The Obama Administration
Barack Obama campaigned for the presidency with a promise to put an end to many of the practices under the Bush administration. Writing in Foreign Affairs in 2007, Obama argued that:
‘To build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries, of detaining thousands without charge or trial, or maintaining a network of secret prisons to jail people beyond the reach of the law’.
Immediately upon entering office in 2009, President Obama passed three Executive Orders which significantly changed the legal parameters within which the US military and intelligence communities could detain and interrogate terror suspects. The headline changes were:
- An end to CIA prisons. The CIA was no longer allowed to operate its own detention facilities, thereby revoking President Bush’s still-classified memo of 17 September 2001, which authorised the CIA detention programme. The DOD were now the only authorised detaining agency in the context of overseas armed conflict and counterterrorism operations.
- An end to secret detention. Secret detention was outlawed for all detainees in all armed conflicts, who find themselves in US custody, under the effective control of the US, or otherwise held within a US detention facilit
- An end to ‘enhanced interrogation’. Permissible techniques for all US interrogations were now limited to those found in Army Field Manual 2-22.3. These restrictions now applied to all those in US custody, under the effective control of the US, or otherwise held within a US detention facility. The Detainee Treatment Act 2005 had previously outlawed harsher techniques during DOD interrogations, but President Bush had vetoed attempts in March 2008 to restrict the CIA to the same methods.
- An end to extraordinary renditions for the purposes of torture. Transfers of detainees to third countries would need to explicitly comply with domestic and international legal obligations to ensure that such transfers did not result in torture.
While it is unclear how much these Orders altered the situation on the ground, given that the CIA prisons were largely empty by the end of 2006, they did represent the formalisation of shifts in the rendition and secret detention programme witnessed during the final years of the Bush administration. A message by CIA Director Leon Panetta in April 2009 confirmed that the black sites had been closed, and that enhanced interrogation techniques were no longer employed.
It is important to note, however, that it remains possible for US forces to continue their involvement with rendition, secret detention and torture whilst also remaining within the legal parameters set out by Obama’s Executive Orders. Specifically:
- Rendition itself has not been outlawed, and in fact explicitly remains as a valid counterterrorism tool. It is claimed that those subjected to rendition will be closely monitored to ensure proper treatment, although many human rights groups and lawyers argue that such ‘diplomatic assurances’ have proved worthless in the past.
- Secret detention and torture are only outlawed to the extent that the detainee is ‘in the custody 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, in any armed conflict’. As long as the detainee cannot be said to be ‘under effective control’ of the US, or in a US-operated facility, CIA and DoD agents have not been expressly forbidden by the President from aiding the secret detention and torture conducted by others. There is evidence that this loophole has been exploited by the CIA in recent years. For example, reports have surfaced in recent years of involvement in the rendition, secret detention and torture of terror suspects in the Horn of Africa, in operations led by local security forces with the CIA playing an ‘advisory’ role.
- The CIA can still capture and hold temporarily terror suspects, before transferring them to DoD control or to third countries.
- All agencies within the DoD – including the elite units with a history of aggressive interrogation and torture in Iraq and Afghanistan, such as those under the Joint Special Operations Command (JSOC) – retain the authority to detain terror suspects. This authority is pursuant to Bush’s Military Order of 13 November 2001, which has not been revoked by Obama. Importantly, this order mandates the indefinite military detention, at any ‘appropriate location’, of all individuals determined by the President to be a member of al Qaeda, or anyone involved in any way with any acts of international terrorism designed to damage US interests. Such detention can take place anywhere in the world, including outside of any theatres of conflict, and can still involve the extra-legal transfer of detainees between states for military detention elsewhere (military rendition). This continues to apply despite parallel efforts by the Obama administration to close Guantánamo Bay, and has facilitated a huge upswing in the numbers detained in Bagram Air Base in Afghanistan. In this context, the New York Times reported that ‘the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the CIA from using its secret prisons for long-term detention and ordered the military prison at Guantanamo closed within a year’.
This Order mandated the following changes to the detention, transfer and interrogation of those captured in armed conflicts and held in US custody:
- The Order revoked President Bush’s Executive Order 13440 , which was passed in July 2007 and reaffirmed that the CIA operated a detention and interrogation programme, and that al Qaeda, Taliban and associated detainees were not entitled to the protections that the Third Geneva Convention provides to prisoners of war. Bush’s Order also declared that Common Article 3 applied to CIA detentions and interrogations, but interpreted this Article in such a way that continued to allow forms of ‘enhanced interrogation’.
- In its place, the Order established that all those detained by the US in any armed conflict can only be interrogated using means set out in the Army Field Manual 2-22.3.
- Furthermore, all those detained by the US in any armed conflict were now to be granted timely access to the ICRC.
- It was also determined that the CIA ‘close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future’.
- Last, a Special Task Force on Interrogation and Transfer Policies was established, chaired by the Attorney General, to review whether the interrogation practices and techniques contained in Army Field Manuel 2-22.3 were an appropriate framework for non-DOD agencies (namely, the CIA). The Task Force was also set to review the practice of rendition of detainees to third countries, in order to ensure that such transfers do not result in torture or other circumvention of US commitment to humane treatment of those in its custody.
This Order found that closing the detention facilities at Guantanamo Bay would be in the interests of the US, and that it should be achieved within a year. However, it also found that doing so without first ‘determining the appropriate disposition of the individuals detained’ would not serve US interests. As such, the Order called for the immediate review of all Guantanamo detainees, in order to determine them as either eligible for transfer, release, prosecution or other ‘lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice’. In the meantime, referrals of any further cases to military commission under the Military Commission Act were prohibited, pending the review of these.
The final Order was the least substantive of the three, and simply established a Special Interagency Task Force on Detainee Disposition, in order to ‘conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations’.