrogation measures” against alleged terror suspects held in US facilities around the world.
The order, which was issued in conjunction with a classified list of approved interrogation techniques, is designed to provide a legal sanction for physical and psychological torture, and protect CIA operatives from being charged with war crimes for violating US and international laws against inhumane treatment.
The CIA reportedly suspended its program last year as the Bush administration’s legal justifications for abusing detainees was dealt a blow by the US Supreme Court ruling in the case of Hamdan v. Rumsfeld, which stated that all prisoners in US custody—of any nationality, being held in any country—were granted minimal protections by the Geneva Conventions.
Last fall, in order to deflect growing international and domestic criticism, Congress passed, with substantial bipartisan support, the Military Commissions Act of 2006. The Act instructed the administration to issue an executive order stating that any further interrogations would comply with US and international law. The Act also established, in law, a procedure of drumhead military commissions, after Hamdan invalidated the Bush administration’s previous procedure.
The order publicly prohibits “cruel, inhuman, or degrading treatment” as well as acts of sexual humiliation and those intended to denigrate religious beliefs—two widely used methods whose exposure provoked an international outcry. However, the order places no restrictions on such notorious techniques as the use of stress positions, sleep deprivation, extreme temperatures and so-called water boarding, which simulates the sensation of drowning. These techniques are expressly prohibited by the US military. Moreover, administration officials admit there are no provisions for allowing the Red Cross to visit CIA facilities or for prisoners to be in contact with their families.
While the list of approved methods remains secret, the Bush administration has not ruled out any technique. Administration officials have said that the new order will allow the CIA to continue with the same program that was in place before.
Noting that the written policies governing the CIA interrogation program remained classified and independent organizations such as the Red Cross were barred from monitoring the CIA’s compliance with its guidelines, Tom Malinowski of Human Rights Watch told the Washington Post, “All the order really does is to have the president say, ‘Everything in that other document that I’m not going showing you is legal—trust me.’”
Moreover, as Human Rights Watch notes, the order seeks to sanction what is an explicitly illegal operation: the CIA’s detention and interrogation program, which included the kidnapping and “disappearing” of dozens of terror suspects and their imprisonment for years inside secret facilities. Some prisoners, including those “renditioned” to third countries where they are tortured under CIA supervision, remain “disappeared.” In June, Human Rights Watch and five other human rights groups listed 39 people who remain missing, including one detainee, Muhammad Naeem Noor Khan, who recently reappeared in Pakistan.
The new order, the Human Rights Watch says, claims that the program “fully complies” with US obligations under the Geneva Conventions as long as the CIA follows a series of requirements in carrying out the program. “But enforced disappearance—the hallmark of the CIA program, involving secret, incommunicado detention—is itself inconsistent with the requirement under [Geneva Conventions] Common Article 3 that detainees be treated humanely,” the organization said in a statement on the new order.
“By international human rights and humanitarian law standards, the CIA program is illegal to its core,” said, Joanne Mariner, terrorism and counter-terrorism director at Human Rights Watch. “Although the new executive order bars torture and other abuse, the order still can’t purport to legalize a program that violates basic rights.”
With the new order in hand, Bush administration officials have told the Washington Post that suspects in US custody could be moved immediately into the “enhanced interrogation” program and subjected to techniques that go beyond those allowed by the US military. CIA detainees have alleged that they were left naked in cells for prolonged periods, subjected to sensory and sleep deprivation, extreme temperatures and sexually taunted. In a briefing with reporters senior administration officials said that any future use of “extremes of hot and cold” would be subject to a ‘reasonable interpretation ... we’re not talking about forcibly induced hypothermia.’
According to the Post the secret list of CIA techniques has been the subject of intense debate within the highest levels of the US government over the last several months, with the State Department seeking to deflect criticism of US torture and the Defense Department concerned that CIA methods could subject captured US soldiers to similar abuses. At the same time, Bush and Vice President Cheney, along with CIA Director Michael Hayden have defended the brutal methods, saying the CIA program was one of the most effective tools in the so-called war on terror.
Referring to the secret list of approved torture techniques one intelligence official told the Post that, while Hayden did not get “everything [he] might have wanted” in the guidelines, they contained everything the CIA needed and “more than was asked for.”
The Bush administration is doing an end-run around the Supreme Court decision upholding the application of the Geneva Conventions to CIA prisoners, as well as widespread public and international opposition to torture. In doing so, the administration is counting on the acquiescence and complicity of the Democratic Party, which played a key role in the passage of the Military Commissions Act that sanctioned military tribunals and the indefinite detentions of prisoners, while giving the president explicit authority to “interpret” the Geneva Conventions.
The Democrats response to Bush’s executive order was predictable cowardice, with their central concern being that the continued torture program be given an adequate legal and political fig leaf.
Democratic Senator John D. Rockefeller, chairman of the Senate Intelligence Committee, said it was difficult to “determine what the Executive Order really means and how it will translate into actual conduct by the CIA.” The CIA, he said, had to come before the Intelligence Committee “to explain in detail how it intends to apply the Executive Order” and the Department of Justice had to provide a “full legal analysis” of the interrogation guidelines.
“The stakes are too high and the issue too important to provide any comment until the Committee has been given the opportunity to fully evaluate the President’s action,” Rockefeller claimed about an administration that has consistently defended the use of torture methods. “This careful review,” the senator concluded, “will be part of the Committee’s continuing effort to determine whether the CIA detention and interrogation program is necessary, lawful and in the best interests of the United States.”