Friday, July 20, 2007
Black Hole Rules
As required by the Military Commissions Act, President Bush has just signed an Executive Order interpreting the Geneva Conventions prohibition of torture. A quick reading of the Order leaves me guardedly optimistic that the CIA interrogation program has now been officially prohibited from using torture as most sane people understand that term.
To begin with, it clearly locates the definition of torture in the context of the US Constitution, with all the rights and protections it guarantees:
"Cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Later, it prohibits torture as defined by the US Code, as well as a long list of other practices, including anything "...so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency..."
There remain, however, a number of troubling aspects. While use of the detainee program is limited to members of Al Qaeda, the Taliban, and their associates who are likely to have information about terrorist attacks or the whereabouts of terrorist leaders, the Order leaves it up to the Director of the CIA to identify just who that refers to. Also, nowhere does the Order extend habeas corpus rights to detainees.
And since it always pays to be somewhat skeptical of the Bush administration's sincerity, the actual Constitutional amendments it cites could conceivably provide some loophole wiggle room. The 8th Amendment very clearly prohibits "cruel and unusual punishments".
But the 5th Amendment, which guarantees due process, makes an exception for "... cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..." And the 14th Amendment refers to equal protection under the law across State jurisdictions, which I can't imagine will apply to non-nationals held in a Soviet-era Polish dungeon.
On the whole, good news. But the Devil will be in the details of the codified instructions delivered to actual CIA interrogators in the field.