By JOSH GERSTEIN | 1/23/09 4:28 AM EST
Experts predict that American policy towards detainees could remain for months or even years pretty close to what it was as President Bush left office.
There may be less than meets the eye to the executive orders President Obama issued yesterday to close the prison at Guantanamo Bay and prohibit the torture of prisoners in American custody. Those pronouncements may sound dramatic and unequivocal, but experts predict that American policy towards detainees could remain for months or even years pretty close to what it was as President Bush left office.
“I think the administration’s commitment to close Guantanamo is heartening; the fact they want to give themselves a year to do it, not so much,”, said Ramzi Kassem, a Yale Law School lecturer who represents prisoners like inmate Ahmed Zuhair, who was captured in Pakistan in 2001. “That would bring men like my client to eight years imprisonment for no apparent reason.”
Here are a few of the delays, caveats and loopholes that could limit the impact of Obama’s orders:
1. Everyone has to follow the Army Field Manual—for now…
Obama’s executive order on interrogations says all agencies of the government have to follow the Army Field Manual when interrogating detainees, meaning the CIA can no longer used so-called enhanced interrogation techniques, which have included waterboarding, the use of dogs in questioning, and stripping prisoners.
However, the order also created an interagency commission which will have six months to examine whether to create “additional or different guidance” for non-military agencies such as the CIA. One group that represents detainees, the Center for Constitutional Rights, deemed that an “escape hatch” to potentially allow enhanced interrogations in the future.
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White House counsel Greg Craig told reporters such fears are misplaced. “This is not an invitation to bring back different techniques than those that are approved inside the Army Field Manual, but an invitation to this task force to make recommendations as to whether or not there should be a separate protocol that's more appropriate to the intelligence community,” he said.
The distinction Craig made between “protocols” and “techniques,” though, seems less than clear.
“For now, they’re punting, saying they’ll comply with what’s in the Army manual…but at some point in the future this commission may revert to the executive” to recommend harsher techniques, said Kassem, adding that he was concerned about how transparent the commission’s recommendations would be.
“I’m happy to postpone that discussion [on “enhanced interrogation”]… on the condition that [it] happens transparently,” he said.
A Columbia law professor who worked on detention issues at the State Department under President Bush, Matthew Waxman, said Obama is wise to leave open the possibility of different guidance for the CIA’s experienced interrogators. “I’ve worked on drafts of the Army Field Manual,” Waxman said. “It’s designed to be in the hands of tens of thousands of people who may not have a lot of training or supervision.”
2. Obama ordered a 30-day review of Guantanamo conditions—by the man currently responsible for Guantanamo.
A section of Obama’s order on Guantanamo entitled “Humane Standards of Confinement” orders Secretary of Defense Robert Gates to spend the next thirty days reviewing the current conditions at the Caribbean prison to make sure they’re legal and follow the Geneva Convention. It seems doubtful that Gates, who has been atop the chain of command for Guantanamo for more than two years, will suddenly find conditions that were just fine on Monday of this week are now flagrant violations of the Geneva Convention.
“He’s not exactly impartial,” Kassem said.
Waxman pointed out that adhering to the Geneva Condition is “already the law,” and deemed that section of the order “bizarre.”
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