The New York Times reports that President Obama is expected to sign executive orders mandating that Guantanamo Bay prison be closed within 100 days, secret prisons set up abroad be closed, and restricting the CIA to interrogation methods used by the military. There may be some anxiety about these two paragraphs:
But the orders would leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.'s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.
The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other the 19 techniques allowed for the military.
We know torture produces unreliable intelligence, and we know that it has tarnished our international reputation and been used as a recruiting tool for Al Qaeda. Therefore, if we capture the highest-profile terrorist in the world, we should certainly prove our critics right by torturing him rather than giving him a fair trial. I suppose what's odd about that kind of thinking is that positing an extreme hypothetical to justify torture is a dead giveaway that we know it's wrong. If we were to actually capture bin Laden and then subsequently torture him, it would be a disaster for our reputation as a country and an important symbolic victory for al-Qaeda.
Obviously I haven't seen the draft of the order that the Times has, but torture is illegal and we are bound by treaty not to practice it. So while yes, it's technically possible that Obama could do it again, it would be just as illegal as when Bush did it, and I doubt there's any way the folks appointed to the OLC would approve it.
The second paragraph refers to the CIA being restricted to the techniques outlined in the Army Field Manual. My understanding is that intelligence types are concerned that the restrictions would prevent them from using techniques that are not in the manual, but are also not torture. I don't have the sources or the experience to determine the degree to which that's a legitimate concern or a beard for torture techniques.
All in all, I would say it's something of a SLAP in the FACE that Obama waited until he was actually president to ban torture and order Guantanamo closed.
-- A. Serwer
