The Obama Administration
The Executive Orders
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’.