In the first sign of friction within his new administration, President Obama overruled the pleas of senior U.S. intelligence officials and signed a new executive order that bars the CIA from using harsh interrogation methods beyond those permitted by the U.S. military.
The order was one of four sweeping directives Obama signed calling for the closure of the U.S. detention facility at Guantánamo Bay and revamping U.S. counterterrorism policies.
The executive orders, while expected, represented a clean break with Bush administration policies and won quick praise from human-rights groups. Still, many of the difficult details—such as what to do with Guantánamo detainees still deemed dangerous—will be left up to a special interagency panel that won't report its recommendations to Obama for six months. The panel is to be chaired by Obama's choice for attorney general, Eric Holder, who is still awaiting confirmation.
In perhaps his most far-reaching and potentially controversial move, Obama ordered that the CIA immediately cease using any interrogation techniques that are not already authorized in the U.S. Army Field Manual. He also ordered the CIA to close, "as expeditiously as possible," any secret detention facilities overseas and begin immediate compliance with Common Article 3 of the Geneva Conventions, which prohibits "humiliating and degrading" treatment of prisoners.
The interrogation directive represents the sharpest departure from Bush-era policies and was the subject of vigorous internal debate among Obama advisers. Just last year, President Bush vetoed legislation that would have restricted CIA interrogations, saying "this is no time for Congress to abandon practices that have a proven track record of keeping America safe."
In recent days, senior U.S. intelligence officials, including CIA Director Michael Hayden and outgoing Director of National Intelligence Mike McConnell, told Obama's advisers and journalists that they still needed the flexibility to use some interrogation methods not permitted by the military. If nothing else, intel officials argued, inducing fear among detainees that they might be subjected to harsh practices was useful in persuading them to talk.
"They were permitted to state their case," said one senior Obama adviser, who asked not be identified talking about internal deliberations.
But in the end, Obama's review team, headed by new White House Counsel Gregory Craig, rejected their arguments and questioned the premise that such methods were necessary. Obama is satisfied that the use of the military field manual "will not compromise national security," said another senior administration official, who also asked not to be identified talking about the administration's review process.
In a now-notorious Aug. 1, 2002, legal memo written by conservative lawyers at the Justice Department, the CIA was told it could use a wide variety of unorthodox techniques, including waterboarding, against Al Qaeda suspects. Although the agency insists it has not used waterboarding since 2003, the CIA is believed to have continued to use some "enhanced" interrogation methods, such as temperature manipulation and stress positions, although the precise techniques remain classified. Counterterrorism officials close to the issue say they wanted to maintain the option to trick prisoners into believing they would face physical harm from foreign intelligence services if they didn't cooperate. While the Army Field Manual does permit some trickery, it expressly forbids physical threats to prisoners, as well as coercion, physical abuse and waterboarding. However, Obama's order does call for a special interagency task force to review interrogation methods and recommend some techniques that go beyond the Army Field Manual—effectively permitting the intelligence agencies to remake their case for more leeway.
In a stinging, if not entirely surprising, rebuke to Bush administration legal policies, Obama's order states that U.S. government officials involved in interrogations may no longer rely on any Justice Department legal memos written between September 11, 2001, and Jan. 20, 2009. Such memos—many of them still secret and the subject of fierce controversy during the Bush years—were, with one stroke of Obama's pen, made invalid.
But many of the hardest questions involving detainee treatment remain and are certain to be the subject of further controversy. No sooner did Obama issue his orders, for example, than Kansas GOP Sen. Pat Roberts fired off a press release denouncing as "unacceptable" the idea that some of the detainees there might be moved to a U.S. military prison in Fort Leavenworth, Kans. "If President Obama and [Senate Intelligence Committee chairwoman] Diane Feinstein want [Guantánamo] closed, why don't they move it to Illinois or California?" Roberts said.
Another GOP lawmaker, Sen. Chris Bond of Missouri, vice chairman of the Senate Intelligence Committee, raised the specter of notorious Gitmo detainees even being released inside the country. "I can't think of any city or town across this country that will be thrilled to have Khalid Sheikh Mohammad or Abu Zubaydah living down the street," Bond said.
Obama's directive gives his administration up to one year to shut down Guantánamo—a far longer time span than many human-rights groups would favor. The order directs his newly created interagency panel to review the status of all 240 prisoners there and seek to return as many as possible to third countries that will agree to take them—a goal the Bush administration tried to accomplish on its own with only limited success.
The order further directs that others be tried, either in criminal courts in the United States or in U.S. military court under the Uniformed Code of Military Justice. While the U.S. military commissions—which the Bush administration had been using to seek to try Guantánamo detainees—have been suspended, the Obama administration is leaving open the option of returning to such tribunals under revamped procedures in the future.
The toughest question of all is what to do with a third group of detainees: those deemed to be hard-core terrorists or still dangerous, but who can't be tried either because the evidence against them is classified or was gleaned from waterboarding or other methods that might be deemed to be torture. That group may be as many as 50 or 60 detainees, the senior Obama advisor said.
It is possible that Obama may end up seeking legislation or creating a process that would allow for indefinite detention of this group, with the caveat that some yet-to-be-created tribunal would periodically review their status. But that hasn't been decided. "All we've done for now," the adviser said, "is set up a process."