The president's recent executive order allows the CIA to detain anyone the agency thinks is a terrorist -- or a terrorist's kid.

by Rosa Brooks

'We ... have to work the dark side, if you will," Vice President Dick Cheney told NBC's Tim Russert, five days after the 9/11 terrorist attacks. "We've got to spend time in the shadows using sources and methods that are available to our intelligence agencies. That's the world [terrorists] operate in, and so it's going to be vital for us to use any means at our disposal."

It was an odd thing to say. Throughout our history -- from John Winthrop's 1630 "City Upon a Hill" sermon to President Clinton's foreign policy speeches -- our leaders have been quick to assure us of the opposite premise: We will prevail against our enemies because (and only if) we're on the side of light, rather than the side of darkness. We will prevail not through spending "time in the shadows" but through our commitment to freedom, democracy, justice and the rule of law.

Granted, previous rhetorical commitments to the side of light were at times accompanied by some pretty dark episodes. But if we didn't always manage to live up to the values we publicly embraced, our public commitments at least gave us a yardstick for measuring ourselves -- and declared to the world our willingness to be held to account when we fell short.

But in keeping with Cheney's admonition to "work

the dark side," this administration has openly embraced tactics that no previous administration would have formally condoned. In prior wars, for instance, we granted the protections of the Geneva Convention to our enemies as a matter of policy, even when those enemies -- like the Viet Cong -- lacked any legal claim to the convention's protections. Yes, some U.S. soldiers abused Viet Cong prisoners anyway -- but when they did so, they violated the clear written laws and policies of the United States.

Contrast that with the Bush administration, which refused to recognize any Geneva Convention rights for the "unlawful enemy combatants" captured in the war on terror until finally ordered to do so by the Supreme Court.

Within months of Cheney's "dark side" comments, Guantanamo filled up with hooded, shackled prisoners kept in open-air cages. The Justice Department developed legal defenses of torture, we opened secret prisons in former Soviet bloc countries and the president authorized secret "enhanced" interrogation methods for "high-value" detainees.

And despite the best efforts of human rights groups, the courts and a growing number of congressional critics from both parties, Cheney's still getting his way. On July 20, President Bush issued an executive order "interpreting" Common Article 3 of the Geneva Convention, as applied to secret CIA detention facilities. On its face, the order bans torture -- but as an editorial in this paper noted Thursday, it does so using language so vague it appears designed to create loopholes for the CIA.

Just as bad, though barely noted by the media, last week's executive order breaks new ground by outlining the category of people who can be detained secretly and indefinitely by the CIA -- in a way that's broad enough to include a hefty chunk of the global population. Under its terms, a non-U.S. citizen may be secretly detained and interrogated by the CIA -- with no access to counsel and no independent monitoring -- as long as the CIA director believes the person "to be a member or part of or supporting Al Qaeda, the Taliban or associated organizations; and likely to be in possession of information that could assist in detecting, mitigating or preventing terrorist attacks [or] in locating the senior leadership of Al Qaeda, the Taliban or associated forces."

Got that? The president of the United States just issued a public pronouncement declaring, as a matter of U.S. policy, that a single man has the authority to detain any person anyplace in the world and subject him or her to secret interrogation techniques that aren't torture but that nonetheless can't be revealed, as long as that person is thought to be a "supporter" of an organization "associated" in some unspecified way with the Taliban or Al Qaeda, and as long he thinks that person might know something that could "assist" us.

But "supporter" isn't defined, nor is "associated organization." That leaves the definition broad enough to permit the secret detention of, say, a man who sympathizes ideologically with the Taliban and might have overheard something useful in a neighborhood cafe, or of a 10-year-old girl whose older brother once trained with Al Qaeda.

This isn't just hypothetical. The U.S. has already detained people based on little more. According to media reports, the CIA has even held children, including the 7- and 9-year-old sons of Khalid Sheikh Mohammed. In 2006, Mohammed was transferred from a secret CIA facility to Guantanamo, but the whereabouts of his children are unknown.

It's dark out there, all right.

rbrooks@latimescolumnists.com
© 2007 The Los Angeles Times