Saying that "our ideals give us the strength and moral high ground" to fight terrorism, President Barack Obama signed executive orders Jan. 22 ending the CIA's secret overseas prisons, banning coercive interrogation methods, and closing the Guantánamo Bay detention camp within a year. He ordered a cabinet-level review of what to do with purportedly dangerous prisoners who cannot be tried in US courts; whether some interrogation methods should remain secret to keep al-Qaeda from training to resist them; and how the US can make sure prisoners transferred to other countries will not be tortured.

As Obama signed the three orders in a White House ceremony, 16 retired generals and admirals who have fought for months for a ban on coercive interrogations stood behind him and applauded. The group, organized to lobby the Obama transition team by Human Rights First, did not include any career CIA officers or retirees. "We intend to win this fight," Obama said, "We are going to win it on our own terms."

One of the orders requires the CIA to use only the 19 interrogation methods outlined in the Army Field Manual, ending President Bush's policy of permitting the agency to use secret methods that went beyond those allowed for military interrogators. However, the New York Times reports that White House counsel Gregory Craig privately told Congressional officials that "the White House might be open to allowing the use of methods other the 19 techniques allowed for the military," in the paper's paraphrase.

The order closing Guantánamo assigns the Attorney General to lead a review of what should happen to the remaining detainees and does not rule out the possibility of trying some of them using military commissions, as has the Bush administration. Another order directed a high-level review of the case of Ali Saleh Kahlah al-Marri, a suspected terrorist termed "dangerous" by Obama and currently being held in a military jail in South Carolina.

The Times wrote that the executive order on interrogations "is certain to be received with some skepticism at the CIA." The agency built a network of secret prisons in 2002 to house and interrogate high-level terrorism suspects. The exact number of suspects to have moved through the prisons is unknown, although departing CIA director Michael V. Hayden has put the number at "fewer than 100."

In September 2006, President Bush, facing international condemnation, ordered that the remaining 14 detainees in CIA custody be transferred to Guantánamo Bay and tried by military tribunals.

But Bush made clear then that he was not shutting down the CIA detention system, and in the last two years, at least two suspects are believed to have been been detained in agency prisons for several months each before being sent to Guantánamo. The Times quoted "a government official" saying that Obama's order would still allow CIA officers to temporarily detain terrorism suspects and transfer them to other agencies, but would no longer allow the agency to carry out long-term detentions. (NYT, Jan. 21)

But the WhoRunsGov blog finds that the order on "coercive interrogation methods" actually leaves "wiggle room" to allow torture. Michael Ratner of the Center for Constitutional Rightspointed to the following lines in the executive order that he said provided a possible loophole by creating a Task Force to study the issue:

The mission of the Special Task Force shall be:

(1) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2-22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies...

Ratner says the order appears to allow for an evaluation of "whether" the Army Field Manual techniques are sufficient to "protect the nation." This, said Ratner, "would allow the Task Force to go beyond the Army Field Manual." The administration could conclude that "based on the recommendations of this commission, we will allow certain techniques to be used in certain circumstances." While acknowledging that the CIA is likely to find the order too restrictive, Ratner said, "I don't like the fact that there’s any kind of loophole in an executive order that supposedly outlaws torture."

See our last post on Gitmo and the torture scandal.

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