President Obama’s repudiation of the Bush administration’s keystone counterterrorism policies on detention, torture and blanket surveillance has been neither consistent nor complete. To the contrary, the new administration’s actions and statements in its first week in office hint at a clear ordering of priorities when it comes to rolling back its predecessor’s most troubling decisions. While opponents of torture have cause for celebration, those worried about excessive electronic surveillance should be especially concerned.
Evidence of the new president’s views on key national security issues emerged in four executive orders issued on January 22 concerning torture and detention issues. Obama’s selection of Eric Holder as attorney general, and Holder’s ensuing confirmation hearings, cast new light on where those policies will go. Furthermore, the administration will soon be forced to put more cards on the table because of pending litigation. Fast-approaching filing deadlines will force the new attorney general, once confirmed, to determine whether or not to sustain Bush administration positions.
The Obama White House’s priority so far has been torture, where it has made a significant and substantive pivot. This was followed by subtle, yet still important, changes on detention policy. By contrast, the early signs are that Obama will stick with positions on privacy and electronic surveillance adopted by the Bush administration in its final years.
Start with torture. Emblematic of the Bush administration’s dogma that force alone could resolve national security problems and that laws limiting force should be shunted aside was the Bush-Cheney commitment to torture, which endured until their last days in office.
One of Obama’s four executive orders revokes all Bush-era executive instructions on interrogations and warns against any reliance on legal opinions issued by Bush administration lawyers. It compels uniform compliance, throughout the government, with a set of tactics limited and defined by a 2006 Army Field Manual, which, as I have argued, is a necessary benchmark.
As important as Obama’s new ban on torture is, the new and unequivocal prohibition on “cruel treatment,” “outrages upon personal dignity” and “humiliating and degrading treatment,” all of which are forbidden by Common Article 3 of the Geneva Conventions, is also critical. An important strategy during the Bush administration was to insist that it did not torture, even as it found ways to undermine these other important rules for lesser forms of coercive conduct. By eliminating any legal gray area, the Obama administration has dramatically reduced the likelihood of any interrogation slipping into coercion.
Yet while Obama’s rejection of torture is more absolute that his position on other civil liberties issues, it is not without caveats and ambiguities.
As a threshold matter, it is unclear whether the interrogation order covers the entire universe of detainees. It applies to “individuals detained in any armed conflicts.” However, another executive order envisions detention operations occurring in both “armed conflict” and “counterterrorism operations.” These reforms thereby leave a loophole–“counterterrorism operations”–in which the new anti-torture regime might not apply.