Human Rights Group: Obama Left Wiggle Room On Torture
Did President Obama’s executive order today banning torture leave wiggle room for the possibility of reverting to coercive techniques that the current exec order outlaws?
Michael Ratner, the president of the Center for Constitutional Rights, tells me he thinks the answer is Yes.
Obama strongly repudiated torture as he signed today’s executive order, which mandates that the Army Field Manual be strictly adhered to during interrogations. But Ratner pointed to the following lines in the executive order that, he said, provided a possible loophole by creating a Task Force to study the issue:
The mission of the Special Task Force shall be:
(1) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2-22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies …
The key there, Ratner says, is that the exec order appears to allow for an evaluation as to “whether” — a key word — the Army Field Manual techniques are sufficent to “protect the nation.” That, he says, allows for the Task Force to find after studying the issue that there may be cases where it’s acceptable to go beyond the Army Field Manual.
“It would allow the Task Force to go beyond the Army Field Manual,” Ratner told me. He added that this allowed for at least the possibility that the administration could conclude that “based on the recommendations of this commission, we will allow certain techniques to be used in certain circumstances.”
“It buys into the argument that somehow more severe [interrogation techniques] are going to somehow get at information that the Army field Manual is able to get at,” he continued, adding that it was tantamount to saying that “we’ll make an exception if there’s some kind of need to do so to get information.”
CIA agents are expected to be skeptical of this executive order, and Ratner says he hopes that these lines were put in there as a “sop” to the CIA. Nonetheless, he termed the inclusion of the “loophole” as “terrible.”
“I don’t like the fact that there’s any kind of loophole in an executive order that supposedly outlaws torture,” Ratner says.
One other data point: Today’s New York Times reports that White House counsel Gregory Craig, who’s in the thick of these decisions, privately told Congressional officials yesterday that “the White House might be open to allowing the use of methods other the 19 techniques allowed for the military,” as the paper put it.
Not good. This gives me a bad feeling, that we may see some waffling from Obama on this one, much as he ended up voting for the FISA Amendment Act including retroactive immunity for the telcos.
it’s hard to see how this isn’t a loophole … Robert Gibbs may have addressed this today…checking.
it’s hard to see how this isn’t a loophole … Robert Gibbs may have addressed this. I’m checking …
Or it could just be form. The task force comes back and says the AFM is good, and that gets affirmed. Looked at more cynically, if some flaw were to be detected later, the President is not solely responsible.
Anyway, that’s one possibility that seems plausible to me given how forceful he is being on this topic so far. Something to maintain pressure on, for sure, but I’m not ready to jump to conclusions just yet.
fair enough, roq. it’s also possible it was put in there to take the steam out of anticipated CIA criticism…
I read it differently. I read appropriate to mean “not torture” rather than “not forceful enough”.
As has been said in many places the last couple of days, “Old habits die hard.”
It’s time to let the Bush era go and stop viewing everything through that prism.
I don’t get it, sorry. This really doesn’t look like a loophole to me. I understand the need for vigilance, but this is making a mountain out of a molehill.
A loophole is an exception or omission that undermines, a clause that allows what the rest denies. But here, the “rest” restricts interrogations to the methods in the AFM, and the “loophole” creates a task force which may come to the conclusion that the methods in the AFM can be inadequate for the defense of the country. But that’s a long, long way from AUTHORIZING such tactics, which is what a loophole would do.
If Obama were looking for the authority and political cover to torture people, he sure has a roundabout way of getting it, considering that Bush tried to bequeath it to him.
to be clear, I don’t at all believe that Obama will or even intends to exploit the loophole…it seems worth noting, though, that this doesn’t appear to be 1000 percent ironclad…
To hear Mitch McConnell tell it, we just handed terrorist detainees a key to the city.
Dave, the language is symmetric, “different guidance” could in principle be stricter or less strict. But you’ve got to be a Pollyanna to assume it means stricter.
Do we believe that a president that oppose torture will allow it under his watch. I think not. I believe the study is to eliminate any legal maneuvers to reinstate torture as a method for interrogation.
Morsell Johnson: Do we believe that a president that oppose torture will allow it under his watch[?] I think not.
Bush at least said he opposed torture yet he allowed it on his watch. So I guess the answer to your question is it depends.
I don’t mean to suggest that Obama is the same as Bush. Not remotely. But still I think his vote on the FISA Amendment Act was a wake up call. He voted for a substantively bad bill with telco immunity (despite a promise to filibuster any such bill). The point is he can be vulnerable to bad proposals under the cloak of “national security”. We have to keep the pressure up for him and his administration to do the right thing. It’s not automatic.
Oh what a travesty–assembling a group of experts to conduct empirical assessments as to whether the AFM exhausts the spectrum of effective and humane interrogation techniques. This is not cause for sobbing; it’s pragmatism in action. You asked for it, here it is.
Greg, if you haven’t already please read Dr. Jeffrey Kaye’s commentary on this issue.
http://valtinsblog.blogspot.com/2009/01/confusion-in-press-on-torture-plans.html
As he states, there already was a controversy over adding a classified annex to the AFM. “Appendix M”. In conjunction with a Special Task Force already orientating itself toward less restriction, not more, its a dangerous brew indeed.
I think the most likely purpose is to be able to say that they’ve studied it and considered input from those who object to the restriction, and concluded (like everyone else who has studied it without preconceived conclusions) that torture is counterproductive — in particular, to say that it’s an expert conclusion, not just Obama’s “because I said so.” It’s also possible that there are non-torture interrogation techniques beyond those currently in the manual that are worth adding (I have no idea.)
But in any case, I agree it’s worth keeping an eye on.
The Army Field Manual is really quite restrictive and would severely tie our hands when interrogating. Much as I dislike Obama I do think the intent here is to ascertain whether more aggressive techniques are warranted and for that I applaud him.
“Do we believe that a president that oppose torture will allow it under his watch. I think not. I believe the study is to eliminate any legal maneuvers to reinstate torture as a method for interrogation.”
I agree totally.
I do not believe it is in any way Pollyanna-esque to have faith that Obama means what he says about no torture. For the love of Pete – he closed Gitmo immediately.
Cynicism is right out of fashion, folks.
O, and P.S.: He also ordered the CIA “black sites” closed.
Didn’t eight years of Bush teach anyone around here that having ‘faith’ in our elected leaders to do the right thing is not a good idea? A loop hole is a loophole – there’s no need to have it in there unless he is considering more aggressive techniques (said techniques do not need to amount to torture.)
Good Lord how many times have I read critics from the left complaining that our journalists weren’t adequately cynical and suspicious, and spent too much time cheerleading Bush’s crusade for war? We don’t need to be cynical but what happened to our lessons learned?
First let me give a big “Hey how are ya?” to Tena and Greg! Miss you guys over at TPM (which is also much less fun now). Anyways, great article Greg and I look forward to reading you in the future.
Regarding the topic at hand- while I certainly would like the wiggle room to be absolutely declared as non-existent by everyone- I don’t know if that is even possible. Personally, I’m giving Obama a little faith. It’s too early to cast doubt on every decision- You all know I still question and at times try to influence for the better. But I’m not going to doubt Obama on this yet. His positions have been too clear on the issue. Time will tell, and hopefully, with great bloggers like Greg, if it does happen we’ll catch it in time. I’m pretty sure Obama’s being straight up on this one though- and they American people are catching on too. Finally!
Hi,
I think it is worthwhile to look at the actual executive order, which can be found on the CCR website itself (see “order on interrogations” at the bottom). If you do this, it is plain that the task force (described in section 5) does not represent a loophole. Its mission and powers are limited to “study and evaluate” and to ‘provide a report to the President”. It has no ability to authorize any interrogation procedures. It can potentially *recommend* to Obama to authorize certain interrogation procedures, but Obama himself must act on those recommendations or they mean nothing.
In short, the only “loophole” or “wiggle room” here is that Obama could at some point issue a new executive order altering this one. But this would be true whether or not there were a “task force”, and will continue to be true until we pass legislation mandating standards like those of this current EO.
I think it’s also worth noting this fairly remarkable anti-loophole clause at the end:
“Sec. 6. Construction with Other Laws. Nothing in this
order shall be construed to affect the obligations of officers,
employees, and other agents of the United States Government to
comply with all pertinent laws and treaties of the United States
governing detention and interrogation, including but not limited
to: the Fifth and Eighth Amendments to the United States
Constitution… [long list of laws]… the Geneva
Conventions; and the Convention Against Torture. Nothing in
this order shall be construed to diminish any rights that any
individual may have under these or other laws and treaties.”
The UNCAT is comprehensive and unambiguous (if followed it even bars extraordinary rendition) and would seem to eliminate any wiggle room this order would otherwise have left.
The CCR is right to watch this “task force” with concern, and work to ensure whatever report the “task force” comes up with does not lead to a return to Bush-like standards. But the “task force” is by itself not a bad thing, since by itself all it does is inform the President. Short of actual future modification I think this order is extremely strong.
Didn’t eight years of Bush teach anyone around here that having ‘faith’ in our elected leaders to do the right thing is not a good idea?
Haven’t you learned yet that Barack Obama IS NOT George W Bush? Haven’t you listened to him? When has he ever given you or anyone any reason to think he isn’t telling it exactly like it is? He said no torture and he means it – I gave you evidence. He has ordered Gitmo closed AND the CIA black sites (so-called).
When did he ever give you reason to doubt him?
I think this order is extremely strong.
Given the rest of it that you posted, I completely agree. It’s very clear – I don’t think there is a loophole. It’s not ambiguous.
Overall, the Obama orders are very good. There is some obscurity about the ultimate fate of the prisoners, and also about what kind of legal proceedings will ultimately judge their fate. They should be adjudicated and released or otherwise sent to trial ASAP.
As to the Army Field Manual, I’ve written extensively on it. As Physicians for Human Rights notes in their recent press release, it allows for the use of seriously abusive interrogation techniques such as “sleep deprivation, sensory deprivation, and isolation—tactics which can constitute torture or cruel, inhuman or degrading treatment under U.S. and international law.”
When the manual was being written, the appendix was first proposed as a classified annex to the AFM. There was a fight over this, and the outcome was in some doubt until the day the thing was published (9/06). Being the creature of Stephen Cambone and Donald Rumsfeld, the core of an abusive interrogation program was planted into the manual and made it a very flawed choice for a template for interrogation.
It is tempting to see the end of the CIA’s use of “enhanced interrogation techniques” as the “end of torture” (which the Campaign to End Torture called it today). Unfortunately that it is not totally the case. For those interested, look up my recent article at Alternet (see link below), or a new article at the same site, detailing the history of the AFM, and a DoD admission that the AFM includes the use of sensory deprivation.
Link to Alternet article: http://www.alternet.org/rights/117807/how_the_u.s._army%27s_field_manual_codified_torture_–_and_still_does/
Link to PHR Press Release: http://physiciansforhumanrights.org/library/news-2009-01-22.html
One clarification: the new article at Alternet on the AFM history is not online as of Thursday night. It should be up on sometime over the weekend. But the other link to Alternet in the comment above is a good one, and will take you to a full article deconstructing how the interrogation process in the AFM works. This is really the only full description of that written by anyone thus far.
This most certainly is a loophole and, despite what Dave and Ralph opined, we have to look at everything through the prism of the Bush administration’s logic and tactics. As Kennedy said, ‘What is past is prologue.’ In this sense, we have to assume that, going forward, unless Obama specifically and outright rules against a Bush-era tactic then we can assume it will only continue. I hope this special task force finds that the AFM is the only and final word on interrogation. Enough of this garbage that we Americans torture and kill people in our custody. It makes me sick to know that we have blood on our hands. You know how embarrassing as a human being it makes me to introduce myself as an American when overseas, even if I say I never voted for Bush? We all enabled him and we all must work to disable the process that allowed for tortures and murders to happen at our hands. 9/11 is over. We simply should not torture; this is what separates us from our enemies. End of story.
“Loophole” – you keep using that word. I do not think it means what you think it means.
mcc’s analysis is correct – this is horrible commentary.
I should add that there is a lot of this going on lately – opinion pieces or puff reporting by liberals that slopply critique actions of Obama (not that he shouldn’t be called out when he deserves it). The commentator is called out for being sloppy and then reflexively claims “balance” or a “continued commitment to tough investigation”. Really its just a lack of real critical thinking and an attempt to show consistent principles (and get “cred”). I’ll stick to Wolf Blitzer for my self-aggrandizing news reporting.
Agree that this is horrible commentary, and because the author is a prominent commentator, a lot of people are jumping on it to “prove” that Obama doesn’t mean what he says about torture. Although it’s great to be a watchdog, it’s lousy to be a scold – especially when there’s no justification for it. It will undermine Obama’s agenda just as surely as Republican talking points to create issues with trust where there are none.
Also, anyone who’s still obsessing about Obama’s FISA vote (after he publically opposed it, and only finally voted for its amended version after its passage was inevitable and a lesser of two evils) is trying to pic nits.
Impeach Obama-he failed his first great test – waffling on torture is not acceptable – he is worse than Bush – Bush stood behind what he did – Obama tries to hide behind a “commission”
Impeach Obama NOW!!!!
This is silly. Obama should be scrutinized and held to his word, but there is absolutely nothing wrong with a review of the Army field manual to see if it needs to be adjusted. Revising it does not automatically mean it will have torture added into it. This language is almost certainly nothing more than a pledge to take the whole issue seriously, blah blah. Those of you freaking out need to go outside for a smoke and settle down.
Sapient – I agree. Poorly reasoned. Greg Sargent is one of the best but this post reflects a bit of poor judgment.
Bush “took the whole issue seriously” – and took my safety and the safety of my children and grandchildren safely – wish Obama showed some concern for those who will be harmed and killed by acts of terror that we now have no chance of learning about from captured conspirators – thanks Barry!!!!
You folks were obviously not listening when the chosen one proclaimed in his sermon on the mall that we were at war – give me a wartime President….
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by the way, Diane Feinstein also thinks that the exec order isn’t good enough:
http://theplumline.whorunsgov.com/torture/feinstein-moves-to-close-that-loophole-on-torture/
Feinstein wants to clarify/strengthen the standard, but it doesn’t appear her action would even be in conflict with reviewing the AFM. It’s still not a loophole, and you continue to look foolish for using the word.
Politico today has an excellent article about some of the issues at play here. Greg was spot on with his reporting here.
http://www.politico.com/news/stories/0109/17841.html
Can I interject some perspective into this sky-is-falling hand-wringing?
The Pentagon doesn’t like it when politicians (of any stripe) rewrite their Field Manuals. They prefer (for obvious reasons) to have those manuals written and edited by personnel with knowledge and experience. That separation of the political and military branches is why we don’t have Commissars running around in the ranks like the Soviets did.
So if Obama wants the FM rewritten without stepping all over the military’s toes, he will order the Pentagon to review and rewrite it for him. The military will make that process more scientific than political — and as we know, the science on torture is in, and torture does not work.
Mqtt – please provide a source – torture does work and works very well – ask anyone who has gone through the SERE program…
Please do not take this to mean I favor torture [or not] but that I think we make a huge mistake when we try and dismiss torture as ineffective.
LonelyLibertarian:
Please provide a shred of evidence that torture ‘works very well’, bearing in mind that the ‘ticking time bomb’ argument is morally bankrupt and intellectually fraudulent.
People being tortured will tell their torturers anything they think their torturers want to hear. Torture is also illegal according to both US and international law, in addition to being sadistic and repulsively cruel.
With regard to the argument that ‘torture works’ – well, I read a while back that torturing people close to the suspect works a lot better. Would you argue that, say, raping and torturing a suspect’s five year old child would be reasonable if it would save lives? If your argument is a utilitarian one – that sacrificing one person’s life or wellbeing is acceptable if it would save a hundred people, you should be absolutely fine with the scenario I’ve proposed.
Megan McCardle had a good post – that I fundamentally agree with…
http://meganmcardle.theatlantic.com/archives/2007/08/does_torture_work.php
And I want to be clear the does it work argument does not deal with the moral/ethical issue which is not trivial.
BUT
And there is always a but…
How do we decide what is torture and what is not.
Is telling a prisoner he will never see his family again if he does not cooperate torture – for some it surely is…
How about holding him in an interrogation room without access to a bathroom or food or water for ___ hours [how long a time is ok - when does it become "torture" and is the standard absolute or relative]
Is turning the temperature in a holding cell down to 50 degrees torture – again for some it surely is [and this is one of the permissable techniques in the Army field manual]
Sleep deprivation – noise innundation – humiliation – forced nudity all seem pretty torturous to me….
My argument in the current case is that any “line” we choose is artificial – that no one can tell me that the last thing allowed on the list is inherently different than the first thing disallowed…
As for the hypothetical child rape argument – it is way down the continuum of horrific steps that one might have to consider if lives were at stake – well beyond waterboarding…
I don’t want anyone to be tortured – or even interrogated in the ways I have alluded to above – I think that one human being be demeaned in any way by another is unacceptable
But I don’t want people flying airplanes into buildings – or declaring war on me and my children and my grand children – or wrapping themselves up in dynamite and blowing themselves and innocent men, women and children nearby into small pieces.
Nor do I want any human to face the choices that an interrogator must deal with – he/she has my sympathy as much or more as his subject.
I resent those who try and make this as simple as some would – it isn’t – it is hard and complex.
What on earth is an official from the Japanese Fisheries Agency doing as the main lobby spokesman for scientific research into whales?
If you delve into it (the press, put out by the Japanese Fisheries Agency), youll find JFA asserts that Whales are depleting the worlds oceans, by consuming 2-5 times more food than humans do.
Perhaps the World should turn its attention to international fishing methods and rights, to solve that problem?
The issue about killing whales is no longer about the abundance of their numbers or not , rather it is: do we really need to harpoon and eat these intelligient socially sophisticated creatures?
The Japanese population mostly dont like to eat whale meat.
They prefer to watch and photograph them.
Japans population is as up to date as the rest of us are about the advances made in understanding whales. Theyre not big fishanymore, and there are abundant alternatives to eat,get soaped and perfumed and oiled with , which wasnt the case in the justifyable old days.
Its in truth a few businessman archaicly extravagantly doing their misery day.
A few laser beamed suited up , satelite insulated and aimed instructors, paying harpoonguys to pump laser guided spears into whales. really cultural stuff,a real continuation of the men in wooden planked boats with oars desperately hunting whales for survival.
Nah …just a bunch of wankers!