Obama's Mixed Message on Torture Policy

At a press conference to mark his first 100 days in office,
President Obama declared, "We have rejected the false choice between
our security and our ideals by closing the detention center at
Guantanamo Bay and banning torture without exception." I have looked at
the President's misleading statement about Guantanamo, and analyzed his
progress - or lack of it - in closing the prison in a previous article,
and in this second article I'm going to focus on his assertion that the
new administration has been responsible for "banning torture without
exception."

On the surface, Obama appears to have been true to his word. In two Executive Orders
issued on his second day in office (along with an order relating to the
closure of Guantanamo), he established that the questioning of
prisoners by any US government agency (including the CIA) must follow
the interrogation guidelines laid down in the Army Field Manual, which
guarantees humane treatment under the Geneva Conventions, and also
required the CIA to close any still-existing secret prisons.

This order also established a Special Interagency Task Force on
Interrogation and Transfer Policies, to evaluate "whether the
interrogation practices and techniques in the Army Field Manual, 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
guidelines for other departments or agencies." This task force was also
charged with evaluating "the practices of transferring individuals to
other nations," to ensure that they do not face torture.

Allied to this, in some ways, is the other Executive Order
establishing another Special Interagency Task Force to provide an
overview of detention policy options, which was charged with reviewing
the "lawful options" available to government with respect to the
"apprehension, detention, trial, transfer, release, or other
disposition of individuals captured or apprehended in connection with
armed conflicts and counter-terrorism operations."

These two task forces have until the end of July to deliver their
reports, but while the President is undoubtedly to be commended for
drawing a clear distinction between himself and his predecessor
regarding the broad outlines of detention and interrogation policies,
critics have already noted a few worrying signs that certain loopholes
may have been left open.

Appendix M of the Army Field Manual

One of these concerns the Army Field Manual. Reintroducing it as the
benchmark for military interrogations, for example, is clearly
necessary to call a halt to the licensed sadism of the years when
Donald Rumsfeld was defense secretary, but Jeff Kaye, psychologist and
anti-torture blogger, raised concerns in January
about part of the manual, Appendix M, which, as he described it,
authorizes the use of specific torture techniques used in the "War on
Terror," including "solitary confinement, perceptual or sensory
deprivation, sleep deprivation, the induction of fear and hopelessness,
and the likely use of sensory overload, temperature or environmental
manipulation." Kaye's concerns have been picked up by human rights
organizations, including Amnesty International, which mentioned, in its
review of Obama's first 100 days (PDF),
its disappointment that the administration was "endorsing without
qualification" a document "which permits prolonged sleep deprivation,
isolation and manipulation of a detainee's fears contrary to the
international ban on torture."

This was certainly not how the military saw it, when the new Army Field Manual was issued in September 2006. At a press conference,
Lt. Gen. Jeff Kimmons, the Army G-2 senior intelligence officer,
specifically addressed concerns about Appendix M. As Kimmons described
it, "Our four-star combatant commanders also specifically requested,
based on battlefield experience, that we include one restricted
technique called separation, for use on a by-exception basis only with
unlawful enemy combatants. That is, it's not authorized for use on
prisoners of war and other protected persons."

Kimmons proceeded to explain, "Separation allows interrogators to
keep unlawful enemy combatants apart from each other as a normal part
of the interrogation process, so they can't coordinate their stories
and so that we can compare answers to questions that interrogators have
posed to each other without there having been collusion. It's for the
same reason that police keep murder suspects separated while they're
questioning them, although this is within an interrogation context."

On the surface, Kimmons's explanation seemed reasonable enough, but
Kaye pointed out that it was, in fact, "inconsistent with the
explanation for separation given in the current Army Field Manual," in
which the technique is not about the "normal interrogation process," as
the following passage makes clear (emphasis added): "Separation should
be used as part of a well-orchestrated strategy involving the innovative application of unrestricted approach techniques. Separation requires special approval, judicious execution, special control measures and rigorous oversight."

It may be, as a former intelligence officer noted on his blog (Decline and Fall),
that "separation" can only be approved by a General, and, "given the
political climate" regarding detainee abuse, would be "very hard to
obtain," but I have to admit that I fail to find it reassuring that
techniques that bear more than a passing resemblance to those that
drowned the "War on Terror" in a morass of torture and abuse should be
sanctioned at all, especially as "separation" is so clearly described
as only forming part of an unspecified program involving, as I
highlighted above, "the innovative application of unrestricted approach
techniques," and, of course, because it is specifically targeted at
prisoners regarded as being outside the reach of the Geneva Conventions
("unlawful enemy combatants," in the Bush administration's parlance).

Under Obama, we are led to believe that the Geneva Conventions will,
henceforth, apply to all prisoners held by US forces, but, as I explain
below, there are other reasons for believing that a loophole has been
left open for the possible detention of future "illegal enemy
combatants."

"Extraordinary rendition"

My
concerns about this possibility center on the Obama administration's
review of the detention and transfer of prisoners; in other words,
those parts of the policy directed towards appraising the system of
"extraordinary rendition" developed by the Bush administration. In its
review of Obama's first 100 days, Amnesty International singled out
"the possibility of the CIA abducting and detaining people in
'short-term transitory' facilities" as an unacceptable loophole. This
came from an otherwise laudable announcement a month ago by the CIA's
new director, Leon Panetta, in which Panetta stated,
"CIA no longer operates detention facilities or black sites and has
proposed a plan to decommission the remaining sites," but added that
the agency "retains the authority to detain individuals on a short-term
transitory basis."

Realistically, it is hard to argue with the agency having the
opportunity to hold prisoners on a temporary basis, especially if, as
Panetta also stated, "Under the Executive Order, the CIA does not
employ any of the enhanced interrogation techniques that were
authorized by the Department of Justice from 2002 to 2009." What is
worrying, however, is the suggestion that certain "black sites" were
still open just a month ago, and this comment becomes more troublesome
when analyzed in connection with Panetta's additional comments about
the agency's authority to hold prisoners on a short-term basis.
Although he wrote that no detentions had occurred "since I have become
Director," he added, "We anticipate that we would quickly turn over any
person in our custody to US military authorities or to their country of jurisdiction, depending on the situation."

I've highlighted the phrase that troubles me, as it undoubtedly
indicates that, were certain situations to arise in future, the CIA is
prepared to transfer prisoners to third countries, where, very
possibly, they would face the risk of torture, and the only logical
conclusion I can draw is that, essentially, the Obama administration's
only real problem with "extraordinary rendition" is one of scale. The
Bush administration's industrial-scale rendition policies have been
banished, but the prospect of limited rendition - to third countries
rather than to the US court system, as would surely be more acceptable
- is being kept as a possible option.

The Office of Legal Counsel's torture memos

In some quarters, it has been suggested that the Obama administration's decision, three weeks ago, to release four previously classified memos
issued by the Justice Department's Office of Legal Counsel in 2002 and
2005 (which purported to justify the use of torture by the CIA) was an
important gesture in signaling a break with the previous
administration. And in some ways it was, of course, but it should also
be remembered that the memos were not released spontaneously, but as
the result of a pending lawsuit by the American Civil Liberties Union.

It
was also clear that the President was unsure how to play the memos'
release. Both he and Attorney General Eric Holder went out of their way
to pledge that no one would be prosecuted for following orders. Obama said,
"In releasing these memos, it is our intention to assure those who
carrying out their duties relying in good faith upon the legal advice
from the Department of Justice that they will not be subject to
prosecution," and, in a similar vein, Holder added,
"It would be unfair to prosecute dedicated men and women working to
protect America for conduct that was sanctioned in advance by the
Justice Department."

This was understandable in the sense that operatives cannot
necessarily be required to know whether or not the orders they are give
are legally sound (although it should also be noted that many people
knew when they were crossing a line, regardless of what they were
told), but Obama then appeared to over-emphasize the point by visiting
CIA headquarters, and telling a group
of around 1,000 CIA employees, "What makes the United States special,
and what makes you special, is precisely the fact that we are willing
to uphold our values and ideals even when it's hard - not just when
it's easy." To my mind, this only ended up insulting those brave souls,
like the military defense attorneys in the Military Commission trial system, or the prosecutors who resigned, or other officers
who broke ranks to complain about the brutality and injustice of the
"War on Terror," and who, as a result, lost their jobs or otherwise
endangered their careers.

It was also noticeable that, when polls seemed to indicate a shift
towards a belief that a proper investigation of the Bush
administration's activities should take place, the President dropped
his "looking forward and not backwards" mantra, and, while maintaining
that "For those who carried out some of these operations within the
four corners of legal opinions or guidance that had been provided from
the White House, I do not think it's appropriate for them to be
prosecuted," added, significantly,
"With respect to those who formulated those legal decisions, I would
say that that is going to be more of a decision for the Attorney
General within the parameters of various laws, and I don't want to
prejudge that."

What was particularly disappointing about all of this was that it
showed an administration shifting about uneasily in an attempt to avoid
confronting the compelling truth that senior Bush officials had admitted that they had been involved in torture, including waterboarding, that both Obama and Holder
had stated publicly that waterboarding was torture, and that, as a
result, because torture is a crime according to US law, those
responsible for implementing it must be held accountable.

However, while the administration's approach to the release of the
torture memos has sent out mixed messages, the President and the
Justice Department have failed miserably to differentiate themselves
from their predecessors on two other fronts relating to the use of
torture in the "War on Terror."

Blocking habeas corpus at Bagram

The first of these concerns Bagram, the prison at the US airbase
north of Kabul, Afghanistan, where an estimated 650 prisoners are held,
in conditions that make Guantanamo - still an opaque establishment,
despite the publicity surrounding it - look positively transparent. The
prisoners at Guantanamo have secured several significant Supreme Court
victories between 2004 and 2008 establishing that they have rights
(however much the nation's politicians attempted to remove them in the
intervening years), and they have also had access to attorneys for over
four years, have been through review processes that, however
inadequate, have at least cleared some of them for release, and in recent months have, in a few cases, been ordered to be freed by US courts.

At Bagram, however, none of these rights apply, but in February,
when four habeas corpus cases filed on behalf of prisoners in Bagram
reached a US court, the Obama administration refused to distance itself
from its predecessor's blanket refusal to open up the prison to any
kind of outside scrutiny, stating simply that, "Having considered the
matter, the Government adheres to its previously articulated position."

At
the time, Judge John D. Bates had already suggested that he suspected
that this was an unacceptable position to take, because Bagram appeared
to be "a 'black hole' for detainees in a 'law-free zone,'" but it was
not until a month ago, having reviewed the arguments more
comprehensively, that he understood that there were different
categories of prisoner in Bagram: foreigners captured in other
countries and "rendered" there, Afghans captured in other countries and
"rendered" there, and Afghans captured in Afghanistan.

The latter category were (in theory, at least) connected to events
in an ongoing war zone (and were, moreover, subject to delicate
negotiations between the US and Afghan governments), and Judge Bates
reserved judgment about one of the four cases (an Afghan captured in
another country and "rendered" back to his home country), but he had no
hesitation in declaring that the habeas rights granted by the Supreme
Court to the Guantanamo prisoners last June in Boumediene v. Bush
also extended to the foreign prisoners in Bagram (who included the
other three men in the cases before him), because, as he explained
succinctly, "the detainees themselves as well as the rationale for
detention are essentially the same." In fact, as Judge Bates also noted
(and as I explained in depth in an article at the time),
the review process at Bagram is both "inadequate" and "more
error-prone" than the tribunal process used at Guantanamo, and "falls
well short of what the Supreme Court found inadequate at Guantanamo."

This is not, strictly speaking, a story about torture, but it
becomes one when the stories of these men are examined in any detail,
and it becomes apparent that they were all held in a variety of secret
prisons in Afghanistan, which were run by the CIA, or under the
agency's control, before they even arrived at Bagram. This knowledge,
plus the implications of Judge Bates's ruling, made it doubly shocking
when, instead of abiding by the decision, the Obama administration
appealed, prompting the New York Times
to declare that the appeal "signaled that the administration was not
backing down in its effort to maintain the power to imprison terrorism
suspects for extended periods without judicial oversight."

Blocking accountability for the CIA torture team's "travel agent"

The other shock concerned a case initially brought by the ACLU
against Jeppesen Dataplan, Inc., a Boeing subsidiary, on behalf of five
prisoners subjected to "extraordinary rendition" and torture (Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi - profiled here),
who were suing the company for damages based on their involvement in
their ordeal as the CIA's "travel agent." The Bush administration had
intervened the first time round, invoking the little-used state secrets
doctrine, and requesting a dismissal of the entire action before
Jeppesen filed an answer to the complaint, and when the case was
revived in February, the Obama administration again followed suit,
slavishly copying its predecessor, as it did with Bagram.

To
be fair, if the administration is determined not to hold operatives to
account for crimes sanctioned at the highest level, then it was logical
that it would intervene to prevent Jeppesen's contractors from being
held to account, but, when the case was reviewed by the Court of
Appeals for the 9th Circuit, the judges - led by Judge Michael Daly
Hawkins, and also including Judges Mary M. Schroeder and William C.
Canby, Jr. - were not concerned with politics, but with the law, and
they had no hesitation in demolishing the government's case.

Jeppesen's involvement in, and knowledge of the rendition program
was actually revealed in an extraordinary declaration by Sean Belcher,
a former employee, who stated that the director of Jeppesen
International Trip Planning Services, Bob Overby, had told him,

"We do all the extraordinary rendition flights," which
he also referred to as "the torture flights" or "spook flights."
Belcher stated that "there were some employees who were not comfortable
with that aspect of Jeppesen's business" because they knew "some of
these flights end up" with the passengers being tortured. He stated
that Overby had explained, "that's just the way it is, we're doing
them" because "the rendition flights paid very well."

This declaration was cited by the judges, without comment, in a
footnote, but when it came the "relatively thin history" of the state
secrets doctrine the judges were merciless, dismissing the government's
reliance on the two precedents - one involving a secret agreement
between the government and a spy in the nineteenth century, the other
(from 1953) with the prevention of "discovery of secret evidence when
disclosure would threaten national security" - for their irrelevance to
the Jeppesen case.

They did this first by pinpointing the "clear error" the District
Court made when it initially dismissed the case, when the court
declared, "inasmuch as the case involves 'allegations' about the
conduct of the CIA, the privilege is invoked to protect information
which is properly the subject of state secrets privilege," and also
declared that "the very subject matter of this case is a state secret."
In contrast, the Appeals Court judges insisted that "The subject matter
... is not a state secret, and the case should not have been dismissed at
the outset."

Dismissing the government's arguments, they concluded that, although
the government may be entitled to protect certain evidence in the
interests of national security, it has no justification for suppressing
judicial scrutiny of the case as a whole, particularly because some
information relating to the case is already publicly available, and
also because what the government is actually trying to do, with no
legal precedent whatsoever, is to impose a blanket ban on all
discussion of potential government wrongdoing.

The ruling is peppered with passages chastising the government, and I recommend those with an interest to read the full ruling (PDF), but the following is particularly sharp:

At base, the government argues ... that state secrets form
the subject matter of a lawsuit, and therefore require dismissal, any
time a complaint contains allegations, the truth or falsity of which
has been classified as secret by a government official. The district
court agreed, dismissing the case exclusively because it "involves
allegations" about [secret] conduct by the CIA." This sweeping
characterization of the "very subject matter" bar has no logical limit
- it would apply equally to suits by US citizens, not just foreign
nationals; and to secret conduct committed on US soil, not just abroad.
According to the government's theory, the Judiciary should
effectively cordon off all secret government actions from judicial
scrutiny, immunizing the CIA and its partners from the demands and
limits of the law. (emphasis added)

Elsewhere, the judges drew on Boumediene, in which the
Supreme Court stated that, while "[s]ecurity depends upon a
sophisticated intelligence apparatus," it "subsists, too, in fidelity
to freedom's first principles [including] freedom from arbitrary and
unlawful restraint and the personal liberty that is secured by the
adherence to the separation of powers." They also drew on Hamdi v. Rumsfeld,
another important Guantanamo case in the Supreme Court (in 2004), in
which the justices stated, "Separation-of-powers concerns take on an
especially important role in the context of secret Executive conduct.
As the Founders of this nation knew well, arbitrary imprisonment and
torture under any circumstance is a 'gross and notorious ... act of
despotism.'"

I was also particularly impressed by the following passage:

If the simple fact that information is classified were
enough to bring evidence containing that evidence within the scope of
the [state secrets] privilege, then the entire state secrets inquiry -
from determining which matters are secret to which disclosures pose a
threat to national security - would fall exclusively to the Executive
branch, in plain contravention of the Supreme Court's admonition that
"[j]udicial control over the evidence in a case cannot be abdicated to
the caprice of executive officers" without "lead[ing] to intolerable
abuses." ... A rule that categorically equated "classified" matters with
"secret" matters would, for example, perversely encourage the President
to classify politically embarrassing information simply to place it
beyond the reach of judicial process.

What was notable about this passage was that it succinctly
encapsulated the entire approach to "classified" information that was
maintained by the Bush administration, and also mentioned invoking
national security to prevent embarrassment - or, it could be said, to
prevent the disclosure of crimes.

This kind of hyperbole, exercised to prevent embarrassment (or
worse), was, I thought, the hidden sub-text of a shrill submission by
CIA director Michael Hayden, moving for dismissal of the original
complaint, when he claimed that disclosure of information relevant to
the Jeppesen case "could be expected to cause serious - and in some
instances, exceptionally grave - damage to the national security of the
United States," and the point was rammed home by the judges in a
footnote citing a 1953 letter to President Eisenhower from Attorney
General Herbert Brownwell, in which Brownwell wrote that classification
procedures were then "so broadly drawn ... as to make it possible for
government officials to cover up their own mistakes and even their
wrongdoing under the guise of protecting national security."

It also brings me neatly to my conclusion. I understand that
President Obama doesn't want to rock the boat, endangering a fragile
peace with the Republican party, in order to secure as much consensus
as possible when so many other major policy decisions need to be made
(and, perhaps, members of his own party need to be shielded from
revelations of their knowledge of the grisly details of the "War on
Terror"). However, as the 9th Circuit Court of Appeals has just
demonstrated so admirably, by setting new rules for appropriate conduct
while holding at bay any accountability for the Bush administration's
crimes, he is not only shielding those who are no longer in office from
full disclosure of their activities - from the embarrassing to the
depraved - but is also allowing himself to be infected by the same
disdain for the separation of powers, and the same endorsement of
unfettered Executive power, that was the Bush administration's most
toxic legacy for the values on which the republic was founded.

I'm still erring on the side of presuming that this is more to do
with pragmatism than it is with deliberate, coldly conceived policy,
but, like Judge John D. Bates and the judges of the 9th Circuit Court
of Appeals, I'm beginning to run out of patience.