It's really tough sorting out the new Executive Order on torture. But after a whole day of pondering the details, I think I'm finally getting it. It's yet another Bush signing statement, this time to record his own personal interpretation of the Geneva Convention. After all--that's where this new EO came from: after SCOTUS, in Hamdan, told Bush that all detainees were covered by the Geneva Convention, after Congress, with the Military Commissions Act, told Bush he could shred concepts like habeas corpus but only if he had documentation for doing so, he was forced to write this new EO.
Charlie Savage provides a good overview:
Bush's executive order laid out broad guidelines for how the CIA must treat detainees in its secret overseas prisons, where the administration has held some suspects without giving them access to the Red Cross. The document prohibits a range of abuses, including "intentionally causing serious bodily injury" and "forcing the individual to perform sexual acts," as well as mistreating the Koran.
The order also said the CIA director must personally approve the use of extraordinary interrogation practices against any specific detainee. Detainees must also receive "adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care," it said.
But most of the president's executive order is written in generalities, leaving unanswered whether the CIA will be free to subject prisoners to a range of specific techniques it has reportedly used in the past, including long-term sleep disruption, prolonged shackling in painful stress positions, or "waterboarding," a technique that produces the sensation of drowning.
That is, some of the most obvious abuses--using sex and religion--are now forbidden. But the key information, what remains permitted, is in a separate, classified list that we don't get to see. And three other key details: the Executive Order explicitly denies any legal responsibilities associated with the EO, so even if some overzealous torturer ignores it, he's not going to jail. The Red Cross remains unable to monitor prisoners in this newfangled "enhanced interrogation" program. And Congress still doesn't have a copy of the DOJ opinion on the program. For that matter, Karen DeYoung reports that the Administration hasn't responded to Congress' other questions, either.
They said the administration has not responded to the questions they asked during a recent briefing on the new order and the detainee program.
Mind you, this is the DOJ review that Congress mandated as part of the Military Commissions Act. But I guess that's classified too.
All of which leaves the fascinating glimpses of how--in the ten months it has taken Bush to write this EO (stunning by itself--if this stuff was so legal before, why did it take 10 months to sort out what would remain legal?)--the interested parties have lobbied to endorse their own particular view of torture. There's the State Department, that tried to err on the side of respectability within the international community. According to Mark Mazzetti this includes adopting the international definition of "humiliating and degrading."
The order uses a definition of “humiliating and degrading treatment” that conforms to standards set by international case law, a victory for State Department officials.
Earlier this year, State Department officials rejected a draft of the executive order because they believed that the language was too permissive and could open the Bush administration to challenges from American allies that the White House was legalizing methods that approach torture.
And DOD, which tried to err on the side of practices that might be used on our own service men and women. And then there's intelligence, which claims to have studied this almost scientifically (from DeYoung):
The intelligence official said the agency itself had studied the effectiveness of past techniques and retained or jettisoned them on a "sliding scale." The criteria, he said, were what was "appropriate, effective, lawful and sustainable."
But it wouldn't be an abuse of power if Cheney's minions weren't involved, and they were apparently pushing to embrace torture (from Mazzetti) .
Some Bush administration officials, including members of Vice President Dick Cheney’s staff, pushed for a more expansive interpretation of Geneva Convention language and for interrogation methods that the C.I.A. had not even requested.
Of course they did! Force CIA to continue waterboarding (though, FWIW, Mazzetti has several unnamed officials claiming that waterboarding is off the list), that's Dick Cheney's way. Now couple Mazzetti's comment with this one from DeYoung, and you'll see why I consider this Cheney's signing statement:
While Hayden did not get "everything [he] might have wanted" in the guidelines, the official said, they contained everything the CIA needed and "more than was asked for."
It seems to me Cheney won at least some of those bureaucratic battles, even if State won the fight on degrading treatment.
And all the while, the CIA seems to be somewhat schizophrenic about the usefulness of torture. There's this comment in the Mazzetti article, suggesting half of the recent terrorism NIE comes from detainees.
According to one senior intelligence official, nearly half of the source material used in the recent National Intelligence Estimate on the terrorism threat to the United States came from C.I.A. interrogations of detainees.
Only ... this entire NIE was written at a time when Bush had supposedly halted CIA torture to bring it into line with SCOTUS and congressional demands. So either those interrogations did not use torture--and we can get an entire NIE without the use of it--or it's really outdated, almost back to the last terrorism NIE, released last April.
I'm guessing its the former--that no torture was used to produce the recent NIE. Which kind of accords with something else Mazzetti reports.
C.I.A. officials said that [Abd al-Hadi al-Iraqi] produced valuable intelligence, despite the fact that C.I.A. interrogators at the time were only authorized to use the techniques approved for Pentagon interrogators.
That is, even as the CIA is boasting that they're getting more than they asked for, they're effectively admitting that they didn't need the torture in the first place, they've been doing fine without it.
Good thing Cheney's there to force them to use torture they don't need, huh?