Analysis: Opacity and Legal Loopholes make CIA torture ban unenforceable

You may have had the news on in the background Friday and heard something that sounded vaguely comforting but at the same time quite surprising: President Bush had issued an executive order that would prohibit the CIA from using “torture and cruel, inhuman and degrading treatment, sexual abuse, denigration of religion and serious acts of violence” in its interrogations of suspected al Qaeda operatives and enemy combatants. The US, the president finally seemed to be acknowledging, had finally seen the error of of its ways; no longer would gross violations of the Geneva Conventions be accepted. For just a few examples of egregious war crimes allegedly committed by the US in prosecuting its “War on Terror”, see here, here and here.

The world’s remaining superpower would yield to the authority of the US Supreme Court’s recent Rumsfeld v. Hamdi decision regarding so-called military commissions and resume living up to its obligations under international laws the various conventions to which it had long been a signatory to. Just like the administration already promised to do about a year ago.

But then, you realized that as with everything this administration claims, up is really down, war is peace and as David Cole says in his news analysis in Salon, You Have to Read the Fine Print.

Cole, a law professor at Georgetown who in the last few years has firmly established himself as one of the most knowledgable critics of the Bushies’ systematic flouting of the Geneva Convention, notes that:

The executive order prohibits the CIA from using torture and cruel, inhuman and degrading treatment, sexual abuse, denigration of religion and serious “acts of violence” in its interrogations. While one might have thought that the impermissibility of such tactics in official US interrogations would go without saying, it has not been so since 9/11. This is an administration that narrowly defined “torture” to permit the use of sexual abuse, stress positions, injecting suspects with intravenous fluids until they urinate on themselves, prolonged sleep deprivation, exposure to extreme heat and cold and “waterboarding,” i.e., simulated drowning.

This is an administration that adopted as official legal policy the counterintuitive and deeply immoral position that international law’s ban on “cruel, inhuman and degrading treatment” did not apply to foreigners held by the US outside US borders. And this is an administration that opined that the president could order torture itself if he so chose as a way of “engaging the enemy,” notwithstanding a federal criminal statute and ratified treaty banning torture under all circumstances, including war.

Despite it’s lofty rhetoric, Cole’s analysis reveals the numerous serious flaws with Bush’s Executive Order. First, he observes that specific information about the authorized interrogation tactics employed by the CIA remains opaque; Bush’s lawyers rationalize this by arguing interrogators need to “keep detainees guessing” about how far they can go in order to interrogate effectively. Cole puts to rest this specious claim by noting that the US Army has publicly revealed its rules of engagement in the form of its Field Manual (whether these regulations are actually followed, on the other hand, remains a separate question).

Second, he points out that “While the executive order flatly forbids torture and cruel, inhuman and degrading treatment, its failure to specify permissible and impermissible techniques seems designed to leave the CIA wiggle room”.

Finally, and most importantly, Cole brings to our attention the disturbing reality that:

[T]he order creates no rights enforceable by any victim against the United States or its employees, while expressly offering CIA employees a defense against any attempt to hold them liable for abuse. The ultimate purpose of the law, in other words, is to protect the potential perpetrators, not the potential victims. (Emphasis added)

Nor is there any mechanism for enforcement outside the courts. The International Committee for the Red Cross ordinarily monitors treatment of detainees, and this oversight has historically been a critical safeguard against abuse. But this order applies to interrogation at CIA “black sites,” secret prisons into which suspects are “disappeared” for years at a time, and from which the United States has barred the Red Cross or any other outside monitor. “Disappearances” are themselves a fundamental violation of international human rights, in large part because they facilitate abuse, yet this order allows that practice to continue unabated.

In the Washington Post, ace White House columnist Dan Froomkin effectively makes many of the same arguments as Cole.

The key graphs:

Friday’s executive order — compounded by a series of nonresponsive press statements by senior administration officials — appears to leave CIA interrogators with considerable latitude to engage in harsh tactics that most people would likely consider torture.

And:

[T]he White House still refuses to say which tactics are banned and which are OK. To Bush and his aides, the right of Americans to know what is being done in our name is outweighed by their dubious conviction that such information would serve the enemy. Instead, a White House beset by credibility problems is asking us to trust it.

That final point, I think, pretty much nails the problem with all of this obfuscation.

More critical analysis from (yet another) Georgetown law professor Marty Lederman at Balkinization, William Douglas and Jonathan Landay at McClatchy’s, with some good quotes from Human Rights Watch and the Brennan Center for Justice and Think Progress.