Eli Lake is also reporting that there is a "loophole" in the executive order closing the CIA's so-called black sites:
President Obama's executive order closing CIA "black sites" contains a little-noticed exception that allows the spy agency to continue to operate temporary detention facilities abroad.
The provision illustrates that the president's order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time.
Lake thus concludes that:
The exception is evidence that the new administration, while announcingan end to many elements of the Bush "war on terror," is leaving itself wiggle room to continue some of its predecessor's practices regarding terrorist suspects.
The executive order does indeed say that "The terms "detention facilities" and "detention facility in section 4(a) of this order do not refer to facilities used only to hold people on a short term, transitory basis." But calling this a loophole ignores the original point of the black sites, which was to hold suspected terrorists in "isolation and secrecy, perhaps for the duration of their lives," and so CIA officers would be able to use torture, or transfer detainees to countries where they would be tortured. But by nature, temporary detention facilities don't hold people indefinitely, and the executive order holds that "whenever such individuals are in the custody of, or under the effective control of an officer, employee or other agent of the United States Government or detained within a facility owned, operated or controlled by a department or agency of the United States" their treatment must be consistent with Common Article 3 of the Geneva Convention and "not subject to violence to life and person" or "outrages upon personal dignity (including humiliating and degrading treatment)." Part (b) of Section 4 cited by Lake requires employees or any "other agent of the United States Government" to provide the Red Cross with "notification of, and timely access to" any individual detained.
So they can't, by definition, be "black sites" as they came to be known under the Bush administration. Lake notes:
The detentions would be temporary. Suspects either would be brought later to the United States for trial or sent to other countries where they are wanted and can face trial.
If they're detained temporarily, rather than indefinitely, under section 3(b) of the executive order they can't be tortured, and the detainees would be brought to trial here or elsewhere, how is this a continuation of Bush's policies?
I can't vouch for what the Obama administration will actually do...but there's little in the letter of the executive order that resembles Bush's policies on so-called black sites.
-- A. Serwer
